Stacie Marie Cassel v. Kilolo Kijakazi, No. 2:2021cv05335 - Document 22 (C.D. Cal. 2023)
Court Description: MEMORANDUM OPINION ANDORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (et)
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Stacie Marie Cassel v. Kilolo Kijakazi Doc. 22 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STACIE C., 12 13 14 15 16 17 ) ) Plaintiff, ) ) v. ) ) ) KILOLO KIJAKAZI, Commissioner of ) ) Social Security Administration, ) ) Defendant. ) ) Case No. 2:21-cv-05335-SP MEMORANDUM OPINION AND ORDER 18 19 20 21 22 23 24 25 26 27 I. INTRODUCTION On June 30, 2021, plaintiff Stacie C. filed a complaint against defendant, the Commissioner of the Social Security Administration (“Commissioner”), seeking review of a denial of continuing supplemental security income (“SSI”). The court deems the matter suitable for adjudication without oral argument. Plaintiff presents two issues for decision: (1) whether the Administrative Law Judge (“ALJ”) properly considered evidence of plaintiff’s borderline intellectual functioning in determining her residual functional capacity (“RFC”), 28 1 Dockets.Justia.com 1 and (2) whether the ALJ erroneously relied on testimony of the vocational expert 2 (“VE”) in determining plaintiff’s ability to perform jobs in the national economy. 3 Plaintiff’s Memorandum in Support of Complaint (“P. Mem.”) at 6-10; see 4 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 1-5. 5 Having carefully studied the parties’ memoranda, the Administrative Record 6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein, 7 the ALJ properly determined plaintiff’s RFC and properly relied on the VE’s 8 testimony. The court therefore affirms the decision of the Commissioner denying 9 continuing benefits. 10 II. 11 FACTUAL AND PROCEDURAL BACKGROUND 12 On January 27, 2010, plaintiff filed an application for SSI, alleging an onset 13 date of April 1, 2009, and received a favorable decision. AR at 233, 403. The 14 most recent favorable medical decision finding plaintiff was disabled (“comparison 15 point decision” or “CPD”) is dated March 10, 2010, at which point plaintiff was 35 16 years old and had the medically determinable impairments of chronic obstructive 17 pulmonary disease (“COPD”) and asthma. AR at 26, 234. 18 The Social Security Administration determined plaintiff was no longer 19 disabled as of December 1, 2017, and upon reconsideration. AR at 251, 297. 20 Plaintiff, unrepresented by counsel, appeared and testified at a hearing before the 21 ALJ on May 4, 2020. AR at 211-27, 230-32. The ALJ also heard testimony from 22 Kathleen Spencer, a vocational expert. AR at 227-29. The ALJ denied plaintiff’s 23 claim for continuing benefits on September 30, 2020. AR at 24-38. 24 Applying the seven-step sequential evaluation process to determine if 25 plaintiff continued to be disabled, the ALJ found, at step one, that since December 26 1, 2017, plaintiff’s impairments, whether individually or in combination, did not 27 meet or medically equal one of the impairments set forth in 20 C.F.R. Part 404, 28 2 1 Subpart P, Appendix 1. AR at 26. 2 At step two, the ALJ found that medical improvement had occurred by 3 December 1, 2017. AR at 28. 4 At step three, the ALJ found the medical improvement was related to 5 plaintiff’s ability to work, because by December 1, 2017, plaintiff’s impairments 6 no longer met or medically equaled the listings they met at the time of the CPD. 7 AR at 29. Because of the ALJ’s step three finding, no exceptions to medical 8 improvement apply (20 C.F.R. § 416.994(b)(5)(iv)), and the ALJ continued to step 9 five of the analysis, skipping step four. Id. 10 At step five, the ALJ determined that plaintiff suffered from the following 11 severe impairments: “COPD, asthma, and borderline intellectual functioning. Id. At step six, the ALJ assessed plaintiff’s RFC,1 and determined she had the 12 13 ability to perform light work as defined in 20 CFR § 416.967(b), and was capable 14 of: 15 occasionally lifting/carrying twenty pounds; frequently 16 lifting/carrying 10 pounds; standing or walking six hours of an eight 17 hour workday; and sitting six hours of an eight hour workday. The 18 claimant cannot climb ladders/ropes/scaffolds. She is capable of 19 occasionally climbing ramps/stairs, balancing, stooping, kneeling, 20 crouching, and crawling. The claimant is limited to frequent reaching 21 in all directions. She is limited to no more than occasional exposure 22 to temperature extremes, humidity, and wetness. The claimant should 23 have no more than occasional exposure to fumes, dusts, gases, odors, 24 and poorly ventilated areas. The claimant cannot work around 25 26 1 Residual functional capacity is what a claimant can do despite existing 27 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115528 56 nn.5-7 (9th Cir. 1989) (citations omitted). 