Joyce E. Haase v. Michael J. Astrue, No. 5:2011cv01902 - Document 13 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER by Magistrate Judge Jean P Rosenbluth. (See document for details.) (rla) Modified on 8/27/2012 (rla).

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOYCE E. HAASE, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social 15 Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-1902-JPR MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner s final decision 20 denying her application for Social Security Disability Insurance 21 Benefits ( DIB ). The parties consented to the jurisdiction of 22 the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. 23 § 636(c). This matter is before the Court on the parties Joint 24 Stipulation, filed August 9, 2012. The Court has taken the Joint 25 Stipulation under submission without oral argument. For the 26 reasons stated below, the Commissioner s decision is affirmed and 27 this action is dismissed. 28 1 II. BACKGROUND 2 Plaintiff was born on August 10, 1959. 3 Record ( AR ) 84.) (Administrative She has a high school education and is able 4 to communicate in English. (AR 149, 159.) She claims to have 5 been disabled since December 2, 2000, because of 6 neurofibromatosis type 2 a rare disease that causes tumors to 7 grow on the central nervous system which has resulted in 8 complete hearing loss in her left ear and progressive hearing 9 loss in the right. 10 (AR 150.) On January 31, 2008, Plaintiff filed her application for 11 DIB. (AR 84-85.) After it was denied, she requested a hearing 12 before an Administrative Law Judge ( ALJ ), which was held on May 13 26, 2010. (AR 33.) Plaintiff, who was represented by counsel, 14 testified at the hearing; medical expert Dr. Ross Eliott Lipton 15 and vocational expert ( VE ) Jose L. Chaparro also testified. 16 (AR 31-83.) 17 On September 22, 2010, the ALJ denied Plaintiff s claim. 18 She first found that Plaintiff last met the insured status 19 requirements of the Social Security Act on June 30, 2005, and did 20 not engage in substantial gainful activity from the alleged onset 21 date of December 2, 2000, to that date. (AR 13.) She then 22 determined that Plaintiff had the severe impairments of 23 neurofibromatosis type 2 (NF2) with hearing loss. (Id.) She 24 found, however, that as of June 30, 2005, Plaintiff retained the 25 residual functional capacity ( RFC )1 to perform light 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945(a); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 2 1 exertional level work with the additional limitations that 2 Plaintiff 3 could occasionally climb ramps and stairs, should never 4 balance or climb ladders, ropes, or scaffolds, should not 5 walk 6 limitations if these activities were performed in well 7 lit areas and in the presence of others, should avoid 8 even moderate exposure to temperature extremes, should 9 avoid immersion in water, should avoid concentrated 10 exposure to vibrations and fumes, should avoid areas with 11 noise above the noise level of a typical normal quiet 12 office, should not drive a motor vehicle, and should 13 avoid all exposure to moving machinery and unprotected 14 heights. 15 (AR 16.) on uneven terrain, lacked any other postural She agreed with the VE that Plaintiff was capable of 16 performing the jobs of office helper and paper-pattern folder 17 and that those jobs existed in significant numbers in the 18 national and regional economy; thus, the ALJ found Plaintiff not 19 disabled. 20 (AR 20-21.) On November 1, 2010, Plaintiff requested review by the 21 Appeals Council. (AR 6-7.) On August 26, 2011, the Council 22 denied Plaintiff s request for review. (AR 1-3.) This action 23 followed. 24 III. STANDARD OF REVIEW 25 Pursuant to 42 U.S.C. § 405(g), a district court may review 26 the Commissioner s decision to deny benefits. 27 28 (9th Cir. 1989). 3 The Commissioner s 1 or ALJ s findings and decision should be upheld if they are free 2 of legal error and are supported by substantial evidence based on 3 the record as a whole. § 405(g); Richardson v. Perales, 402 U.S. 4 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. 5 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 6 means such evidence as a reasonable person might accept as 7 adequate to support a conclusion. Richardson, 402 U.S. at 401; 8 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 9 is more than a scintilla but less than a preponderance. 