Doris Jean Nash v. Carolyn W. Colvin, No. 2:2015cv02386 - Document 26 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
Download PDF
<![CDATA[
Doris Jean Nash v. Carolyn W. Colvin Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DORIS J. NASH, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 15-2386-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed May 9, 2016, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed and this action is dismissed. The parties consented to the jurisdiction of the The For the reasons stated below, the 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1961. 3 36.) 4 security guard, and caregiver.1 5 (Administrative Record (“AR”) She completed 11th grade and worked as a hairdresser, (AR 128, 134.) On September 10, 2012, Plaintiff filed an application for 6 DIB, alleging that she had been unable to work since October 11, 7 2008, because of heart failure, diabetes, high blood pressure, 8 and thyroid problems. 9 February 22, 2013 (AR 57), and on March 28, she requested a (AR 54.) That application was denied on 10 hearing before an Administrative Law Judge (AR 66). On April 26, 11 2013,2 she filed an application for SSI.3 The hearing 12 was held on September 24, 2013, and Plaintiff, who was 13 represented by counsel, testified, as did medical, psychological, 14 and vocational experts. 15 November 6, 2013, the ALJ found Plaintiff not disabled. (AR 27.) 16 On January 30, 2015, the Appeals Council denied review. (AR 1.) 17 This action followed. 18 III. STANDARD OF REVIEW 19 20 (AR 33.) (AR 108.) In a written decision issued Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The ALJ’s findings and 21 22 23 24 25 26 1 The ALJ stated that Plaintiff completed the 10th grade (AR 23), but during the hearing Plaintiff testified that she reached at least the 11th grade (AR 36), and on an undated disability report she indicated that she completed the 11th grade (AR 128). 2 The ALJ stated that the SSI application was filed on March 26, 2013 (AR 19), but the Social Security Administration’s application summary said it was filed on April 26 (AR 108). 27 3 28 The only adjudication of this application appears to be the ALJ’s decision. 2 1 decision should be upheld if they are free of legal error and 2 supported by substantial evidence based on the record as a whole. 3 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 4 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 5 evidence means such evidence as a reasonable person might accept 6 as adequate to support a conclusion. 7 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 8 It is more than a scintilla but less than a preponderance. 9 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Substantial Richardson, 402 U.S. at 10 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 11 substantial evidence supports a finding, the reviewing court 12 “must review the administrative record as a whole, weighing both 13 the evidence that supports and the evidence that detracts from 14 the Commissioner’s conclusion.” 15 720 (9th Cir. 1996). 16 either affirming or reversing,” the reviewing court “may not 17 substitute its judgment” for the Commissioner’s. 18 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. 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 owing to a physical or mental impairment that is 22 expected to result in death or has lasted, or is expected to 23 last, for a continuous period of at least 12 months. 24 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 25 1992). 42 U.S.C. 26 A. 27 The ALJ follows a five-step sequential evaluation process to 28 The Five-Step Evaluation Process assess whether a claimant is disabled. 3 20 C.F.R. 1 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 2 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 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 must be denied. 6 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). In the first 7 If the claimant is not engaged in substantial gainful 8 activity, the second step requires the Commissioner to determine 9 whether the claimant has a “severe” impairment or combination of 10 impairments significantly limiting her ability to do basic work 11 activities; if not, the claimant is not disabled and her claim 12 must be denied. 