(SS) Fisher v. Commissioner of Social Security

1

2

3

4

5

6

7

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

10

11 KEVIN LEE FISHER, No. 2:22-CV-1615-DMC

12 Plaintiff,

13 v. MEMORANDUM OPINION AND ORDER

14 COMMISSIONER OF SOCIAL

SECURITY,

15

Defendant.

16

17

18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial

19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

20 Pursuant to the written consent of all parties, ECF Nos. 6 and 7, this case is before the

21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28

22 U.S.C. § 636(c); see also ECF No. 15 (minute order reassigning case to Magistrate Judge).

23 Pending before the Court are the parties’ briefs on the merits, ECF Nos. 14 and 20.

24 The Court reviews the Commissioner’s final decision to determine whether it is:

25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521

28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support

1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must

3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s

5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the

8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of

10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

13 Cir. 1988).

14 For the reasons discussed below, the matter will be remanded for further

15 proceedings.

16

17 I. THE DISABILITY EVALUATION PROCESS

18 To achieve uniformity of decisions, the Commissioner employs a five-step

19 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§

20 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

21 Step 1 Determination whether the claimant is engaged in

substantial gainful activity; if so, the claimant is presumed

22 not disabled and the claim is denied;

23 Step 2 If the claimant is not engaged in substantial gainful activity,

determination whether the claimant has a severe

24 impairment; if not, the claimant is presumed not disabled

and the claim is denied;

25

Step 3 If the claimant has one or more severe impairments,

26 determination whether any such severe impairment meets

or medically equals an impairment listed in the regulations;

27 if the claimant has such an impairment, the claimant is

presumed disabled and the claim is granted;

28

1 Step 4 If the claimant’s impairment is not listed in the regulations,

determination whether the impairment prevents the

2 claimant from performing past work in light of the

claimant’s residual functional capacity; if not, the claimant

3 is presumed not disabled and the claim is denied;

4 Step 5 If the impairment prevents the claimant from performing

past work, determination whether, in light of the claimant’s

5 residual functional capacity, the claimant can engage in

other types of substantial gainful work that exist in the

6 national economy; if so, the claimant is not disabled and

the claim is denied.

7

See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

8

9 To qualify for benefits, the claimant must establish the inability to engage in

10 substantial gainful activity due to a medically determinable physical or mental impairment which

11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

13 impairment of such severity the claimant is unable to engage in previous work and cannot,

14 considering the claimant’s age, education, and work experience, engage in any other kind of

15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

18 The claimant establishes a prima facie case by showing that a physical or mental

19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

25 / / /

26 / / /

27 / / /

28 / / /

1 II. THE COMMISSIONER’S FINDINGS

2 Plaintiff applied for social security benefits on March 22, 2020. See CAR 15.1 In

3 the application, Plaintiff claims disability began on March 25, 2019. See id. Plaintiff’s claim was

4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative

5 hearing, which was held on January 5, 2021, before Administrative Law Judge (ALJ) David

6 LaBarre. Following the hearing, the ALJ received additional evidence from post-hearing

7 consultative examinations. See id. In a June 16, 2021, decision, the ALJ concluded Plaintiff is

8 not disabled based on the following relevant findings:

9 1. The claimant has the following severe impairment(s): chronic liver

disease; type two diabetes mellitus; alcoholic cirrhosis of the liver;

10 peripheral neuropathy; and cellulitis of the right lower limb;

11 2. The claimant does not have an impairment or combination of

impairments that meets or medically equals an impairment listed in

12 the regulations;

13 3. The claimant has the following residual functional capacity: the

claimant can perform light work; the claimant can frequently lift or

14 carry ten pounds, occasionally lift or carry twenty pounds, sit for

up to six hours, and stand/walk for two hours in an eight-hour

15 workday with normal breaks; the claimant should never climb

ladders, ropes, and scaffolds; the claimant can occasionally climb

16 ramps and stairs; the claimant can occasionally balance, stoop,

kneel, crouch, and crawl; the claimant is able to work in

17 environments where there is no concentrated exposure to extreme

cold, wetness, or vibration; the claimant can perform work in

18 environments where there is no more than moderate exposure to

heavy machinery; the claimant can never work around heights; the

19 claimant can perform occasional pushing and/or pulling with the

bilateral lower extremities; the claimant can frequently feel and

20 handle bilaterally;

21 4. Considering the claimant’s age, education, work experience,

residual functional capacity, and vocational expert testimony, and

22 the Medical-Vocational Guidelines there are jobs that exist in

significant numbers in the national economy that the claimant can

23 perform.