10 Lingenfelter, 504 F.3d at 1035. To determine whether substantial 11 evidence supports a finding, the reviewing court must review the 12 administrative record as a whole, weighing both the evidence that 13 supports and the evidence that detracts from the Commissioner s 14 conclusion. 15 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 16 or reversing, the reviewing court may not substitute its 17 judgment for that of the Commissioner. Id. at 720-21. 18 IV. THE EVALUATION OF DISABILITY 19 People are disabled for purposes of receiving Social 20 Security benefits if they are unable to engage in any substantial 21 gainful activity because of a physical or mental impairment that 22 is expected to result in death or which has lasted, or is 23 expected to last, for a continuous period of at least 12 months. 24 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 25 (9th Cir. 1992). 26 A. 27 The Commissioner (or ALJ) follows a five-step sequential The Five-Step Evaluation Process 28 evaluation process in assessing whether a claimant is disabled. 4 1 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 2 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first 3 step, the Commissioner must determine whether the claimant is 4 currently engaged in substantial gainful activity; if so, the 5 claimant is not disabled and the claim is denied. 6 § 404.1520(a)(4)(I). If the claimant is not engaged in 7 substantial gainful activity, the second step requires the 8 Commissioner to determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting 10 her ability to do basic work activities; if not, a finding of 11 nondisability is made and the claim is denied. 12 § 404.1520(a)(4)(ii). If the claimant has a severe impairment 13 or combination of impairments, the third step requires the 14 Commissioner to determine whether the impairment or combination 15 of impairments meets or equals an impairment in the Listing of 16 Impairments ( Listing ) set forth at 20 C.F.R. Part 404, Subpart 17 P, Appendix 1; if so, disability is established and benefits are 18 awarded. § 404.1520(a)(4)(iii). If the claimant s impairment or 19 combination of impairments does not meet or equal an impairment 20 in the Listing, the fourth step requires the Commissioner to 21 determine whether the claimant has sufficient RFC to perform her 22 past work; if so, the claimant is not disabled and the claim must 23 be denied. § 404.1520(a)(4)(iv). The claimant has the burden of 24 proving that she is unable to perform past relevant work. 25 Drouin, 966 F.2d at 1257. If the claimant meets that burden, a 26 prima facie case of disability is established. Id. If that 27 happens or if the claimant has no past relevant work, the 28 Commissioner then bears the burden of establishing that the 5 1 claimant is not disabled because she can perform other 2 substantial gainful work in the economy. § 404.1520(a)(4)(v). 3 That determination comprises the fifth and final step in the 4 sequential analysis. Id.; Lester, 81 F.3d at 828 n.5; Drouin, 5 966 F.2d at 1257. 6 B. 7 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 8 any substantial gainful activity from the onset of her alleged 9 disability, December 2, 2000, to the date last insured, June 30, 10 2005. (AR 13.) At step two, the ALJ concluded that Plaintiff 11 had the severe impairments of neurofibromatosis type 2 (NF2) 12 with hearing loss. (Id.) At step three, the ALJ found that 13 Plaintiff did not have an impairment or combination of 14 impairments that met or equaled any of the impairments in the 15 Listing. (AR 15.) At step four, the ALJ found that as of June 16 30, 2005, Plaintiff had the RFC to perform light exertional 17 level work with the additional limitations that Plaintiff 18 could occasionally climb ramps and stairs, should never 19 balance or climb ladders, ropes, or scaffolds, should not 20 walk 21 limitations if these activities were performed in well 22 lit areas and in the presence of others, should avoid 23 even moderate exposure to temperature extremes, should 24 avoid immersion in water, should avoid concentrated 25 exposure to vibrations and fumes, should avoid areas with 26 noise above the noise level of a typical normal quiet 27 office, should not drive a motor vehicle, and should 28 avoid all exposure to moving machinery and unprotected on uneven terrain, lacked 6 any other postural 1 heights. 