13 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 14 impairments, the third step requires the Commissioner to 15 determine whether the impairment or combination of impairments 16 meets or equals an impairment in the Listing of Impairments 17 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 18 1; if so, disability is conclusively presumed. 19 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 20 If the claimant’s impairment or combination of impairments 21 does not meet or equal an impairment in the Listing, the fourth 22 step requires the Commissioner to determine whether the claimant 23 has sufficient residual functional capacity (“RFC”)4 to perform 24 her past work; if so, she is not disabled and the claim must be 25 denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 has the burden of proving she is unable to perform past relevant 2 work. 3 burden, a prima facie case of disability is established. Drouin, 966 F.2d at 1257. If the claimant meets that Id. 4 If that happens or if the claimant has no past relevant 5 work, the Commissioner then bears the burden of establishing that 6 the claimant is not disabled because she can perform other 7 substantial gainful work available in the national economy. 8 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 9 That determination comprises the fifth and final step in the 10 sequential analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 11 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 12 B. The ALJ’s Application of the Five-Step Process 13 At step one, the ALJ found that Plaintiff had not engaged in 14 substantial gainful activity since October 11, 2008, the alleged 15 onset date. 16 had severe impairments of hypertension, diabetes mellitus, 17 hyperthyroidism, obesity, posttraumatic stress disorder, and 18 psychotic disorder. 19 that Plaintiff’s impairments did not meet or equal a listing. 20 (AR 22.) 21 (AR 21.) At step two, he concluded that Plaintiff (Id.) At step three, the ALJ determined At step four, the ALJ found that Plaintiff had the RFC to 22 perform a range of light work, including lifting 20 pounds 23 occasionally and 10 pounds frequently, standing and walking for 24 four hours in an eight-hour workday, and sitting for six hours in 25 an eight-hour workday with normal breaks. 26 was also limited to performing occasional postural activities and 27 simple, repetitive tasks with no interaction with the general 28 public, but she could interact appropriately with supervisors and 5 (AR 22-23.) Plaintiff 1 coworkers. 2 findings. 3 (AR 23.) Plaintiff does not challenge any of those Finally, based on the VE’s testimony, the ALJ concluded that 4 Plaintiff could not perform her past relevant work as a home 5 health attendant but could perform other work in the national and 6 regional economies. 7 disabled. 8 V. Accordingly, he found her not (AR 27.) DISCUSSION 9 Plaintiff’s New Job Browser Pro Argument and Evidence Do Not Warrant Remand 10 11 (AR 26-27.) Plaintiff contends for the first time that the ALJ 12 improperly relied on the VE’s testimony as to the number of jobs 13 in the national and regional economies. 14 In support, she proffers new evidence from Job Browser Pro5 that 15 allegedly conflicts with the VE’s testimony. 16 The Commissioner argues that Plaintiff “waived any challenge of 17 the [VE’s] testimony regarding the number of available jobs when 18 she did not raise the objection nor present the evidence” during 19 the administrative proceedings. 20 not even addressed the Commissioner’s waiver argument. 21 at 18 (Plaintiff’s reply).) 22 remand is not warranted. (J. Stip. at 4-13, 18.) (Id., Exs. 1 & 2.) (Id. at 13-14.) Plaintiff has (See id. For the reasons discussed below, 23 A. 24 At step five of the five-step process, the Commissioner has 25 Applicable law the burden to demonstrate that the claimant can perform some work 26 27 28 5 Job Browser Pro is “a software program that compiles and analyzes job statistics.” Valenzuela v. Colvin, No. CV 12-0754-MAN, 2013 WL 2285232, at *3 (C.D. Cal. May 23, 2013). 6 1 that exists in “significant numbers” in the national or regional 2 economy, taking into account the claimant’s RFC, age, education, 3 and work experience. 4 Cir. 1999); 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.960(c), 5 404.1560(c). 6 through the testimony of a VE or by reference to the Medical- 7 Vocational Guidelines appearing in 20 C.F.R. part 404, subpart P, 8 appendix 2. 9 Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). Tackett v. Apfel, 180 F.3d 1094, 1100 (9th The Commissioner may satisfy that burden either Tackett, 180 F.3d at 1100-01; see also Hill v. “A VE’s recognized 10 expertise provides the necessary foundation for his or her 11 testimony,” and “no additional foundation is required.” 