Kevin Enoch v. Andrew Saul, No. 2:2019cv09831 - Document 23 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is AFFIRMED. (see document for further details) (hr)
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Kevin Enoch v. Andrew Saul Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KEVIN E.,1 Case No. 2:19-cv-09831-JC 12 Plaintiff, 13 v. MEMORANDUM OPINION 14 15 ANDREW SAUL, Commissioner of Social Security Administration, 16 Defendant. 17 18 I. SUMMARY 19 On November 15, 2019, plaintiff filed a Complaint seeking review of the 20 Commissioner of Social Security’s denial of his application for benefits. The parties 21 have consented to proceed before the undersigned United States Magistrate Judge. 22 This matter is before the Court on plaintiff’s motion for summary judgment 23 (“Plaintiff’s Motion”) and defendant’s memorandum in opposition (“Defendant’s 24 Mem.”). The Court has taken the parties’ arguments under submission without oral 25 argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5. 26 27 28 1 Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On October 8, 2015, plaintiff filed an application for Disability Insurance 7 Benefits, alleging disability beginning on December 30, 2010, due to neck, back, 8 and foot problems, as well as traumatic brain injury, post-traumatic stress disorder 9 (PTSD), and sleep apnea. (See Administrative Record (“AR”) 241-41, 318). An 10 ALJ subsequently examined the medical record and heard testimony from plaintiff 11 (who was represented by counsel) and a vocational expert on August 16, 2018. 12 (AR 39-119). On October 31, 2018, the ALJ determined that plaintiff had not been 13 disabled from the alleged onset date of December 30, 2010, to the date last insured, 14 September 30, 2016. (AR 16-33). Specifically, the ALJ found: (1) plaintiff 15 suffered from the following severe impairments: a mental impairment diagnosed to 16 include post-traumatic stress disorder and depressive disorder; degenerative disc 17 disease of the lumbar spine; status post right elbow arthroscopy; status post bilateral 18 hallux osteotomy; and degenerative joint disease of the left shoulder (AR 19); 19 (2) plaintiff’s impairments, considered individually or in combination, did not meet 20 or medically equal a listed impairment (AR 22); (3) plaintiff retained the residual 21 functional capacity (“RFC”) to perform a reduced range of light work2 (20 C.F.R. 22 23 24 25 26 27 28 2 The ALJ specifically found that plaintiff had the following RFC: [Plaintiff can] perform light work . . . except he can no more than occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds. [Plaintiff] can occasionally balance, stoop, kneel, crouch, but never crawl. He can never work in the presence of unprotected heights or hazardous machinery; he should not be required to operate a motor vehicle as part of the job duties. [Plaintiff] is limited to performing simple and routine tasks; he can use judgment required for simple (continued...) 2 1 §§ 404.1567(b)) (AR 25); (4) plaintiff could not perform his past relevant work (AR 2 30); (5) plaintiff was capable of performing other jobs that existed in significant 3 numbers in the national economy, specifically small products assembler, office 4 helper, lens inserter, bench assembler or table worker, and preparer in the jewelry 5 industry. (AR 31-33); and (6) plaintiff’s statements regarding the intensity, 6 persistence, and limiting effects of subjective symptoms were not entirely consistent 7 with the medical evidence and other evidence in the record (AR 27-28). 8 On September 20, 2019, the Appeals Council denied plaintiff’s application 9 for review of the ALJ’s decision. (AR 1-3). 10 III. APPLICABLE LEGAL STANDARDS 11 A. 12 To qualify for disability benefits, a claimant must show that he is unable “to Administrative Evaluation of Disability Claims 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than 12 months.” 16 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905. To be considered 17 disabled, a claimant must have an impairment of such severity that he is incapable of 18 performing work the claimant previously performed (“past relevant work”) as well 19 as any other “work which exists in the national economy.” Tackett v. Apfel, 180 20 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 21 To assess whether a claimant is disabled, an ALJ is required to use the five- 22 step sequential evaluation process set forth in Social Security regulations. See Stout 23 24 25 26 27 2 (...continued) routine tasks and simple work-related decisions; he can deal with changes in the work setting that are required for simple work and work-related decisions. [Plaintiff] should have no more than occasional interaction with supervisors and co-workers and never work with the public. 