2 (AR 16 (emphasis added).) The ALJ concluded that Plaintiff was 3 unable to perform her past relevant work as a purchasing agent. 4 (AR 18.) At step five, the ALJ found, based on the VE s 5 testimony and application of the Medical Vocational Guidelines, 6 that jobs existed in significant numbers in the national and 7 regional economy that Plaintiff could perform. (AR 19-20.) The 8 ALJ disagreed with the VE that Plaintiff could perform the job of 9 cafeteria attendant because the environment of a cafeteria 10 would likely be too noisy for an individual with the auditory 11 challenges faced by an individual such as [Plaintiff], but she 12 agreed with the VE that Plaintiff could perform the work of 13 office helper and paper-pattern folder. (AR 20.) 14 Accordingly, the ALJ determined that Plaintiff was not disabled. 15 (AR 20-21.) 16 V. DISCUSSION 17 Plaintiff alleges that the ALJ erred in (1) questioning the 18 VE and (2) relying on the VE s testimony. (J. Stip. at 5.) She 19 does not challenge any of the ALJ s findings at steps one through 20 four. 21 A. 22 Plaintiff asserts that the ALJ improperly failed to include The ALJ Properly Questioned the Vocational Expert 23 the limitation against working in an environment with noise 24 above the noise level of a typical normal quiet office in her 25 hypothetical to the VE. (J. Stip. at 7.) Although her argument 26 is not clear, Plaintiff appears to assert that when the ALJ found 27 that she was limited to a quiet work environment of a typical or 28 normal office, that finding necessarily precluded work that 7 1 required exposure to moderate levels of noise ; further, although 2 the DOT describes office work as a moderate or level 3 noise 3 level, that description was formulated in the days when noisy 4 typewriters were commonly found in offices, whereas an office 5 today lacks typewriters and is more accurately described as a 6 quiet environment of noise level 2. (J. Stip. at 7-8.) 7 Because the office helper and paper-pattern folder jobs 8 require exposure to moderate noise, Plaintiff argues, it is not 9 clear that she is capable of performing them given her limitation 10 against noise above the noise level of a typical quiet office, 11 and the ALJ should have questioned the VE about the discrepancy. 12 (J. Stip. at 8-9.) 13 14 1. Applicable law At step five of the five-step process, the Commissioner has 15 the burden to demonstrate that the claimant can perform some work 16 that exists in significant numbers in the national or regional 17 economy, taking into account the claimant s RFC, age, education, 18 and work experience. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th 19 Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c). 20 The Commissioner may satisfy that burden either through the 21 testimony of a vocational expert or by reference to the Medical22 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 23 Appendix 2. Tackett, 180 F.3d at 1100-01; see also Hill v. 24 Astrue, No. 10-35879, ___ F.3d ___, 2012 WL 3185576, at *7 (9th 25 Cir. Aug. 7, 2012) ( The ALJ may meet his burden at step five by 26 asking a vocational expert a hypothetical question based on 27 medical assumptions supported by substantial evidence in the 28 record and reflecting all the claimant s limitations, both 8 1 physical and mental, supported by the record. ). If a 2 vocational expert s hypothetical does not reflect all the 3 claimant s limitations, then the expert s testimony has no 4 evidentiary value to support a finding that the claimant can 5 perform jobs in the national economy. Matthews v. Shalala, 10 6 F.3d 678, 681 (9th Cir. 1993). 7 8 2. Relevant facts At the hearing, the ALJ first questioned Dr. Lipton, the 9 medical expert, about Plaintiff s limitations. Based on his 10 review of Plaintiff s medical records, Dr. Lipton testified that 11 Plaintiff s functional limitations included a limitation on 12 exposure to noise. (AR 52.) Specifically, he testified that 13 Plaintiff should avoid all exposure to noise with vigilance, to 14 try to preserve whatever hearing . . . is there. (Id.) The ALJ 15 clarified that Plaintiff should avoid all exposure to noise . . 16 . like a factory situation and things like that, because that 17 could adversely affect what little hearing [Plaintiff] had or . . 