Twila Denise Bracy v. Kilolo Kijakazi, No. 2:2020cv06304 - Document 39 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action withprejudice. (et)
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Twila Denise Bracy v. Kilolo Kijakazi Doc. 39 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 2:20-cv-06304-AFM TWILA D. B., 1 11 12 Plaintiff, 13 v. 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER Defendant. 16 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for supplemental security income. In accordance with the 20 case management order, the parties have filed briefs addressing the merits of the 21 disputed issues. The matter is now ready for decision. BACKGROUND 22 23 In September 2017, Plaintiff filed an application for supplemental security 24 income, alleging disability beginning September 17, 2016. (Administrative Record 25 (“AR”) 172-178.) Plaintiff’s application was denied. (AR 99-103.) On July 24, 2019, 26 Plaintiff’s name has been partially redacted in accordance 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 27 28 Dockets.Justia.com 1 Plaintiff appeared with counsel at a hearing conducted before an Administrative Law 2 Judge (“ALJ”). At the hearing, Plaintiff and a vocational expert (“VE”) testified. (AR 3 534-567.) 4 On August 5, 2019, the ALJ issued a decision finding that Plaintiff suffered 5 from the following medically severe impairments: degenerative disc disease, pelvic 6 floor dysfunction status post hysterectomy, and depression. (AR 18.) After 7 determining that Plaintiff’s impairments did not meet or equal a listed impairment, 8 the ALJ assessed Plaintiff as retaining the residual functional capacity (“RFC”) to 9 perform medium work with the following restrictions: Plaintiff can frequently 10 operate hand and foot controls; frequently climb, balance, stoop, kneel, crouch, and 11 crawl; she can perform work that involves tasks that can be learned within a short 12 demonstration period of up to approximately 30 days with no more than frequent 13 changes in the workplace tasks and duties; she can work primarily with things and 14 have only occasional contact with people; she can maintain concentration, 15 persistence, and pace at this limited range of tasks for two hours at a time before 16 taking a regularly scheduled break. (AR 20.) Relying on the testimony of the VE, the 17 ALJ determined that Plaintiff was not able to perform her past relevant work as a 18 security guard. (AR 27.) Also relying on the VE’s testimony, the ALJ found that 19 Plaintiff was able to perform jobs existing in significant numbers in the national 20 economy, including counter supply worker, housekeeper laundry aide, and kitchen 21 helper. (AR 28.) Accordingly, the ALJ determined that Plaintiff was not disabled 22 from September 27, 2017 (the date of Plaintiff’s application) through the date of his 23 decision. (AR 29.) The Appeals Council denied review (AR 1-6), rendering the ALJ’s 24 decision the final decision of the Commissioner. 25 26 27 DISPUTED ISSUES 1. Whether Plaintiff is entitled to a remand based upon the unconstitutional removal procedure in effect during the tenure of Andrew Saul. 28 2 1 2. Whether the ALJ erred by rejecting standing and walking limitations 2 included in the opinions of the consultative examiner and the non- 3 examining state agency physician. 3. Whether the ALJ erred by failing to require the VE to identify full-time 4 work. 5 4. Whether the ALJ erred by relying on the VE’s testimony where it was 6 contradicted by “reliable published government data.” 7 8 STANDARD OF REVIEW 9 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 11 determine whether the Commissioner’s findings are supported by substantial 12 evidence and whether the proper legal standards were applied. See Treichler v. 13 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 14 evidence means “more than a mere scintilla” but less than a preponderance. See 15 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 16 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 18 U.S. at 401. In the social security context, the substantial evidence threshold is “not 19 high.” Biestek v. Berryhill, 139 S.Ct. 1148, 1153 (2019). This Court must review the 20 record as a whole, weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where 22 evidence is susceptible of more than one rational interpretation, the Commissioner’s 23 decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). DISCUSSION 24 25 I. Plaintiff’s Constitutional Challenge 26 After filing her brief in support of her complaint, Plaintiff filed a Notice of 27 New Authority (ECF 30) and a Supplemental Brief (ECF 33) challenging the 28 constitutionality of the ALJ’s decision. Plaintiff contends that 42 U.S.C. § 902(a)(3) 3 1 – which limits the President’s authority to remove the Commissioner of Social 2 Security without good cause – violates separation of powers. See Seila Law LLC v. 3 CFPB, 140 S. Ct. 2183, 2197 (2020) (holding that a for-cause restriction of the 4 President’s executive power to remove the CFPB’s single director violated the 5 separation of powers doctrine). She argues that the unconstitutional removal 6 provision rendered Andrew Saul’s tenure as Commissioner (from June 17, 2019 to 7 July 11, 2021) unconstitutional and, consequently, the ALJ assigned to hear her case 8 was “not subject to sufficient accountability.” (ECF 33 at 2-4.) According to Plaintiff, 9 this constitutional error entitles her to a de novo hearing. (ECF 33 at 4.) 