“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
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 KEVIN E.,1 Case No. 2:19-cv-09831-JC
12 Plaintiff,
MEMORANDUM OPINION
13 v.
14
ANDREW SAUL, Commissioner of
15 Social Security Administration,
16 Defendant.
17
I. SUMMARY
18
On November 15, 2019, plaintiff filed a Complaint seeking review of the
19
Commissioner of Social Security’s denial of his application for benefits. The parties
20
have consented to proceed before the undersigned United States Magistrate Judge.
21
This matter is before the Court on plaintiff’s motion for summary judgment
22
(“Plaintiff’s Motion”) and defendant’s memorandum in opposition (“Defendant’s
23
Mem.”). The Court has taken the parties’ arguments under submission without oral
24
argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5.
25
26
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.
1
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.
22
23 2The ALJ specifically found that plaintiff had the following RFC:
24
[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
26
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...)
2
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
23
24
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.
26
[Plaintiff] should have no more than occasional interaction with supervisors and
27 co-workers and never work with the public.
28 (AR 25).
3
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
7
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
23
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).
26
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.
8
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
20
21
22
°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
24
25
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
11
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
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14