18 . make the hearing [Plaintiff] had in [her] right ear deteriorate 19 faster. (AR 53.) Neither Plaintiff nor her attorney (or Dr. 20 Lipton, for that matter) objected to the ALJ s characterization 21 of the expert s noise limitation as referring only to the type of 22 noise in a factory situation. 23 (See id.) The ALJ then posed a hypothetical to the VE regarding a 24 person who has no exertional limitations but, based on Dr. 25 Lipton s testimony, had the following RFC: 26 [S]uch a person should avoid all hazards that depend 27 upon attention, concentration or hearing. The specific 28 limitations ladders would be never 9 climbing and 1 scaffolds; 2 ramps; 3 posturals, and but those, the climbing stairs and ramps 4 and the other posturals would only be in situations where 5 it was well lit, there were other people around and there 6 was an ability for Ms. Haase to provide catch herself 7 or to provide, you know, stability, if necessary. 8 would not should not have a job that depends on 9 hearing, so answering a phone would be out; responding to 10 requests and commands that were oral in nature, so a help 11 desk in a department store wouldn t work. 12 and never the balancing; and Environmentally occasionally occasionally, she should avoid on stairs the even and other She moderate 13 exposure to extreme cold or extreme heat; should not be 14 in a situation where she would be immersed in water; 15 should 16 vibrations and fumes and should not have a position where 17 she would be required to drive or operate machinery. never be around 18 (AR 64-65 (emphasis added).) noise; avoid concentrated The VE responded that based on that 19 hypothetical, Plaintiff could do the jobs of cafeteria 20 attendant, office helper, and paper-pattern folder. 21 69.) (AR 67- The ALJ then asked for clarification regarding the noise 22 level of the cafeteria-attendant job. (AR 71.) The VE 23 responded: 24 [O]ne of the definitions is noise intensity level 25 and that is 3 and noise 3, I can tell you what that how 26 they define that, 3 is moderate as in a business office 27 where typewriters are used, department store, grocery 28 store, light traffic, fast food restaurant at off hours. 10 1 That s how it s defined. 2 assessment. 3 for 4 manufacturing department, large earth-moving equipment 5 and 6 hypothetical, that s the kind of noise intensity that s 7 to be avoided, as I understand it. 8 (Id.) kicks And, and I do agree with that The next level above that, just, just for, here heavy is, would traffic. be As loud, I m which is a understanding can the Plaintiff did not interject or object in any way that the 9 VE s understanding was erroneous. The ALJ clarified that under 10 the Dictionary of Occupational Titles, they say the noise in a 11 cafeteria, as they describe this job, is the same as in an office 12 where there would be typewriters being used, so that it meets the 13 . . . parameters. 14 (AR 71-72.) In her written opinion, the ALJ found that Plaintiff had the 15 RFC to perform light work with several limitations, including 16 the limitation that Plaintiff should avoid areas with noise 17 above the noise level of a typical normal quiet office. 18 16.) (AR She agreed with the VE that Plaintiff could perform the 19 jobs of office helper and paper-pattern folder, but she 20 disagreed that Plaintiff could perform the cafeteria attendant 21 job because the environment of a cafeteria would likely be too 22 noisy for an individual with the auditory challenges faced by an 23 individual such as [Plaintiff]. 24 25 3. (AR 20.) Analysis Based on the ALJ s hypothetical, the VE found that Plaintiff 26 was capable of performing the jobs of cafeteria attendant, 27 office helper, and paper-pattern folder. (AR 67-69.) 28 jobs are all categorized by the DOT as noise level three 11 Those 1 moderate noise. See DOT 311.677-010, 1991 WL 672694 (cafeteria 2 attendant); DOT 239.567-010, 1991 WL 672232 (office helper); DOT 3 794.687-034, 1991 WL 681322 (paper-pattern folder). The DOT does 4 not define noise level three, but it is defined in the U.S. 5 Department of Labor s Revised Handbook for Analyzing Jobs as 6 moderate noise such as that found in a business office where 7 typewriters are used; department store; grocery store; light 8 traffic; fast food restaurant at off-hours. See U.S. Dep t of 9 Labor, Revised Handbook for Analyzing Jobs ( RHAJ ) 12-10 (1991). 