The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAULINE D.,!
Plaintiff, Civ. No. 3:18-cv-01406-MC
Vv. OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MCSHANE, Judge:
Plaintiff Pauline D. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for supplemental
security income (“SSI”) under Title II of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. 8§ 405(g) and 1383(c)(3).
The only issue before the Court is whether the Administrative Law Judge (“ALJ”)
improperly relied on the vocational expert’s (“VE”) job numbers when she found that Plaintiff
could perform work that exists in significant numbers in the national economy. Because the ALJ
erred in failing to address a direct and significant conflict in the evidence, the Commissioner’s
decision is REVERSED and this matter is REMANDED for further proceedings.
| In the interest of privacy, this opinion uses only the first name and the initial of the last name of the non-
governmental party in this case.
1 — OPINION AND ORDER
PROCEDURAL BACKGROUND
Plaintiff applied for SSI on April 22, 2014, and alleged disability since May 10, 1982. Tr.
19, 227.2 Her claim was denied initially and upon reconsideration. Tr. 19, 164. Plaintiff timely
requested a hearing and appeared before an ALJ on March 15, 2017. Tr. 44, 167. The ALJ
denied Plaintiff’s claim on July 6, 2017. Tr. 35. Plaintiff sought review from the Appeals
Council and was denied on June 5, 2018. Tr. 1, 226. Plaintiff now seeks judicial review of the
ALJ’s decision.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably
support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for
that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.
2014) (quoting Reddick v. Chater, 157 F.3d 715, 720–21 (9th Cir. 1996)). Finally, the ALJ need
not discuss all evidence presented, but must explain why she rejected significant probative
2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.
evidence. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
DISCUSSION
The Social Security Administration uses a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden
of proof rests on the claimant for steps one through four and on the Commissioner for step five.
Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001) (citing Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that
the claimant can make an adjustment to other work existing in significant numbers in the
national economy after considering the claimant’s residual functional capacity, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4)(v). The Commissioner may satisfy this burden
by referring to the Medical-Vocational Guidelines (“Grids”) or by obtaining testimony from a
VE. Tackett, 180 F.3d at 1100–01. If the Commissioner fails to meet its burden, then the
claimant is considered disabled. Id.
Plaintiff stipulates to the ALJ’s findings at steps one through four. Pl.’s Br. 3, ECF No.
15. The only issue before the Court is whether the ALJ’s reliance on the VE’s job numbers at
step five was improper. Plaintiff argues that the ALJ failed to consider evidence submitted by
Plaintiff that directly contradicted the VE’s testimony. Id. at 5–6. Defendant responds that the
VE’s testimony provided substantial evidence regarding the number of jobs available and
Plaintiff’s alternate job numbers do not diminish the reliability of the VE’s job numbers. See
Def.’s Br. 3–4, ECF No. 16. The Court finds that the ALJ erred in not addressing a direct and
significant conflict in the evidence.
At the administrative hearing, the VE testified that someone with Plaintiff’s
characteristics and limitations could perform two jobs that existed in the national economy: taper
and wafer breaker.3 Tr. 69–70. The VE claimed that there were 90,100 taper jobs nationally and
64,200 wafer breaker jobs nationally. Id. He testified that he obtained these numbers from the
electronic database “SkillTRAN.” Tr. 72. On cross-examination, Plaintiff questioned whether the
VE’s numbers were reflective of Standard Occupational Classification (“SOC”) codes rather
than the specific Dictionary of Occupational Title codes for each individual job. Tr. 71–72. The
VE confirmed that his numbers were not based on SOC codes. Tr. 72. The VE further testified
that he “just use[d] [the numbers that] SkillTRAN gave” him and relying on these numbers is a
“usual and customary practice” for VEs throughout the country. Tr. 72–73.
Two days after the hearing, Plaintiff submitted a letter to the ALJ arguing that the VE
over-reported the number of taper and wafer breaker jobs based on their relative SOC codes. Tr.
330–39. Plaintiff relied on the Bureau of Labor Statistics in this letter and requested more time to
submit additional evidence on the issue. Id. Importantly, only four days later, Plaintiff submitted
a second letter to the ALJ with reports allegedly from SkillTRAN, the same database relied on
by the VE, showing disparate job numbers for taper and wafer breaker. Tr. 346. The reports from
Plaintiff’s second letter suggest that only 243 taper jobs and 640 wafer breaker jobs exist
nationally. Tr. 349, 351. The ALJ relied on the VE’s testimony in finding that Plaintiff is able to
perform work that exists in significant numbers in the national economy, thereby denying
Plaintiff’s claim for benefits. Tr. 34–35. The ALJ acknowledged Plaintiff’s first letter in a
footnote but did not address the second letter. See tr. 34 n.1.
“A VE’s recognized expertise provides the necessary foundation for his or her
testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). “[I]n the absence of any
3 A taper places tape and adhesive symbols on sheets of mylar consistent with a drawing of a printed circuit board.
See tr. 348. A wafer breaker breaks semiconductor wafers into individual pieces using equipment and hand tools.
