# Joe Quach v. Nancy A. Berryhill

> District Court, C.D. California · March 12, 2020

URL: https://www.frixlaw.com/law-library/cases/10037358

## Case

- **Court:** District Court, C.D. California
- **Decided:** March 12, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10037358

## How later opinions describe it (automated extraction)

- finding that in order for an 1 ALJ to accept a VE’s testimony that contradicts the DOT, the record must contain 2 “persuasive evidence to support the deviation”
- holding that an ALJ may not rely on vocational 23 testimony if the characteristics of the individual in the hypothetical questions propounded to the expert do not match the characteristics of the claimant
- noting that in 10 determining whether there are jobs a claimant is capable of performing, an ALJ may 11 consult a VE, whose “recognized expertise provides the necessary foundation for his or 12 her testimony”

## Opinion text

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JOE Q., an Individual, Case No.: 5:18-01715 ADS

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER

14 ANDREW M. SAUL1, Commissioner of
Social Security,
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Defendant.
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17 I. INTRODUCTION
18 Plaintiff Joe Q.2 (“Plaintiff”) challenges the Defendant Commissioner of Social
19 Security’s (hereinafter “Commissioner” or “Defendant”) denial of his applications for a
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1 The Complaint, and thus the docket caption, do not name the Commissioner. The
parties list Nancy A. Berryhill as the Acting Commissioner in the Joint Stipulation. On
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June 17, 2019, Saul became the Commissioner of Social Security. Thus, he is
automatically substituted as the defendant under Federal Rule of Civil Procedure 25(d).
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2 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil
Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
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Administration and Case Management of the Judicial Conference of the United States.
1 period of disability and disability insurance benefits (“DIB”), and supplemental security
2 income (“SSI”). Plaintiff contends that the Administrative Law Judge (“ALJ”) did not
3 carry the Social Security Administration’s burden at step-five of the sequential analysis
4 to identify alternative work Plaintiff can perform. Specifically, Plaintiff contends the
5 vocational expert’s testimony relied upon by the ALJ to find Plaintiff can perform the

6 occupation of hand packer contradicts the Dictionary of Occupational Titles (“DOT”).
7 Defendant argues there is no conflict between the testimony and the DOT, and,
8 therefore, no reversable error. For the reasons stated below, the decision of the
9 Commissioner is affirmed, and this matter is dismissed with prejudice.3
10 II. PROCEEDINGS BELOW
11 A. Procedural History
12 Plaintiff protectively filed his applications for DIB and SSI on April 23, 2014 and
13 May 2, 2014 respectively, alleging disability beginning May 26, 2009, which was later
14 amended to January 15, 2014. (Administrative Record “AR” 17, 20, 284-91). Plaintiff’s
15 claims were denied initially on July 10, 2014 (AR 168-72), and upon reconsideration on
16 November 28, 2014 (AR 173-78). A hearing was held before ALJ Alan J. Markiewicz on

17 May 11, 2017. (AR 58-80). Plaintiff, represented by counsel, appeared and testified at
18 the hearing, as did a vocational expert, Joseph H. Torres. (Id.)
19 On August 2, 2017, the ALJ found that Plaintiff was “not disabled” within the
20 meaning of the Social Security Act.4 (AR 14-33). The ALJ’s decision became the
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3 The parties filed consents to proceed before the undersigned United States Magistrate
Judge, pursuant to 28 U.S.C. § 636(c), including for entry of final Judgment.
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[Docket(“Dkt.”) Nos. 11, 12].
4 Persons are “disabled” for purposes of receiving Social Security benefits if they are
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unable to engage in any substantial gainful activity owing to a physical or mental
1 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for
2 review on June 26, 2018. (AR 1-6). Plaintiff then filed this action in District Court on
3 August 16, 2018, challenging the ALJ’s decision. [Dkt. No. 1].
4 B. Summary of ALJ Decision After Hearing
5 In the decision (AR 14-29), the ALJ followed the required five-step sequential