10 The ALJ s hypothetical to the VE was consistent with 11 Plaintiff s limitations as reflected by the medical evidence of 12 record. The medical evidence showed that as of June 30, 2005, 13 Plaintiff had only moderate hearing loss in her right ear and 14 could still hear out of that ear. (AR 15, 47-48, 331 (stating 15 that Plaintiff s surgery in March 2005 has stabilized her 16 hearing for the present ), 345 (March 2005 progress report 17 stating that Plaintiff s right ear has still very serviceable 18 hearing ), 347 (audiogram dated September 19, 2002, showing 19 normal hearing in right ear), 392-94 (December 11, 2001 letter 20 from surgeon describing Plaintiff s hearing loss and noting that 21 she has some fullness in the right ear but maintains normal 22 hearing on that side ).) Dr. Lipton testified that Plaintiff 23 should avoid all exposure to noise but did not object to the 24 ALJ s clarification that that statement meant like a factory 25 situation and things like that as opposed to moderate noise 26 levels like those found in a business office where typewriters 27 are used. (AR 52-53.) That finding is consistent with the 28 medical evidence, and Plaintiff has not pointed to any medical 12 1 opinions or other evidence suggesting that in early 2005 she had 2 an RFC capable of tolerating only less than moderate noise 3 levels. The ALJ s ultimate finding that Plaintiff had the RFC to 4 perform the office helper and paper-pattern folder jobs is 5 consistent with both her hypothetical and the VE s response, as 6 well as the medical evidence of record. (See AR 71-72 (using 7 RHAJ definition of moderate noise), 331, 345, 347, 392-94.) 8 Plaintiff claims that because those jobs involve noise 9 levels such as those found in a business office where 10 typewriters are used, the ALJ s finding that she could perform 11 them conflicts with her ultimate finding that Plaintiff could 12 tolerate only the noise levels found in a typical normal quiet 13 office (AR 16). According to Plaintiff, because typewriters are 14 no longer typically used in an office setting, a typical normal 15 quiet office is more akin to level two, or light, noise.2 But 16 the fact that typewriters are no longer typically used in an 17 office setting does not render the hypothetical invalid. Both 18 the ALJ and the VE were clear that Plaintiff had the RFC to 19 perform a job with moderate noise level, such as that made by 20 typewriters, regardless of whether she would actually encounter a 21 typewriter in the workplace. To the extent that a typical, 22 normal quiet office suggests Plaintiff can tolerate only 23 something less than moderate noise, it is a misstatement because 24 it is not consistent with the rest of the ALJ s opinion, the 25 26 2 The RHAJ defines light noise as that found in a 27 library; many private offices; funeral reception; golf course; [and] art museum. See U.S. Dep t of Labor, Revised Handbook for 28 Analyzing Jobs 12-10 (1991). 13 1 hypothetical posed to the VE, or the medical evidence. To the 2 extent the ALJ erred in making that statement, however, the error 3 was harmless because that finding was not determinative and the 4 ALJ s analysis and additional findings throughout the rest of her 5 opinion were consistent with the medical evidence and the VE s 6 testimony. See Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 7 2006) (nonprejudicial or irrelevant mistakes harmless); Lee v. 8 Astrue, 472 F. App x 553, 555 (9th Cir. 2012) (ALJ s failure to 9 include claimant s personality disorder as severe impairment at 10 step two harmless when ALJ later accounted for impairment at step 11 four); Wright v. Comm r of Soc. Sec., 386 F. App x 105, 109 (3d 12 Cir. 2010) (Tashima, J., sitting by designation) (ALJ s 13 misstatements in written decision harmless error when regardless 14 of them ALJ gave an adequate explanation supported by 15 substantial evidence in the record ); Castel v. Comm r of Soc. 16 Sec., 355 F. App x 260, 265-66 (11th Cir. 2009) (ALJ s erroneous 17 reference to wrong medical reports harmless when he referred to 18 reports in two sentences but dedicate[d] two paragraphs to 19 correct reports, and decision conformed to medical evidence); 20 Taylor v. Astrue, No. 4:07 CV 160 FL, 2009 WL 50156, at *10 21 (E.D.N.C. Jan. 7, 2009) (ALJ s misstatement of claimant s RFC in 22 one sentence of decision akin to a typographical error and 23 constitutes harmless error given that ALJ correctly stated RFC 24 elsewhere in opinion and it was overwhelmingly supported by 25 substantial evidence ). 