Opinion

Kevin Enoch v. Andrew Saul

Court
District Court, C.D. California
Filed
Jan 14, 2021
Cited by
0 cases
Authority
More cited than 17.9%

“Given its inherent reliability, a qualified vocational expert’s testimony as to 17 || the number of jobs existing in the national economy that a claimant can perform is 18 | ordinarily sufficient by itself to support an ALJ’s step-five finding.”’

How later courts described this case

  • “Given its inherent reliability, a qualified vocational expert’s testimony as to 17 || the number of jobs existing in the national economy that a claimant can perform is 18 | ordinarily sufficient by itself to support an ALJ’s step-five finding.”’
  • 1,680 nationwide jobs 27 || insignificant
  • 25,000 nationwide jobs significant, but a “close call”
  • “An ALJ may 20 || take administrative notice of any reliable job information, including information 21 || provided by a VE. A VE’s recognized expertise provides the necessary foundation 22 || for his or her testimony. Thus, no additional foundation is required.”’

Written by the judges who cited it.

The opinion

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 KEVIN E.,1 Case No. 2:19-cv-09831-JC

12 Plaintiff,

MEMORANDUM OPINION

13 v.

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ANDREW SAUL, Commissioner of

15 Social Security Administration,

16 Defendant.

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I. SUMMARY

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On November 15, 2019, plaintiff filed a Complaint seeking review of the

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Commissioner of Social Security’s denial of his application for benefits. The parties

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have consented to proceed before the undersigned United States Magistrate Judge.

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This matter is before the Court on plaintiff’s motion for summary judgment

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(“Plaintiff’s Motion”) and defendant’s memorandum in opposition (“Defendant’s

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Mem.”). The Court has taken the parties’ arguments under submission without oral

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argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5.

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27 1Plaintiff’s name is partially redacted to protect his privacy in compliance with Federal

Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

28 Administration and Case Management of the Judicial Conference of the United States.

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1 Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge

3 (“ALJ”) are supported by substantial evidence and are free from material error.

4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE

5 DECISION

6 On October 8, 2015, plaintiff filed an application for Disability Insurance

7 Benefits, alleging disability beginning on December 30, 2010, due to neck, back,

8 and foot problems, as well as traumatic brain injury, post-traumatic stress disorder

9 (PTSD), and sleep apnea. (See Administrative Record (“AR”) 241-41, 318). An

10 ALJ subsequently examined the medical record and heard testimony from plaintiff

11 (who was represented by counsel) and a vocational expert on August 16, 2018.

12 (AR 39-119). On October 31, 2018, the ALJ determined that plaintiff had not been

13 disabled from the alleged onset date of December 30, 2010, to the date last insured,

14 September 30, 2016. (AR 16-33). Specifically, the ALJ found: (1) plaintiff

15 suffered from the following severe impairments: a mental impairment diagnosed to

16 include post-traumatic stress disorder and depressive disorder; degenerative disc

17 disease of the lumbar spine; status post right elbow arthroscopy; status post bilateral

18 hallux osteotomy; and degenerative joint disease of the left shoulder (AR 19);

19 (2) plaintiff’s impairments, considered individually or in combination, did not meet

20 or medically equal a listed impairment (AR 22); (3) plaintiff retained the residual

21 functional capacity (“RFC”) to perform a reduced range of light work2 (20 C.F.R.

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23 2The ALJ specifically found that plaintiff had the following RFC:

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[Plaintiff can] perform light work . . . except he can no more than occasionally

25 climb ramps and stairs, and never climb ladders, ropes, or scaffolds. [Plaintiff] can

occasionally balance, stoop, kneel, crouch, but never crawl. He can never work in

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the presence of unprotected heights or hazardous machinery; he should not be

27 required to operate a motor vehicle as part of the job duties. [Plaintiff] is limited

to performing simple and routine tasks; he can use judgment required for simple

28 (continued...)

