Carlos Alberto Gonzalez v. Nancy A. Berryhill, No. 2:2017cv05402 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Carlos Alberto Gonzalez v. Nancy A. Berryhill Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CARLOS ALBERTO GONZALEZ, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ____________________________________) NO. CV 17-5402-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on July 21, 2017, seeking review of 21 the Commissioner’s denial of benefits. The parties filed a consent to 22 proceed before a United States Magistrate Judge on August 16, 2017. 23 Plaintiff filed a motion for summary judgment on December 6, 2017. 24 Defendant filed a motion for summary judgment on January 5, 2018. 25 Court has taken both motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed July 26, 2017. 27 /// 28 /// The Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff asserted disability based on alleged physical and 4 mental impairments (Administrative Record (“A.R.”) 36-170, 184-353). 5 The Administrative Law Judge (“ALJ”) found that, despite severe 6 impairments, Plaintiff retains the residual functional capacity to 7 perform a limited range of light work (A.R. 43). 8 testified that a person of Plaintiff’s age, educational background, 9 experience and exertional capacity can perform jobs existing in A vocational expert 10 significant numbers in the national economy, including the jobs of 11 “parking lot cashier,” “production assembler” and “cleaner and 12 polisher” (A.R. 65-68). 13 Plaintiff did not challenge the vocational expert’s testimony that a 14 person with Plaintiff’s educational background (11th grade) can 15 perform these jobs (A.R. 68). In the administrative proceeding, counsel for 16 17 In finding Plaintiff not disabled, the ALJ stated that “jobs 18 exist in significant number[s] in the national economy that 19 [Plaintiff] can perform, including those identified by the vocational 20 expert (production assembler, parking lot cashier, cleaner/polisher)” 21 (A.R. 43). The Appeals Council denied review (A.R. 1-4). 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. section 405(g), this Court reviews the 26 Administration’s decision to determine if: 27 findings are supported by substantial evidence; and (2) the 28 Administration used correct legal standards. 2 (1) the Administration’s See Carmickle v. 1 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 2 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 3 682 F.3d 1157, 1161 (9th Cir. 2012). 4 relevant evidence as a reasonable mind might accept as adequate to 5 support a conclusion.” 6 (1971) (citation and quotations omitted); see also Widmark v. 7 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 8 9 If the evidence can support either outcome, the court may 10 not substitute its judgment for that of the ALJ. But the 11 Commissioner’s decision cannot be affirmed simply by 12 isolating a specific quantum of supporting evidence. 13 Rather, a court must consider the record as a whole, 14 weighing both evidence that supports and evidence that 15 detracts from the [administrative] conclusion. 16 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 18 quotations omitted). 19 20 DISCUSSION 21 22 After consideration of the record as a whole, Defendant’s motion 23 is granted and Plaintiff’s motion is denied. 24 findings are supported by substantial evidence and are free from 25 /// 26 /// 27 /// 28 3 The Administration’s 1 material1 legal error. 2 3 As indicated above, the vocational expert testified that a person 4 having Plaintiff’s educational background and residual functional 5 capacity can perform particular jobs existing in significant numbers 6 in the national economy. 7 evidence, a VE’s [vocational expert’s] testimony is one type of job 8 information that is regarded as inherently reliable. . . .” 9 Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017); see Bayliss v. “[A]t least in the absence of any contrary Buck v. 10 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“A VE’s recognized 11 expertise provides the necessary foundation for his or her testimony. 12 Thus, no additional foundation is required”). 13 rely on vocational expert testimony identifying jobs a claimant can 14 perform. 15 1995). 16 ALJ’s determination that a claimant is not disabled. 