# Ruby Villanera v. Nancy A. Berryhill

> District Court, C.D. California · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10037852

## Case

- **Court:** District Court, C.D. California
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 SOUTHERN DIVISION
11 RUBY V.,1 ) Case No. 8:19-cv-00871-JDE
)
12 )
Plaintiff, ) MEMORANDUM OPINION AND
13 ) ORDER
)
14 v. )
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15 ANDREW M. SAUL,2 ) )

Commissioner of Social Security, )
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17 Defendant. )
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19 Plaintiff Ruby V. (“Plaintiff”) filed a Complaint on May 9, 2019, seeking
20 review of the Commissioner’s denial of her application for disability insurance
21 benefits (“DIB”). The parties filed a Joint Submission (“Jt. Stip.”) regarding the
22 issues in dispute on March 18, 2020. The matter now is ready for decision.
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1 Plaintiff's name has been partially redacted in accordance with Fed. R. Civ. P.
25 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.
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27 2 Andrew M. Saul, now Commissioner of the Social Security Administration,
is substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).
28
1 I.
2 BACKGROUND
3 On March 13, 2015, Plaintiff protectively filed an application for DIB,
4 and on March 30, 2015, she protectively filed an application for supplemental
5 security income (“SSI”). AR 16, 254-64. In both applications she alleged
6 disability starting December 31, 2012. AR 16, 256, 258. On August 17, 2017,
7 after her applications were denied initially and on reconsideration (AR 132-33,
8 149-50), Plaintiff, represented by counsel, testified via video before an
9 Administrative Law Judge (“ALJ”), and a vocational expert (“VE”) testified
10 telephonically. AR 16, 40-70.
11 On January 23, 2018, regarding the DIB application, the ALJ found
12 Plaintiff was not disabled through December 31, 2012, the date last insured. AR
13 16-31. Regarding the SSI application, the ALJ found her disabled beginning
14 May 23, 2014. Id. The ALJ found Plaintiff had not engaged in substantial
15 gainful activity since the alleged-onset date and found she had severe
16 impairments of asthma, depression, and anxiety. AR 20. The ALJ also found
17 Plaintiff did not have an impairment or combination of impairments that met or
18 medically equaled a listed impairment and had the residual functional capacity
19 (“RFC”) to perform a light work3, except Plaintiff: (1) must never work in the
20 presence of unprotected heights and hazardous machinery; (2) should avoid
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3 “Light work” is defined as
23 lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight
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lifted may be very little, a job is in this category when it requires a good
25 deal of walking or standing, or when it involves sitting most of the time
with some pushing and pulling of arm or leg controls. To be considered
26 capable of performing a full or wide range of light work, you must have
27 the ability to do substantially all of these activities.
20 C.F.R. § 404.1567(b); see also Rendon G. v. Berryhill, 2019 WL 2006688, at *3
28 n.6 (C.D. Cal. May 7, 2019).
1 exposure to extreme temperatures, dust, chemicals, and fumes; (3) is limited to
2 no more than frequent stooping, crouching, crawling, twisting, and bending;
3 (4) is limited to moderately complex tasks with no public contact; (5) is limited
4 to no more than occasional interaction with supervisors, coworkers, or the
5 general public; and (6) is precluded from fast-paced work such as production-
6 rate-pace jobs. AR 21-23.
7 The ALJ further found that since December 31, 2012, Plaintiff has been
8 unable to perform her past-relevant work as an administrative clerk (Dictionary
9 of Occupational Titles [“DOT”] 219.362-010). AR 28. The ALJ next found
10 that, prior to the date last insured, Plaintiff was an individual closely
11 approaching advanced age, but, on May 23, 2014, her age category changed to
12 advanced age. AR 29. The ALJ found that, prior the age-category change, there
13 were jobs that existed in significant numbers in the national economy Plaintiff
14 could have performed, including, office helper (DOT 239.567-010), general
15 office machine operator/photo copy machine operator (DOT 207.685-014), and
16 mail clerk (DOT 209.587-026). AR 29-30. However, beginning the date the age-
17 category changed, there were no jobs Plaintiff could perform. AR 30.
