Adrian v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

GREG J. A., Ca se No. 6:20-cv-02114-AC

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ACOSTA, Magistrate Judge:

Plaintiff Greg J. A.1 seeks judicial review of the final decision of the Commissioner of

Social Security denying his application for supplemental security income benefits under Title XVI

of the Social Security Act, 42 U.S.C. §§ 1381–1383(f). This court has jurisdiction pursuant to 42

U.S.C. §§ 405(g) and 1383(c)(3). All parties have consented to allow a magistrate judge to enter

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party in this case.

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final orders and judgment in this case in accordance with 28 U.S.C. § 636(c). For the following

reasons, the Commissioner’s decision is reversed and remanded for further proceedings.

Procedural Background

On January 6, 2017, Plaintiff protectively filed an application for a period of disability and

disability benefits, alleging disability beginning June 10, 2016, due to left foot disorder, left ankle

disorder, left shoulder disorder, bilateral carpal tunnel syndrome, left finger fracture, spine

disorder, schizoaffective disorder, and left cubital tunnel syndrome. Tr. Soc. Sec. Admin. R.

(“Tr.”) 18, 193, 195, ECF No. 14. Plaintiff’s claims were denied initially and upon

reconsideration. Tr. 121, 130. The ALJ held a hearing on January 24, 2020, at which Plaintiff

appeared with his attorney and testified. Tr. 43. A vocational expert, Robert Simmons, also

appeared and testified at the hearing. Tr. 16. On February 5, 2020, the ALJ issued an

unfavorable decision. Tr. 31-32. Plaintiff sought review by the Appeals Council and submitted

additional evidence in support of the appeal. Tr. 189-91. The Appeals Council denied Plaintiff’s

request for review, and therefore, the ALJ’s decision became the final decision of the

Commissioner for purposes of review.

The ALJ’s Decision

At step one the ALJ, found that Plaintiff has not engaged in substantial gainful employment

since his application date of January 6, 2017. Tr. 18. At step two, the ALJ determined that

Plaintiff has the following severe impairments: left foot disorder, left ankle disorder, left shoulder

disorder, bilateral carpal tunnel syndrome, and left cubital tunnel syndrome. Tr. 18. At step

three, the ALJ determined that Plaintiff’s severe impairments did not meet or equal any listed

impairment. Tr. 20. Reviewing all the evidence in the record, the ALJ determined Plaintiff has

the residual functional capacity (“RFC”) to perform light work, with the following additional

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limitations: he is limited to frequent climbing of ramps and stairs; frequent balancing; occasional

climbing of ladders, ropes, or scaffolds; occasional crawling; no overhead reaching with the left

upper extremity and frequent reaching in all other directions with the left upper extremity; frequent

reaching in all directions with the right upper extremity; frequent bilateral handling, fingering and

feeling with the left upper hand; and occasional handling, fingering, and feeling with the right

dominant hand. Tr. 20-21.

At step four, the ALJ determined that Plaintiff is unable to perform any past relevant work.

Tr. 30. At step five, the ALJ found that jobs exist in significant numbers in the national economy

that Plaintiff can perform, including such representative occupations as counter clerk with 20,000

jobs nationwide, usher with 23,000 jobs nationwide, and sandwich board carrier with 11,000 jobs

nationwide. Tr. 31. Therefore, the ALJ found that Plaintiff was not disabled from January 6,

2017, through the date of the decision and denied Plaintiff’s application for disability benefits.

Tr. 31.

Issues on Review

Plaintiff argues the ALJ’s step five decision is not supported by substantial evidence.

Specifically, Plaintiff argues the new evidence submitted to the Appeals Council shows that the

jobs identified by the vocational expert do not exist in significant numbers, and therefore, the

ALJ’s step five finding is not supported by substantial evidence and must be remanded. The

Commissioner responds that the ALJ’s decision is supported by substantial evidence and is free of

harmful legal error.