10 The Commissioner concedes that § 902(a)(3) violates the separation of powers 11 to the extent it is construed as limiting the President’s authority to remove the 12 Commissioner without cause. (ECF 38 at 3-4.) Nevertheless, the Commissioner 13 argues Plaintiff is not entitled to a remand because the ALJ who heard Plaintiff’s 14 claim was properly appointed by Acting Commissioner Nancy Berryhill and because 15 Plaintiff has failed to show any connection between the unconstitutional removal 16 clause and the ALJ’s decision denying her benefits. The Commissioner also argues 17 that the Court should deny Plaintiff’s request for a new hearing based upon other 18 legal and prudential considerations. (ECF 38 at 8-13.) For the following reasons, the 19 Court rejects Plaintiff’s claim. 20 Plaintiff’s argument is based upon Lucia v. SEC, 138 S. Ct. 2044 (2018). In 21 Lucia, the Supreme Court held that ALJs of the Securities and Exchange Commission 22 are Officers of the United States and must be constitutionally appointed. Lucia, 138 23 S. Ct. at 2055. The Court concluded that the “appropriate” remedy for an adjudication 24 tainted with an appointments violation is a new “hearing before a properly appointed” 25 official. Lucia, 138 S. Ct. at 2055 (citing Ryder v. United States, 515 U.S. 177, 182- 26 183 (1995)). Unlike Lucia, however, Plaintiff does not rely on an allegedly 27 unconstitutional appointment. To the contrary, she concedes that ALJ Ben Willner 28 was properly appointed by Acting Commissioner Berryhill at the time he decided 4 1 Plaintiff’s disability claim. (See ECF 33 at 2.) 2 Therefore, there is no Appointments 2 Clause violation. See Rivera-Herrera v. Kijakazi, 2021 WL 5450230, at *6 (E.D. Cal. 3 Nov. 22, 2021) (“the ALJ who adjudicated Plaintiff’s claim on September 18, 2019 4 was properly appointed pursuant to former Acting Commissioner Berryhill’s July 16, 5 2018 ratification of ALJ appointments. As such, there is no Appointments Clause 6 violation.”); Lisa Y. v. Comm’r of Soc. Sec., 2021 WL 5177363, at *5 (W.D. Wash. 7 Nov. 8, 2021) (same); Marrs v. Comm’r of Soc. Sec., 2021 WL 4552254, at *4 (N.D. 8 Tex. Oct. 5, 2021) (same). 9 Notwithstanding her attempt to characterize it otherwise, Plaintiff’s claim is 10 based upon an allegedly unconstitutional removal provision, and therefore the 11 controlling law is set forth in Collins v. Yellen, 141 S. Ct. 1761 (2021). See Decker 12 Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021) (“Collins is controlling 13 with respect to the remedy for any unconstitutionality in the removal provisions.”). 14 In Collins, the plaintiffs sought a judicial declaration invalidating prior actions by the 15 FHFA directors, who possessed removal protection and therefore headed an 16 unconstitutionally structured agency. Collins, 141 S. Ct. at 1787. The Supreme Court 17 found such relief unwarranted. Id. at 1788. Rather, a plaintiff must demonstrate that 18 the unconstitutional provision actually caused him or her harm. Id. at 1788-1789. The 19 Supreme Court refused to invalidate the prior actions in their entirety, explaining: 20 All the officers who headed the FHFA during the time in question were 21 properly appointed. Although the statute unconstitutionally limited the 22 President’s authority to remove the confirmed Directors, there was no 23 constitutional defect in the statutorily prescribed method of appointment 24 2 25 26 27 28 On July 16, 2018, responding to the decision in Lucia, the acting Commissioner of the SSA, Nancy Berryhill ratified the appointments of ALJs and administrative appeals judges (who were previously appointed by lower-level staff, rather than the Commissioner herself) to address any prospective Appointments Clause concerns. See Rivera-Herrera v. Kijakazi, 2021 WL 5450230, at *5 (E.D. Cal. Nov. 22, 2021); SSR 19-1p, 84 Fed. Reg. 9582, 9583 (2019). Plaintiff does not allege that Acting Commissioner Berryhill’s authority was tainted by the unconstitutional removal provision. 5 1 to that office. As a result, there is no reason to regard any of the actions 2 taken by the FHFA ... as void. 3 Id. at 1787 (emphasis in original). Accordingly, a claimant seeking relief must show 4 that an unconstitutional removal restriction actually caused her harm. See Collins, 5 141 S. Ct. at 1787-1789 & n.24 (an unconstitutional removal restriction “does not 6 mean that actions taken by such an officer are void ab initio and must be undone”); 7 Decker Coal Co., 8 F.4th at 1137 (“Here, the ALJ lawfully exercised power that he 8 possessed by virtue of his appointment, which the Secretary ratified before the ALJ 9 adjudicated the claim. Absent a showing of harm, we refuse to unwind the decisions 10 below.”) 11 Plaintiff identifies no particular harm suffered by virtue of her claim being 12 adjudicated during Commissioner Saul’s tenure by an ALJ who was otherwise 13 properly appointed. She has failed to show any connection between the 14 unconstitutional removal clause and ALJ Willner’s decision denying her benefits. 