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1 §§ 404.1567(b)) (AR 25); (4) plaintiff could not perform his past relevant work (AR

2 30); (5) plaintiff was capable of performing other jobs that existed in significant

3 numbers in the national economy, specifically small products assembler, office

4 helper, lens inserter, bench assembler or table worker, and preparer in the jewelry

5 industry. (AR 31-33); and (6) plaintiff’s statements regarding the intensity,

6 persistence, and limiting effects of subjective symptoms were not entirely consistent

7 with the medical evidence and other evidence in the record (AR 27-28).

8 On September 20, 2019, the Appeals Council denied plaintiff’s application

9 for review of the ALJ’s decision. (AR 1-3).

10 III. APPLICABLE LEGAL STANDARDS

11 A. Administrative Evaluation of Disability Claims

12 To qualify for disability benefits, a claimant must show that he is unable “to

13 engage in any substantial gainful activity by reason of any medically determinable

14 physical or mental impairment which can be expected to result in death or which has

15 lasted or can be expected to last for a continuous period of not less than 12 months.”

16 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505(a), 416.905. To be considered

17 disabled, a claimant must have an impairment of such severity that he is incapable of

18 performing work the claimant previously performed (“past relevant work”) as well

19 as any other “work which exists in the national economy.” Tackett v. Apfel, 180

20 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).

21 To assess whether a claimant is disabled, an ALJ is required to use the five-

22 step sequential evaluation process set forth in Social Security regulations. See Stout

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2(...continued)

25 routine tasks and simple work-related decisions; he can deal with changes in the

work setting that are required for simple work and work-related decisions.

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[Plaintiff] should have no more than occasional interaction with supervisors and

27 co-workers and never work with the public.

28 (AR 25).

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1 || v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) (describing five-

2 || step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 416.920). The

3 || claimant has the burden of proof at steps one through four — 7.e., determination of

4 || whether the claimant was engaging in substantial gainful activity (step 1), has a

5 || sufficiently severe impairment (step 2), has an impairment or combination of

6 || impairments that meets or medically equals one of the conditions listed in 20 C.F.R.

7 || Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and retains the residual

8 | functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400

9 || F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the burden

10 || of proof at step five —i.e., establishing that the claimant could perform other work in

11 || the national economy. Id.

12 B. Federal Court Review of Social Security Disability Decisions

13 A federal court may set aside a denial of benefits only when the

14 || Commissioner’s “final decision” was “based on legal error or not supported by

15 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871

16 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard

17 || of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc. Sec.

18 | Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks omitted).

19 | Thus, an ALJ’s decision must be upheld if the evidence could reasonably support

20 || either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 (citations

21 |) omitted). Even when an ALJ’s decision contains error, it must be affirmed if the

22 || error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

23 || 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate

24 || nondisability determination; or (2) ALJ’s path may reasonably be discerned despite

25 || the error) (citation and quotation marks omitted).

26 Substantial evidence is “such relevant evidence as a reasonable mind might

27 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining

28 || “substantial evidence” as “more than a mere scintilla, but less than a

1 || preponderance’”’) (citation and quotation marks omitted). When determining

2 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

3 || entire record as a whole, weighing both the evidence that supports and the evidence

4 || that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d

5 || 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).

6 Federal courts review only the reasoning the ALJ provided, and may not

7 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

8 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

9 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s

10 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

11 | 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

12 A reviewing court may not conclude that an error was harmless based on

13 || independent findings gleaned from the administrative record. Brown-Hunter, 806

14 | F.3d at 492 (citations omitted). When a reviewing court cannot confidently

15 | conclude that an error was harmless, a remand for additional investigation or

16 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173

17 || (9th Cir. 2015) (citations omitted).

18 | IV. DISCUSSION

19 Plaintiff solely challenges the ALJ’s reliance on the vocational expert’s

20 || testimony at step five. (Plaintiff's Motion at 13-21). For the reasons stated below,

21 | the Court concludes that a reversal or remand is not warranted.