Standard of Review

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

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U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal

quotation and citation omitted); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Garrison v.

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence exists,

the court must weigh all the evidence, whether it supports or detracts from the Commissioner’s

decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. “‘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 Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir.

2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)). “[W]hen a claimant

submits evidence for the first time to the Appeals Council, which considers that evidence in

denying review of the ALJ's decision, the new evidence is part of the administrative record, which

the district court must consider in determining whether the Commissioner's decision is supported

by substantial evidence.” Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir.

2012).

Discussion

I. Number of Available Jobs Conflict

A. Preserving the Job Number Challenge for Appeal

During step five of the evaluation process, after the ALJ has determined the claimant

cannot perform past relevant work, the ALJ must determine if the claimant is capable of

performing other work that exists in significant numbers in the national economy. 20 C.F.R. §

404.1520(a). ALJ’s often seek the expertise of “vocational experts” (VE), for guidance on such

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issues. Biestek, 139 S.Ct. at 1152. The VE’s are professionals under contract with the Social

Security Administration to provide impartial testimony in agency proceedings. Id.

When the VE testifies at the ALJ hearing they discuss “what jobs the claimant, given his

or her residual functional capacity, would be able to do” and “the availability of such jobs in the

national [or regional] economy.” Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999). The

testimony given by the VE “is regarded as inherently reliable, [therefore], there is no need for an

ALJ to assess its reliability.” Buck v. Berryhill, 869 F.3d 1040, 1051 (9th Cir. 2017). However,

this does not mean that “VE testimony is not incontestable.” Id. For example, if the Dictionary

of Occupational Titles conflicts with the VE testimony “the ALJ must then determine whether the

vocational expert’s explanation for the conflict is reasonable and whether a basis exists for relying

on the expert rather than the Dictionary of Occupational Titles.” Massachi v. Astrue, 486 F.3d

1149, 1153 (9th Cir. 2007).

Additionally, a claimant can challenge a vocational expert’s testimony. See Shaibi v.

Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2018). If a claimant submits job numbers that display a

“vast discrepancy [with] the VE’s job numbers . . . presumably from the same source,” the

discrepancy cannot be ignored and the “inconsistency in the record must be addressed by the ALJ

on remand.” Buck, 869 F.3d at 1052.

In Shaibi, the Ninth Circuit held that “when a claimant fails entirely to challenge a

vocational expert’s job numbers during administrative proceedings before the agency, the claimant

forfeits such a challenge on appeal, at least when that claimant is represented by counsel.” Shaibi,

883 F.3d at 1109. To challenge the VE testimony “[i]t is enough [for claimant’s counsel] to raise

the jobs-number issue in a general sense before the ALJ.” Id. at 1110. Raising the issue “in a

general sense” may include “inquiring as to the evidentiary basis for a VE’s estimated jobs

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numbers, or inquiring as to whether those numbers are consistent with [County Business Patterns],

[Occupational Outlook Handbook], or other sources listed in 20 C.F.R. § 404.1566(d).” Id. at

1110. When the issue is raised, the ALJ may permit the claimant to submit a supplemental brief

or interrogatories disputing the VE’s job numbers with claimant’s own numbers. Id. If the ALJ

does not request such a brief, then the claimant may raise new evidence casting doubt on the VE’s

job numbers before the Appeals Council, so long as the evidence is “both relevant and relates to

the period on or before the ALJ’s decision.” Id.

Plaintiff’s counsel raised the job numbers issue during the ALJ hearing on January 24,

2020. Tr. 66. Counsel asked the testifying VE “what are the sources of your job numbers?” Tr.

66. The VE responded that the job numbers where from “The Department of Labor Occupation

Employment Statistics out of the Job Browser Pro.” Tr. 66. This question asked for the

evidentiary basis of the VE’s estimated job numbers. Shaibi, 883 F.3d at 1110. The ALJ did not

subsequently ask for a supplemental brief regarding the job numbers. See Tr. 66-67. Counsel

then submitted new evidence casting doubt on the VE’s testimony to the Appeals Council. Tr.