6 evaluation process to assess whether Plaintiff was disabled under the Social Security
7 Act.5 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one, the ALJ found that
8 Plaintiff had not been engaged in substantial gainful activity since January 15, 2014, the
9 alleged onset date. (AR 20). At step two, the ALJ found that Plaintiff had the
10 following severe impairments: (a) degenerative disc disease of the lumbar spine; (b)
11 degenerative disc disease of the cervical spine; and (c) major depressive disorder. (Id.).
12 At step three, the ALJ found that Plaintiff “does not have an impairment or
13 combination of impairments that meets or medically equals the severity of one of the
14 listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
15 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).” (AR 21). The ALJ then found
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impairment expected to result in death, or which has lasted or is expected to last for a
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continuous period of at least 12 months. 42 U.S.C. §423(d)(1)(A).
5 The ALJ follows a five-step sequential evaluation process to assess whether a claimant
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is disabled: Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant
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have a “severe” impairment? If so, proceed to step three. If not, then a finding of not
disabled is appropriate. Step three: Does the claimant’s impairment or combination of
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impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1?
If so, the claimant is automatically determined disabled. If not, proceed to step four.
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Step four: Is the claimant capable of performing his past work? If so, the claimant is not
disabled. If not, proceed to step five. Step five: Does the claimant have the residual
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functional capacity to perform any other work? If so, the claimant is not disabled. If
not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995)
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(citing 20 C.F.R. §404.1520).
1 that Plaintiff had the Residual Functional Capacity (“RFC”)6 to perform the following
2 medium-level of work: “occasionally lift and/or carry 50 pounds; frequently lift and/or
3 carry 25 pounds; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in
4 an 8-hour workday; occasionally perform the postural activities; could not sit or stand
5 greater than 30 minutes without a five to eight minute change of position, after which,

6 he could resume a similar period of the same activity and repeat that sequence
7 throughout an eight hour day; do simple repetitive tasks; and have no more than
8 occasional contact with coworkers and the public.” (AR 22).
9 At step four, based on Plaintiff’s RFC and the vocational expert’s testimony, the
10 ALJ found that Plaintiff could not perform his past relevant work as an automobile
11 mechanic. (AR 28). At step five, considering Plaintiff’s age, education, work
12 experience, RFC and the vocational expert’s testimony, the ALJ found that there “are
13 jobs that exist in significant numbers in the national economy that [Plaintiff] can
14 perform” such as hand packer. (AR 29). Accordingly, the ALJ determined that Plaintiff
15 had not been under a disability, as defined in the Social Security Act, from January 15,
16 2014, through the date of the decision, August 2, 2017. (Id.).

17 III. ANALYSIS
18 A. Issue on Appeal
19 Plaintiff raises one issue for review: whether the ALJ carried the Social Security
20 Administration’s burden at step-five of the sequential analysis to identify alternative
21 work Plaintiff can perform. [Dkt. No. 20 (Joint Stipulation), 4]. Specifically, Plaintiff
22 contends that because the VE’s testimony contradicts the DOT, “[s]ubstantial evidence
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6 An RFC is what a claimant can still do despite existing exertional and nonexertional
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limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
1 does not support the finding that Quach can perform the occupation of hand packager.”
2 Id.
3 B. Standard of Review
4 A United States District Court may review the Commissioner’s decision to deny
5 benefits pursuant to 42 U.S.C. § 405(g). The District Court is not a trier of the facts but

6 is confined to ascertaining by the record before it if the Commissioner’s decision is
7 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)
8 (District Court’s review is limited to only grounds relied upon by ALJ) (citing Connett v.
9 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). A court must affirm an ALJ’s findings of
10 fact if they are supported by substantial evidence and if the proper legal standards were
11 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). An ALJ can satisfy
12 the substantial evidence requirement “by setting out a detailed and thorough summary
13 of the facts and conflicting clinical evidence, stating his interpretation thereof, and
14 making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
15 omitted).
16 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a specific