22 A. Pertinent Law

23 At step five, the Commissioner must prove that other work exists in

24 |) “significant numbers” in the national economy which could be done by an individual

25 || with the same RFC, age, education, and work experience as the claimant.

26 | 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 404.1520(a)(4)(v) & (g), 404.1560(c),

27 || 416.920(a)(4)(v) & (g), 416.960(c); Heckler v. Campbell, 461 U.S. 458, 461-62

28 | ///

1 || (1983); see Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (describing legal

2 || framework for step five) (citations omitted).

3 One way the Commissioner may satisfy this burden is by obtaining testimony

4 || from an impartial vocational expert (alternatively, “VE”) about the type of work

5 | such a claimant is still able to perform, as well as the availability of related jobs in

6 || the national economy. See Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir.

7 || 2016) (citation omitted); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001)

8 | (citing Tackett, 180 F.3d at 1100-01). When a vocational expert is consulted at step

9 || five, the ALJ typically asks the vocational expert at the hearing to identify specific

10 || examples of occupations that could be performed by a hypothetical individual with

11 || the same characteristics as the claimant. Zavalin, 778 F.3d at 846 (citations

12 || omitted); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (citations omitted).

13 || The vocational expert’s responsive testimony may constitute substantial evidence of

14 || a claimant’s ability to perform such sample occupations so long as the ALJ’s

15 || hypothetical question included all of the claimant’s limitations supported by the

16 || record. See Hill, 698 F.3d at 1161-62 (citations omitted); Robbins v. Soc. Sec.

17 | Admin., 466 F.3d 880, 886 (9th Cir. 2006) (citation omitted).

18 A vocational expert’s testimony generally should be consistent with the

19 || Dictionary of Occupational Titles (‘DOT’”).’ See Lamear v. Berryhill, 865 F.3d

20 | 1201, 1205 (9th Cir. 2017) “Presumably, the opinion of the VE would comport

21 |) with the DOT’s guidance.”); see generally Gutierrez, 844 F.3d at 807 (DOT “guides

22 || the [ALJ’s] analysis” at step five). To the extent it is not —i.e., the VE’s opinion

23. |

24 *The DOT, which is compiled by the U.S. Department of Labor, “details the specific

requirements for different occupations,” and is the Social Security Administration’s “‘primary

25 || source of reliable job information’ regarding jobs that exist in the national economy.” Gutierrez,

6 844 F.3d at 807; Zavalin, 778 F.3d at 845-46 (citing Terry v. Sullivan, 903 F.2d 1273, 1276 (9th

Cir. 1990)); see also 20 C.F.R. §§ 404.1566(d)(1), 404.1569, 416.966, 416.969. Neither the

27 || DOT nor a vocational expert’s opmion, however, “automatically ‘trumps’” where there is a

conflict. Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (quoting Social Security

28 Ruling 00-4p) (internal quotation marks omitted).

1 “conflicts with, or seems to conflict with” the DOT – an ALJ may not rely on the

2 VE’s testimony to deny benefits at step five unless and until the ALJ has adequately

3 resolved any such conflict. Gutierrez, 844 F.3d at 807 (citing Social Security Ruling

4 (“SSR”) 00-4P, 2000 WL 1898704, at *2 (2000)); Rounds, 807 F.3d at 1003-04

5 (citations omitted); SSR 00-4p, 2000 WL 1898704, at *4 (“When vocational

6 evidence provided by a VE [ ] is not consistent with information in the DOT, the

7 [ALJ] must resolve [the] conflict before relying on the VE [ ] evidence to support a

8 determination or decision that the individual is or is not disabled.”). In each case

9 where vocational expert testimony is used, an ALJ generally must affirmatively

10 (1) ask the VE whether there is a conflict between the expert’s

11 opinions and the DOT requirements for a particular occupation;

12 (2) “obtain a reasonable explanation for any apparent conflict”; and

13 (3) explain in the decision how the ALJ resolved any such conflict.