15 Further, nothing in the record supports the conclusion that the disability decision in 16 Plaintiff’s case is in anyway traceable to Commissioner Saul. Accordingly, Plaintiff 17 is not entitled to a new hearing. See Sean E. M. v. Kijakazi, 2022 WL 267406, at *5 18 (N.D. Cal. Jan. 28, 2022) (because plaintiff failed to show connection between the 19 unconstitutional removal provision and denial of benefits, he was not entitled to new 20 hearing based upon constitutional challenge); Ramos v. Comm’r of Soc. Sec., 2022 21 WL 105108, at *4 (E.D. Cal. Jan. 11, 2022) (same); Rivera-Herrera, 2021 WL 22 5450230, at *8 (same); Lisa Y., 2021 WL 5177363, at *8 (“Reversal is not mandated 23 under Seila Law or Collins because § 902(a)(3)’s removal clause is severable, and 24 because there is no possibility § 902(a)(3)’s removal clause harmed Plaintiff.”); 25 Catherine J.S.W. v. Comm’r of Soc. Sec., 2021 WL 5276522, at *8 (W.D. Wash. 26 Nov. 12, 2021) (same); see also Decker Coal, 8 F.4th at 1136-1138 (plaintiff not 27 entitled to new hearing based upon allegedly unconstitutional removal provision 28 6 1 where the plaintiff failed to show make any showing of a nexus between the allegedly 2 unconstitutional removal provisions and the ALJ’s decision). 3 II. Plaintiff’s Standing and Walking Limitations 4 Plaintiff contends that the ALJ erred by failing to consider and specifically 5 reject the standing and walking limitations included in the opinions of E. Christian, 6 M.D., and Daniela Drake, M.D. Plaintiff points out that although the ALJ purported 7 to agree with the findings and opinions of Drs. Christian and Drake, he failed to 8 include a limitation of six hours of standing/walking in his hypothetical posed to the 9 VE. According to Plaintiff, the ALJ was required to either include the 10 standing/walking limitation in his hypothetical or provide legally sufficient reasons 11 for rejecting it. Further, Plaintiff contends that the jobs identified by the VE require 12 the worker to stand or walk for more than six hours in an eight-hour day. In support 13 of this contention, Plaintiff cites non-DOT source data. (ECF 20 at 10-14.) 14 The Commissioner argues that the ALJ did not reject the standing/walking 15 limitation. Rather, the ALJ’s RFC assessment finding that Plaintiff can perform 16 medium work necessarily incorporated that limitation. With respect to the question 17 of whether the jobs identified by the VE may require standing or walking for more 18 than six hours, the Commissioner contends that Plaintiff has forfeited such a claim 19 and that, even if not forfeited, the claim lacks merit. (ECF 28 at 5-14.) 20 A. Relevant Medical Opinions and the ALJ’s Decision 21 Dr. Drake performed a consultative examination in January 2018. (AR 22.) 22 After conducting a physical examination and obtaining an MRI, Dr. Drake opined 23 that Plaintiff is able to lift/carry 50 pounds occasionally and 25 pounds frequently; 24 push and pull on a frequent basis; walk and stand six hours out of an eight-hour 25 workday; sit six hours out of an eight-hour workday; frequently bend, stoop, kneel 26 and crawl; and can walk on uneven terrain, climb ladders, and work at heights 27 frequently. (AR 492-498.) In February 2018, State agency physician Dr. Christian 28 reviewed Plaintiff’s medical record and reached the same conclusions as Dr. Drake. 7 1 As relevant here, Dr. Christian opined that Plaintiff is able to stand and/or walk for 2 “about 6 hours in an 8-hour workday.” (AR 91-93.) 3 The ALJ found the State agency medical expert’s determination persuasive, 4 noting that Dr. Christian “concluded that [Plaintiff] could perform work consistent 5 with the medium exertional level, and frequently push and pull with the extremities, 6 climb, balance, stoop, kneel, crouch, and crawl.” (AR 26.) The ALJ also found 7 Dr. Drake’s opinion persuasive, again noting that she found that Plaintiff “could 8 perform work consistent with the medium exertional level, frequently push and pull, 9 bend, stoop, kneel, crawl, walk on uneven terrain, climb ladders and work at heights.” 10 (AR 27.) Accordingly, the ALJ assessed Plaintiff with the RFC “to perform medium 11 work as defined in 20 CFR 416.967(c),” with various restrictions not relevant to 12 Plaintiff’s claim. (AR 20.) 13 During the hearing, the ALJ asked the VE to assume a hypothetical individual 14 who “can perform medium exertional level work, as that term is defined within the 15 applicable rules and regulations” with additional limitations included in the RFC with 16 which he assessed Plaintiff. (AR 61-62.) The VE testified that such an individual 17 could not perform Plaintiff’s past relevant work. (AR 62.) The ALJ then asked if such 18 an individual with the same RFC, with Plaintiff’s age, education, and work history 19 and the same RFC could perform other jobs that exist in the national economy. The 20 VE responded affirmatively and identified the jobs of counter supply worker, 21 housekeeper, laundry aid, and kitchen helper, all of which the VE clarified were 22 “medium exertional level.” (AR 62-63.) 