26 Nor did the ALJ s finding that the cafeteria-attendant job 27 required a noise level beyond Plaintiff s functional capacity 28 imply that all jobs with noise level three were beyond 14 1 Plaintiff s capabilities. The ALJ ultimately decided that the 2 cafeteria-attendant position would expose Plaintiff to noise 3 beyond moderate levels; she did not hold, as Plaintiff appears 4 to contend, that all jobs requiring moderate noise exposure 5 were beyond Plaintiff s RFC. (See AR 20 (noting that the 6 environment of a cafeteria would likely be too noisy for an 7 individual with the auditory challenges faced by Plaintiff)); 8 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (court may 9 make reasonable inferences from ALJ s rationale and record). 10 Similarly, the ALJ s statement during the hearing that the noise 11 in a cafeteria is the same as in an office where there would be 12 typewriters being used (AR 71) does not imply that because she 13 found Plaintiff could not tolerate cafeteria noise, she 14 necessarily must have found that Plaintiff could not tolerate 15 typewriter noise. Rather, during that portion of the hearing, 16 the ALJ was attempting to explain to Plaintiff that the DOT 17 classified both the cafeteria-attendant job and the office-helper 18 job as moderate noise level, which the ALJ explained under the 19 [DOT] . . . is the same as in an office where there would be 20 typewriters being used, that is, noise level three. (See AR 21 71.) 22 Because the ALJ s hypothetical to the VE properly reflected 23 Plaintiff s limitations consistent with the medical evidence of 24 record, the VE s testimony was sufficient evidence to support the 25 ALJ s finding that Plaintiff could perform the office helper 26 and paper-pattern folder jobs. 27 warranted on that basis. 28 15 Reversal therefore is not 1 2 3 B. The ALJ Properly Relied on the Vocational Expert s Testimony Plaintiff next contends that the VE s testimony deviated 4 from the DOT because the ALJ included in the hypothetical a 5 limitation that Plaintiff should not have a job that depends on 6 hearing, but hearing is a bona fide occupational qualification 7 as designated by the classificatory data contained in the DOT 8 for the office helper job. (J. Stip. at 18-19.) Thus, 9 according to Plaintiff, because the VE did not explain the 10 alleged deviation from the DOT, his testimony did not provide 11 substantial evidence for the ALJ s finding that Plaintiff was 12 capable of performing the office helper job. (Id.) As to the 13 paper-pattern folder job, Plaintiff argues that she cannot 14 perform that job because it does not exist in significant numbers 15 in the regional or national economy. 16 17 1. (J. Stip. at 19-20.) The VE s testimony did not deviate from the DOT An ALJ must ask a hypothetical question to a VE that is 18 based on medical assumptions supported by substantial evidence in 19 the record and that reflects all of the plaintiff s limitations. 20 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). When a VE 21 provides evidence about the requirements of a job, the ALJ has a 22 responsibility to ask about any possible conflict between that 23 evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4; 24 Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) 25 (holding that application of SSR 00-4p is mandatory). An ALJ s 26 failure to do so is procedural error, although the error is 27 harmless if no actual conflict exists or the VE provided 28 sufficient evidence to support the conclusion. 16 Id. at 1154 n.19. 1 Here, no conflict existed between the VE s testimony and the 2 DOT, and thus the ALJ did not err in failing to inquire about a 3 conflict. The VE testified that Plaintiff had the RFC to perform 4 the jobs of cafeteria attendant, office helper, and paper5 pattern folder, all of which entail exposure to moderate 6 noise. As discussed above, the ability to tolerate exposure to 7 moderate noise was within Plaintiff s RFC in 2005, and the 8 ALJ s hypothetical was consistent with that limitation. 