14 Massachi, 486 F.3d at 1152-53 (quoting SSR 00-4p). An ALJ need only resolve

15 those conflicts that are “apparent or obvious.” Gutierrez, 844 F.3d at 807-08. A

16 conflict is “apparent or obvious” only when vocational expert testimony is “at odds

17 with” DOT requirements that are “essential, integral, or expected” for a particular

18 occupation. Id. at 808.

19 B. Analysis

20 At the hearing, the ALJ posed to the vocational expert a hypothetical

21 containing all of plaintiff’s functional limitations as found by the ALJ, which

22 plaintiff does not dispute. (See AR 25, 97-98). In response, the VE identified

23 several representative occupations that a person with these limitations could

24 perform. (AR 98-100). Plaintiff’s counsel then engaged in lengthy cross-

25 examination regarding these occupations (see AR 100-18), and later submitted a

26 post-hearing brief disputing the vocational expert’s testimony and requesting a

27 supplemental hearing to further examine the vocational expert (AR 431-35). The

28 ALJ denied the request but discussed at least some of plaintiff’s specific contentions

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1 in the decision. (AR 31-33). The ALJ then relied on the vocational expert’s

2 testimony to find plaintiff could perform the following representative jobs existing in

3 significant numbers in the national economy:

4 1 small products assembler (Dictionary of Occupational Titles

5 (“DOT”) 706.684-022), about 80,000 jobs nationally;

6 2 office helper (DOT 239.567-010), about 75,000 jobs nationally;

7 3 lens inserter (DOT 713.687-026), about 20,000 jobs nationally;

8 4 bench assembler or table worker (DOT 739.687-182), about

9 10,000 jobs nationally;

10 5 preparer in the jewelry industry (DOT 700.687-062), about

11 10,000 jobs nationally.4

12 (AR 31-33). Plaintiff argues that the vocational expert’s testimony conflicts with

13 the DOT and other occupational sources in a variety of respects.5

14 Plaintiff contends, among other things, that the duties of a “small products

15 assembler” are inconsistent with his RFC limitation to only occasional interaction

16 with supervisors and coworkers. (Plaintiff’s Motion at 14). At the hearing, as

17 plaintiff points out, the vocational expert acknowledged that the DOT defines this

18 job as involving “repetitive tasks on [an] assembly line to mass produce small

19 products.” (AR 106; see DOT 706.684-022) (emphasis added). When counsel

20 asked if the vocational expert “consider[s] assembly line work . . . to require more

21 than occasional contact with supervisors and coworkers,” the vocational expert

22 replied yes, “[e]specially in a production type occupation,” though it “just depends

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24 4The first two (small products assembler and office helper) are light unskilled jobs, while

the latter three (lens inserter, bench assembler or table worker, and preparer in jewelry) are

25 described as sedentary unskilled jobs. (AR 32-33, 98-100).

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5Although some of the contentions raised by plaintiff here were not raised at the hearing,

27 plaintiff’s counsel did raise them during administrative proceedings either in the post-hearing brief

to the ALJ (AR 431-35) or a brief submitted later to the Appeals Council (AR 646-49).

28 Defendant does not argue that any issues raised here are waived.

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1 || on the company and the supervisor.” (AR 104). This suggests there may be, as

2 || plaintiff argues, an unresolved conflict between the DOT’s requirements of a small

3 || products assembler and plaintiff's limitation to occasional interaction with

4 || supervisors and coworkers. However, any error on this point is harmless because

5 || substantial evidence supports the ALJ’s finding that plaintiff could perform several

6 || other representative occupations existing in significant numbers in the national

7 || economy.® See Treichler, 775 F.3d at 1099 (ALJ error harmless if inconsequential

8 | to the ultimate nondisability determination); Anna F. v. Saul, 2020 WL 7024924, at

9 || *6 (C.D. Cal. Nov. 30, 2020) (ALJ error in accepting the VE’s testimony about one

10 || job that plaintiff could perform was harmless because substantial evidence

11 | supported the ALJ’s finding that plaintiff could perform other jobs in significant

12 || numbers in the national economy).