24 See id. at 15-28.

25 After the Appeals Council declined review on August 9, 2022, this appeal followed.

26 / / /

27

1 Citations are to the Certified Administrative Record (CAR) lodged on December

28 22, 2022, ECF No. 9.

1 III. DISCUSSION

2 In his motion for summary judgment, Plaintiff argues: (1) the ALJ erred at Step 4

3 in evaluating Plaintiff’s subjective statements and testimony; and (2) the ALJ erred at Step 5 in

4 determining that Plaintiff can perform other jobs.

5 A. Evaluation of Plaintiff’s Subjective Statements and Testimony

6 The Commissioner determines the weight to be given to a claimant’s own

7 statements and testimony, and the court defers to the Commissioner’s discretion if the

8 Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94

9 F.3d 520, 522 (9th Cir. 1996). An explicit finding must be supported by specific, cogent reasons.

10 See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient.

11 See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify

12 what testimony is not afforded weight and what evidence undermines the testimony. See id.

13 Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner’s

14 reasons for rejecting testimony as not credible must be “clear and convincing.” See id.; see also

15 Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue,

16 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

17 If there is objective medical evidence of an underlying impairment, the

18 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely

19 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d

20 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

21 The claimant need not produce objective medical evidence of the

[symptom] itself, or the severity thereof. Nor must the claimant produce

22 objective medical evidence of the causal relationship between the

medically determinable impairment and the symptom. By requiring that

23 the medical impairment “could reasonably be expected to produce” pain or

another symptom, the Cotton test requires only that the causal relationship

24 be a reasonable inference, not a medically proven phenomenon.

25 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in

Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

26

27 / / /

28 / / /

1 The Commissioner may, however, consider the nature of the symptoms alleged,

2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,

3 947 F.2d at 345-47. In weighing a claimant’s statements and testimony, the Commissioner may

4 also consider: (1) the claimant’s reputation for truthfulness, prior inconsistent statements, or other

5 inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to

6 follow a prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and

7 (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See

8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the

9 claimant cooperated during physical examinations or provided conflicting statements concerning

10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the

11 claimant testifies as to symptoms greater than would normally be produced by a given

12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See

13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

14 Regarding reliance on a claimant’s daily activities to discount testimony of

15 disabling pain, the Social Security Act does not require that disability claimants be utterly

16 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has

17 repeatedly held that the “. . . mere fact that a plaintiff has carried out certain daily activities . . .

18 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.

19 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th

20 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a

21 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic

22 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the

23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s

24 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home

25 activities are not easily transferable to what may be the more grueling environment of the

26 workplace, where it might be impossible to periodically rest or take medication”). Daily

27 activities must be such that they show that the claimant is “. . .able to spend a substantial part of

28 his day engaged in pursuits involving the performance of physical functions that are transferable

1 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard

2 before relying on daily activities to discount a claimant’s pain testimony. See Burch v. Barnhart,

3 400 F.3d 676, 681 (9th Cir. 2005).

4 At Step 4, the ALJ evaluated Plaintiff’s subjective statements and testimony. See

5 CAR 21-24. The ALJ summarized Plaintiff’s statements and testimony as follows:

6 The claimant alleged disability due to type two diabetes with

hyperglycemia and peripheral neuropathy, as well as anemia. He

7 complained of tingling, numbness, and stiffness in his bilateral hands and

fingers with burning sensation, redness, and sensitivity to touch. He

8 complained of jaundice and cirrhosis of the liver. He reported neuropathy

in all extremities. He complained of difficulty gripping with his hand well

9 enough to write clearly. He complained of dizziness and balance deficits.

He reported the use of a non-prescribed cane. He reported pain in his feet

10 that make it difficult to walk. He reported he was unable to walk without

diabetic slippers or shoes. He reported he could sit for fifteen minutes

11 before needing to change positions because his legs and feet fall asleep.

He indicated he had to move his legs around to shake off the numbness.

12 He reported the use of compression socks and elevation of his feet. He

reported difficulty bending his left wrist. He reported poor penmanship

13 due to difficulty gripping with his right hand. He indicated he used talking

to text on his phone. He reported disturbed sleep at night because he had

14 to keep shaking his feet. He indicated he elevated his feet four to five

times a day above the waist level to reduce edema. He reported he assisted

15 in the care of his toddler daughter when his wife was at work, but he

indicated he did not feel comfortable taking full responsibility for her care

16 and utilized assistance from his wife’s parents to care for her. (Exhibits

1E; 5E; 7E; Hearing testimony)

17

CAR 22.

