Taren L Gardner v. Michael J Astrue, No. 2:2012cv07275 - Document 17 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth below, the decision of the Commissioner is affirmed. (See document for details.) For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 TAREN L. GARDNER, 10 Plaintiff, 11 12 13 ) ) ) ) ) ) ) ) ) ) ) ) ) v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration, 14 Defendant. 15 Case No. CV 12-07275-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Taren L. Gardner seeks judicial review of the 18 Commissioner s final decision denying her applications for disability 19 insurance benefits ( DIB ) and Supplemental Security Income benefits 20 ( SSI ). 21 Commissioner is affirmed. For the reasons set forth below, the decision of the 22 23 24 I. Background Plaintiff as was a born on May cashier/checker, 25, 1972, nurse s and aide, has relevant medical work 25 experience assistant, 26 automobile self-service attendant, and home attendant. (Administrative 27 Record ( AR ) at 75.) Plaintiff filed an application for DIB on December 28 21, 2008, followed by an application for SSI on June 29, 2009. In the 1 applications, Plaintiff alleges disability beginning January 27, 2006, 2 due to discogenic and degenerative back disorders and breast cancer. (AR 3 at 47, 59.) 4 Plaintiff s applications were denied initially on May 6, 2009, and 5 upon reconsideration on November 10, 2009. (AR at 59.) An administrative 6 hearing was held on April 21, 2011, before Administrative Law Judge 7 ( ALJ ) Zane A. Lang. Plaintiff, represented by counsel, testified, as 8 did June C. Hagen, Ph.D., a Vocational Expert ( VE ). (AR at 59.) On May 3, 2011, the ALJ issued an unfavorable decision. (AR at 59- 9 10 77.) 11 impairments of: status-post breast cancer surgery, degenerative disc 12 disease of the lumbar spine, reactive airway disease, obesity, anemia, 13 depression, and borderline intellectual functioning. He found that she 14 is unable to perform any of her past relevant work. (AR at 75.) 15 Nevertheless, he found that Plaintiff has the residual functional 16 capacity ( RFC ) to perform sedentary work, except that she is limited 17 to simple instructions and decision-making, and is further limited in 18 her ability to: lift weights; stand; sit; work with ladders, ropes or 19 scaffolds; balance stoop, knee, crouch, crawl or climb; and be exposed 20 to fumes. (AR at 68-69.) The ALJ concluded that considering Plaintiff s 21 age, education, work experience, and RFC, there are jobs that exist in 22 significant numbers in the national economy that she can perform. (AR at 23 75.) The Appeals Council denied review on July 2, 2012. (AR at 1.) 24 The ALJ Plaintiff determined commenced that this Plaintiff action for suffers judicial from the review, severe and on 25 February 19, 2013, the parties filed a Joint Stipulation ( Joint Stip. ) 26 of disputed facts and issues. Plaintiff raises the single claim that the 27 record does not support the ALJ s finding that the occupations that 28 Plaintiff is able to perform exist in significant numbers in the 2 1 national economy. Plaintiff seeks remand for the payment of benefits or, 2 in the alternative, remand for further administrative proceedings. 3 (Joint Stip. at 21-22.) Defendant requests that the ALJ s decision be 4 affirmed or, if the Court finds that the ALJ committed reversible error, 5 that the Court remand so that the Commissioner may correct any error. 6 (Joint Stip. at 22-23.) 7 8 II. Standard of Review 9 Under 10 Commissioner s 11 Commissioner or ALJ must be upheld unless the ALJ s findings are based 12 on legal error or are not supported by substantial evidence in the 13 record as a whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 14 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 15 evidence means such evidence as a reasonable person might accept as 16 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 17 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It 18 is more than a scintilla, but less than a preponderance. Robbins v. Soc. 19 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 20 substantial evidence supports a finding, the reviewing court must 21 review the administrative record as a whole, weighing both the evidence 22 that supports and the evidence that detracts from the Commissioner s 23 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 24 the evidence can support either affirming or reversing the ALJ s 25 conclusion, the reviewing court may not substitute its judgment for 26 that of the ALJ. Robbins, 466 F.3d at 882. 27 // 28 // 42 U.S.C. § decision 405(g), to a deny district benefits. 3 court The may review decision of the the 1 III. Discussion 2 Plaintiff contends that the ALJ erred in adopting the testimony of 3 VE Hagen that the occupations that Plaintiff is able to perform exist in 4 significant number in the national economy. At the hearing, VE Hagen 5 testified that someone with Plaintiff s RFC would be able to perform 6 production jobs such as: touch-up screener-PC board, Dictionary of 7 Occupational Titles ( DOT ) 726.684-110; lens inserter-optical, DOT 8 713.687-026; and stone setter-jewelry, DOT 735.687-034. (AR at 32, 76.) 9 She stated that there were approximately 6,000 local and 160,000 10 national touch-up screener jobs, approximately 2,200 local and 94,000 11 national lens inserter jobs, and approximately 2,100 local and 93,000 12 national stone setter jobs. No explanation was provided as to how she 13 had arrived at these numbers. 