28 (AR 25). 3 1 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (describing five2 step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 416.920). The 3 claimant has the burden of proof at steps one through four – i.e., determination of 4 whether the claimant was engaging in substantial gainful activity (step 1), has a 5 sufficiently severe impairment (step 2), has an impairment or combination of 6 impairments that meets or medically equals one of the conditions listed in 20 C.F.R. 7 Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and retains the residual 8 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 9 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the burden 10 of proof at step five – i.e., establishing that the claimant could perform other work in 11 the national economy. Id. 12 B. 13 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 14 Commissioner’s “final decision” was “based on legal error or not supported by 15 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 16 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard 17 of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc. Sec. 18 Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks omitted). 19 Thus, an ALJ’s decision must be upheld if the evidence could reasonably support 20 either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 (citations 21 omitted). Even when an ALJ’s decision contains error, it must be affirmed if the 22 error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 23 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate 24 nondisability determination; or (2) ALJ’s path may reasonably be discerned despite 25 the error) (citation and quotation marks omitted). 26 Substantial evidence is “such relevant evidence as a reasonable mind might 27 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 28 “substantial evidence” as “more than a mere scintilla, but less than a 4 1 preponderance”) (citation and quotation marks omitted). When determining 2 whether substantial evidence supports an ALJ’s finding, a court “must consider the 3 entire record as a whole, weighing both the evidence that supports and the evidence 4 that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d 5 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 6 Federal courts review only the reasoning the ALJ provided, and may not 7 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 8 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 9 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 10 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 11 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 12 A reviewing court may not conclude that an error was harmless based on 13 independent findings gleaned from the administrative record. Brown-Hunter, 806 14 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 15 conclude that an error was harmless, a remand for additional investigation or 16 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 17 (9th Cir. 2015) (citations omitted). 18 IV. DISCUSSION 19 Plaintiff solely challenges the ALJ’s reliance on the vocational expert’s 20 testimony at step five. (Plaintiff’s Motion at 13-21). For the reasons stated below, 21 the Court concludes that a reversal or remand is not warranted. 22 A. 23 At step five, the Commissioner must prove that other work exists in Pertinent Law 24 “significant numbers” in the national economy which could be done by an individual 25 with the same RFC, age, education, and work experience as the claimant. 26 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520(a)(4)(v) & (g), 404.1560(c), 27 416.920(a)(4)(v) & (g), 416.960(c); Heckler v. Campbell, 461 U.S. 458, 461-62 28 /// 5 1 (1983); see Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (describing legal 2 framework for step five) (citations omitted). 3 One way the Commissioner may satisfy this burden is by obtaining testimony 4 from an impartial vocational expert (alternatively, “VE”) about the type of work 5 such a claimant is still able to perform, as well as the availability of related jobs in 6 the national economy. See Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir. 7 2016) (citation omitted); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) 8 (citing Tackett, 180 F.3d at 1100-01). When a vocational expert is consulted at step 9 five, the ALJ typically asks the vocational expert at the hearing to identify specific 10 examples of occupations that could be performed by a hypothetical individual with 11 the same characteristics as the claimant. Zavalin, 778 F.3d at 846 (citations 12 omitted); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (citations omitted). 