17 quantum of supporting evidence. Rather, a court must consider the record as a whole,
18 weighing both evidence that supports and evidence that detracts from the Secretary’s
19 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citations and
20 internal quotation marks omitted). “‘Where evidence is susceptible to more than one
21 rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc.
22 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679
23 (9th Cir. 2005)); see Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (“If
24 the evidence can support either affirming or reversing the ALJ’s conclusion, we may not
1 substitute our judgment for that of the ALJ.”). However, the Court may review only “the
2 reasons provided by the ALJ in the disability determination and may not affirm the ALJ
3 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
4 2007) (citation omitted).
5 Lastly, even if an ALJ errs, the decision will be affirmed where such error is

6 harmless, that is, if it is “inconsequential to the ultimate nondisability determination,”
7 or if “the agency’s path may reasonably be discerned, even if the agency explains its
8 decision with less than ideal clarity.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th
9 Cir. 2015) (citation omitted); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
10 C. The ALJ’s Step Five Analysis
11 Plaintiff asserts that the ALJ erred in relying on testimony of the VE that
12 contradicts the DOT. Defendant contends that there is no conflict between the
13 testimony of the VE and the DOT; accordingly, the ALJ was not required to obtain
14 further VE testimony to explain a deviation from the DOT.
15 The parties agree to the burden that exists for the SSA at Step Five. The SSA
16 must establish the existence of alternative jobs available to the claimant, given the

17 claimant’s age, education, and work experience. See Burkhart v. Bowen, 856 F.2d 1335,
18 1340 (9th Cir. 1988) (citing Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986)).
19 This burden can be satisfied by either applying the Medical-Vocational Guidelines
20 (“Grids”), if appropriate, or relying on the testimony of a VE.7 See id. The testimony of
21 a VE should generally be consistent with the DOT, although neither “trumps” the other
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7 The ALJ may meet his burden by propounding to a VE hypothetical questions based
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on medical assumptions, supported by substantial evidence, that reflect all the plaintiff’s
limitations. Hirschy v. Comm’r of Soc. Sec., 2012 WL 996527, *9 (E.D. Cal. March 23,
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2012) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995)).
1 if there is a conflict. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). If
2 there is an inconsistency between the VE’s testimony and the job descriptions in the
3 DOT, the ALJ must resolve the conflict. See id. (citing Social Security Ruling (“SSR”)
4 00-4p).
5 Pursuant to SSR 00-4p, the Ninth Circuit has found the ALJ is explicitly required

6 to determine if a VE’s testimony deviates from the DOT, and if so, there must be
7 sufficient support for that deviation. See Massachi, 486 F.3d at 1153. Specifically, the
8 Court in Massachi found:
9 SSR 00-4p unambiguously provides that ‘[w]hen a [vocational expert] .
. . provides evidence about the requirements of a job or occupation, the
10 adjudicator has an affirmative responsibility to ask about any possible
conflict between that [vocational expert] . . . evidence and information
11 provided in the [DOT].’ SSR 00-4p further provides that the
adjudicator ‘will ask’ the vocational expert ‘if the evidence he or she has
12 provided’ is consistent with the [DOT] and obtain a reasonable
explanation for any apparent conflict.
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14 Id. at 1153-53 (citing SSR 004p) (emphasis in original).
15 Here, Plaintiff argues that the ALJ improperly relied on the testimony of the VE
16 in determining that he could perform the job of “hand packager.” Plaintiff quotes the
17 lengthy DOT description for hand packager and asserts that the VE’s testimony that
18 Plaintiff can perform this job conflicts. Plaintiff argues the DOT description of this
19 “medium work” job implies standing is required for virtually the entire six hours out of
20 an eight-hour work day. Plaintiff asserts his RFC’s sit/stand requirement contradicts
21 the implicit standing requirement of the DOT job description, so the VE’s finding that
22 Plaintiff could perform this job is in conflict with the DOT. It is Plaintiff’s contention
23 that the ALJ was required to explore the conflict before crediting the VE’s testimony.
24 See Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (finding that in order for an
1 ALJ to accept a VE’s testimony that contradicts the DOT, the record must contain
2 “persuasive evidence to support the deviation”). Plaintiff contends the record here does
3 not contain such sufficient evidence.
4 Contrary to Plaintiff’s position, however, the VE’s testimony and the DOT are not
5 in conflict. The DOT job description does not address sit/stand options. The ALJ’s duty

