Vivian Priscilla Young v. Carolyn W Colvin, No. 5:2015cv01124 - Document 21 (C.D. Cal. 2016)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Vivian Priscilla Young v. Carolyn W Colvin Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VIVIAN PRISCILLA YOUNG, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 15-1124-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 partially denying her applications for Social Security disability 21 insurance benefits (“DIB”) and supplemental security income 22 benefits (“SSI”). 23 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 The matter is before the Court on the parties’ Joint Stipulation, 25 filed April 7, 2016, which the Court has taken under submission 26 without oral argument. 27 Commissioner’s decision is affirmed. The parties consented to the jurisdiction of For the reasons stated below, the 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1958 (Administrative Record (“AR”) 3 205), obtained a GED (AR 33), and last worked in April 2009, as a 4 nurse (AR 27, 32). 5 On April 30, 2012, Plaintiff applied for DIB and SSI, 6 alleging that she had been unable to work since April 1, 2009,1 7 because of degenerative joint disease of the right hip, back 8 pain, arthritis, and morbid obesity. 9 After her applications were denied initially and on (AR 13, 205-07, 209.) 10 reconsideration, she requested a hearing before an Administrative 11 Law Judge. 12 at which Plaintiff, who was represented by counsel, testified, as 13 did a vocational expert. 14 favorable decision on August 16, 2013, finding that Plaintiff 15 became disabled on July 23, 2013, because of a “change[]” in her 16 “age category” but was not disabled before then.2 17 also id. at 13.) 18 Council, and on April 10, 2015, it denied review. 19 This action followed. (AR 120, 127.) A hearing was held on July 23, 2013, (AR 24.) The ALJ issued a partially (AR 18; see Plaintiff requested review from the Appeals (AR 1-3, 8.) 20 21 22 23 24 25 26 27 28 1 Plaintiff later amended her alleged onset date to December 1, 2010 (AR 31), but both the parties and the ALJ continued to treat it as April 1, 2009 (see, e.g., AR 13). 2 Plaintiff did not actually turn 55, placing her in the “advanced age” category, see 20 C.F.R. §§ 404.1563(e), 416.963(e), until later in 2013 (see AR 205); see Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (noting that ALJ has discretion to apply older age category before trigger date in “borderline” cases). 2 1 III. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner’s decision to deny benefits. The ALJ’s findings and 4 decision should be upheld if they are free of legal error and 5 supported by substantial evidence based on the record as a whole. 6 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 7 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 8 evidence means such evidence as a reasonable person might accept 9 as adequate to support a conclusion. Substantial Richardson, 402 U.S. at 10 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 11 It is more than a scintilla but less than a preponderance. 12 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 13 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 14 substantial evidence supports a finding, the reviewing court 15 “must review the administrative record as a whole, weighing both 16 the evidence that supports and the evidence that detracts from 17 the Commissioner’s conclusion.” 18 720 (9th Cir. 1998). 19 either affirming or reversing,” the reviewing court “may not 20 substitute its judgment” for the Commissioner’s. 21 IV. 22 To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY Claimants are “disabled” for purposes of receiving Social 23 Security benefits if they are unable to engage in any substantial 24 gainful activity owing to a physical or mental impairment that is 25 expected to result in death or has lasted, or is expected to 26 last, for a continuous period of at least 12 months. 27 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 28 1992). 3 42 U.S.C. 1 A. The Five-Step Evaluation Process 2 The ALJ follows a five-step sequential evaluation process to 3 assess whether a claimant is disabled. 20 C.F.R. 4 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 5 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 6 step, the Commissioner must determine whether the claimant is 7 currently engaged in substantial gainful activity; if so, the 8 claimant is not disabled and the claim must be denied. 9 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). In the first 10 If the claimant is not engaged in substantial gainful 11 activity, the second step requires the Commissioner to determine 12 whether the claimant has a “severe” impairment or combination of 13 impairments significantly limiting her ability to do basic work 14 activities; if not, the claimant is not disabled and her claim 15 must be denied. 