See tr. 350.
contrary evidence, a VE’s testimony is one type of job information that is regarded as inherently
reliable; thus, there is no need for an ALJ to assess its reliability.” Buck v. Berryhill, 869 F.3d
1040, 1051 (9th Cir. 2017). Even so, VE testimony is not irrefutable. Id. The ALJ still maintains
a “special duty to fully and fairly develop the record.” Booz v. Sec’y of Health and Human
Servs., 734 F.2d 1378, 1381 (9th Cir. 1984) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th
Cir. 1983)). Additionally, the ALJ must resolve any conflict between a VE’s testimony and the
DOT or the Grids. Buck, 869 F.3d at 1051–52. An ALJ’s decision may be reversed and
remanded where the ALJ failed to address evidence of conflicting job numbers at step five. See
id. at 1047, 1052. The plaintiff in Buck submitted post-hearing evidence of job numbers to the
ALJ—allegedly using the same database as the VE—which showed significantly less jobs than
the VE’s numbers. Id. at 1047. In Buck, the Ninth Circuit reversed and remanded for further
proceedings because “the vast discrepancy between the VE’s job numbers and those tendered by
[plaintiff], presumably from the same source, is simply too striking to be ignored.” Id. at 1052.
Here, Plaintiff submitted post-hearing evidence to the ALJ which showed a vast
discrepancy in the number of taper and wafer breaker jobs as compared to the VE’s job numbers.
Like the plaintiff in Buck, who obtained job numbers from the same source as the VE, Plaintiff
obtained job numbers allegedly using SkillTRAN, the same database that the VE relied on. The
ALJ did address Plaintiff’s concerns raised in the first letter. Tr. 34 n.1. However, there is no
evidence that the ALJ considered Plaintiff’s second letter. While Plaintiff’s first letter contains
information only on wafer breaker jobs and relies on the Bureau of Labor Statistics, Plaintiff’s
second letter contains data for both jobs allegedly from the same database that the VE relied on.
This evidence is materially different than that of Plaintiff’s first letter and it directly conflicts
with the VE's testimony.
Defendant points to a multitude of cases in which district courts in the Ninth Circuit have
rejected arguments like Plaintiff’s. See, e.g., Merryflorian v. Astrue, No. 12-cv-2493-IEG
(DHB), 2013 WL 4783069 (S.D. Cal., Sept. 6, 2013) (plaintiff submitted disparate job numbers
to the Appeals Council using two separate sources but failed to question the VE’s methodology
at the hearing); Solano v. Colvin, No. SA CV 12–01047 RZ, 2013 WL 3776333 (C.D. Cal. July
16, 2013) (plaintiff submitted Job Browser Pro data, which the VE did not rely on, to the
Appeals Council); Villareal v. Colvin, No. EDCV 12–01640–JEM, 2013 WL 3071259 (C.D. Cal.
June 18, 2013) (plaintiff submitted Job Browser Pro data to the Appeals Council but failed to
question the VE’s methodology). These decisions are not binding on the Court and were all
decided prior to Buck. Further, Plaintiff’s case is factually different from these cases. For
example, the plaintiffs submitted conflicting job numbers to the Appeals Council, rather than the
ALJ, after the ALJ rendered an unfavorable decision. See Merryflorian, 2013 WL 4783069, at
*5–7; Solano, 2013 WL 3776333, at *1; Villareal, 2013 WL 3071259, at *4–5. Additionally, the
plaintiffs either failed to question the VE’s methodology at the hearing or obtained job numbers
using a method different than that of the VE. Id. Here, Plaintiff questioned the VE’s
methodology at the hearing, submitted evidence of conflicting job numbers to the ALJ within six
days of the hearing, and allegedly used the exact method and database as relied on by the VE.
The Court finds that “the vast discrepancy between the VE’s job numbers and those
tendered by [Plaintiff], presumably from the same source, is simply too striking to be ignored.”
Buck, 869 F.3d at 1052. To be clear, the Court’s holding is narrow; it does not discount the
authority of VE testimony, nor does it restrict ALJs from relying on VE testimony. A lawyer
simply submitting evidence of conflicting job numbers does not automatically render the VE’s
testimony unreliable. Rather, the focus is on the ALJ’s “duty to [fully] develop the record . . .
when there is ambiguous evidence or when the record is inadequate to allow for proper
evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
Plaintiff’s evidence of disparate job numbers, allegedly from the same database that the VE
relied on, was submitted well before the ALJ issued her decision and it directly conflicts with the
VE’s testimony. On remand, the ALJ must address this conflict in the evidence.
CONCLUSION
For these reasons, the Commissioner’s final decision is REVERSED and this matter is
REMANDED for further proceedings in accordance with this opinion.
IT IS SO ORDERED.
DATED this 19th day of November, 2019.
_s/Michael J. McShane____________
Michael J. McShane
United States District Judge