6 to inquire about conflicts only arises when there is actually an apparent conflict between
7 the DOT and the VE’s testimony. Strain v. Colvin, 2014 WL 2472312, * 2 (C.D. Cal. June
8 2, 2014). The caselaw cited by Defendant on this point is persuasive and is not
9 adequately contradicted by Plaintiff. “Because the DOT does not address the subject of
10 sit/stand option, it is not apparent that the testimony of the VE conflicts with the DOT.
11 Furthermore, the VE’s testimony based on the sit/stand restriction does not conflict
12 with the DOT but instead provides ‘more specific information than is contained in the
13 DOT ‘. . .” Id. (citing Seay v. Astrue, 2011 WL 977499 (M.D. Tenn. March 18, 2011)); see
14 also Hirschy v. Comm’r of Soc. Sec., 2012 WL 996527, *11 (E.D. Cal. March 23, 2012)
15 (“the DOT does not address the issue of a sit/stand option. Thus, there is no apparent
16 conflict as to that limitation”); Hixon v. Astrue, 2012 WL 2501069, *6 (N.D. Cal. June

17 27, 2012).8 Therefore, the ALJ did not deviate from the DOT by relying on the VE’s
18 testimony regarding the sit/stand option. The Court rejects Plaintiff’s argument that
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8 Defendant cites to these and a number of other cases all holding that there is no
apparent conflict between the DOT and a VE’s testimony with regard to a sit/stand
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requirement. See [Dkt. No. 20 at 13-14]. In reply, Plaintiff contends that these cases are
distinguishable as they deal with a claimant with an RFC for light work, as opposed to
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an RFC for medium work as was assessed here. Id. at 15. Yet, Plaintiff states that the
only “difference between medium and light work is the ability to lift 50 pounds
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occasionally and 25 pounds frequently as opposed to 20 and 10.” [Id. at 10, n. 4.]
Plaintiff does not explain how this difference impacts the sit/stand requirement.
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1 “common sense” dictates that for an individual to lift 50 pounds occasionally and 25
2 pounds frequently “they must be standing.” 9 [Dkt. No. 20 at 10].
3 The ALJ complied with the requirements of SSR 83-12. The ALJ properly
4 consulted a VE, who indicated Plaintiff was capable of performing the job of hand
5 packager even though he required a sit/stand option for 5 to 8 minutes every 30

6 minutes. The ALJ also confirmed with the VE that his testimony did not deviate from
7 the DOT. (AR 71-76). Furthermore, in the absence of an apparent conflict between the
8 VE testimony and the DOT, it was reasonable for the ALJ to rely on the VE testimony.
9 See Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (noting that in
10 determining whether there are jobs a claimant is capable of performing, an ALJ may
11 consult a VE, whose “recognized expertise provides the necessary foundation for his or
12 her testimony”). Thus, there was no error on the part of the ALJ.
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9 Plaintiff’s reply cites to one case wherein the Court noted that a VE had stated that
“most packagers are standing . . . and don’t have that much ability to sit.” Peraza v.
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Colvin, 2014 WL 6630051, * 5 (C.D. Cal. Nov. 21, 2014). The testimony of a VE,
however, is specifically related to the facts relevant to the claimant at issue and has no
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precedent or authority in another matter. See Magallanes v. Bowen, 881 F.2d 747, 756
(9th Cir. 1988) (“Hypothetical questions posed to a vocational expert must set out all the
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substantial, supported limitations and restrictions of the particular claimant.”); Embrey
v. Bowen, 849 F.2d 418 (9th Cir. 1988) (holding that an ALJ may not rely on vocational
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testimony if the characteristics of the individual in the hypothetical questions
propounded to the expert do not match the characteristics of the claimant).
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1 IV. CONCLUSION
2 For the reasons stated above, the decision of the Social Security Commissioner is
3 AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered
4 accordingly.
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6 DATE: March 12, 2020

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/s/ Autumn D. Spaeth
8 THE HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037358. Public record. Not legal advice.