13 Plaintiff also argues that the duties of an “office helper” conflict with his

14 || RFC, which limits him to “performing simple and routine tasks,” “us[ing] judgment

15 || required for simple routine tasks and simple work-related decisions,” and “dealling]

16 || with changes in the work setting that are required for simple work and work-related

17 || decisions.” (Plaintiff's Motion at 13-16; AR 25). As the vocational expert

18 || acknowledged, the DOT provides that office helpers must “‘perform[] a VARIETY

19 | of duties,” DOT 239.567-010, 1991 WL 672232, which the DOT’s companion

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°There is no bright-line rule as to what constitutes a “significant” number of jobs

23 nationally, but any aggregate number over 25,000 clearly suffices. See Gutierrez v. Comm’r of

24 Soc. Sec., 740 F.3d 519, 529 (9th Cir. 2014) (25,000 nationwide jobs significant, but a “close

call”); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir.1995) (per curiam) (64,000 nationwide jobs

25 || significant); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (622,000 nationwide jobs

6 significant); Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (125,000 nationwide jobs

significant); see also Beltran v. Astrue, 700 F.3d 386, 390 (9th Cir. 2012) (1,680 nationwide jobs

27 || insignificant); Anna F. v. Saul, 2020 WL 7024924, at *6 (C.D. Cal. Nov. 30, 2020) (21,100 jobs

in the national economy was significant number); Valencia v. Astrue, 2013 WL 1209353, at *18

28 (N.D. Cal. Mar. 25, 2013) (14,082 jobs in the national economy was not a significant number).

1 || publication, Selected Characteristics of Occupations (“SCO”),’ defines to include

2 || “often changing from one task to another of a different nature without loss of

3 || efficiency or composure.” (AR 110; see AR 492). The vocational expert testified,

4 || based on his own research, that the office helper job is “pretty routine with minimal

5 | changes,” and an office helper “can work on certain things for a period of time and

6 || then move to another and so on and so on.” (AR 110-11). Plaintiff contends that

7 || the vocational expert’s characterization of the job conflicts with the SCO

8 | description. (Plaintiff's Motion at 16). However, as numerous courts in this Circuit

9 || have concluded, the requirements of the office helper job are consistent with a

10 | limitation to simple, routine, repetitive tasks, notwithstanding the job’s requirement

11 | of switching between a variety of tasks. See, e.g., Lyn B. v. Comm’r of Soc. Sec.,

12 | 2019 WL 1491174, at *8 (C.D. Cal. Apr. 3, 2019) (“limitation to simple, routine,

13 || and repetitive tasks” did not conflict with office helper job’s requirement of

14 || “performing a variety of duties”); Jerome M. H. v. Berryhill, 2019 WL 994966, at

15 |) *2 (C.D. Cal. Feb. 7, 2019) (finding office helper position compatible with

16 | limitation to simple repetitive tasks and noting plaintiff had “failed to demonstrate

17 || why a person limited to simple repetitive tasks could not also frequently change

18 || tasks”); Lewis v. Colvin, 2016 WL 397626, at *5 (E.D. Cal. Feb. 2, 2016), aff'd,

19 | 708 F. App’x 919 (9th Cir. 2018) (finding no conflict between plaintiffs limitation

20 || to simple instructions or simple, repetitive tasks and performing a variety of job

21 || duties as an office helper). Plaintiff has therefore failed to identify any material

22 || conflict between the DOT and the vocational expert’s testimony that a person who

23 || is limited to simple, routine tasks and can handle “changes in the work setting that

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6 ’The ALJ is required to resolve conflicts with this companion publication as well as the

DOT. See SSR 00-4p (stating that adjudicators must “[i]dentify and obtain a reasonable

27 || explanation for any conflicts between occupational evidence provided by VEs ... and information

in the [DOT], including its companion publication, the Selected Characteristics of Occupations

28 || Defined in the Revised Dictionary of Occupational Titles (SCOY”).