14 Following the ALJ's decision denying benefits, Plaintiff submitted 15 new evidence to the Appeals Council, seemingly undermining VE Hagen's 16 testimony regarding the availability in the economy of the jobs suitable 17 to Plaintiff's RFC. (AR at 306-22.) First, she submitted a copy of pages 18 from the Specific Occupation Employment Unskilled Quarterly ( SOEUQ ), 19 a publication from the private company United States Publishing. The 20 SOEUQ excerpts included are from the fourth quarter of 2010, and state 21 that there were far fewer local and national jobs available for the 22 occupations of touch-up screener, lens inserter, and stone setter than 23 represented by the VE.1 Plaintiff also submitted information from Job 24 Browser Pro, version 1.6, a publication of a private company called 25 26 1 27 28 The SOEUQ states that for the occupation of touch-up screener, there were 114 jobs locally and 2,862 nationally; for lens inserter there were 1 locally and 30 nationally; and for stone setter there were 33 jobs locally and 596 jobs nationally. (AR at 308, 310-12.) 4 1 Skilltran. The Job Browser Pro data shows that for the year 2011, there 2 were 3 represented by the VE.2 The Appeals Council denied review, noting that 4 it had considered the additional evidence submitted by Plaintiff, but 5 that this information did not provide a basis for changing the ALJ s 6 decision. (AR at 1-5.) far fewer jobs available for the relevant occupations than 7 In determining whether to grant review, the Appeals Council must 8 consider any new and material evidence submitted to it relating to the 9 period on or before the date of the [ALJ's] hearing decision. 20 C.F.R. 10 § 416.1470(b). However, in rejecting post-hearing evidence, the Appeals 11 Council is not required to make any particular evidentiary finding. 12 Gomez v. Chater, 74 F.3d 967, 972 (9th Cir. 1996). When, as here, the 13 Appeals Council does consider the additional evidence but denies review, 14 the additional evidence becomes part of the administrative record for 15 purposes of this Court's analysis. Brewes v. Comm'r of Soc. Sec. Admin., 16 682 F.3d 1157, 1161 63 (9th Cir. 2012). Thus, this Court must engage in 17 an overall review of the ALJ's decision, including the new evidence, 18 to 19 evidence and was free of legal error. Taylor v. Comm'r of Soc. Sec. 20 Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). 21 determine whether the decision was supported by substantial An ALJ may properly rely on a VE s testimony regarding occupational 22 issues. See 20 C.F.R. § 416.966(e) (authorizing ALJs to rely on 23 vocational expert testimony to determine occupational issues); Osenbrock 24 v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (testimony of qualified 25 26 2 27 28 According to the Job Brower Pro data, there were 87 local and 1,787 national touch-up screen jobs, 2 local and 51 national lens inserter jobs, and no local and 3 national stone setter jobs. (AR at 308, 313-315.) 5 1 vocational expert constitutes substantial evidence). Additionally, the 2 Ninth Circuit has held that where the ALJ relies on proper evidence in 3 concluding that there are jobs in the national economy that a claimant 4 can perform, the Appeals Council is free to reject contradictory 5 evidence obtained after an adverse administrative decision. See Gomez, 6 74 F.3d at 972 (finding that the Appeals Council appropriately rejected 7 the report of claimant s vocational expert, which stated that no jobs 8 were available that claimant could perform, when the ALJ had properly 9 relied on the Medical-Vocational Guidelines to find that such jobs did 10 11 exist). Here, Plaintiff s argument that the VE s testimony does not 12 constitute substantial evidence in light of conflicting evidence from 13 the SOEUQ and Job Browser Pro is without merit. Neither the SOEUQ nor 14 Job Browser Pro is included in the list of published sources recognized 15 as authoritative by Social Security regulations. 16 404.1566(d). While Plaintiff identifies several decisions in which 17 courts have acknowledged that VE testimony relying on the SOEUQ or Job 18 Browser Pro can constitute substantial evidence, none hold that a VE 19 must rely on them or that these sources control when they conflict with 20 VE testimony. See, e.g., Brault v. Social Sec. Admin., Com'r, 683 F.3d 21 443 (2d Cir. 2012) (endorsing district court s finding that it was 22 appropriate for the VE to consult the Occupational Employment Quarterly 23 in rendering his testimony); Poisson v. Astrue, 2012 WL 1067661, at *9 24 (D. Me. March 28, 2012) (holding that VE s testimony was reliable when 25 she relied on Job Browser Pro as well as her own professional experience 26 and expertise in endorsing the numbers provided). See 20 C.F.R. § 27 Plaintiff suggests that the VE s methodology for determining the 28 numbers of jobs in the economy was faulty; however, she does not 6 1 identify what methodology was used nor how it was problematic. The ALJ 2 was entitled to rely on the VE s testimony despite the fact that the VE 3 did not identify the methodology used. See Bayliss v. Barnhart, 427 F.3d 4 1211, 1218 (9th Cir. 2005) (finding that a VE's recognized expertise 5 provides the necessary foundation for his or her testimony. Thus, no 6 additional foundation is required. ). At best, Plaintiff has presented 7 evidence sufficient to support an alternative finding regarding the 8 number of relevant jobs available in the economy.3 That is not enough to 9 warrant remand. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 10 2002) ( Where the evidence is susceptible to more than one rational 11 interpretation, one of which supports the ALJ's decision, the ALJ's 12 conclusion must be upheld. ). 13 Accordingly, substantial evidence supported the ALJ's finding that 14 Plaintiff could perform jobs that exist in significant numbers in the 15 national economy, and Plaintiff s claim is without merit. 16 17 18 19 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 20 21 DATED: March 1, 2013 22 ______________________________ Marc L. Goldman United States Magistrate Judge 23 24 25 26 3 27 28 The Court notes that Plaintiff has not presented any reason as to why she did not proffer her evidence, which presumably was available at the time of the hearing, to the ALJ, rather than waiting to submit it to the Appeals Council. 7
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