12 v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Bayliss 13 B. 14 At the September 2013 hearing, the VE testified that a 15 person with Plaintiff’s RFC could perform the job of small- 16 products assembler, DOT 706.684-022, 1991 WL 679050, which is 17 light, unskilled work. 18 were 10,300 such jobs nationally and 700 regionally, which was 19 based on a 50 percent erosion to accommodate the limitations to 20 simple, repetitive tasks and no interaction with the general 21 public. 22 Relevant background (AR 44-45.) The VE testified that there (AR 44-45, 47.) The VE further testified that a person with Plaintiff’s RFC 23 could also perform the job of “assembler,” DOT 726.685-066, 1991 24 WL 679631,6 which is sedentary, unskilled work. 25 testified that 21,000 such jobs were available nationally and 520 (AR 45.) She 26 27 28 6 The VE referred to this position as “assembler” (AR 45), but the DOT title is “bonder, semiconductor,” a job that involves assembling electronics. DOT 726.685-066, 1991 WL 679631. 7 1 were available regionally. 2 could name other sedentary jobs in the national economy that the 3 hypothetical person could perform. 4 — who continues to represent Plaintiff in this appeal — asked the 5 VE what her source was for the jobs numbers. 6 replied, “Job Browser Pro.” 7 not ask the VE any follow-up questions. 8 9 (Id.) The VE testified that she (AR 48.) (AR 49.) Plaintiff’s counsel (Id.) The VE Plaintiff’s counsel did (Id.) In his November 2013 decision, the ALJ found that Plaintiff could perform other jobs existing in significant numbers in the 10 national economy. 11 testimony that a person with Plaintiff’s RFC could perform the 12 two assembler jobs. 13 Appeals Council and submitted a supporting brief, which the 14 Appeals Council made part of the record. 15 it, Plaintiff contended that the ALJ improperly determined that 16 she could perform the identified jobs because the “demands of 17 that work exceed the [RFC] as found by the ALJ,” a claim she does 18 not raise here. 19 reliance on the VE’s testimony to find that sufficient jobs 20 existed in the economy, nor did she submit any new evidence from 21 Job Browser Pro. 22 request for review. 23 (AR 26.) In support, the ALJ cited the VE’s (Id.) Plaintiff requested review by the (AR 145.) (AR 5, 13, 145.) In She did not challenge the ALJ’s (See id.) The Appeals Council denied the (AR 1.) Plaintiff then filed the instant action. For the first 24 time, Plaintiff challenges the VE’s testimony and presents 25 printouts from Job Browser Pro allegedly showing that her job 26 numbers were inaccurate. 27 44-45.) 28 are 806 small-products-assembler jobs nationally and six (Compare J. Stip., Exs. 1 & 2 with AR The Job Browser Pro printouts appear to show that there 8 1 regionally (AR 44; J. Stip., Ex. 1 at 2) and eight “assembler” 2 jobs nationally and none regionally (AR 44; J. Stip., Ex. 2 at 3 2). 4 C. Analysis 5 Plaintiff argues that “[t]he numbers of jobs which the [VE] 6 identifies do not exist and are contradicted by the data produced 7 by the Job Browser Pro materials.” 8 Plaintiff and her counsel were aware that the VE relied on Job 9 Browser Pro at the time of the hearing, in September 2013 (AR 48- (J. Stip. at 6.) But 10 49), and thereafter they presumably could have easily obtained 11 the job numbers directly from Job Browser Pro; indeed, they 12 eventually did so. 13 this issue or submit any Job Browser Pro printouts to the agency 14 at any point before the ALJ’s November 2013 decision or the 15 Appeals Council’s January 2015 denial of review. 16 Commissioner argues (J. Stip. at 14-15), Plaintiff therefore 17 waived this issue by failing to raise it during the 18 administrative proceedings. 19 1115 (9th Cir. 1999) (holding that “at least when claimants are 20 represented by counsel, they must raise all issues and evidence 21 at their administrative hearings in order to preserve them on 22 appeal”); Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir. 23 2015) (finding that issue of whether plaintiff had engaged in 24 substantial gainful activity “was waived by [plaintiff’s] failure 25 to raise it at the administrative level when he was represented 26 by counsel”); see also Mills v. Apfel, 244 F.3d 1, 8 (1st Cir. 27 2001) (finding waiver based on failure to raise issue at hearing But Plaintiff nevertheless failed to raise As the See Meanel v. Apfel, 172 F.3d 1111, 28 9 1 before ALJ).7 2 appropriate because Plaintiff’s argument rests entirely on new 3 Job Browser Pro evidence that the Commissioner was never given an 4 opportunity to weigh or evaluate. 