3 1 unprotected heights or dangerous machinery. The claimant is limited 2 to simple, routine tasks in a static work environment. 3 AR at 29-30. Based on this RFC, the ALJ determined plaintiff was unable to 4 perform her past relevant work as a day worker. AR at 36. 5 At the final step, the ALJ found that since December 1, 2017, there were 6 jobs that exist in significant numbers in the national economy that plaintiff had the 7 ability to perform, including retail marker, cafeteria attendant, and routing clerk. 8 AR at 37. The ALJ accordingly concluded plaintiff’s disability ended on 9 December 1, 2017, and she had not become disabled again. AR at 38. 10 Plaintiff filed a timely request for review of the ALJ’s decision, which the 11 Appeals Council denied. AR at 7-9. Accordingly, the ALJ’s decision stands as the 12 final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the SSA must be 17 upheld if they are free of legal error and supported by substantial evidence. Mayes 18 v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court 19 determines the ALJ’s findings are based on legal error or are not supported by 20 substantial evidence in the record, the court may reject the findings and set aside 21 the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th 22 Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 23 “Substantial evidence is more than a mere scintilla, but less than a 24 preponderance.” Aukland, 257 F.3d at 1035 (citation omitted). Substantial 25 evidence is such “relevant evidence which a reasonable person might accept as 26 adequate to support a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 27 1998) (citations omitted); Mayes, 276 F.3d at 459. To determine whether 28 4 1 substantial evidence supports the ALJ’s finding, the reviewing court must review 2 the administrative record as a whole, “weighing both the evidence that supports 3 and the evidence that detracts from the ALJ’s conclusion.” Mayes, 276 F.3d at 4 459. The ALJ’s decision “cannot be affirmed simply by isolating a specific 5 quantum of supporting evidence.” Aukland, 257 F.3d at 1035 (cleaned up). If the 6 evidence can reasonably support either affirming or reversing the ALJ’s decision, 7 the reviewing court “may not substitute its judgment for that of the ALJ.” Id. 8 (cleaned up). 9 IV. 10 DISCUSSION 11 A. The ALJ Did Not Err in Assessing the Evidence of Plaintiff’s 12 Borderline Intellectual Functioning in Determining the RFC 13 Plaintiff argues the ALJ failed to sufficiently consider evidence of her 14 borderline intellectual functioning in determining her RFC. P. Mem. at 6-7. 15 Specifically, plaintiff argues the ALJ failed to consider medical evidence 16 suggesting plaintiff’s mental impairment would cause her moderate to severe 17 limitations in performing certain functions, especially carrying out detailed tasks. 18 Id. Plaintiff argues that as a result, the ALJ failed to sufficiently account for her 19 mental limitations in the RFC, which in turn led to the conclusion that she is able 20 to do jobs that are in fact beyond her abilities. P. Mem. at 7. 21 22 23 1. The ALJ’s RFC Findings Regarding Plaintiff’s Borderline Intellectual Functioning RFC is what one “can still do despite [their] limitations.” 20 C.F.R. 24 § 416.945(a)(1). The Commissioner reaches an RFC determination by reviewing 25 and considering all of the relevant evidence. Id. In order for the ALJ to reject the 26 contradicted opinion of an examining physician, they must provide specific and 27 legitimate reasons supported by substantial evidence. Lester v. Chater, 81 F.3d 28 5 1 821, 830 (9th Cir. 1996). 2 Here, the ALJ found that plaintiff’s history of borderline intellectual 3 functioning imposed moderate limitations on her ability to understand, remember, 4 or apply information, as well as her concentration, persistence, and maintenance of 5 pace. AR at 36. To account for these limitations, the ALJ limited her RFC to 6 “simple, routine tasks in a static work environment.” Id. In making this finding, 7 the ALJ analyzed plaintiff’s medical records and symptom testimony, first 8 assessing the severity of her mental impairments across the four functional areas 9 set out in the disability regulations for evaluating mental disorders, which are 10 known as the “paragraph B” criteria. AR at 27. 