Robert E. Philbrook v. Nancy A. Berryhill, No. 5:2016cv01500 - Document 26 (C.D. Cal. 2017)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (kh)

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Robert E. Philbrook v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 ROBERT E. PHILBROOK, 12 Plaintiff, v. 13 14 15 NANCY A. BERRYHILL1, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 16-1500 JCG MEMORANDUM OPINION AND ORDER 18 Robert E. Philbrook (“Plaintiff”) challenges the Social Security Commissioner’s 19 20 decision denying his application for disability benefits. Plaintiff contends that the 21 Administrative Law Judge (“ALJ”) improperly relied on the vocational expert 22 (“VE”)’s testimony to determine that Plaintiff could perform light, unskilled work as a 23 bench assembler2 with approximately 230,000 jobs available nationally. (See Joint 24 Stip. at 4-7, 12-16.) Plaintiff suggests that the VE’s testimony was in conflict with the 25 26 27 28 1 The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A. Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d). 2 Dictionary of Occupational Titles (“DOT”) code 206.684-022. 1 1 Occupational Outlook Handbook (“OOH”)3 because that source suggested a smaller 2 amount of available jobs than those identified by the VE in response to the ALJ’s 3 hypothetical questions. The Court finds that reversal is not warranted. 4 A. 5 Preliminarily, as a rule, “when claimants are represented by counsel, they must 6 raise all issues and evidence at their administrative hearings in order to preserve them 7 on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). This is particularly 8 true in the case of statistical evidence, as “[t]he ALJ, rather than this Court, [is] in the 9 optimal position to resolve the conflict between [a claimant’s] new evidence and the 10 Challenge to VE’s Testimony Not Properly Preserved for Appeal statistical evidence provided by the VE.” Id. In the instant case, Plaintiff was represented by counsel at the administrative 11 12 hearing and was allowed to pose questions to the VE, but she failed to challenge the 13 VE’s methodology for calculating the number of estimated jobs or offer any evidence 14 supporting a different figure.4 (AR at 82-83); see Howard v. Astrue, 330 F. App’x 15 128, 130 (9th Cir. 2009) (claimant waived argument that ALJ’s hypotheticals were 16 inadequate where claimant’s attorney had opportunity to pose hypotheticals but never 17 mentioned allegedly erroneously omitted limitation); Meanel, 172 F.3d at 1115 18 (claimant’s argument — that there was insufficient jobs in local area for a particular 19 position — not properly preserved for appeal); Marchbanks v. Colvin, 2014 WL 20 5756932, at *1 (C.D. Cal. Nov. 4, 2014) (claimant’s argument that OOH statistics 21 conflicted with DOT and VE’s testimony was waived because claimant was 22 represented by counsel and failed to raise issue before ALJ or Appeals Council). 23 24 25 26 27 28 3 Plaintiff requests that this Court take judicial notice of portions of the OOH and other online sources. [Dkt. No. 20.] The Court grants the request, but only as to the information contained in those sources. See Walker v. Berryhill, 2017 WL 1097171, at *3 (C.D. Cal. Mar. 23, 2017) (taking judicial notice of job information contained in OOH, but not that such information was more reliable than the DOT, which is a matter “subject to reasonable dispute” and therefore inappropriate for judicial notice). 4 The ALJ even held the record open after the administrative hearing for additional evidence, but Plaintiff submitted nothing regarding job numbers. (Administrative Record (“AR”) at 17, 52, 8384, 1276-1598.) 2 1 Accordingly, the issue was not properly preserved for appeal. 2 B. 3 Plaintiff has failed to identify any legal error for three reasons. 4 First, Plaintiff’s repeated argument that “no reasonable person would ever No Legal Error Identified 5 believe” there are 230,000 bench assembler jobs in the national economy is not the 6 standard by which this Court must review the Agency’s decision. (Joint Stip. at 7, 9, 7 15-16); see Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (the court must 8 affirm the Commissioner’s decision if it is based on proper legal standards and the 9 findings of fact are supported by substantial evidence in the “record as a whole”); 10 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the 11 evidence before the ALJ is subject to more than one rational interpretation, [the court] 12 must defer to the ALJ’s conclusion.”). 13 Second, even assuming the OOH established a smaller pool of estimated 14 available jobs, Plaintiff has failed to identify any authority that the VE or the ALJ were 15 bound by that source, or that the ALJ was required to ask about any alleged conflict. 16 See Meza v. Berryhill, 2017 WL 3298461, at *8 (C.D. Cal. Aug. 2, 2017) (claimant’s 17 argument that DOT and OOH should be on “equal footing” has been rejected by a 18 number of district courts in Ninth Circuit); Walker, 2017 WL 1097171, at *3 (C.D. 19 Cal. Mar. 23, 2017) (rejecting argument that OOH precludes claimant from performing 20 jobs VE testified he could do because claimant “cites no authority for the proposition 21 that an ALJ must address conflicts between the testimony of the VE and the OOH”); 22 Simpson v. Colvin, 2016 WL 3091487, at *5 (C.D. Cal. May 31, 2016) (finding no 23 error where VE’s job numbers were inconsistent with information from Bureau of 24 Labor statistics in OOH because a VE may rely on any number of sources). 25 Third, and finally, Plaintiff has failed to show that the VE’s testimony itself is 26 not substantial evidence. (AR at 27-28, 78-83); see Bayliss v. Barnhart, 427 F.3d 27 1211, 1218 (9th Cir. 2005) (ALJ may rely on a VE’s testimony as a reliable source of 28 information about job numbers because a VE’s “recognized expertise provides the 3

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