13 The vocational expert’s responsive testimony may constitute substantial evidence of 14 a claimant’s ability to perform such sample occupations so long as the ALJ’s 15 hypothetical question included all of the claimant’s limitations supported by the 16 record. See Hill, 698 F.3d at 1161-62 (citations omitted); Robbins v. Soc. Sec. 17 Admin., 466 F.3d 880, 886 (9th Cir. 2006) (citation omitted). 18 A vocational expert’s testimony generally should be consistent with the 19 Dictionary of Occupational Titles (“DOT”).3 See Lamear v. Berryhill, 865 F.3d 20 1201, 1205 (9th Cir. 2017) (“Presumably, the opinion of the VE would comport 21 with the DOT’s guidance.”); see generally Gutierrez, 844 F.3d at 807 (DOT “guides 22 the [ALJ’s] analysis” at step five). To the extent it is not – i.e., the VE’s opinion 23 24 25 26 27 28 3 The DOT, which is compiled by the U.S. Department of Labor, “details the specific requirements for different occupations,” and is the Social Security Administration’s “‘primary source of reliable job information’ regarding jobs that exist in the national economy.” Gutierrez, 844 F.3d at 807; Zavalin, 778 F.3d at 845-46 (citing Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990)); see also 20 C.F.R. §§ 404.1566(d)(1), 404.1569, 416.966, 416.969. Neither the DOT nor a vocational expert’s opinion, however, “automatically ‘trumps’” where there is a conflict. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting Social Security Ruling 00-4p) (internal quotation marks omitted). 6 1 “conflicts with, or seems to conflict with” the DOT – an ALJ may not rely on the 2 VE’s testimony to deny benefits at step five unless and until the ALJ has adequately 3 resolved any such conflict. Gutierrez, 844 F.3d at 807 (citing Social Security Ruling 4 (“SSR”) 00-4P, 2000 WL 1898704, at *2 (2000)); Rounds, 807 F.3d at 1003-04 5 (citations omitted); SSR 00-4p, 2000 WL 1898704, at *4 (“When vocational 6 evidence provided by a VE [ ] is not consistent with information in the DOT, the 7 [ALJ] must resolve [the] conflict before relying on the VE [ ] evidence to support a 8 determination or decision that the individual is or is not disabled.”). In each case 9 where vocational expert testimony is used, an ALJ generally must affirmatively 10 (1) ask the VE whether there is a conflict between the expert’s 11 opinions and the DOT requirements for a particular occupation; 12 (2) “obtain a reasonable explanation for any apparent conflict”; and 13 (3) explain in the decision how the ALJ resolved any such conflict. 14 Massachi, 486 F.3d at 1152-53 (quoting SSR 00-4p). An ALJ need only resolve 15 those conflicts that are “apparent or obvious.” Gutierrez, 844 F.3d at 807-08. A 16 conflict is “apparent or obvious” only when vocational expert testimony is “at odds 17 with” DOT requirements that are “essential, integral, or expected” for a particular 18 occupation. Id. at 808. 19 B. 20 At the hearing, the ALJ posed to the vocational expert a hypothetical Analysis 21 containing all of plaintiff’s functional limitations as found by the ALJ, which 22 plaintiff does not dispute. (See AR 25, 97-98). In response, the VE identified 23 several representative occupations that a person with these limitations could 24 perform. (AR 98-100). Plaintiff’s counsel then engaged in lengthy cross25 examination regarding these occupations (see AR 100-18), and later submitted a 26 post-hearing brief disputing the vocational expert’s testimony and requesting a 27 supplemental hearing to further examine the vocational expert (AR 431-35). The 28 ALJ denied the request but discussed at least some of plaintiff’s specific contentions 7 1 in the decision. (AR 31-33). The ALJ then relied on the vocational expert’s 2 testimony to find plaintiff could perform the following representative jobs existing in 3 significant numbers in the national economy: 4 1 small products assembler (Dictionary of Occupational Titles (“DOT”) 706.684-022), about 80,000 jobs nationally; 5 6 2 office helper (DOT 239.567-010), about 75,000 jobs nationally; 7 3 lens inserter (DOT 713.687-026), about 20,000 jobs nationally; 8 4 bench assembler or table worker (DOT 739.687-182), about 10,000 jobs nationally; 9 10 5 preparer in the jewelry industry (DOT 700.687-062), about 10,000 jobs nationally.4 11 12 (AR 31-33). Plaintiff argues that