18 Accordingly, the ALJ found Plaintiff was not disabled prior to May 23, 2014,
19 but became disabled on that date and continued to be disabled through the date
20 of the decision. AR 30. The ALJ also found Plaintiff was not under a disability
21 at any time through December 31, 2012, the date last insured. AR 30. Thus,
22 based on her DIB application Plaintiff was not disabled through December 31,
23 2012, but based on her SSI application she was disabled beginning May 23,
24 2014. AR 30.
25 Plaintiff’s request for review of the ALJ’s decision by the Appeals
26 Council was denied, making the ALJ’s decision the agency’s final decision. AR
27 1-6. This action followed.
28 / / /
1 II.
2 LEGAL STANDARDS
3 A. Standard of Review
4 Under 42 U.S.C. § 405(g), this court may review the Commissioner’s
5 decision to deny benefits. The ALJ’s findings and decision should be upheld if
6 they are free from legal error and supported by substantial evidence based on
7 the record as a whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
8 2015) (as amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
9 Substantial evidence means such relevant evidence as a reasonable person
10 might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504
11 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a
12 preponderance. Id. To determine whether substantial evidence supports a
13 finding, the reviewing court “must review the administrative record as a whole,
14 weighing both the evidence that supports and the evidence that detracts from
15 the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th
16 Cir. 1998). “If the evidence can reasonably support either affirming or
17 reversing,” the reviewing court “may not substitute its judgment” for that of
18 the Commissioner. Id. at 720-21; see also Molina v. Astrue, 674 F.3d 1104,
19 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than one
20 rational interpretation, [the court] must uphold the ALJ’s findings if they are
21 supported by inferences reasonably drawn from the record.”).
22 Lastly, even if an ALJ errs, the decision will be affirmed where such
23 error is harmless (Molina, 674 F.3d at 1115), that is, if it is “inconsequential to
24 the ultimate nondisability determination,” or if “the agency’s path may
25 reasonably be discerned, even if the agency explains its decision with less than
26 ideal clarity.” Brown-Hunter, 806 F.3d at 492 (citation omitted).
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1 B. Standard for Determining Disability Benefits
2 When the claimant’s case has proceeded to consideration by an ALJ, the
3 ALJ conducts a five-step sequential evaluation to determine at each step if the
4 claimant is or is not disabled. See Ford v. Saul, 950 F.3d 1141, 1148-49 (9th
5 Cir. 2020); Molina, 674 F.3d at 1110.
6 First, the ALJ considers whether the claimant currently works at a job
7 that meets the criteria for “substantial gainful activity.” Molina, 674 F.3d at
8 1110. If not, the ALJ proceeds to a second step to determine whether the
9 claimant has a “severe” medically determinable physical or mental impairment
10 or combination of impairments that has lasted for more than twelve months.
11 Id. If so, the ALJ proceeds to a third step to determine whether the claimant’s
12 impairments render the claimant disabled because they “meet or equal” any of
13 the “listed impairments” set forth in the Social Security regulations at 20
14 C.F.R. Part 404, Subpart P, Appendix 1. See Rounds v. Comm’r Soc. Sec.
15 Admin., 807 F.3d 996, 1001 (9th Cir. 2015). If the claimant’s impairments do
16 not meet or equal a “listed impairment,” before proceeding to the fourth step
17 the ALJ assesses the claimant’s RFC, that is, what the claimant can do on a
18 sustained basis despite the limitations from her impairments. See 20 C.F.R.
19 § 404.1520(a)(4); Social Security Ruling (“SSR”) 96-8p.