23 B. Law and Analysis 24 Plaintiff’s contention that an ALJ errs by relying on the term “medium work” 25 without explicitly including a limitation to stand/walk six hours in an eight-hour day 26 was recently rejected by the Ninth Circuit. See Terry v. Saul, 998 F.3d 1010 (9th Cir. 27 28 8 1 2021), cert. denied sub nom. Terry v. Kijakazi, 142 S. Ct. 769 (2022).3 In Terry, the 2 plaintiff asserted the ALJ determined the he had the ability “to perform medium work 3 as defined in 20 CFR [§] 404.1567(c)” and could “sit, stand or walk up to 6 hours in 4 an 8-hour workday.” Id., 998 F.3d at 1012. Questioning the vocational expert, the 5 ALJ indicated Terry had “the capacity to do medium work,” but did not identify the 6 sitting, standing, or walking limits. Id. at 1013. Appealing the decision, Terry argued 7 “the vocational expert’s testimony did not constitute substantial evidence supporting 8 the ALJ’s finding regarding the availability of work for someone with Terry’s 9 limitations because the ALJ did not reference Terry’s six-hour standing and walking 10 limitation in his questioning of the expert.” Id. at 1012-13. 11 The Court of Appeals rejected the claim, explaining: 12 “Medium work” is a term of art in disability law with a well-established 13 meaning. 20 C.F.R. § 404.1567(c). While the regulation defining 14 “medium work” does not include any express standing and walking 15 limitation, the Social Security Administration has long interpreted this 16 language to include such a restriction. In a 1983 published Social 17 Security Ruling, the Commissioner interpreted “medium work” to 18 “require[ ] standing or walking, off and on, for a total of approximately 19 6 hours in an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *6 20 (Jan. 1, 1983). 21 Here, the testifying vocational expert had significant experience 22 in the vocational rehabilitation field and as an expert witness. Terry’s 23 counsel did not object to the expert’s qualifications or otherwise 24 3 25 26 27 28 In her reply, filed on August 2, 2021, Plaintiff essentially concedes that Terry precludes her argument, but attempts to avoid that result by arguing that Terry was wrongly decided, is inconsistent with other Ninth Circuit decisions, and is not binding because – at least as of the date of Plaintiff’s brief – the mandate had not issued. (ECF 29 at 2-5.) Since the time Plaintiff filed her reply, however, the formal mandate has issued. (See Ninth Circuit Case No. 19-5600, Dkt. 36 (August 12, 2021)), and the United States Supreme Court has denied a petition for a writ of certiorari. Thus, Terry is final and binding on this Court. 9 1 challenge the expert’s testimony at the administrative hearing. There is 2 no reason to think that the vocational expert was not familiar with Social 3 Security Ruling 83-10 and the agency’s longstanding interpretation of 4 “medium work.” We thus determine that the ALJ’s reference to the term 5 in his questioning of the expert sufficiently conveyed Terry’s standing 6 and walking limitations. 7 Terry, 998 F.3d at 1013. 8 Both before and after Terry, district courts in the Ninth Circuit have found that 9 an ALJ’s reference to either “light work” or “medium work” is widely understood to 10 encompass the limitation to stand/walk for six hours in an eight-hour day. See 11 Guillermina R. v. Saul, 2020 WL 5440341, at *3 (C.D. Cal. Sept. 10, 2020) (“by 12 limiting Plaintiff to light work, the ALJ fairly incorporated the limitation to 13 walking/standing for a total of six hours in an eight-hour workday”), aff’d sub nom. 14 Guillermina R. v. Kijakazi, 2021 WL 6116636 (9th Cir. Dec. 27, 2021); 15 Christopher P. v. Saul, 2020 WL 551596, at *3 (C.D. Cal. Jan. 31, 2020) (ALJ’s 16 reference to medium work in hypothetical sufficiently captured the plaintiff’s RFC 17 limitations to standing or walking for six hours in an eight-hour workday); Mitzi D. 18 v. Saul, 2019 WL 8112507, at *2 (C.D. Cal. Dec. 13, 2019) (“Given that SSR 83-10 19 has been in play for over thirty years, there is no reason to think the VE understood 20 light work to encompass anything other than approximately six hours of standing or 21 walking.”). 22 Here, as in Terry, there is no reason to believe that either the ALJ or the VE in 23 this case failed to understand medium work as requiring the ability to stand and/or 24 walk for six hours in an eight-hour workday. 4Accordingly, the Court concludes that 25 by limiting Plaintiff to medium work, the ALJ necessarily incorporated the limitation 26 4 27 28 Plaintiff’s counsel did not object to the VE’s qualifications (AR 40), and the VE’s resume reflects approximately twenty-years of experience as an expert and with vocational rehabilitation. (See AR 257-258.) 10 1 to walking/standing for a total of six hours in an eight-hour workday. It follows that 2 the hypothetical to the VE was complete, and the ALJ could properly rely upon the 3 VE’s testimony to determine that there are occupations existing in significant 4 numbers that Plaintiff could perform. See Terry, 998 F.3d at 1014 (“the question is 5 whether the ALJ and the expert would have shared an understanding that the term 6 ‘medium work’ implies a six-hour standing and walking limitation. Because we hold 7 that the expert here would have understood the ALJ’s question to imply such a 8 limitation, the ALJ’s inquiry concerning a hypothetical individual was not 9 incomplete.”). 10 Next, Plaintiff argues that the jobs identified by the VE require standing or 11 walking for more than six hours in an eight-hour workday. As support, Plaintiff cites 12 vocational evidence from “O*NET OnLine DOT crosswalk” and “Occupational 13 Outlook Handbook,” and “Occupational Requirements Survey” which she submitted 14 to the Appeals Council with the representative brief. (AR 260-401.) According to 15 Plaintiff, the cited data shows most or many individuals performing the jobs 16 identified by the VE stand or walk more than six hours each day. (Id.) 17 The Commissioner argues that Plaintiff forfeited her challenge to the VE’s 18 testimony because she did not raise it at the administrative hearing. Plaintiff’s counsel 19 could have questioned the VE about the standing or walking requirements of the 20 occupations she identified, but he did not do so. (ECF 28 at 10; see AR 65-66.) 