the vocational expert’s testimony conflicts with 13 the DOT and other occupational sources in a variety of respects.5 14 Plaintiff contends, among other things, that the duties of a “small products 15 assembler” are inconsistent with his RFC limitation to only occasional interaction 16 with supervisors and coworkers. (Plaintiff’s Motion at 14). At the hearing, as 17 plaintiff points out, the vocational expert acknowledged that the DOT defines this 18 job as involving “repetitive tasks on [an] assembly line to mass produce small 19 products.” (AR 106; see DOT 706.684-022) (emphasis added). When counsel 20 asked if the vocational expert “consider[s] assembly line work . . . to require more 21 than occasional contact with supervisors and coworkers,” the vocational expert 22 replied yes, “[e]specially in a production type occupation,” though it “just depends 23 24 25 26 27 28 4 The first two (small products assembler and office helper) are light unskilled jobs, while the latter three (lens inserter, bench assembler or table worker, and preparer in jewelry) are described as sedentary unskilled jobs. (AR 32-33, 98-100). 5 Although some of the contentions raised by plaintiff here were not raised at the hearing, plaintiff’s counsel did raise them during administrative proceedings either in the post-hearing brief to the ALJ (AR 431-35) or a brief submitted later to the Appeals Council (AR 646-49). Defendant does not argue that any issues raised here are waived. 8 1 on the company and the supervisor.” (AR 104). This suggests there may be, as 2 plaintiff argues, an unresolved conflict between the DOT’s requirements of a small 3 products assembler and plaintiff’s limitation to occasional interaction with 4 supervisors and coworkers. However, any error on this point is harmless because 5 substantial evidence supports the ALJ’s finding that plaintiff could perform several 6 other representative occupations existing in significant numbers in the national 7 economy.6 See Treichler, 775 F.3d at 1099 (ALJ error harmless if inconsequential 8 to the ultimate nondisability determination); Anna F. v. Saul, 2020 WL 7024924, at 9 *6 (C.D. Cal. Nov. 30, 2020) (ALJ error in accepting the VE’s testimony about one 10 job that plaintiff could perform was harmless because substantial evidence 11 supported the ALJ’s finding that plaintiff could perform other jobs in significant 12 numbers in the national economy). 13 Plaintiff also argues that the duties of an “office helper” conflict with his 14 RFC, which limits him to “performing simple and routine tasks,” “us[ing] judgment 15 required for simple routine tasks and simple work-related decisions,” and “deal[ing] 16 with changes in the work setting that are required for simple work and work-related 17 decisions.” (Plaintiff’s Motion at 13-16; AR 25). As the vocational expert 18 acknowledged, the DOT provides that office helpers must “perform[] a VARIETY 19 of duties,” DOT 239.567-010, 1991 WL 672232, which the DOT’s companion 20 21 22 6 There is no bright-line rule as to what constitutes a “significant” number of jobs 23 nationally, but any aggregate number over 25,000 clearly suffices. See Gutierrez v. Comm’r of 24 Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (25,000 nationwide jobs significant, but a “close 25 26 27 28 call”); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir.1995) (per curiam) (64,000 nationwide jobs significant); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (622,000 nationwide jobs significant); Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (125,000 nationwide jobs significant); see also Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012) (1,680 nationwide jobs insignificant); Anna F. v. Saul, 2020 WL 7024924, at *6 (C.D. Cal. Nov. 30, 2020) (21,100 jobs in the national economy was significant number); Valencia v. Astrue, 2013 WL 1209353, at *18 (N.D. Cal. Mar. 25, 2013) (14,082 jobs in the national economy was not a significant number). 