20 After determining the claimant’s RFC, the ALJ proceeds to the fourth
21 step and determines whether the claimant has the RFC to perform her past
22 relevant work, either as she “actually” performed it when she worked in the
23 past, or as that same job is “generally” performed in the national economy. See
24 Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016). If the claimant cannot
25 perform her past relevant work, the ALJ proceeds to a fifth and final step to
26 determine whether there is any other work, in light of the claimant’s RFC, age,
27 education, and work experience, that the claimant can perform and that exists
28 in “significant numbers” in either the national or regional economies. See
1 Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). If the claimant can
2 do other work, she is not disabled; but if the claimant cannot do other work
3 and meets the duration requirement, the claimant is disabled. See id. at 1099.
4 The claimant generally bears the burden at each of steps one through
5 four to show she is disabled, or she meets the requirements to proceed to the
6 next step; and the claimant bears the ultimate burden to show she is disabled.
7 See, e.g., Ford, 950 F.3d at 1148; Molina, 674 F.3d at 1110. However, at step
8 five, the ALJ has a “limited” burden of production to identify representative
9 jobs that the claimant can perform and that exist in “significant” numbers in
10 the economy. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Tackett,
11 180 F.3d at 1100.
12 III.
13 DISCUSSION
14 The parties present two disputed issues (Jt. Stip. at 4):4
15 Issue No. 1: Whether the ALJ properly considered the evidence concerning
16 the number of jobs; and
17 Issue No. 2: Whether the ALJ’s decision is supported by substantial
18 evidence.
19 In both disputed issues, Plaintiff challenges the ALJ’s step-five
20 determination. In Issue No. 1, Plaintiff contends that the DOT does not
21 describe or classify social interaction with people, and because the VE could
22 not “guarantee” that the representative occupations would not require more
23 than occasional contact with supervisors, he thus could not describe an
24 occupation Plaintiff could sustain. Jt. Stip. 8-9, 14-15. Plaintiff also contends
25 that the ALJ did not consider the consistency of the VE’s testimony with
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27 4 Plaintiff challenges the denial of her DIB application, for the period prior to
May 23, 2014, only. See Jt. Stip. at 4.
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1 County Business Patterns (“CBP”) and other evidence Plaintiff submitted post-
2 hearing. Jt. Stip. at 10-12, 15-16. In Issue No. 2, Plaintiff contends that the
3 ALJ also did not properly consider information from the Department of
4 Labor’s O*NET OnLine, Job Browser Pro, and other sources. Jt. Stip. at 16-
5 20, 24-26. Finally, Plaintiff contends that VE did not provide any basis for a
6 reasonable person to conclude that the representative occupations existed in
7 the numbers he stated. Id.
8 A. Applicable Law
9 The Commissioner bears the burden of “show[ing] that the claimant can
10 perform some other work that exists in ‘significant numbers’ in the national
11 economy, taking into consideration the claimant’s [RFC], age, education, and
12 work experience.” Tackett, 180 F.3d at 1100 (citation omitted). There is no
13 bright-line rule for what constitutes a significant number of jobs. Beltran v.
14 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). The Commissioner’s burden can be
15 met: “(a) by the testimony of a VE, or (b) by reference to the Medical-
16 Vocational Guidelines [‘the Grids’] . . ..” Tackett, 180 F.3d at 1101.
17 The Grids are matrices of “four factors identified by Congress—physical
18 ability, age, education, and work experience—and set forth rules that identify
19 whether jobs requiring specific combinations of these factors exist in significant
20 numbers in the national economy.” Heckler v. Campbell, 461 U.S. 458, 461-62
21 (1983). When properly applied, the Grids “render[ ] a conclusion of either
22 ‘disabled’ or ‘non-disabled’” based on the number of jobs “that the
23 Administration has determined exist in significant numbers in the national
24 economy.” Barnes v. Berryhill, 895 F.3d 702, 706 (9th Cir. 2018); 42 U.S.C.
25 § 423(d)(1)(A).