10

1 are required for simple work and work-related decisions” can nonetheless perform

2 the duties of an office helper.

3 Plaintiff additionally disputes whether some of the jobs at issue – specifically,

4 small products assembler, preparer, lens inserter, and table worker – properly

5 qualify as “unskilled.” (Plaintiff’s Motion at 16-17). Plaintiff asserts that,

6 according to the Occupational Outlook Handbook (“OOH”), these jobs are broadly

7 categorized as occupations requiring “moderate-term on-the-job-training,” defined

8 as “more than one month and up to 12 months of on-the-job experience and informal

9 training,” whereas the Social Security regulations define “unskilled” jobs as those

10 that “a person can usually learn to do the job in 30 days, and little specific

11 vocational preparation and judgment are needed.” (Plaintiff’s Motion at 16-17; AR

12 529, 531, 606, 608; 20 C.F.R. § 416.968(a)). However, even if the vocational

13 expert’s testimony conflicted with the OOH on this point, the testimony was directly

14 consistent with the DOT, which lists each of the occupations as SVP Level 2,

15 equivalent to unskilled work. See SSR 00-4P, 2000 WL 1898704, at *3 (“The DOT

16 lists a specific vocational preparation (SVP) time for each described occupation.

17 Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work

18 corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and

19 skilled work corresponds to an SVP of 5-9 in the DOT”). The ALJ thus properly

20 relied on the VE’s testimony and was not required to resolve any purported conflict

21 with the OOH. See Vizcarra v. Berryhill, 2018 WL 1684315, at *3 (C.D. Cal. Apr.

22 5, 2018) (ALJ not required to resolve discrepancy between vocational expert’s

23 testimony and OOH as to whether jobs qualified as unskilled), aff’d, __ F. App’x __

24 (9th Cir. Jan. 13, 2021); Markell v. Berryhill, 2017 WL 6316825, at *11 (N.D. Cal.

25 Dec. 11, 2017) (same).

26 Plaintiff’s remaining arguments all challenge the vocational expert’s job

27 numbers, which plaintiff argues are unreliable and in conflict with various non-DOT

28 sources, such as County Business Patterns, the OOH, O*NET OnLine, Job Browser

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1 || Pro, and the Occupational Requirements Survey. (Plaintiff's Motion at 16, 18-21).

2 || However, as numerous courts in this Circuit have concluded, a lay assessment of

3 || data from these sources fails to undermine the reliability of the vocational expert’s

4 || testimony. See, e.g., Selia R. v. Saul, 2020 WL 3620228, at *14 (E.D. Wash. Apr.

5 || 27, 2020) (“[C]ourts in this circuit considering similar arguments have found that lay

6 || assessment of raw data does not rebut a vocational expert’s opinion.”’); David G. v.

7 || Saul, 2020 WL 1184434, at *5 (C.D. Cal. Mar. 11, 2020) (“Plaintiff's subjective

8 || lay assessment of the data [from various non-DOT sources] is insufficient to

9 || undermine the VE’s analysis.”’); Paredes Ruiz v. Saul, 2020 WL 528846, at *4

10 || (E.D. Cal. Feb. 3, 2020) (“Plaintiff's effort to undermine the reliability of the VE’s

11 || testtmony through her own lay assessment of vocational information and job data

12 || [from County Business Patterns and the OOH] is unavailing.”), appeal docketed,

13 | No. 20-15286 (9th Cir. Feb. 21, 2020); Jose Alfredo G. v. Saul, 2019 WL 6652086,

14 || at *6 (S.D. Cal. Dec. 5, 2019) (“Plaintiff merely presents a lay interpretation of the

15 || alternative OOH and O*NET data. Lay assessments alone are insufficient to

16 || undermine the VE’s analysis; such attempts have been ‘uniformly rejected by

17 || numerous courts.’”) (quoting Merryflorian v. Astrue, 2013 WL 4783069, at *5

18 | (S.D. Cal. Sept. 6, 2013)); Kimberly P. v. Saul, 2019 WL 4736975, at *5 (C.D. Cal.