11 The first area of function in which the ALJ must rate the plaintiff’s degree of 12 functional limitation is understanding, remembering, or applying information. 20 13 C.F.R. § 416.920a(c)(3). In October 2007, plaintiff’s scores on the Wechsler Adult 14 Intelligence Scale fell into the borderline range. AR at 519. She scored 76 on 15 verbal intelligence quotient, 84 in performance intellectual quotient, and 77 in full 16 scale IQ. Id. One year later on October 6, 2008, a report by Dr. Ahmad Riahinejad 17 showed her scores remained consistent with prior testing, “in the borderline range 18 of intellectual functioning.” AR at 27, 539-43. Her school records from May 2009 19 show she met the criteria for the Disabled Student Services and received 20 accommodation including priority registration, course adjustment, testing 21 accommodation, and a note taker. AR at 27, 550. Despite these challenges, 22 plaintiff was able to maintain her household and care for her children. AR at 27 23 (citing AR at 454-57). On balance, the ALJ found plaintiff had moderate 24 limitation in this area, and decreased the RFC accordingly. AR at 27. 25 The second functional area is interaction with others. 20 C.F.R. 26 § 416.920a(c)(3). Plaintiff did not testify to difficulty getting along with others, 27 and the ALJ found no limitation in this area. AR at 27. 28 6 1 The third area of function in which the ALJ rated plaintiff’s degree of 2 limitation is concentration, persistence, or pace. 20 C.F.R. § 416.920a(c)(3). The 3 ALJ found that based on plaintiff’s history of borderline intellectual functioning, 4 she had moderate limitation in this area, and decreased the RFC accordingly. AR 5 at 27. 6 The final functional area is adapting or managing oneself. 20 C.F.R. 7 § 416.920a(c)(3). After noting there was no evidence the plaintiff had trouble 8 behaving in an emotionally stable manner or relating predictably in social 9 situations, the ALJ found mild limitation in the fourth area. AR at 27-28. 10 The ALJ also discussed evidence of plaintiff’s borderline intellectual 11 functioning in his determination of the RFC, again citing the records from October 12 2007, October 2008, and May 2009. AR at 34 (citing AR at 519, 534-43, 550). 13 The ALJ also reviewed plaintiff’s March 4, 2018 evaluation by Dr. Valene 14 Gresham, who found her concentration, persistence, and pace were intact and 15 within normal limits. AR at 35, 907. She was able to remember three out of three 16 objects after one minute and five minutes. AR at 35, 908. She was able to 17 remember detailed autobiographical and historical information. Id. She was able 18 to calculate that seven quarters was equal to $1.75. Id. Dr. Gresham diagnosed 19 borderline intellectual functioning, as well as ADHD and generalized anxiety 20 disorder. AR at 35, 909. Dr. Gresham found plaintiff’s ability to perform detailed 21 and complex tasks was mildly impaired. AR at 35, 909. 22 The ALJ also cited an evaluation from January 19, 2018 by Dara Goosby, 23 Psy.D., who opined plaintiff was moderately limited in her ability to concentrate 24 and persist, including her ability to carry out detailed instructions. AR at 35-36 25 (citing AR at 245). Records from an evaluation with Dr. Morgan on March 29, 26 2018 indicate plaintiff’s mental impairment imposed only mild limitations across 27 the four areas of mental functioning. AR at 36, 888. In his discussion of plaintiff’s 28 7 1 mental impairments, the ALJ also discussed plaintiff’s history of anxiety, 2 depression, and PTSD, which are not at issue here. AR at 34-36. 3 In light of the evidence described above, the ALJ concluded that plaintiff’s 4 borderline intellectual functioning imposed moderate limitations on her ability to 5 understand, remember, or apply information, as well as her concentration, 6 persistence, and maintenance of pace. AR at 36. To account for these limitations, 7 the ALJ limited her RFC to “simple, routine tasks in a static work environment.” 8 Id. The ALJ noted this limitation was consistent with Dr. Goosby’s opinion and 9 plaintiff’s activities of daily living. Id. (citing AR at 245, 454-57). 10 2. 11 Plaintiff argues the ALJ’s RFC determination failed to account for two The RFC Was Supported by Substantial Evidence 12 pieces of evidence in the record: (1) a statement from Dr. Riahinejad in the October 13 6, 2008 record that plaintiff “could have moderate to severe difficulty 14 understanding, remembering and carrying out complex and detailed instructions,” 15 and (2) a note in Dr. Gresham’s March 4, 2018 report that states that plaintiff was 16 “unable to complete serial 7s or serial 5s.”2 AR at 543, 908. 