5 F.3d 1257, 1260 n.8 (9th Cir. 2000) (per curiam) (considering 6 argument raised for first time on appeal because “it is a pure 7 question of law and the Commissioner will not be unfairly 8 prejudiced by [plaintiff’s] failure to raise the issue below” and 9 noting that “[t]his is not a case in which the claimant rests her Indeed, a finding of waiver is particularly Cf. Silveira v. Apfel, 204 10 arguments on additional evidence presented for the first time on 11 appeal”); Harshaw v. Colvin, 616 F. App’x 316, 316 (9th Cir. 12 2015) (finding that plaintiff waived challenge to ALJ’s step-two 13 determination because it was “finding of fact and not a pure 14 question of law for which the waiver rule may be excused”). 15 In addition, Plaintiff’s counsel had the opportunity to 16 further question the VE about the Job Browser Pro numbers during 17 the ALJ hearing but failed to do so. 18 Astrue, No. 1:09-CV-01582 GSA, 2011 WL 1233119, at *9 (E.D. Cal. (AR 49); see Moore v. 19 20 21 22 23 24 25 26 27 28 7 In Sims v. Apfel, the Supreme Court held that Social Security claimants need not present issues they raised to the ALJ in a request for review to the Appeals Council in order to preserve judicial review of those issues. 530 U.S. 103, 104-05 (2000). But the Supreme Court specifically noted that it was not deciding “[w]hether a claimant must exhaust issues before the ALJ.” Id. at 107; see also id. at 117 (Breyer, J., dissenting) (stating that he “assume[s] the plurality would not forgive the requirement that a party ordinarily must raise all relevant issues before the ALJ”). As such, Sims did not disturb Meanel’s holding that issues must be raised at some point before the administrative agency. See Mills, 244 F.3d at 8 (“The impact of a no-waiver approach at the Appeals Council level is relatively mild; at the ALJ level it could cause havoc, severely undermining the administrative process.”). 10 1 Mar. 31, 2011) (finding that plaintiff waived argument regarding 2 ALJ’s step-four finding when counsel “made no effort to question 3 [p]laintiff further” regarding her ability to perform past 4 relevant work), aff’d sub nom. Moore v. Comm’r of Soc. Sec., 500 5 F. App’x 638 (9th Cir. 2012); cf. McCaleb v. Colvin, No. EDCV 12- 6 01428-JEM, 2013 WL 1516259, at *5 (C.D. Cal. Apr. 12, 2013) 7 (“Plaintiff, not the ALJ, bears the responsibility for the record 8 he challenges. 9 estimates or to present the Job Browser Pro jobs data to the ALJ He failed to question [the VE] about her job 10 or to the Appeals Council and does not offer a good reason for 11 failing to do so.”). 12 the same counsel throughout the administrative and court 13 proceedings; in such circumstances, “allowing claimants to raise 14 new arguments at the district court review level creates ‘a 15 perverse incentive for Social Security attorneys to sandbag at 16 the administrative level and save their best arguments on appeal, 17 where they can seek attorneys’ fees for the unnecessary work 18 performed at the district court level.’” 19 5:15-CV-01430-VEB, 2016 WL 3436370, at *5 (C.D. Cal. June 16, 20 2016) (citations omitted). 21 Indeed, Plaintiff has been represented by Queen v. Colvin, No. Further, even if Plaintiff’s claim hadn’t been waived, 22 remand based on the Job Browser Pro evidence would be warranted 23 only if Plaintiff could show both that it was material and that 24 she had good cause for failing to submit it during the 25 administrative proceedings. 26 Plaintiff has failed to put forth any reason for her failure to 27 submit the evidence to the agency. 28 F. App’x 563, 566 (9th Cir. 2009) (finding no good cause when See 42 U.S.C. § 405(g). 11 But See Baghoomian v. Astrue, 319 1 plaintiff did not provide sufficient justification for failure to 2 gather evidence earlier). 3 no good cause exists: Plaintiff was aware since September 2013 4 that the VE relied on Job Browser Pro, but she nonetheless failed 5 to submit the relevant numbers to the agency before the Appeals 6 Council denied review, more than a year later. 