26 When the claimant cannot perform substantially all the exertional
27 demands of work at a given level of exertion and/or has nonexertional
28 limitations, the Grids are used as a “framework” for decision-making, unless
1 there is a rule that directs a conclusion of “disabled” without considering the
2 additional exertional and/or nonexertional limitations. SSR 83-12, 83-14.
3 An ALJ may take administrative notice of any reliable job information,
4 including information provided by a VE. Johnson v. Shalala, 60 F.3d 1428,
5 1435 (9th Cir. 1995). “A VE’s recognized expertise provides the necessary
6 foundation for his or her testimony” and “no additional foundation is
7 required.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017) (quoting
8 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005)). “Given its inherent
9 reliability, a qualified [VE]’s testimony as to the number of jobs existing in the
10 national economy that a claimant can perform is ordinarily sufficient by itself
11 to support an ALJ’s step-five finding.” Ford, 950 F.3d at 1160; see also Buck,
12 869 F.3d at 1051.
13 B. Analysis
14 During the administrative hearing, the ALJ presented a hypothetical
15 containing Plaintiff’s limitations, including “no public contact” and “no more
16 than occasional interaction with supervisors and coworkers.” AR 65-66. The
17 VE concluded that a hypothetical person with that RFC could perform the
18 office helper position (DOT 239.567-010) with 86,600 jobs available
19 nationally, general office machine operator position, one example being
20 photocopying machine operator (DOT 207.685-014), with 266,000 jobs
21 available nationally, and the mail clerk, non-postal position (DOT 209.587-
22 026) with 62,000 jobs available nationally. AR 66-67.
23 Plaintiff’s counsel asked the VE whether there were jobs the VE “could
24 guarantee that there would only be occasional contact with supervisors?” AR
25 68. The VE answered that he could not guarantee anything. Id. The ALJ then
26 struck the answer because it was an improper question, explaining that the
27 VE’s testimony was based on the DOT and that VEs do not guarantee any
28 aspect of a job. Id. Counsel then asked how the DOT classifies social
1 interaction with any other type of individual with respect to the jobs identified,
2 to which the VE responded, “It doesn’t.” Id. Counsel also asked the VE if he
3 “checked [his] numbers against County Business Patterns?” AR 68-69. The
4 ALJ directed the VE not to answer that question because the VE’s testimony
5 was based on national numbers, not county numbers. AR. 69. The ALJ asked
6 counsel to rephrase, and counsel then asked if the VE “add[ed] up the numbers
7 that County Business Patterns” provides to see if it matched the national
8 numbers, and the VE said he did not, explaining that there are hundreds of
9 counties in the nation. AR 69-70. Finally, the VE testified that, in addition to
10 the DOT, he relied on the OASYS program5, and his testimony was consistent
11 with the Occupational Outlook Handbook (“OOH”). AR 69-70.
12 In the decision, the ALJ found that prior to May 23, 2014, if Plaintiff
13 had the RFC to perform a full range of light work, a finding of “not disabled”
14 would be directed by Medical-Vocational Rule 202.14. AR 29. However,
15 because Plaintiff’s ability to perform all or substantially all the requirements of
16 that level of work was impeded by additional limitations, the ALJ explained
17 that she consulted the VE. AR 29. The ALJ detailed the VE’s testimony,
18 including the representative occupations and the job numbers in the national
19 economy, and concluded it was consistent with the DOT. AR 30. Based on
20 that testimony, and considering Plaintiff’s age, education, work experience,
21 and RFC, the ALJ found Plaintiff was capable of making a successful
22 adjustment to other work that existed in significant numbers in the national
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5 The parties do not provide any information as to what the “OASYS” program
25 is in the Joint Stipulation. It appears to be a software program that identifies
occupations that could be consistent with an employee’s qualifications and abilities.
26
See Patrick v. Hewlett-Packard Co. Employee Benefits Org. Income Prot. Plan, 638
27 F. Supp. 2d 1195, 1211 (S.D. Cal. 2009); Dionida v. Reliance Standard Life Ins. Co.,
50 F. Supp. 2d 934, 937 (N.D. Cal. 1999).
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1 economy. AR 30. Accordingly, under this “framework” analysis, the ALJ
2 concluded that Plaintiff was “not disabled” prior to May 23, 2014. AR 30.