9 1 publication, Selected Characteristics of Occupations (“SCO”),7 defines to include 2 “often changing from one task to another of a different nature without loss of 3 efficiency or composure.” (AR 110; see AR 492). The vocational expert testified, 4 based on his own research, that the office helper job is “pretty routine with minimal 5 changes,” and an office helper “can work on certain things for a period of time and 6 then move to another and so on and so on.” (AR 110-11). Plaintiff contends that 7 the vocational expert’s characterization of the job conflicts with the SCO 8 description. (Plaintiff’s Motion at 16). However, as numerous courts in this Circuit 9 have concluded, the requirements of the office helper job are consistent with a 10 limitation to simple, routine, repetitive tasks, notwithstanding the job’s requirement 11 of switching between a variety of tasks. See, e.g., Lyn B. v. Comm’r of Soc. Sec., 12 2019 WL 1491174, at *8 (C.D. Cal. Apr. 3, 2019) (“limitation to simple, routine, 13 and repetitive tasks” did not conflict with office helper job’s requirement of 14 “performing a variety of duties”); Jerome M. H. v. Berryhill, 2019 WL 994966, at 15 *2 (C.D. Cal. Feb. 7, 2019) (finding office helper position compatible with 16 limitation to simple repetitive tasks and noting plaintiff had “failed to demonstrate 17 why a person limited to simple repetitive tasks could not also frequently change 18 tasks”); Lewis v. Colvin, 2016 WL 397626, at *5 (E.D. Cal. Feb. 2, 2016), aff’d, 19 708 F. App’x 919 (9th Cir. 2018) (finding no conflict between plaintiff’s limitation 20 to simple instructions or simple, repetitive tasks and performing a variety of job 21 duties as an office helper). Plaintiff has therefore failed to identify any material 22 conflict between the DOT and the vocational expert’s testimony that a person who 23 is limited to simple, routine tasks and can handle “changes in the work setting that 24 25 7 The ALJ is required to resolve conflicts with this companion publication as well as the 26 DOT. See SSR 00-4p (stating that adjudicators must “[i]dentify and obtain a reasonable 27 explanation for any conflicts between occupational evidence provided by VEs ... and information in the [DOT], including its companion publication, the Selected Characteristics of Occupations 28 Defined in the Revised Dictionary of Occupational Titles (SCO)”). 10 1 are required for simple work and work-related decisions” can nonetheless perform 2 the duties of an office helper. 3 Plaintiff additionally disputes whether some of the jobs at issue – specifically, 4 small products assembler, preparer, lens inserter, and table worker – properly 5 qualify as “unskilled.” (Plaintiff’s Motion at 16-17). Plaintiff asserts that, 6 according to the Occupational Outlook Handbook (“OOH”), these jobs are broadly 7 categorized as occupations requiring “moderate-term on-the-job-training,” defined 8 as “more than one month and up to 12 months of on-the-job experience and informal 9 training,” whereas the Social Security regulations define “unskilled” jobs as those 10 that “a person can usually learn to do the job in 30 days, and little specific 11 vocational preparation and judgment are needed.” (Plaintiff’s Motion at 16-17; AR 12 529, 531, 606, 608; 20 C.F.R. § 416.968(a)). However, even if the vocational 13 expert’s testimony conflicted with the OOH on this point, the testimony was directly 14 consistent with the DOT, which lists each of the occupations as SVP Level 2, 15 equivalent to unskilled work. See SSR 00-4P, 2000 WL 1898704, at *3 (“The DOT 16 lists a specific vocational preparation (SVP) time for each described occupation. 17 Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work 18 corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and 19 skilled work corresponds to an SVP of 5-9 in the DOT”). The ALJ thus properly 20 relied on the VE’s testimony and was not required to resolve any purported conflict 21 with the OOH. See Vizcarra v. Berryhill, 2018 WL 1684315, at *3 (C.D. Cal. Apr. 22 5, 2018) (ALJ not required to resolve discrepancy between vocational expert’s 23 testimony and OOH as to whether jobs qualified as unskilled), aff’d, __ F. App’x __ 24 (9th Cir. Jan. 13, 2021); Markell v. Berryhill, 2017 WL 6316825, at *11 (N.D. Cal. 25 Dec. 11, 2017) (same). 26 Plaintiff’s remaining arguments all challenge the vocational expert’s job 27 numbers, which plaintiff argues are unreliable and in conflict with various non-DOT 28 sources, such as County Business Patterns, the OOH, O*NET OnLine, Job Browser 11 1 Pro, and the Occupational Requirements Survey. (Plaintiff’s Motion at 16, 18-21). 