21 Instead, she raised it for the first time to the Appeals Counsel by offering competing 22 vocational evidence. There is some support for concluding that under these 23 circumstances, Plaintiff forfeited her claim. See Talley v. Kijakazi, 2021 WL 24 5917596, at *1 (9th Cir. Dec. 15, 2021) (plaintiff forfeited challenge to VE’s 25 testimony by failing to raise issue of standing/walking requirements at administrative 26 hearing and instead waiting to present competing vocational evidence to Appeals 27 Council) (citing Shaibi v. Berryhill, 883 F.3d 1102, 1109-1110 (9th Cir. 2017)); 28 Shapiro v. Saul, 833 F. App’x 695, 696 (9th Cir. 2021) (“the submission of new 11 1 evidence to the Appeals Council does not resolve the forfeiture issue, because the 2 issue was not first raised before the ALJ”); Roderick L. A. G. v. Saul, 2021 WL 3 2590159, at *4 (C.D. Cal. June 24, 2021) (same). However, there is also authority 4 suggesting the contrary is true. See Jaquez v. Saul, 840 F. App’x 246, 247 n.2 (9th 5 Cir. 2021) (rejecting contention that the plaintiff had forfeited or waived an issue 6 relying on new vocational evidence because “the Appeals Council considered this 7 evidence in denying [the plaintiff’s] appeal”) (citing Brewes v. Comm’r of Soc. Sec. 8 Admin., 682 F.3d 1157 (9th Cir. 2012). 9 The Court need not resolve the issue because, even assuming Plaintiff’s 10 challenge to the vocational evidence is not forfeited, it fails for the following reasons. 11 At step five of the sequential disability analysis, it is the Commissioner’s burden to 12 establish that, considering the claimant’s residual functional capacity, the claimant 13 can perform other work. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) 14 (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). To make this 15 showing, the ALJ may rely on the testimony of a VE. Tackett v. Apfel, 180 F.3d 1094, 16 1099 (9th Cir. 1999). The ALJ may pose accurate and detailed hypothetical questions 17 to the VE to establish: (1) what jobs, if any, the claimant can do; and (2) the 18 availability of those jobs in the national economy. Garrison, 759 F.3d at 1011. The 19 VE then translates the ALJ’s scenarios into “realistic job market probabilities” by 20 testifying about what kinds of jobs the claimant can still perform and whether there 21 is a sufficient number of those jobs available in the economy. Id. (quoting Tackett, 22 180 F.3d at 1101). “[I]n the absence of any contrary evidence, a VE’s testimony is 23 one type of job information that is regarded as inherently reliable; thus, there is no 24 need for an ALJ to assess its reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th 25 Cir. 2017). “When there is an apparent conflict between the vocational expert’s 26 testimony and the DOT—for example, expert testimony that a claimant can perform 27 an occupation involving DOT requirements that appear more than the claimant can 28 12 1 handle—the ALJ is required to reconcile the inconsistency.” Zavalin v. Colvin, 778 2 F.3d 842, 846 (9th Cir. 2015). 3 Plaintiff does not contend that there is a conflict between the VE’s testimony 4 and the DOT. Rather, she challenges the reliability of the VE’s testimony based upon 5 external sources which she believes contradict that testimony. The Ninth Circuit 6 rejected a similar argument in Terry. 998 F.3d at 1013. Like here, the plaintiff in 7 Terry submitted data from O*Net and the Occupational Requirements Survey, which 8 became a part of the record when it was submitted to the Appeals Council. Relying 9 on that data, the plaintiff argued that the majority of the jobs identified by the VE 10 required more than six hours of standing or walking per day. In rejecting that 11 argument, the Ninth Circuit found that the new evidence did not establish “either 12 legal error or a lack of substantial evidence to support the ALJ’s disability 13 determination.” Id. As the Court of Appeals explained: 14 The expert’s opinion that an individual with Terry’s restrictions could 15 work as an order filler, packager, and laundry worker was supported by 16 her unchallenged expertise and her reference to the Dictionary of 17 Occupational Titles. This constituted substantial evidence in support of 18 the ALJ’s finding that Terry could perform jobs existing in significant 19 numbers in the national economy. See Ford, 950 F.3d at 1159 (holding 20 that an ALJ’s reliance on qualified, cogent, and uncontradicted expert 21 testimony generally constitutes substantial evidence in support of the 22 ALJ’s finding). Importantly, even where the evidence of record is 23 “susceptible to more than one rational interpretation,” we must defer to 24 the Commissioner’s interpretation of the evidence. Andrews v. Shalala, 25 53 F.3d 1035, 1039-40 (9th Cir. 1995). Because the Commissioner’s 26 interpretation of the record regarding occupational characteristics was 27 reasonable, we must defer to it. 28 Terry 998 F.3d at 1013. 13 1 Here, as in Terry, there was no challenge to the VE’s expertise and the VE 2 identified jobs by reference to the Dictionary of Occupational Titles. (See AR 40.) 