17 18 19 20 21 22 23 24 25 26 27 28 2 Plaintiff also suggests, primarily in her Reply, that the ALJ was required to find a medical improvement in plaintiff’s intellectual functioning in order to terminate her benefits. Reply at 2-3. It is true that, once there has been a finding of disability, the Commissioner must provide substantial evidence of medical improvement, new evidence or techniques that make an impairment less disabling, or evidence that a prior disability determination was erroneous, before determining whether the claimant is still disabled. 42 U.S.C. §§ 423(f), 1382c(a)(4); see Lambert v. Saul, 980 F.3d 1266, 1271. But there is no requirement that the ALJ make such a finding with respect to every impairment. Here, the ALJ satisfied this requirement by finding medical improvement with respect to plaintiff’s asthma and COPD. AR at 28-29. Having made such a finding, the ALJ proceeded through the remaining steps, including identifying all of plaintiff’s current severe impairments (which include borderline intellectual functioning) and assessing plaintiff’s current RFC in light of all of her impairments. AR at 29-36. 8 1 2 a. Dr. Riahinejad’s October 6, 2008 Evaluation Plaintiff argues that in order for the ALJ to reject Dr. Riahinejad’s opinion, 3 “the ALJ must state specific and legitimate reasons” for doing so. Reply at 3 4 (citing Lester, 81 F.3d at 830-31). But the ALJ did not explicitly or implicitly 5 reject any medical opinion related to plaintiff’s borderline intellectual functioning, 6 including Dr. Riahinejad’s 2008 report. To the contrary, the ALJ noted that Dr. 7 Riahinejad’s report showed plaintiff’s scores on the Wechsler Adult Intelligence 8 Scale were “consistent with prior testing and remained in the borderline range of 9 intellectual functioning,” and relied on that finding in concluding plaintiff’s mental 10 impairment necessitated an RFC limitation. AR at 27, 34. 11 Plaintiff argues it was error for the ALJ to omit reference to the particular 12 line in that record that plaintiff “could have moderate to severe difficulty 13 understanding, remembering and carrying out complex and detailed instructions.” 14 P. Mem. at 7 (citing AR at 543). But the ALJ is not required to discuss every piece 15 of evidence in the record as long as the decision does not broadly reject evidence in 16 a way that prevents meaningful judicial review. See 20 C.F.R. §§ 404.1520c(b)(1), 17 416.920c(b)(1) (ALJs “are not required to articulate how [they] considered each 18 medical opinion or prior administrative medical finding from one medical source 19 individually”). Here, the ALJ did consider the medical record in question and 20 concluded it supported a nonexertional RFC limitation. AR at 27, 34. 21 Considering “both the evidence that supports and the evidence that detracts 22 from the ALJ’s conclusion,” there was substantial evidence to support the ALJ’s 23 conclusion regarding the nonexertional limitation imposed. Mayes, 276 F.3d at 24 459. The ALJ restricted plaintiff to “simple, routine tasks in a static work 25 environment,” stating the limitation was consistent with Dr. Goosby’s opinion that 26 plaintiff is moderately limited in following detailed instructions. AR at 36. The 27 ALJ also cited opinions from Dr. Morgan and Dr. Gresham that plaintiff’s mental 28 9 1 impairments only mildly limited her ability to perform basic work activities. AR at 2 35-36 (citing AR at 888, 909). It is not clear to the court that Dr. Riahinejad’s 3 opinion that plaintiff “could have moderate to severe difficulty understanding, 4 remembering and carrying out complex and detailed instructions” necessarily 5 conflicts with the other opinions. See AR at 543(emphasis added). In any case, to 6 the extent there is any inconsistency, the court finds the ALJ’s decision on the 7 RFC’s nonexertional limitation was supported by substantial evidence, and will not 8 second guess it. See Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 9 (holding that where the evidence can reasonably support either affirming or 10 reversing the ALJ’s decision, the reviewing court “may not substitute its judgment 11 for that of the ALJ”). 12 13 b. Dr. Gresham’s March 4, 2018 Evaluation Plaintiff seems to suggest that the ALJ should have relied on a specific 14 examination finding from the March 4, 2018 record of plaintiff’s evaluation by Dr. 15 Gresham to come to a different medical conclusion than Dr. Gresham did herself. 