17 Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989). An ALJ properly may See Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. Such testimony can furnish substantial evidence to support an See Barker v. 18 19 As indicated above, Plaintiff failed to challenge the vocational 20 expert’s testimony during the administrative proceeding. Plaintiff 21 also failed to present any vocational evidence during the 22 administrative proceeding. 23 that Plaintiff cannot perform the jobs of “production assembler” or 24 “cleaner and polisher” because Plaintiff’s formal education ended In this Court, however, Plaintiff argues 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 4 1 after the 11th grade rather than after the 12th grade. 2 Plaintiff’s interpretation of the “Occupational Outlook Handbook” 3 (“OOH”), the “typical entry level education” of workers in the jobs of 4 “production assembler” and “cleaner and polisher” is “high school 5 diploma or equivalent.” 6 to argue that: 7 the information in the OOH; (b) the ALJ erred by relying on the 8 vocational expert’s testimony without further inquiry; and (c) because 9 of this error, the ALJ’s non-disability determination lacks 10 According to From this interpretation, Plaintiff appears (a) the vocational expert’s testimony conflicted with substantial supporting evidence. 11 12 Plaintiff’s argument fails for three independently sufficient 13 reasons. First, Plaintiff waived the argument by failing to challenge 14 the vocational expert’s testimony during the administrative 15 proceeding. 16 (“Shaibi”), the Ninth Circuit held that: In Shaibi v. Berryhill, 870 F.3d 874, 881 (9th Cir. 2017) 17 18 when a claimant fails entirely to challenge a vocational 19 expert’s job numbers during administrative proceedings 20 before the agency, the claimant waives such a challenge on 21 appeal, at least when that claimant is represented by 22 counsel. 23 based on an alleged conflict with alternative job numbers 24 gleaned from the [County Business Patterns] or the OOH. Specifically, our holding encompasses challenges 25 26 Id.; see also Simpson v. Berryhill, 2017 WL 5643198, at *2 (9th Cir. 27 Nov. 24, 2017) (plaintiff’s argument that the ALJ should have taken 28 administrative notice of “vocational evidence in sources other than 5 1 the DOT [Dictionary of Occupational Titles]” deemed waived by the 2 plaintiff’s failure to make the argument during the administrative 3 proceeding). 4 to arguments concerning conflicts in the numbers of jobs, but also to 5 arguments concerning other conflicts between vocational expert 6 testimony and information contained in non-DOT vocational sources. 7 See Hocking v. Berryhill, 2017 WL 6541858, at *2-3 (C.D. Cal. Dec. 21, 8 2017) (applying Shaibi to conclude that the plaintiff waived the issue 9 of an alleged conflict between the OOH and the vocational expert’s The waiver rule established in Shaibi applies not only 10 testimony that a person with an 11th grade education could perform the 11 identified jobs); George v. Berryhill, 2017 WL 1709599, at *13 (C.D. 12 Cal. April 30, 2017) (OOH-based argument that plaintiff’s third grade 13 education precluded the performance of jobs identified by the 14 vocational expert waived by failure to make the argument during the 15 administrative proceeding); Gandara v. Berryhill, 2017 WL 4181091, at 16 *4 (E.D. Cal. Sept. 20, 2017) (OOH-based argument that jobs identified 17 by the vocational expert required a high school education waived by 18 failure to make the argument during the administrative proceeding). 19 20 Second, even if not waived, Plaintiff’s argument would fail to 21 demonstrate material error because an ALJ is under no obligation to 22 consult the OOH or to attempt to reconcile conflicts between the OOH 23 and vocational expert testimony. 24 find no case, regulation, or statute suggesting that an ALJ must sua 25 sponte take administrative notice of economic data in the CBP or the 26 OOH. 27 any apparent conflict between the [vocational expert’s] testimony and 28 the DOT . . . [b]ut Shaibi cites to no authority suggesting that the See Shaibi, 870 F.3d at 882 (“we can It is true that an ALJ is required to investigate and resolve 6 1 same is true for the CBP and OOH”); Hocking v. Berryhill, 2017 WL 2 6541858, at *4 (“Contrary to Plaintiff’s argument, an ALJ simply has 3 no independent obligation to investigate or resolve conflicts with the 4 OOH, or any resource other than the DOT (and its companion, the 5 SCO)”); Markell v. Berryhill, 2017 WL 6316825, at *11 (N.D. Cal. 6 Dec. 11, 2017) (“As with the DOT, the Commissioner takes 7 administrative notice of the OOH. 8 OOH is not binding; rather, the