18

19 The ALJ then continued by separately discussing, in turn, the objective medical evidence as to

20 Plaintiff’s diabetes mellitus, CAR 22-23, Plaintiff’s chronic liver disease with alcoholic cirrhosis,

21 CAR 23-24, and Plaintiff’s cellulitis of the right lower limb, CAR 24. The Court does not repeat

22 the ALJ’s extensive discussion here.

23 The ALJ concluded Plaintiff’s statements and testimony are not “entirely

24 consistent” with the medical evidence. See id. at 24. The ALJ reasoned as follows:

25 . . . The record does reflect severe liver disease with improvement over

time. Some standing and walking limitations are supported by the record.

26 The record reflects the claimant’s diabetes was poorly controlled for most

of the applicable period. The medical record also reflects consistent

27 complaints of burning pain, numbness, and reduced sensation in his

extremities to his treatment providers. However, the record does not

28 indicate he reported that he had difficulty gripping items. Further, physical

1 examinations showed he exhibited a normal grip. Electromyography and

nerve conduction testing did show severe neuropathy. However, the record

2 does not support the medical need for a cane or other assistive device. The

record indicated the claimant ambulated with a front wheeled walker

3 during a flare of his cellulitis. However, abnormal findings on physical

examination showed some reduced range of motion and strength in his

4 feet, particularly his toes, with some absent reflexes in his lower

extremities, as well as loss of sensation. However, physical examinations

5 also showed the claimant was able to perform a heel walk and ambulate

without the use of an assistive device. He generally exhibited normal

6 motor strength with the exception of his toes. Although the claimant

reported at the hearing that he had the assistance of parents to care for his

7 daughter when his wife was working, treatment records indicated he

reported his most strenuous exercise was taking care of his toddler

8 daughter while his wife worked. He also reported the use of a stationary

bike for exercise. Although the claimant indicated he elevated his feet four

9 to five times a day above waist level to reduce his edema, the medical

record does not support the need for such elevation. The claimant was

10 prescribed diuretics to treat his edema. In the absence of flares of his

cellulitis, physical examinations showed his edema was controlled while

11 taking diuretics. The claimant reported he was able to dress himself,

perform his own hygiene, wash dishes, shop with accompaniment, and

12 ride a bicycle. At his consultative physical examination he exhibited

normal muscle mass in the right upper and bilateral lower extremities with

13 no evidence of skin tags, skin lesions, or evidence of jaundice. He was

able to transfer from a chair to the examination table and sit comfortably.

14 He exhibited normal motor strength in the bilateral upper and lower

extremities, including grip strength. His gait was mildly antalgic without

15 the use of an assistive device. The claimant has received some treatment

for the allegedly disabling impairments, but that treatment has been

16 essentially routine or conservative in nature and consisted primarily of

medication.

17

CAR 24-25.

18

19 From this analysis, it is possible to discern three reasons cited by the ALJ for

20 discounting Plaintiff’s subjective statements and testimony. First, the ALJ appears to conclude

21 that Plaintiff’s statements and testimony are not consistent with various portions of the objective

22 medical evidence. Second, the ALJ cites some of Plaintiff’s daily activities which purport to

23 show that Plaintiff is not as limited as he alleges. Third, the ALJ states that Plaintiff’s testimony

24 is undermined by a history of “routine or conservative” treatment.

25 At the outset, the Court finds that the ALJ’s analysis is flawed because, while the

26 Court is able to determine reasons for discounting Plaintiff’s subjective statements and testimony,

the ALJ has not specifically identified which portions of Plaintiff’s testimony are undermined by

27

which specific pieces of the objective record. In this regard, the Court cannot guess at what the

28

1 ALJ’s analysis would have been or substitute defense counsel’s analysis, even if it is sound and

2 supported by substantial evidence. With respect to the ALJ’s reliance on Plaintiff’s daily

3 activities (caring for his daughter during the work-day with assistance, dress, wash dishes, shop

4 with accompaniment, ride a bicycle), the ALJ has not explained how such activities show an

5 ability to sustain work on a full-time competitive basis. Finally, while Plaintiff’s various

6 impairments were primarily treated with medication, such medication included IV treatments and

pain medication, which the Court cannot say is either routine or conservative, particularly in light

7

of the extensive treatment and the care he has been provided, which includes ER visits, which

8

Plaintiff has sought over the years.