16 P. Mem. at 6. Specifically, plaintiff notes that in the ALJ’s discussion of Dr. 17 Gresham’s evaluation, he did not discuss the specific finding that plaintiff was 18 “unable to complete serial 7s or serial 5s.” P. Mem. at 6 (citing AR at 908). 19 Plaintiff notes that according to the Social Security Administration’s Program 20 Operation Manual System (POMS), the ability to subtract serial numbers is an 21 evidentiary tool for assessing concentration, persistence, or pace. P. Mem. at 6. 22 Plaintiff’s unstated conclusion appears to be that her inability to subtract serial 23 sevens and fives necessarily contradicts Dr. Gresham’s conclusion that plaintiff’s 24 impairments in the functions needed to perform work were at most mild, and that 25 the ALJ erred by crediting Dr. Gresham’s conclusion in light of this supposed 26 contradiction. AR at 909. 27 This argument fails for multiple reasons. First, as defendant notes, the 28 10 1 POMS is not binding authority. See Warre v. Comm’r of Soc. Sec. Admin., 439 2 F.3d 1001, 1006 (9th Cir. 2006) (“The POMS does not have the force of law, but it 3 is persuasive authority.”). Second, even if the ALJ were bound by the POMS, it 4 states only that “concentration is assessed by tasks such as having you subtract 5 serial sevens or serial threes from 100.” POMS DI 34132.009(C)(3); POMS DI 6 34132.011(C)(3) (emphasis added). For that reason, an inability to subtract serial 7 numbers would not be dispositive of plaintiff’s concentration abilities, let alone 8 dispositive of an appropriate RFC based on those abilities. 9 Overall, the ALJ properly considered the record and reached an RFC 10 determination based on substantial evidence. 11 B. The ALJ Did Not Err in Determining Plaintiff Was Able to Perform 12 Jobs in the National Economy 13 Plaintiff also argues the ALJ erred by relying on the VE’s testimony finding 14 plaintiff could perform jobs with Dictionary of Occupational Titles (“DOT”) 15 descriptions in apparent conflict with her RFC. P. Mem. at 8-10. Plaintiff points 16 out the jobs identified by the VE all require reasoning level 2, which includes the 17 ability to deal with problems involving a few concrete variables. P. Mem. at 8 18 (citing DOT Appendix C). She further notes that the ALJ limited plaintiff to 19 simple, routine tasks in a static work environment. Id. Plaintiff argues the ability 20 to deal with problems involving a few concrete variables, as level 2 requires, 21 conflicts with the restriction to a static work environment, and the ALJ erred by 22 failing to resolve this apparent conflict. Id. 23 1. 24 At the final step, the burden shifts to the Commissioner to show the claimant Legal Standard 25 retains the ability to perform gainful activity other than their past relevant work. 26 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 27 finding that a claimant is not disabled, the Commissioner must provide evidence 28 11 1 demonstrating that other work exists in significant numbers in the national 2 economy that the claimant can perform, given their age, education, work 3 experience, and RFC. 20 C.F.R. § 404.1512(f). 4 ALJs routinely rely on the DOT “in evaluating whether the claimant is able 5 to perform other work in the national economy.” Terry v. Sullivan, 903 F.2d 1273, 6 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 404.1566(d)(1) (DOT 7 is source of reliable job information). The DOT is the rebuttable presumptive 8 authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 9 1995). Each DOT job description includes general educational development 10 (“GED”) scales for reasoning, language, and mathematics, which are “aspects of 11 education (formal and informal) which are required of the worker for satisfactory 12 job performance.” DOT, Appendix C, Section III. To determine a job’s simplicity 13 and the reasoning level required, one should look to the GED reasoning level 14 ratings for the job listed in the DOT. Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 15 (C.D. Cal. 2005). A job’s reasoning level “gauges the minimal ability a worker 16 needs to complete the job’s tasks themselves.” Id. 17 An ALJ may not rely on a VE’s testimony regarding the requirements of a 18 particular job without first inquiring whether the testimony conflicts with the DOT, 19 and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (citing SSR 00-4p). 20 In order for an ALJ to accept a VE’s testimony that contradicts the DOT, the 21 record must contain “persuasive evidence to support the deviation.” Id. at 1153 22 (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation 23 may be either specific findings of fact regarding the claimant’s residual 24 functionality, or inferences drawn from the context of the expert’s testimony. 