16 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 17 impairments, the third step requires the Commissioner to 18 determine whether the impairment or combination of impairments 19 meets or equals an impairment in the Listing of Impairments 20 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 21 1; if so, disability is conclusively presumed. 22 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 23 If the claimant’s impairment or combination of impairments 24 does not meet or equal an impairment in the Listing, the fourth 25 step requires the Commissioner to determine whether the claimant 26 27 28 4 1 has sufficient residual functional capacity (“RFC”)3 to perform 2 her past work; if so, she is not disabled and the claim must be 3 denied. 4 has the burden of proving she is unable to perform past relevant 5 work. 6 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. The Commissioner then bears the burden of establishing that 7 8 the claimant is not disabled because she can perform other 9 substantial gainful work available in the national economy. 10 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 11 That determination comprises the fifth and final step in the 12 sequential analysis. 13 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 14 B. The ALJ’s Application of the Five-Step Process 15 At step one, the ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since her alleged onset date. 17 15.) 18 impairments of “degenerative disc disease of the back” and “right 19 hip degeneration.” 20 Plaintiff’s impairments did not meet or equal a listing. 21 16.) 22 (AR At step two, he concluded that Plaintiff had “severe” (Id.) At step three, he determined that (AR 15- At step four, the ALJ found that Plaintiff had the RFC to 23 perform light work, with specific exertional limitations as 24 follows: (1) lifting and carrying 20 pounds occasionally and 10 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. 20 C.F.R. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Plaintiff’s RFC comprised only exertional limitations. (See AR 16.) 5 1 pounds frequently; (2) sitting for six hours and standing and 2 walking for two hours in an eight-hour workday;4 (3) performing 3 occasional postural activities; (4) no climbing of ladders, 4 ropes, or scaffolds; and (5) no working at unprotected heights or 5 around dangerous machinery. 6 the ALJ found that she could not perform her past relevant work, 7 all of which required medium exertion.5 Applying Plaintiff’s RFC, (AR 18, 39.) At step five, the ALJ found that Plaintiff was not disabled 8 9 (AR 16.) before July 23, 2013. (AR 18-19.) The ALJ relied on the VE’s 10 testimony that given Plaintiff’s RFC for light work “impeded by 11 additional limitations,” she could perform three light, unskilled 12 jobs in the national economy: (1) “ticket taker,” DOT 344.667- 13 010, 1991 WL 672863; (2) “cashier II,” DOT 211.462-010, 1991 WL 14 671840; and (3) “information clerk,” DOT 237.367-018, 1991 WL 15 672187. 16 nonexhaustive list of “representative occupations” Plaintiff 17 could perform. 18 Medical-Vocational Guidelines (the “Grids”), the ALJ found that 19 Plaintiff became disabled on July 23, 2013, upon reaching 20 “advanced age.” 21 V. 22 (AR 19.) The ALJ noted that those jobs were merely a (Id.) Next, under a “direct application” of the (AR 18-19 (citing Rule 202.06 of the Grids).) DISCUSSION Plaintiff challenges the ALJ’s finding that she could 23 24 25 26 27 28 4 The ALJ reduced Plaintiff’s standing and walking time specifically “to account for [her] hip problems.” (AR 19.) 5 In determining Plaintiff’s RFC, the ALJ found that her testimony “concerning the intensity, persistence and limiting effects of [her] symptoms” was “not entirely credible.” (AR 1617.) Plaintiff does not challenge the ALJ’s adverse credibility finding. (See generally J. Stip.) 6 1 perform other work in the national economy. (See J. Stip. at 5- 2 10, 15-19.) 3 finding her capable of performing three jobs labeled as light in 4 the DOT because the VE’s testimony demonstrated that they are 5 actually performed “in a sedentary manner” and thus required only 6 sedentary exertion. 7 because she can only do sedentary work, she should be presumed 8 disabled under the Grids. 9 argues that under the Agency’s internal Program Operations Manual First, Plaintiff contends that the ALJ erred in (See id. at 5-10.) Plaintiff argues that (Id. at 6, 15-17.) Second, Plaintiff 10 System (“POMS”), the ALJ erred in finding that the identified 11 jobs existed in sufficient numbers in the national economy. 12 at 15-19.) 