9

B. Vocational Findings

10

The Medical-Vocational Guidelines (Grids) provide a uniform conclusion about

11

disability for various combinations of age, education, previous work experience, and residual

12

functional capacity. The Grids allow the Commissioner to streamline the administrative process

13

and encourage uniform treatment of claims based on the number of jobs in the national economy

14

for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458,

15

460-62 (1983) (discussing creation and purpose of the Grids).

16

The Commissioner may apply the Grids in lieu of taking the testimony of a

17

vocational expert only when the Grids accurately and completely describe the claimant’s abilities

18

and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v.

19

Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the

20

Grids if a claimant suffers from non-exertional limitations because the Grids are based on

21

exertional strength factors only. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). “If

22

a claimant has an impairment that limits his or her ability to work without directly affecting his

23

or her strength, the claimant is said to have non-exertional . . . limitations that are not covered by

24

the Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404,

25

Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids

26

even when a claimant has combined exertional and non-exertional limitations, if non-exertional

27

limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d

28

1 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

2 In cases where the Grids are not fully applicable, the ALJ may meet his burden

3 under step five of the sequential analysis by propounding to a vocational expert hypothetical

4 questions based on medical assumptions, supported by substantial evidence, that reflect all the

5 plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically,

6 where the Medical-Vocational Guidelines are inapplicable because the plaintiff has sufficient

7 non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See

8 Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988).

9 Hypothetical questions posed to a vocational expert must set out all the substantial,

10 supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881

11 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the

12 expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary

13 value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to

14 the expert a range of hypothetical questions based on alternate interpretations of the evidence, the

15 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by

16 substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th

17 Cir. 1988).

18 At Step 5, after taking testimony from a vocational expert, the ALJ concluded that

19 Plaintiff can perform other jobs which exist in the national economy. See CAR 27-28. Based on

20 Plaintiff’s residual functional capacity and other vocational guidelines, the vocational expert

21 testified that Plaintiff can perform representative jobs as document preparer (19,000 jobs

22 available), addresser (2,700 jobs available), and call-out operator (3,000 jobs available), all of

23 which are unskilled sedentary jobs. See id. The ALJ further commented as follows with respect

24 to application of the Grids and consistency with the Dictionary of Occupational Titles (DOT):

25 As the only jobs identified by the vocational expert fell within a sedentary

exertional level, the undersigned applied Medical-Vocation Rule 201.28.

26 If the claimant had the residual functional capacity to perform the full

range of sedentary work, a finding of “not disabled” would be directed by

27 Medical-Vocational Rule 201.28. Pursuant to SSR 00-4p, the undersigned

has determined that the vocational expert's testimony is consistent with the

28 information contained in the DOT. The undersigned further finds that the

1 vocational expert's testimony is consistent with the information contained

in the DOT and to the extent the DOT does not address a particular

2 limitation, the testimony was based on the vocational expert’s experience

(Exhibit 12E). The undersigned accepts this testimony in accordance with

3 SSR 00-4p.

4 CAR 28.

5 Plaintiff argues: “In this case, the jobs relied upon by the ALJ at step five are

6 obsolete and/or do not exist in significant numbers in the national economy.” ECF No. 14, pg.

7 14. According to Plaintiff:

8 The occupation of addresser is a relic of the past. In Skinner v.

Berryhill, the court found that “it is not unreasonable to assume that the

9 occupation of ‘addresser,’ which—as described by the DOT—provides for

addressing envelopes by hand or by typewriter, is an occupation that has

10 significantly dwindled in number since 1991 in light of technological

advances.” Skinner v. Berryhill, No. CV 17-3795-PLA, 2018 WL

11 1631275, at *6 (C.D. Cal. Apr. 2, 2018). The occupation of addresser also

does not have an equal counterpart in the O*NET. See Scott v. Colvin, No.

12 14-CV-04051-EDL, 2015 WL 11438598, at *13 (N.D. Cal. Dec. 9, 2015)