25 Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citations omitted). 26 The ALJ’s obligations do not end with the initial inquiry. Even where a VE 27 wrongly testifies that there is no conflict, where “evidence from a VE ‘appears to 28 12 1 conflict with the DOT,’ SSR 00-4p requires further inquiry: an ALJ must obtain ‘a 2 reasonable explanation for the apparent conflict.’” Overman v. Astrue, 546 F.3d 3 456, 463 (7th Cir. 2008) (quoting SSR 00-4p). Where the ALJ fails to obtain an 4 explanation for and resolve an apparent conflict – even where the VE did not 5 identify the conflict – the ALJ errs. See Hernandez v. Astrue, 2011 WL 223595, at 6 *2-5 (C.D. Cal. Jan. 21, 2011) (where VE incorrectly testified there was no conflict 7 between her testimony and DOT, ALJ erred in relying on VE’s testimony and 8 failing to acknowledge or reconcile the apparent conflict); Mkhitaryan v. Astrue, 9 2010 WL 1752162, at *3 (C.D. Cal. Apr. 27, 2010) (“Because the ALJ incorrectly 10 adopted the VE’s conclusion that there was no apparent conflict [and] the ALJ 11 provided no explanation for the deviation,” the ALJ “therefore committed legal 12 error warranting remand.”). 13 2. 14 Here, when asked about a hypothetical person with the same RFC as There Was No Apparent Conflict With the DOT 15 plaintiff, including being “limited to simple routine tasks in a static work 16 environment,” the VE testified such person could perform light work existing in 17 the national economy including retail marker (DOT 209.587-034), cafeteria 18 attendant (DOT 311.677-010), and routing clerk (DOT 222.587-038). AR at 228. 19 The VE further testified that such person could perform sedentary work including 20 escort vehicle driver (DOT 919.663-022), addresser (DOT 209.587-010), and tube 21 operator (DOT 239.687-014). AR at 228-29. According to the DOT, the 22 occupations identified by the VE require reasoning level 2, which requires the 23 ability to deal with problems involving a few concrete variables. DOT Appendix 24 C. 25 When asked whether her testimony was consistent with the DOT, the VE 26 testified it was consistent. AR at 229. Nonetheless, if there were an apparent 27 conflict between the VE’s testimony and the DOT, the ALJ would have been 28 13 1 obligated to obtain “a reasonable explanation for the apparent conflict.” Overman, 2 546 F.3d at 463 (quoting SSR 00-4p). Therefore, the issue here is whether an 3 apparent conflict exists in the VE’s testimony that a person restricted to a static 4 work environment could perform jobs requiring level 2 reasoning, that is, jobs 5 requiring the ability to deal with problems involving a few concrete variables. 6 Plaintiff argues there is an apparent conflict between “variables and static,” 7 primarily appealing to plain language. P. Mem. at 8; P. Reply at 4. She argues that 8 the least restrictive dictionary definition of the word static, “little change,” 9 conflicts with having “a few concrete variables” in the workplace. P. Reply at 4. 10 But contrary to plaintiff’s argument, the court does not find any apparent conflict 11 between the plain meaning of these terms here. A workplace marked by little 12 change does not necessarily mean one without problems that may have a few 13 variables. 14 Plaintiff also urges the court to find that reasoning level 2 entails performing 15 work with “few frequent changes,” citing Kelsey v. Berryhill, 2017 WL 3218072, 16 at *4 (D. Or. July 27, 2017). It is unclear how Kelsey is of any assistance to the 17 analysis here. Kelsey did not hold that any job requiring reasoning level 2 18 necessarily entails few frequent changes, but simply found that one doctor’s 19 recommendation a plaintiff work in a job with few frequent changes was consistent 20 with reasoning level 2. Id. It has no bearing on whether a job with a few changes 21 is consistent with a static work environment. 22 In short, on its face a static work environment does not preclude one in 23 which employees deal with problems that may have a few variables, and plaintiff 24 cites nothing holding otherwise. As such, there was no apparent conflict in the 25 VE’s testimony that someone restricted to a static work environment could perform 26 jobs requiring level 2 reasoning, and the ALJ therefore did not err by declining to 27 seek further explanation. 28 14 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 this action with prejudice. 6 7 8 DATED: March 30, 2023 9 SHERI PYM United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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