3 Plaintiff has failed to demonstrate error in this detailed step-five
4 determination. During the hearing, the VE testified that a hypothetical person
5 matching Plaintiff’s RFC could perform the representative occupations, and
6 that they existed in significant numbers in the national economy. AR 66-67.
7 As mentioned, the hypothetical specifically included “no more than occasional
8 interaction with supervisors and coworkers,” and the VE even confirmed that
9 limitation during questioning. AR 65-66. Plaintiff does not challenge the
10 limitations in the hypothetical question or the RFC.6 Accordingly, that
11 testimony is substantial evidence supporting the ALJ’s determination and
12 meets the Commissioner’s burden. See Ford, 950 F.3d at 1160 (VE testimony
13 is inherently reliable and ordinarily sufficient “by itself” to support step five);
14 Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001); Aragon v. Colvin,
15 2016 WL 1257785, at *4 (C.D. Cal. Mar. 30, 2016) (“VE testimony, by itself,
16 constitutes substantial evidence when in response to a complete
17 hypothetical.”); Migliore v. Colvin, 2013 WL 3935879, at *2 (C.D. Cal. July
18 29, 2013) (VE's testimony was substantial evidence supporting step-five
19 determination because VE “identif[ied] a specific job or jobs in the national
20 economy having requirements that the claimant’s physical and mental abilities
21 and vocational qualifications would satisfy” (quoting Osenbrock)). Moreover,
22 although the VE provided some information about how he reached the job
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6 The single variation between the hypothetical and the RFC is the RFC finds
25 Plaintiff “limited to no more than occasional interaction with supervisors, coworkers,
or the general public.” AR 23 (emphasis added). The mention of occasional
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interaction with the general public is superfluous considering the RFC already limited
27 Plaintiff to “no public contact,” a limitation that was also posed in the hypothetical.
Compare AR 23 with 65-66.
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1 numbers (AR 69-70), he was not required to explain his methodology. See
2 Ford, 950 F.3d at 1158-59; Aragon, 2016 WL 1257785 at *4; Zalesny v.
3 Comm’r of Soc. Sec., 2014 WL 4418215, at *3 (E.D. Cal. Sept. 5, 2014).
4 Plaintiff’s challenge that the VE could not “guarantee” the representative
5 occupations would not require more than occasional contact with supervisors,
6 and the ALJ’s attendant ruling related to that testimony, seeks precision
7 beyond the relevant standard of review. Substantial evidence is “more than a
8 mere scintilla” and means only “such relevant evidence as a reasonable mind
9 might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.
10 Ct. 1148, 1154 (2019) (citation omitted); Lingenfelter, 504 F.3d at 1035. The
11 VE’s testimony and reliance on the DOT meets that very low bar. See Ford,
12 950 F.3d at 1159 (VE’s testimony need only clear the “low substantial evidence
13 bar”); Olsen v. Astrue, 2009 WL 982580, at *1 (D. Or. Apr. 10, 2009) (VE
14 need not testify with certainty to support step-five determination).
15 Plaintiff does not contend that the VE’s testimony is in “obvious or
16 apparent” conflict with the DOT or contradicts the Medical-Vocational
17 Guidelines. See, e.g., Ford, 950 F.3d at 1160; Buck, 869 F.3d at 1051-52;
18 Wagner v. Berryhill, 2018 WL 3956485, at *5 (C.D. Cal. Aug. 14, 2018) (“The
19 DOT’s silence does not create a conflict.”). Instead, she relies on various other
20 sources. Regarding County Business Patterns, again, although not required
21 divulge his underlying methodology, the VE provided an explanation as to
22 why he did not rely on that resource. AR 69-70. Plaintiff has failed to show
23 that this was insufficient, or that the VE was otherwise required to add up each
24 county’s data to support his national numbers. See, e.g., Beltran, 700 F.3d at
25 389 (explaining that the “‘significant number of jobs’ can be either regional
26 jobs (the region where a claimant resides) or in several regions of the country
27 (national jobs)” (emphasis in original)); Dawn H. v. Saul, 2020 WL 1939345,
28 at *5 (D. Or. Apr. 22, 2020) (if the court finds either the national or regional
1 numbers significant, then it must uphold the ALJ’s decision).