13 A. 14 (Id. Relevant Background At the hearing, the ALJ asked the VE to assume a 15 hypothetical person with Plaintiff’s vocational factors — namely, 16 “closely approaching advanced age,” “more than a high school 17 education,”6 and past work experience — as well as the following 18 limitations: 19 [she could] lift and carry up to twenty pounds 20 occasionally, ten pounds frequently, could sit six 21 hours in an eight-hour day with normal breaks, stand 22 and/or 23 occasional postural activities, no ladders, ropes, 24 or 25 dangerous machinery[.] walk scaffolds, two hours [and] in no an eight-hour unprotected day, heights or 26 27 6 28 Plaintiff completed a one-year nursing program after obtaining a GED. (AR 32-33.) 7 1 2 (AR 40.) The VE testified in response that such a person would not be 3 able to perform Plaintiff’s past relevant work but could perform 4 the following light, unskilled jobs with a “sit-stand option”: 5 (1) ticket taker, of which 105,000 available jobs existed 6 nationally; (2) cashier II, with 1.7 million7 such jobs; and 7 (3) information clerk, with 900,000 such jobs. 8 VE further reduced the total available cashier II jobs by 40 9 percent to account for the sit-stand option, which he clarified (AR 40-41.) The 10 as allowing sitting or standing “at will,” including sitting for 11 “most of the day” and being on “their feet” for “no more than two 12 hours . . . total.” 13 (Id.) Plaintiff’s counsel extensively cross-examined the VE, 14 asking whether those “light” jobs as defined by the DOT were in 15 fact “sedentary” when paired with a sit-stand option because they 16 involved prolonged sitting and two of the three apparently 17 required “lifting no more than 10 pounds.” 18 (asking why jobs “that someone could do the majority of the day 19 seated, . . . would be categorized as light as per the DOT”), 44 20 (noting danger of “using a light job which really should be 21 classified as sedentary, and . . . using it a[s] a weapon to deny 22 claimant benefits”).) 23 24 (See, e.g., AR 42 The VE generally disagreed, noting that the jobs were possibly “in between” categories. (AR 45.) He acknowledged, 25 26 27 28 7 The ALJ made a typographical error in summarizing the VE’s testimony, stating that “170,000” cashier II jobs existed (AR 19); the same error appears in the Commissioner’s briefing (J. Stip. at 13). Plaintiff, however, got the figure right. (See, e.g., id. at 6.) 8 1 however, that Plaintiff’s counsel’s arguments were “well taken” 2 and that “we have materials that come out in the ’70s and so 3 forth, and that’s what we’re utilizing, but in the way things are 4 done today, . . . some of these classifications may be changing.” 5 (AR 46.) 6 Texas, “Questionable Jobs, Changing Classifications,” confirming 7 that all three jobs could be performed “either sitting or 8 standing.” 9 taker” as requiring “no lifting” (AR 43), “information clerk” as He referenced as one of his sources a recent study from (AR 44.) The VE specifically described “ticket 10 requiring “no lifting over 10 pounds” (AR 45), and “cashier” as 11 requiring “lift[ing] up to . . . or greater than 10 pounds” (AR 12 51). 13 the cashier job as described by the VE, namely, that because of 14 the lifting and “hand motion” involved, it was “definitely light 15 even if it’s performed in a seated position.” 16 acknowledged that “[i]t’s just the info clerk and the ticket 17 taker that . . . we have our . . . hang-up on.” Plaintiff’s counsel confirmed that she had no objections to (Id.) She further (AR 51-52.) 18 B. 19 Jobs are classified as “sedentary, light, medium, heavy, and Applicable Law 20 very heavy” according to their “physical exertion requirements.” 21 §§ 404.1567, 416.967. 22 lifting no more than 10 pounds at a time, with occasional lifting 23 or carrying of small objects and articles, and predominantly 24 features sitting, with walking or standing “required 25 occasionally.” 26 Ruling 83-10 further explains that “periods of standing or 27 walking should generally total no more than about 2 hours of an 28 8-hour workday, and sitting should generally total approximately “Sedentary work” generally involves §§ 404.1567(a), 416.967(a). 9 Social Security 1 6 hours of an 8-hour workday.” SSR 83-10, 1983 WL 31251, at *5 2 (Jan. 1, 1983) (describing requirements for “full range” of 3 sedentary work). 4 “Light work” generally involves “lifting no more than 20 5 pounds at a time with frequent lifting or carrying of objects 6 weighing up to 10 pounds,” though “the weight lifted may be very 7 little.” 8 31251, at *5. 9 standing, or . . . involves sitting most of the time but with §§ 404.1567(b), 416.967(b); see SSR 83-10, 1983 WL Light work “requires a good deal of walking or 10 some pushing and pulling of arm or leg controls.” 11 §§ 404.1567(b), 416.967(b); see SSR 83-10, 1983 WL 31251, at *5. 12 “To be considered capable of performing a full or wide range of 13 light work, [a claimant] must have the ability to do 14 substantially all of these activities.” 