3 See Terry, 998 F.3d at 1013. Furthermore, the non-DOT sources Plaintiff cites are 4 not conclusive regarding the standing/walking requirements for the jobs the VE 5 identified, and the ALJ was not required to resolve any conflict between the DOT 6 and the sources identified by Plaintiff. See, e.g., Grether A. D. v. Saul, 2021 WL 7 1664174, at *8 (C.D. Cal. Apr. 28, 2021) (rejecting challenge to VE testimony based 8 upon data contained in ONET and Occu Collect, stating that “the non-DOT sources 9 Plaintiff cites are not conclusive regarding the standing requirements for the jobs the 10 vocational expert identified” and that an ALJ need not resolve conflicts between 11 vocational expert testimony and a source other than the DOT) (citing Shaibi, 883 12 F.3d at 1108-1110); Talley v. Saul, 2020 WL 8361923, at *1 (C.D. Cal. Dec. 17, 13 2020) (collecting cases rejecting claims that vocational expert testimony conflicted 14 with ONET and Occu Collect information; ALJ did not have to consider whether the 15 vocational expert’s testimony was consistent with these sources), aff’d sub nom., 16 Talley v. Kijakazi, 2021 WL 5917596 (9th Cir. 2021); Priestly v. Kijakazi, 2021 WL 17 5566750, at *10-11 (E.D. Cal. Nov. 29, 2021) (rejecting similar claim, noting that 18 courts have “refused to find that Plaintiff's attorney-owned Occu-Collect resource 19 [is] controlling”) (citing Dickerson v. Saul, 2021 WL 3832223 (D. Nev. Aug. 27, 20 2021) (collecting cases)).5 21 Finally, “as numerous courts in this Circuit have concluded, a lay assessment 22 of [raw] data from [sources such as the OOH and the O*NET] fails to undermine the 23 reliability of [a] vocational expert's testimony” in the absence of expert opinion 24 interpreting and assessing that data. Kevin E. v. Saul, 2021 WL 134584, at *6 (C.D. 25 Cal. Jan. 14, 2021) (and cases cited therein); see also Roderick L. A. G., 2021 WL 26 27 28 5 The Commissioner points out that the job data submitted by Plaintiff is from a publication called Occu Collect, a for-profit company owned in part by Plaintiff’s counsel in this case. (ECF 28 at 13; see Jean G. v. Saul, 2020 WL 584735, at *7 (C.D. Cal. Feb. 6, 2020). 14 1 2590159, at *7 (“Plaintiff’s lay interpretation of the vocational evidence does not 2 trump the expertise of the [vocational expert]”); Marcelino P. v. Saul, 2021 WL 3 1215794, at *4 (C.D. Cal. Mar. 30, 2021) (concluding the Court could not “credit 4 plaintiff’s lay interpretation of raw statistical vocational data over the expertise of the 5 [vocational expert]”). Without expert opinion interpreting and assessing the raw data, 6 information obtained by a lay person from sources such as O*NET shows, at most, 7 that “evidence can be interpreted in different ways.” Id. 8 The ALJ here properly determined that the VE’s testimony was consistent with 9 the DOT. (AR 40.) There was no obvious conflict between Plaintiff’s limitation to 10 standing and walking six hours in an eight-hour day and the jobs the vocational expert 11 identified. Thus, the VE’s testimony constitutes substantial evidence upon which the 12 ALJ properly relied. 13 III. Full-Time Work 14 Plaintiff contends that the ALJ failed to explicitly direct the VE to identify full- 15 time work that she can perform. According to Plaintiff, the ALJ and VE might have 16 included part-time work in their analysis, and it is “potentially unclear” whether part- 17 time work might constitute substantial gainful employment. Plaintiff’s claim relies 18 upon the same newly-submitted evidence mentioned above to argue that workers 19 performing the occupations identified by the VE “often” do not work a full-time work 20 schedule. (ECF 20 at 14-17.) 21 Even assuming that part-time work would not satisfy the Commissioner’s 22 burden at Step Five, the Court finds Plaintiff’s claim unpersuasive.6 Other than 23 24 25 26 27 28 6 As Plaintiff points out, the law regarding whether the Commissioner may rely on part-time jobs to satisfy the burden at Step Five is not entirely clear. (ECF 20 at 14-15; ECF 29 at 5-6.) See Few v. Comm’r of Soc. Sec., 2021 WL 1103706, at *6 n.6 (E.D. Cal. Mar. 23, 2021) (declining to resolve the “lurking legal question of whether the Commissioner can rely on the availability of part-time jobs to satisfy his step five burden to show that there is other ‘substantial gainful work’ plaintiff can do that exists ‘in significant numbers.’ 42 U.S.C. § 423(d)(2)(A). District courts have resolved this question in different ways, and the Ninth Circuit has not yet answered it. In the present case, 15 1 Plaintiff’s speculation, there is no indication in the record that the VE included the 2 availability of part-time work when answering the hypothetical questions posed by 3 the ALJ. A fair reading of the record indicates that the ALJ and VE both contemplated 4 full-time work. During the VE’s testimony, both the ALJ and the VE referenced 5 “medium work” which, as discussed above, includes that ability to stand/walk for six 6 hours in an eight-hour workday; the ALJ explicitly inquired about Plaintiff’s ability 7 to perform work “the customary eight-hour workday;” and the ALJ and VE discussed 8 the effect of missing three or more days of work per month. (AR 61-64.) See 9 Roderick L. A. G., 2021 WL 2590159, at *4 (rejecting similar claim, stating that 10 “there is no indication in the record that the VE included the availability of part-time 11 work when answering the hypothetical questions posed at step five”). 