2 After the hearing, Plaintiff cited additional sources in letters to the ALJ
3 and the Appeals Council, including Bureau of Labor Statistics, the Job
4 Browser Pro, O*Net, OOH, and an email from SkillTRAN.7 AR 365-82, 384-
5 88. However, she has not shown that any of these sources are binding on this
6 Court or the Agency. See, e.g., Wendei L. P., 2020 WL 433365 at *1 (vacating
7 order reversing ALJ’s decision because court erroneously relied on SkillTRAN
8 job listing, which included more limitations than the DOT); Wagner, 2018
9 WL 3956485 at *6 (ALJ not obligated to address VE’s deviation from other
10 sources, such as O*NET or OOH). Aragon, 2016 WL 1257785 at *3 (noting
11 that private Job Browser Pro software program is not referenced in the list of
12 published sources recognized as authoritative by Social Security regulations);
13 Schoux v. Colvin, 2016 WL 3194988, at *3 (N.D. Cal. June 9, 2016) (rejecting
14 argument that the Agency is bound by the CBP and OOH; “the regulations
15 simply identify the C[BP] and OOH as examples of materials the
16 Commissioner may consider, . . . [they] nowhere indicate that either of these
17 sources are definitive or controlling”).
18 Finally, Plaintiff argues that the ALJ did not address aspects of her post-
19 hearing submissions, but she has failed to show that the ALJ was required to
20 do more to resolve the step-five issue and to meet the substantial evidence
21 standard. See, e.g., Biestek, 139 S. Ct. at 1154; Jaquez v. Berryhill, 2019 WL
22 2868926, at *10 (S.D. Cal. July 2, 2019) (“District courts . . . have concluded
23 that the ALJ has no obligation to reconcile conflicts between VE testimony
24 and . . . non-DOT sources [such as CBP, OOH, or O*NET].”); Beamesderfer
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7 Wendei L. P. v. Comm’r of Soc. Sec., 2020 WL 433365, at *1 (W.D. Wash. Jan. 27,
27 2020) (describing SkillTran as a manual authored by a private company that purports
to rely on the DOT).
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1 || v. Berryhill, 2018 WL 2315956, at *6 (C.D. Cal. May 18, 2018) (“the
2 || guidelines do not require the ALJ to resolve conflicts between VE testimony
3 other vocational publications or information” and “|t]here is simply no
4 ||requirement that an ALJ must address each [post-hearing memorandum]
5 || objection [to a VE’s testimony] in a discrete manner.”).
6 At best, Plaintiff presents an alternate interpretation of the numbers of
7 ||jobs available for the identified occupations, which is insufficient to undermine
8 ||the VE’s testimony. See Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir.
9 ||2017) (“Where evidence is susceptible to more than one rational interpretation,
10 is the ALJ's conclusion that must be upheld.” (internal quotation marks and
11 || citation omitted)); Molina, 674 F.3d at 1111; see also, e.g., Aragon, 2016 WL
12 || 1257785 at *5 (collecting cases uniformly rejecting lay interpretation and
13 analysis of Job Browser Pro job numbers). Reversal 1s not warranted.
14 IV.
15 ORDER
16 IT THEREFORE IS ORDERED that Judgment be entered affirming
17 ||the decision of the Commissioner and dismissing this action with prejudice.
18
19 || Dated: May 08, 2020
20 / i i 3 Yo
21 ND. EARLY
22 nited States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10037852. Public record. Not legal advice.