9 Moreover, the ALJ clarified to the VE that Plaintiff was not 10 barred from all jobs that required hearing but only from those 11 that depended on hearing. (AR 67.) The DOT does not state 12 that the office helper, cafeteria attendant, or paper13 pattern folder job is dependent on hearing. See DOT 239.567- 14 010, 1991 WL 672232 (office helper: describing need for hearing 15 as occasionally - Exists up to 1/3 of the time ); DOT 311.67716 010, 1991 WL 672694 (cafeteria attendant: same); DOT 794.687-034, 17 1991 WL 681322 (paper-pattern folder: describing need for hearing 18 as Not Present - Activity or condition does not exist ). Thus, 19 there was no conflict between the VE s testimony and the DOT. 20 Further, to the extent any conflict existed between the DOT 21 job descriptions and the VE s testimony with respect to whether 22 the jobs depended on hearing ability, the VE sufficiently 23 explained it. The VE clarified that the cafeteria attendant 24 job was unlike a waitress position in that it did not require 25 Plaintiff to listen to or speak to customers, and the office 26 helper position did not require answering phones. 27 Reversal is therefore not warranted on this basis. 28 17 (AR 71, 74.) 1 2. 2 3 The paper-pattern folder job exists in significant numbers in the national economy The Ninth Circuit has never set out a bright-line rule for 4 what constitutes a significant number of jobs. 5 Astrue, 676 F.3d 1203, 1206 (9th Cir. 2012). Beltran v. The Ninth Circuit 6 has held, however, that 1266 jobs regionally is a significant 7 number, see id. (citing Barker v. Sec y of Health & Human 8 Servs., 882 F.2d 1474, 1479 (9th Cir. 1989)), and 64,000 9 nationally is a significant number, see Moncada v. Chater, 60 10 F.3d 521, 524 (9th Cir. 1995) (2300 jobs regionally and 64,000 11 nationally significant numbers). See also Albidrez v. Astrue, 12 504 F. Supp. 2d 814, 824 (C.D. Cal. 2007) (17,382 jobs nationally 13 is a significant number ). A mere 135 regional jobs and 1680 14 national ones, however, are very rare numbers and thus not 15 significant within the meaning of the Social Security Act. 16 See Beltran, 676 F.3d at 1206. If the number of jobs available 17 either regionally or nationally is significant, the ALJ s 18 decision must be upheld. See 42 U.S.C. § 423(d)(2)(A); Beltran, 19 676 F.3d at 1206. 20 The VE testified that 13,000 paper-pattern folder jobs 21 existed nationally and 1800 in California. (AR 69-70.)3 These 22 numbers are akin to the numbers the Ninth Circuit has found 23 sufficiently significant to satisfy the Social Security Act, 24 see Beltran, 676 F.3d at 1206 (collecting cases), and far from 25 the small numbers, for example, 135 jobs regionally and 1680 jobs 26 27 28 3 Plaintiff has not submitted any evidence showing that the number of paper-pattern folder jobs available in the regional or national economy is less than what the VE claimed. 18 1 nationally, see id., that it has found insufficient. Plaintiff 2 argues that 1800 jobs in California is not sufficient because 3 the analysis must focus on the availability of jobs in 4 Plaintiff s region rather than the state of California as a whole 5 (J. Stip. at 19), but even if that were so, 13,000 jobs 6 nationally is a significant number and thus the ALJ s decision 7 must be upheld. See Albidrez, 504 F. Supp. 2d at 824 (17,382 8 jobs nationally is significant number ); Johnson v. Chater, 108 9 F.3d 178, 181 (8th Cir. 1997) (10,000 jobs nationally is 10 significant number ); Vining v. Astrue, 720 F. Supp. 2d 126, 128 11 (D. Me. 2010) (10,000 to 11,000 jobs nationally is significant 12 number); 42 U.S.C. § 423(d)(2)(a); Beltran, 676 F.3d at 1206. 13 Plaintiff admits that no conflict existed between the DOT s 14 job description and the VE s testimony with respect to the 15 paper-pattern folder position. (See J. Stip. at 19.) Thus, 16 even if the ALJ erred in finding that Plaintiff was capable of 17 performing the office helper job, that error was harmless 18 because she did not err in finding Plaintiff capable of 19 performing the paper-pattern folder job, which exists in 20 significant numbers in the national economy; the ALJ s decision 21 must therefore be upheld. 22 23 24 25 26 27 28 19 1 VI. CONCLUSION 2 Consistent with the foregoing and pursuant to sentence four 3 of 42 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered 4 AFFIRMING the decision of the Commissioner and dismissing this 5 action with prejudice. IT IS FURTHER ORDERED that the Clerk 6 serve copies of this Order and the Judgment on counsel for both 7 parties. 8 9 DATED: August 27, 2012 10 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 20

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.