12 Further, as Plaintiff concedes, SSR 96-8p provides that RFC ordinarily 13 contemplates an individual’s ability to perform sustained work activities on a regular 14 and continuing basis, which is defined as “8 hours a day for 5 days a week or an 15 equivalent work schedule.” (ECF 20 at 14-15.) The VE had 20 years of experience 16 in vocational rehabilitation consulting and counseling and worked as a VE for the 17 Social Security Administration since 2000. There is no reason to conclude that the 18 VE did not know that an RFC assessment was “an individual’s ability to do sustained 19 work-related ... activities in a work setting” for “8 hours a day, for 5 days a week,” 20 and that she was asked to identify national jobs that constituted full-time substantial 21 gainful activity. See (“SSR”) 96-8p, 1996 WL 374184 at *1. Nothing in the record 22 indicates that there was any confusion about whether the VE was testifying about the 23 availability of solely full-time work. Plaintiff’s counsel did not query whether the 24 jobs identified by the VE were all full-time. Indeed, Plaintiff’s counsel did not restrict 25 his own hypothetical questions to full-time work. (See AR 65-66.) Thus, the record 26 27 28 the Court need not resolve the issue because Plaintiff has failed to show that the Commissioner’s decision was based upon finding her capable of performing part-time work. 16 1 does not support Plaintiff's speculative argument that the VE failed to restrict her 2 testimony to full-time work. See Roderick L. A. G., 2021 WL 2590159, at *4 3 (rejecting similar claim based upon VE’s experience, SSR 96-8p, absence of any 4 indication in the record that VE or ALJ intended to identify anything other than full- 5 time work). 6 Finally, Plaintiff argues that the Commissioner’s decision that she is capable 7 of performing jobs constituting substantial gainful activity is not supported by 8 substantial evidence because she has submitted “uncontradicted evidence that 9 counter supply workers, as part of dining room and cafeteria attendants and bartender 10 helpers do not work a full-time work schedule in 72% of jobs;” laundry aide 11 housekeeper, hospital cleaner, or maids and housekeeping keepers in general, do not 12 work a full-time schedule in 60% of jobs: and “kitchen helpers or dishwashers do not 13 work a full-time schedule in 90% of jobs.” (ECF 20 at 16.) For the same reasons 14 discussed above, however, Plaintiff’s non-DOT data regarding the percentage of 15 workers of generally work less than full-time does not demonstrate that the ALJ 16 committed legal error in accepting the VE’s testimony or undermine the sufficiency 17 of the VE’s opinion. See Roderick L. A. G., 2021 WL 2590159, at *5 (rejecting 18 identical argument based upon same source evidence regarding percentage of jobs 19 identified by VE that were performed part-time, explaining that the ALJ was not 20 required to consider such non-DOT evidence and it did not undermine the sufficiency 21 of the VE’s testimony) (citing Shaibi, 883 F.3d at 1109-1110 (finding no duty to 22 inquire into an alleged conflict between the VE's testimony and non-DOT sources)); 23 David G. v. Saul, 2020 WL 1184434, at *5 (C.D. Cal. Mar. 11, 2020) (stating “courts 24 in this circuit have consistently found that an ALJ is under no obligation to resolve a 25 conflict between VE testimony and JBP or O*NET data” and “Plaintiff's subjective 26 lay assessment of the data [from various non-DOT sources] is insufficient to 27 28 17 1 undermine the VE’s analysis.”), aff;d sub nom. George v. Saul, 837 F. App’x 516 2 (9th Cir. 2021).7 3 4 IV. Plaintiff’s Limitation on Contact with Others 5 The VE identified three occupations that an individual with Plaintiff’s 6 background and RFC – including a limitation to occasional contact with others – 7 could perform. As the Commissioner points out, the DOT does not set forth the extent 8 of a worker’s contact with others associated with the occupations of counter supply 9 worker, housekeeper laundry aide, and kitchen helper. See DOT 319.687-010 10 (counter supply worker), available at 1991 WL 672772; DOT 323.687-010 11 (housekeeper laundry aide, or “cleaner”), available at 1991 WL 672782; DOT 12 318.687-010 (kitchen helper), available at 1991 WL 672755. The VE testified that 13 such information was not addressed by the DOT and explained that she relied upon 14 her experience and training as a vocational counselor to reach her opinion. (AR 66.) 15 Plaintiff does not contend that the VE’s testimony “conflicted” with the DOT. 16 Although there is no controlling Ninth Circuit authority, the Court agrees with those 17 cases that have held that where the DOT is silent as to certain job requirements, the 18 ALJ is entitled to rely upon vocational expertise as to that requirement and the 19 claimant’s ability to perform the job given her work-related limitations. See, e.g., 20 Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (“A conflict must exist 21 between the VE’s testimony and the DOT in order to trigger the ALJ’s responsibility 22 to resolve the conflict. Here, the DOT is silent on whether the jobs in question allow 23 for a sit/stand option. … There is no conflict.”); McDaniel v. Colvin, 2017 WL 24 Plaintiff also relies in part on Jaquez v. Saul, 840 F. App’x 246, 247 (9th Cir. 2021). (ECF 20 at 16.) Jaquez is an unpublished memorandum. See Ninth Circuit Rule 36-3. As the Ninth Circuit has emphasized, such non-binding dispositions should not be relied upon as a dispositive basis for a district court ruling. Grimm v. City of Portland, 971 F.3d 1060, 1067 (9th Cir. 2020) (“although memorandum dispositions can be cited, and may prove useful, as examples of the applications of settled legal principles when a district court or litigant is interested in demonstrating how a given principle operates in practice, a nonprecedential disposition is not appropriately used—as it was here—as the pivotal basis for a legal ruling by a district court.”). 