19 || Sept. 26, 2019) (“Here, plaintiff offers nothing more than raw data from Job

20 || Browser Pro, with no expert explanation of the numbers in the report... [A]bsent

21 || expert testimony interpreting the raw data submitted, it fails to undermine the VE’s

22 || expert testimony.”’); Shaibi v. Saul, 2019 WL 3530388, at *7 (E.D. Cal. Aug. 2,

23 || 2019) (“[C]ounsel’s lay assessment of the data derived from the [OOH] and Job

24 || Browser Pro does not undermine the reliability of the vocational expert’s testimony.

25 || Counsel has not offered any expert opinion interpreting data from these or other

26 || sources to undercut the VE’s analysis.”); Kirby v. Berryhill, 2018 WL 4927107, at

27 || *5 (C.D. Cal. Oct. 10, 2018) (‘[C]ounsel’s lay assessment of the data derived from

28 || the OOH and Job Browser Pro does not undermine the reliability of the vocational

12

1 || expert’s testimony.”’), appeal docketed, No. 18-56511 (9th Cir. Nov. 9, 2018);

2 || Colbert v. Berryhill, 2018 WL 1187549, at *5 (C.D. Cal. Mar. 7, 2018) (ALJ

3 || properly relied on vocational expert testimony regarding job numbers where

4 || claimant argued that the expert’s numbers were inflated based on Job Browser Pro

5 || estimates; noting that Job Browser Pro is not a source listed in 20 C.F.R. §

6 || 416.966(d), and the data therefrom served only to show that evidence can be

7 || interpreted in different ways).

8 Plaintiff fails to show that the ALJ erred by not specifically addressing

9 || contentions regarding the job numbers based on these non-DOT sources. See Ruby

10 | V. v. Saul, 2020 WL 2307237, at *6 (C.D. Cal. May 8, 2020) (ALJ properly relied

11 | on vocational expert testimony and had no obligation to address asserted job

12 || number conflicts with non-DOT sources raised in post-hearing submissions), appeal

13 || docketed, No. 20-55586 (9th Cir. June 8, 2020). Instead, the ALJ reasonably relied

14 || on the vocational expert’s testimony regarding job numbers at step five, which alone

15 || constitutes substantial evidence. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir.

16 || 2020) (“Given its inherent reliability, a qualified vocational expert’s testimony as to

17 || the number of jobs existing in the national economy that a claimant can perform is

18 | ordinarily sufficient by itself to support an ALJ’s step-five finding.”’) (citations

19 | omitted); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ may

20 || take administrative notice of any reliable job information, including information

21 || provided by a VE. A VE’s recognized expertise provides the necessary foundation

22 || for his or her testimony. Thus, no additional foundation is required.”’) (citing

23 | Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). Plaintiff's evidence

24 || arguably suggesting an alternative number of available jobs does not warrant

25 || remand. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the

26 || evidence is susceptible to more than one rational interpretation, one of which

27 || supports the ALJ’s decision, the ALJ’s conclusion must be upheld.’’); see also

28 | Gardner v. Colvin, 2013 WL 781984, at *3 (C.D. Cal. Mar. 1, 2013) (finding no

13

1 basis for remand where claimant presented evidence sufficient to support an

2 alternative finding regarding the number of relevant jobs available in the economy).

3 Accordingly, plaintiff fails to demonstrate any material error in the ALJ’s

4 conclusion that plaintiff is capable of performing the duties of jobs existing in

5 significant numbers in the national economy, and is therefore not disabled.

6 V. CONCLUSION

7 For the foregoing reasons, the decision of the Commissioner of Social

8 Security is AFFIRMED.

9 LET JUDGMENT BE ENTERED ACCORDINGLY.

10 DATED: January 14, 2021

11 _____________/s/____________________

Honorable Jacqueline Chooljian

12

UNITED STATES MAGISTRATE JUDGE

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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