(finding the occupation of cutter/paster, press clippings does not exist in

13 significant numbers, in part, because there is not a similar position in

O*NET). An addresser falls under the classification of Word Processors

14 and Typists which requires significant use of computers and software;

multiple clerical job duties; and is semi-skilled. [footnote omitted]. The

15 VE testified that there are 2,700 national full-time positions. (AR 61).

Given the technological advances since 1991 when the DOT was last

16 updated and a common sense understanding of the addresser definition,

substantial evidence does not support that the job of addresser exists in the

17 national economy. Jobs that are “very rare” or “generally unavailable”

cannot be held to exist in significant numbers. Walker v. Mathews, 546

18 F.2d 814, 820 (9th Cir. 1976).

The VE relied on a total of 24,700 jobs to find that Plaintiff can

19 perform work which exists in significant numbers in the national

economy. Subtracting the obsolete position of addresser (2,700 jobs

20 nationally), only 22,000 jobs remain as the basis for the ALJ’s finding at

step five. Ninth Circuit case law directs that the ALJ must establish that at

21 least 25,000 jobs exist in the national economy that a claimant can

perform to show that a “significant number” of jobs exist. Gutierrez, 740

22 F.3d at 529 (“Under our current case law, the ALJ’s finding that 25,000

national jobs is sufficient presents a close call.”). Therefore, it is highly

23 questionable that either 22,000 or 24,700 jobs constitutes a significant

number of jobs in the national economy. As a result, the Commissioner

24 has failed to meet the burden to show that Plaintiff can perform work

which exists in significant numbers in the national economy.

25

ECF No. 14, pgs. 14-15.

26

27 / / /

28 / / /

1 Defendant essentially concedes Plaintiff’s first point and argues that the remining

2 number of jobs – 24,700 – satisfies the Commissioner’s burden at Step 5. See ECF No. 20, pgs.

3 27-29. According to Defendant:

4 Even if Plaintiff is correct that the occupation of Addresser is

obsolete (see P. Br. 14), any error in relying on such occupation would be

5 harmless. See Buck v. Berryhill, 869 F.3d 1040, 1051, 1051 n.2 (9th Cir.

2017) (error in relying on occupation may be harmless if significant

6 number of jobs exist in national economy in remaining cited

occupation(s)). Here, the 22,000 remaining jobs (when the 2,700 of the

7 total jobs represented by the Addresser occupation are subtracted) fall well

within job numbers found acceptable in this Circuit—indeed this Court

8 recently noted that “[t]his Court and others in this Circuit have . . .

determined that 14,000 or more jobs are a ‘significant number’ in the

9 national economy.” Woodworth v. Kijakazi, No. 1:21-cv-00159-SKO,

2022 WL 17542420, at *7 (E.D. Cal. Dec. 8, 2022) (citing cases); see,

10 e.g., Montalbo v. Colvin, 231 F. Supp. 3d 846, 863 (D. Haw. 2017)

(finding 12,300 jobs to be significant number); Woodworth, 2022 WL

11 17542420, at *7 (finding that error in considering certain occupations was

harmless because remaining occupation had 20,700 jobs in national

12 economy); Kimberly T. v. Kijakazi, No. 3:20-cv-1543-SI, 2022 WL

910083, at *8 (D. Or. Mar. 29, 2022) (concluding that asserted error in

13 determining ability to perform occupation was harmless because 15,000

national jobs in remaining occupation was significant); see also De

14 Rivera, 710 F. App’x at 769 (finding it “not clear” whether 5,000 national

jobs and/or 500 jobs in California were significant).

15

ECF No. 20, pgs. 27-29.

16

17 Defendant’s argument is persuasive. The Court will accept Plaintiff’s first

18 argument and presume that the remaining number of jobs identified is 24,700. As the parties

19 agree, the Ninth Circuit has stated that 25,000 jobs represents a “close call” on whether that

20 number qualifies as a significant number at Step 5. However, in light of the other authorities

21 cited by Defendant, which include cases where fewer total jobs constituted a significant number

22 (affirming findings at Step 5 based on 20,700 jobs, 15,000 jobs, and 14,000 jobs), the Court finds

23 that 24,700 falls on the permissible side of the “close call” line and represents a sufficient number

24 to satisfy the Commissioner’s burden at Step 5.

25 / / /

26 / / /

27 / / /

28 / / /

1 IV. CONCLUSION

2 For the foregoing reasons, this matter will be remanded under sentence four of 42

3 || U.S.C. § 405(g) for further development of the record and/or further findings addressing the

4 | deficiencies noted above.

5 Accordingly, IT IS HEREBY ORDERED that:

6 1. Plaintiff's motion for summary judgment, ECF No. 14, is granted;

7 2. Defendant’s motion for summary judgment, ECF No. 20, is denied;

8 3. The Commissioner’s final decision is reversed and this matter is remanded

9 | for further proceedings consistent with this order; and

10 4. The Clerk of the Court is directed to enter judgment and close this file.

1]

12 | Dated: December 5, 2023 Ss..c0_,

13 DENNIS M. COTA

14 UNITED STATES MAGISTRATE JUDGE

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13