25 26 27 28 7 18 1 1399629, at *5 (C.D. Cal. Apr. 18, 2017) (“there can be no conflict between the 2 vocational expert’s testimony and the DOT where, as here, the DOT is silent on the 3 subject in question”); Torres v. Saul, 2019 WL 7882061, at *5 (C.D. Cal. Oct. 31, 4 2019) (“there can be no conflict between the vocational expert’s testimony and the 5 DOT where, as here, the DOT is silent on the subject in question”); Doty v. Colvin, 6 2016 WL 1089171, at *5 (C.D. Cal. Mar. 18, 2016) (collecting cases and “agree[ing] 7 with the decisions from other circuits and district courts that have found no conflict 8 when the DOT is silent about a particular mental or physical requirement”). Thus, 9 the ALJ was entitled to rely upon the VE’s testimony. 10 Plaintiff contends that the jobs identified by the VE require more than 11 occasional contact with others. According to Plaintiff, she has submitted 12 “uncontradicted evidence” showing that only 4% of the counter supply worker 13 positions, 5% of housekeeper laundry aide positions, and 34% of the kitchen helper 14 are limited to occasional contact with others. (ECF 20 at 17-18.) However, Plaintiff’s 15 “uncontradicted evidence” consists of raw non-DOT data without authentication or 16 expert interpretation. (See AR 267-400.) Notwithstanding her conclusory assertion 17 that the data is “reliable, Government data,” there are significant ambiguities in 18 Plaintiff’s argument. Most notably, Plaintiff’s statistics are based upon critical 19 assumptions that lack expert opinion. With regard to the job of counter supply worker 20 -- which the VE identified as DOT No. 319.687-010 -- Plaintiff states that the 21 occupation belongs to the larger group of dining room and cafeteria attendants. 22 Plaintiff proceeds to set out the requirements for the job of dining room and cafeteria 23 attendants and bartender helpers – including “facts” that a dining room attendant 24 position requires constant contact with others in 87% of jobs and no contact with 25 others in only 4% of jobs. (ECF 20 at 12; see AR 267-318.) The leap from the 26 occupation of counter supply worker to dining room attendant is based entirely upon 27 Plaintiff’s lay assumptions. Plaintiff performs similar unsupported leaps with the 28 other two occupations identified by the VE: With respect to the occupation of 19 1 housekeeper laundry aide, Plaintiff provides data and analysis for the job of “maid” 2 (ECF 20 at 12-13, 17; see AR 319-363). With respect to the job identified by the VE 3 as kitchen helper, Plaintiff relies upon data and analysis for the job “dishwasher.” 4 (ECF 20 at 13, 18; see AR 364-400.) 5 Moreover, even if the data cited by Plaintiff accurately reflects the level of 6 contact with others required in the jobs of dining room attendant, maid, and 7 dishwasher, there is no evidence that these occupations are the same as those 8 identified by the VE. As the Commissioner points out, there is no evidence 9 demonstrating that the terms used in O*NET are equivalent to those use in the Social 10 Security context – i.e., whether the use of the phrase “occasional or less” as asserted 11 by Plaintiff also means up to one-third of an eight-hour workday. See, e.g., SSR 83- 12 10, 1983 WL 31251, at *5 (“Occasionally” means occurring from very little to up to 13 one-third of the time). Plaintiff has not offered any expert opinion interpreting data 14 from the sources he provides, and the Court cannot conclude that the data put forth 15 by Plaintiff and her lay interpretation of that data undermine the VE’s testimony. See 16 Jeffrey A. B. v. Saul, 2021 WL 2826432, at *6 (C.D. Cal. July 7, 2021) (finding 17 “Plaintiff’s subjective and convoluted lay assessment of data from non-DOT sources 18 does not undermine the VE’s testimony”); Anju M. v. Saul, 2019 WL 5784176, at *3 19 (C.D. Cal. Nov. 6, 2019) (“Plaintiff’s data is not accompanied by any expert 20 explanation, and it could reasonably be understood in different ways.”); Jose Alfredo 21 G. v. Saul, 2019 WL 6652086, at *6 (S.D. Cal. Dec. 5, 2019) (“In any event, Plaintiff 22 merely presents a lay interpretation of the alternative OOH and O*Net data. Lay 23 assessments alone are insufficient to undermine the VE’s analysis; such attempts 24 have been uniformly rejected by numerous courts.”) (internal quotation omitted). ORDER 25 26 IT IS THEREFORE ORDERED that Judgment be entered affirming the 27 decision of the Commissioner of Social Security and dismissing this action with 28 prejudice. 20 1 2 DATED: 2/10/2022 3 4 5 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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