7 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (good cause exists 8 if new information surfaces after Commissioner’s final decision 9 and claimant could not have obtained that evidence at time of The record, moreover, indicates that See Key v. 10 administrative proceeding). For this reason, too, remand is not 11 warranted. 12 3121280, at *3-4 (C.D. Cal. June 19, 2013) (declining to remand 13 based on Job Browser Pro evidence first submitted to district 14 court because plaintiff “has not shown that she could not have 15 obtained jobs data before the Appeals Council denied her request 16 for review”). See Peck v. Colvin, No. CV 12-577 AGR, 2013 WL 17 Finally, to the extent Plaintiff contends that the 18 Commissioner should have taken administrative notice of 19 information in Job Browser Pro (J. Stip. at 10), that argument 20 fails. 21 reliable job information, including . . . the services of a 22 vocational expert.” 23 omitted). 24 administrative notice of reliable job information from “various 25 governmental and other publications,” but Job Browser Pro is not 26 included among the listed sources. 27 416.966(d); see Cardone v. Colvin, No. ED CV 13-1197-PLA, 2014 WL 28 1516537, at *5 (C.D. Cal. Apr. 18, 2014) (“Job Browser Pro is not “The Secretary may take administrative notice of any McCaleb, 2013 WL 1516259, at *6 (citation The regulations state that the Commissioner will take 12 See §§ 404.1566(d), 1 among those publications specifically listed by the 2 Commissioner”); see also Peck, 2013 WL 3121280, at *4 n.3 (noting 3 that “Job Browser Pro is [not] included in the list of published 4 sources recognized in social security regulations”). 5 “[a] VE’s recognized expertise provides the necessary foundation 6 for his or her testimony,” and “no additional foundation is 7 required.” 8 636 F. App’x 963, 964 (9th Cir. 2016) (finding that VE’s 9 expertise “was an adequate basis for [his] testimony regarding Moreover, Bayliss, 427 F.3d at 1218; see also Rincon v. Colvin, 10 the number of jobs available” given that plaintiff’s counsel did 11 not challenge VE’s expertise at hearing).8 12 Because Plaintiff waived this issue by failing to raise it 13 8 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In any event, is not clear that the Job Browser Pro numbers would have changed the outcome of the proceedings. The VE testified that other sedentary occupations were available, although she did not specifically identify those occupations or indicate how many such jobs existed in the national and regional economies. (AR 48.) Plaintiff argues that because the only light work available to her does not exist in significant numbers, she is limited to sedentary work and is disabled under 20 C.F.R., part 404, subpart P, appendix 2, section 201.01-02. (J. Stip. at 11-12.) But because Plaintiff has not yet reached “advanced age” and the ALJ found she had “acquired work skills from past relevant work that [were] transferable,” she would in fact be found “not disabled” under the applicable rule for people limited to sedentary work, 20 C.F.R., part 404, subpart P, appendix 2, section 201.11. (AR 26, 36.) Moreover, the Job Browser Pro numbers submitted to the Court are from 2015, 13 months after the ALJ issued his decision (J. Stip., Ex. 1 at 1; Ex. 2 at 1), and thus are irrelevant here, cf. Sanchez v. Sec’y of Health & Human Servs., 812 F.2d 509, 512 (9th Cir. 1987) (evidence of mental deterioration after ALJ hearing would be material to new application but was not evidence of plaintiff’s condition at the hearing); Berrigan v. Astrue, No. 1:10-CV-00165 GSA, 2011 WL 4624666, at *13 (E.D. Cal. Oct. 4, 2011) (“[T]o the degree the new evidence is dated after . . . the ALJ’s decision[,] it is outside the relevant time period, is therefore not material, and thus cannot properly be considered.”). 13 1 during the administrative proceedings and because she failed to 2 show good cause for her failure to earlier submit the new Job 3 Browser Pro evidence, remand is not warranted. 4 VI. 5 CONCLUSION Consistent with the foregoing, and under sentence four of 42 6 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 7 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 8 request for remand, and DISMISSING this action with prejudice. 9 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 10 and the Judgment on counsel for both parties. 11 12 13 DATED: July 27, 2016 14 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 That 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.” 14
]]>
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.