2 However, as numerous courts in this Circuit have concluded, a lay assessment of 3 data from these sources fails to undermine the reliability of the vocational expert’s 4 testimony. See, e.g., Selia R. v. Saul, 2020 WL 3620228, at *14 (E.D. Wash. Apr. 5 27, 2020) (“[C]ourts in this circuit considering similar arguments have found that lay 6 assessment of raw data does not rebut a vocational expert’s opinion.”); David G. v. 7 Saul, 2020 WL 1184434, at *5 (C.D. Cal. Mar. 11, 2020) (“Plaintiff’s subjective 8 lay assessment of the data [from various non-DOT sources] is insufficient to 9 undermine the VE’s analysis.”); Paredes Ruiz v. Saul, 2020 WL 528846, at *4 10 (E.D. Cal. Feb. 3, 2020) (“Plaintiff’s effort to undermine the reliability of the VE’s 11 testimony through her own lay assessment of vocational information and job data 12 [from County Business Patterns and the OOH] is unavailing.”), appeal docketed, 13 No. 20-15286 (9th Cir. Feb. 21, 2020); Jose Alfredo G. v. Saul, 2019 WL 6652086, 14 at *6 (S.D. Cal. Dec. 5, 2019) (“Plaintiff merely presents a lay interpretation of the 15 alternative OOH and O*NET data. Lay assessments alone are insufficient to 16 undermine the VE’s analysis; such attempts have been ‘uniformly rejected by 17 numerous courts.’”) (quoting Merryflorian v. Astrue, 2013 WL 4783069, at *5 18 (S.D. Cal. Sept. 6, 2013)); Kimberly P. v. Saul, 2019 WL 4736975, at *5 (C.D. Cal. 19 Sept. 26, 2019) (“Here, plaintiff offers nothing more than raw data from Job 20 Browser Pro, with no expert explanation of the numbers in the report. . . . [A]bsent 21 expert testimony interpreting the raw data submitted, it fails to undermine the VE’s 22 expert testimony.”); Shaibi v. Saul, 2019 WL 3530388, at *7 (E.D. Cal. Aug. 2, 23 2019) (“[C]ounsel’s lay assessment of the data derived from the [OOH] and Job 24 Browser Pro does not undermine the reliability of the vocational expert’s testimony. 25 Counsel has not offered any expert opinion interpreting data from these or other 26 sources to undercut the VE’s analysis.”); Kirby v. Berryhill, 2018 WL 4927107, at 27 *5 (C.D. Cal. Oct. 10, 2018) (“[C]ounsel’s lay assessment of the data derived from 28 the OOH and Job Browser Pro does not undermine the reliability of the vocational 12 1 expert’s testimony.”), appeal docketed, No. 18-56511 (9th Cir. Nov. 9, 2018); 2 Colbert v. Berryhill, 2018 WL 1187549, at *5 (C.D. Cal. Mar. 7, 2018) (ALJ 3 properly relied on vocational expert testimony regarding job numbers where 4 claimant argued that the expert’s numbers were inflated based on Job Browser Pro 5 estimates; noting that Job Browser Pro is not a source listed in 20 C.F.R. § 6 416.966(d), and the data therefrom served only to show that evidence can be 7 interpreted in different ways). 8 Plaintiff fails to show that the ALJ erred by not specifically addressing 9 contentions regarding the job numbers based on these non-DOT sources. See Ruby 10 V. v. Saul, 2020 WL 2307237, at *6 (C.D. Cal. May 8, 2020) (ALJ properly relied 11 on vocational expert testimony and had no obligation to address asserted job 12 number conflicts with non-DOT sources raised in post-hearing submissions), appeal 13 docketed, No. 20-55586 (9th Cir. June 8, 2020). Instead, the ALJ reasonably relied 14 on the vocational expert’s testimony regarding job numbers at step five, which alone 15 constitutes substantial evidence. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 16 2020) (“Given its inherent reliability, a qualified vocational expert’s testimony as to 17 the number of jobs existing in the national economy that a claimant can perform is 18 ordinarily sufficient by itself to support an ALJ’s step-five finding.”) (citations 19 omitted); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ may 20 take administrative notice of any reliable job information, including information 21 provided by a VE. A VE’s recognized expertise provides the necessary foundation 22 for his or her testimony. Thus, no additional foundation is required.”) (citing 23 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). Plaintiff’s evidence 24 arguably suggesting an alternative number of available jobs does not warrant 25 remand. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the 26 evidence is susceptible to more than one rational interpretation, one of which 27 supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”); see also 28 Gardner v. Colvin, 2013 WL 781984, at *3 (C.D. Cal. Mar. 1, 2013) (finding no 13 1 basis for remand where claimant presented evidence sufficient to support an 2 alternative finding regarding the number of relevant jobs available in the economy). 3 Accordingly, plaintiff fails to demonstrate any material error in the ALJ’s 4 conclusion that plaintiff is capable of performing the duties of jobs existing in 5 significant numbers in the national economy, and is therefore not disabled. 6 V. CONCLUSION 7 For the foregoing reasons, the decision of the Commissioner of Social 8 Security is AFFIRMED. 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 DATED: January 14, 2021 11 12 13 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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