regulations simply identify the OOH as 9 an example of materials the Commissioner may consider”) (citations and 20 C.F.R. §416.966(d)(5). But the 10 quotations omitted); Paris v. Berryhill, 2017 WL 4181093, at *3-4 11 (E.D. Cal. Sept. 20, 2017) (Shaibi held that the OOH does not stand on 12 the “same footing” as the DOT; the ALJ has no duty to inquire into an 13 asserted conflict between the OOH’s alleged requirement of a high 14 school education and the vocational expert’s testimony that a person 15 of limited education could perform the identified jobs); Meza v. 16 Berryhill, 2017 WL 3298461, at *8 (C.D. Cal. Aug. 2, 2017) (same); 17 Walker v. Berryhill, 2017 WL 1097171, at *4 (C.D. Cal. March 23, 2017) 18 (ALJ has no obligation to inquire into alleged conflicts between the 19 OOH and vocational expert testimony); see also Poe v. Commissioner, 20 342 Fed. App’x 149, 158 (6th Cir. Aug. 18, 2009) (“Social Security 21 ruling (SSR) 00-4p only requires the ALJ to elicit a reasonable 22 explanation when there is conflict between the vocational expert and 23 the DOT. . . . 24 address or resolve conflicts between the testimony of a vocational 25 expert and the Occupational Outlook Handbook”). 26 there existed a conflict in the present case between the vocational 27 expert’s testimony and the OOH, the ALJ properly could rely on the 28 vocational expert’s testimony without further inquiry or explanation. The ruling does not require that the ALJ attempt to 7 Therefore, even if 1 See, e.g., Philbrook v. Berryhill, 2017 WL 3671569, at *2 (C.D. Cal. 2 Aug. 24, 2017) (vocational expert’s testimony constitutes “substantial 3 evidence” even when the testimony conflicts with information in the 4 OOH); see generally Treichler v. Commissioner, 775 F.3d 1090, 1098 5 (9th Cir. 2014) (the court “leaves it to the ALJ” to resolve conflicts 6 and ambiguities in the evidence); Andrews v. Shalala, 53 F.3d 1035, 7 1039-40 (9th Cir. 1995) (court must uphold the Administrative decision 8 when the evidence “is susceptible to more than one rational 9 interpretation”). 10 11 Third, Plaintiff’s argument also fails because there is no 12 “obvious or apparent” conflict between the vocational expert’s 13 testimony and the information in the OOH. 14 vocational expert’s testimony and information in the DOT “to be fairly 15 characterized as a conflict, it must be obvious or apparent.” 16 Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir. 2016). 17 to Shaibi, the OOH were on equal footing with the DOT, the same 18 requirement of an “obvious or apparent” conflict presumably would 19 apply. 20 conflict between the vocational expert’s testimony that a person with 21 an 11th grade education can perform the identified jobs and the 22 information in the OOH that the “typical entry level education” for 23 workers in these jobs is “high school diploma or equivalent.” 24 Hocking v. Berryhill, 2017 WL 6541858, at *4 n.4 (“The OOH states that 25 receptionists ‘typically need a high school diploma or equivalent.’ 26 . . . 27 Losoya v. Berryhill, 2017 WL 4564701, at *6 (C.D. Cal. Oct. 11, 2017) 28 (OOH information that typical entry level education is high school For a difference between a If, contrary In the present case, there was no “obvious or apparent” See It does not state that a high school diploma is required”); 8 1 diploma or equivalent not in conflict with vocational expert testimony 2 that a person having 11 years of schooling can perform the identified 3 job); Walker v. Berryhill, 2017 WL 1097171, at *4 (same). 4 5 CONCLUSION 6 7 For all of the foregoing reasons,2 Plaintiff’s motion for summary 8 judgment is denied and Defendant’s motion for summary judgment is 9 granted. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: January 17, 2018. 14 15 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 2 23 24 25 26 27 28 Plaintiff argues, and Defendant concedes, that the ALJ erred in finding that Plaintiff can perform the “parking lot cashier” job. For the reasons discussed herein, however, such error was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (an error “is harmless where it is inconsequential to the ultimate non-disability determination”); Whittington v. Berryhill, 2017 WL 3193649, at *10 (D. Nev. July 27, 2017) (error concerning one identified job harmless where the “ALJ properly identified two other jobs available in significant numbers in the national economy Plaintiff could perform”). 9
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