15 416.967(b). 16 §§ 404.1567(b), At step five of the five-step process, the Commissioner has 17 the burden to demonstrate that the claimant can perform some work 18 that exists in “significant numbers” in the national or regional 19 economy, taking into account the claimant’s RFC, age, education, 20 and work experience. 21 Cir. 1999); see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.960(c). 22 The Commissioner may satisfy that burden either through the 23 testimony of a VE or by reference to the Grids. 24 F.3d at 1100-01. 25 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Tackett, 180 The DOT “is not the sole source of admissible information 26 concerning jobs,” and the ALJ “may take administrative notice of 27 any reliable job information, including the services of a 28 vocational expert.” Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 10 1 Cir. 1995) (alteration and citations omitted). The DOT “lists 2 maximum requirements of occupations as generally performed, not 3 the range of requirements of a particular job as it is performed 4 in specific settings,” and a VE “may be able to provide more 5 specific information about jobs or occupations than the DOT.” 6 SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). 7 recognized expertise provides the necessary foundation for his or 8 her testimony,” and “no additional foundation is required.” 9 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). “A VE’s 10 11 C. Substantial Evidence Supported the ALJ’s Determination 12 that Plaintiff Could Perform the “Cashier II” Light- 13 Exertion Job 14 Plaintiff’s unchallenged RFC was reduced light work with 15 exertional limitations, falling somewhere between sedentary and 16 light exertion. 17 represent a claimant’s limitations,” reliance on the grids is not 18 appropriate and a vocational expert is necessary. 19 F.3d at 1101-02. 20 determine whether any available light-work jobs would adequately 21 accommodate Plaintiff’s specific limitations. 22 1983 WL 31253, at *2 (Jan. 1, 1983) (noting that when 23 individual’s exertional RFC does not coincide with any of defined 24 ranges of work but instead includes “considerably greater 25 restriction(s),” VE testimony can clarify extent of erosion of 26 occupational base); Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 27 2000) (“SSR 83–12 directs that when a claimant falls between two 28 grids, consultation with a VE is appropriate.”); Thomas v. If the grids do not “completely and accurately Tackett, 180 The ALJ therefore properly consulted the VE to 11 See SSR 83-12, 1 2 Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (same). Substantial evidence supported the ALJ’s finding that 3 Plaintiff could perform the cashier II position. 4 conceded at the hearing, the cashier II position was “definitely 5 light” work, “even [when] performed in a seated position,” 6 because it involved lifting up to 20 pounds and a lot of “hand 7 motion.” 8 informed, specific, and uncontradicted explanation that 9 consistent with her RFC for a limited range of light work, which 10 Plaintiff has not challenged, she was able to work as a cashier. 11 See Bayliss, 427 F.3d at 1218 (“A VE’s recognized expertise 12 provides the necessary foundation for his or her testimony.”). 13 Even assuming the other two jobs identified by the VE should have 14 been categorized as sedentary, the VE’s unchallenged testimony 15 confirming that Plaintiff could work as a light-exertion cashier 16 rendered any error harmless. 17 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (noting that any 18 error “inconsequential to the ultimate nondisability 19 determination” is harmless); see also McLeod v. Astrue, 640 F.3d 20 881, 888 (9th Cir. 2010) (as amended May 19, 2011) (applying 21 harmless-error doctrine to Social Security cases). 22 Plaintiff is not entitled to remand on this basis. (See AR 51.) As Plaintiff The ALJ was entitled to rely on the VE’s See Stout v. Comm'r, Soc. Sec. 23 24 25 26 27 28 12 Accordingly, 1 D. Plaintiff’s Significant-Erosion Argument Under POMS Lacks Merit8 2 3 Plaintiff argues that the VE’s exclusion of 40 percent of 4 the total available cashier II jobs caused a “significant 5 erosion” of the occupational base, necessitating the application 6 of “the lower exertion grid rule” under POMS. 7 19.) 8 next lower exertional category, sedentary work, to account for 9 Plaintiff’s reduced “light vocational base.” 10 (J. Stip. at 15- Plaintiff contends that the ALJ should have applied the (Id. at 18.) As an initial matter, Plaintiff misplaces her reliance on 11 POMS DI 25001.001.B.72, available at https://secure.ssa.gov/ 12 poms.NSF/lnx/0425001001, which is a “Quick Reference Guide” 13 defining, among other terms, “[s]ignificant erosion” as “[a] 14 considerable reduction in the available occupations at a 15 particular exertional level.” 16 circumstances, an ALJ should generally “use a lower exertional 17 rule as a framework for a decision.” 18 an internal agency manual that “does not have the force of law,” 19 Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th 20 Cir. 2006), and is binding on neither the ALJ nor the Court, see 21 Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th 22 Cir. 2010) (“POMS constitutes an agency interpretation that does 23 not impose judicially enforceable duties on either this court or 24 the ALJ.”). It also indicates that in such See id. Notably, POMS is Moreover, “even if POMS had the force and effect of 25 26 27 28 8 Plaintiff concedes that the arguments in the Joint Stipulation based on POMS DI 25025.001.B.3, available at http://policy.ssa.gov/poms.nsf/lnx/0425025001 (see J. Stip. at 17, 19), must fail because it has been “repealed” and “is currently not part of the regulations” (id. at 23 n.5). 13 1 law, POMS DI 25001.001 ¶ B.719 does not mandate the ALJ to use a 2 lower exertional rule level”; “[i]nstead, it merely suggests 3 using a lower exertional rule as a framework if there is a 4 ‘considerable reduction in the available occupations at a 5 particular exertional level.’” 6 SP, 2012 WL 682880, at *3 (C.D. Cal. Mar. 2, 2012) (citation 7 omitted), aff’d, Durden v. Colvin, 546 F. App’x 690 (9th Cir. 8 2013). Durden v. Astrue, No. CV 11-1211- In any event, Plaintiff’s POMS-related argument lacks merit 9 10 because there was no significant erosion in the total available 11 light-exertional occupations identified by the VE. 12 discounting the other two occupations, a 40 percent reduction in 13 1.7 million cashier II jobs still leaves over 1 million such jobs 14 available in the national economy. 15 EDCV 13-00769 AN, 2014 WL 1276194, at *3 (C.D. Cal. Mar. 27, 16 2014) (finding that VE’s express recognition of erosion of 17 available jobs by 75 to 80 percent provided sufficient rationale 18 to support deviation from DOT). 19 jobs. 20 (9th Cir. 2014) (holding that 25,000 nationally available jobs 21 presented a “close call” but nonetheless sufficed as “work which 22 exists in significant numbers”). 23 Even See Hawley v. Colvin, No. That is a significant number of See Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 528-29 Plaintiff further argues that the ALJ identified only three 24 “occupations” she could perform, two of which might have been 25 erroneous, and that “the sole occupation of a cashier with a 40% 26 27 9 28 Apparently former subsection B.71 was subsequently renumbered as B.72. 14 1 erosion” was insufficient to warrant application of a light RFC. 2 (J. Stip. at 17-18.) 3 by the plain language of controlling law, §§ 404.1566(b) and 4 416.966(b), specifying that “[w]ork exists in the national 5 economy when there is a significant number of jobs (in one or 6 more occupations) having requirements which [claimant is] able to 7 meet.” 8 Cir. 2008) (holding that VE’s testimony describing a single 9 occupation for which significant number of jobs existed sufficed Plaintiff’s conclusory assertion is refuted See Tommasetti v. Astrue, 533 F.3d 1035, 1043-44 (9th 10 as substantial evidence); Tamayo v. Colvin, No. CV 12-8484 JCG, 11 2013 WL 5651420, at *2 (C.D. Cal. Oct. 11, 2013) (finding one 12 occupation sufficient “as long as [it] still has a significant 13 number of positions that exist in the national economy” (quoting 14 Udell v. Colvin, No. 3:12–CV–02548–H–JMA, 2013 WL 4046465, at *7 15 (S.D. Cal. Aug. 8, 2013), vacated & remanded on other grounds by 16 628 F. App’x 539 (9th Cir. 2016))). 17 that the three light occupations he identified were merely 18 “representative” of occupations in the national economy that 19 Plaintiff could perform.10 20 cashier II positions nationwide alone sufficed as substantial 21 evidence in support of the ALJ’s nondisability finding. 22 23 24 (AR 19.) The ALJ further clarified In any event, the 1 million Accordingly, remand is not warranted on this basis. VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 25 26 27 28 10 Indeed, no rule requires the VE to list all or even substantially all occupations a claimant can do. Given that the DOT includes thousands of occupations, any such rule would overwhelm the Agency and grind disability proceedings to a halt. 15 1 U.S.C. § 405(g),11 IT IS ORDERED that judgment be entered 2 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 3 request for remand, and DISMISSING this action with prejudice. 4 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 5 and the Judgment on counsel for both parties. 6 7 DATED: August 29, 2016 8 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 16
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