297. The contrasting job numbers from Job Browser Pro submitted by plaintiff’s attorney were

both relevant and relate to the period on or before the ALJ’s decision. Therefore, the court

concludes the job numbers challenge was preserved for appeal. See Shapiro v. Saul, 833 F. App’x

695, 696 (9th Cir. 2021) (holding plaintiff did not preserve the job numbers challenge because

plaintiff’s counsel did not “cross-examine the VE during the hearing, and [plaintiff did] not argue

that she requested an opportunity to submit interrogatories or supplemental briefing for the ALJ to

consider. Instead plaintiff only submitted new job numbers to the Appeals Council); Robert U v.

Kijakazi, Case No. 3:20-cv-1817-SI, 2022 WL 326166, at *8 (D. Or. Feb. 3, 2022) (holding

“Plaintiff preserved his argument by questioning the VE during the hearing and then submitting

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supplemental evidence to the Appeals Council”); Robert K. v. Comm’r Soc. Sec. Admin., Case No.

3:20-cv-01654-MK, 2021 WL 5745992, at *4 (D. Or. Dec. 2, 2021) (holding “[b]ecause Plaintiff

could only have asked the VE about the source of her estimates during the hearing, the Court finds

that Plaintiff sufficiently raised the job-numbers issue in a general sense before the ALJ”); Ashley

W. v. Kijakazi, Case No. 3:20-cv-00823-JR, 2021 WL 4635799, at *5 (D. Or. Oct. 7, 2021)

(holding that plaintiff submitting “rebuttal evidence in a post-hearing brief, addressed to the ALJ,

during the administrative proceedings, that directly challenged the VE’s testimony” preserved the

Plaintiff’s challenge); Christopher C. v. Comm’r Soc. Sec. Admin., Case No. 2:20-cv-01025-HZ,

2022 WL 305366, at *5 (D. Or. Jan. 31, 2022) (holding because “counsel did not even generally

inquire into the number of positions the VE reported to be available in the national economy . . .

the Appeals Council did not err in declining to consider Plaintiff’s new evidence”).

B. Significant Job Numbers

“When the Appeals Council considers new evidence in deciding whether to review

decision of the ALJ, that evidence becomes part of the administrative record, which the district

court must consider when reviewing the Commissioner’s final decision for substantial evidence.”

Brewes, 682 F.3d at 1163.2

Plaintiff argues that the job numbers in the new evidence provided to the Appeals Council

do not represent the “significant number” needed to satisfy the Commissioner’s burden at step

five. The VE testified during the hearing that an individual with the limitations described in

2 Here, the Appeals Council listed the additional evidence in its decision and found “this evidence

does not show a reasonable probability that it would change the outcome of the decision.” Tr. 5.

It then stated that it “did not exhibit this evidence.” Tr. 5. However, the evidence is contained

in the record before the court. Tr. 37-42. The parties do not dispute that the court should

consider this evidence consistent with Brewes. Pl.’s Br. at 5; Def.’s Br. at 3.

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Plaintiff’s RFC could perform the jobs of counter clerk, usher, and sandwich board carrier. Tr.

62-63. The VE testified that there were 20,000 counter clerk positions, 23,000 usher positions,

and 11,000 sandwich board carrier positions available, totaling 54,000 jobs in the national

economy. Tr. 62-63. In the new evidence submitted to the Appeals Council, Plaintiff provided

that he found there were 2,428 positions for “sandwich board carrier,” 1,527 positions for “counter

clerk,” and 6,071 positions for “usher,” for a total of 10,026 jobs in the national economy when he

consulted Job Browser Pro. Tr. 38, 41, Pl.’s Br. at 2. As stated above if a claimant submits job

numbers that display a “vast discrepancy [with] the VE’s job numbers . . . presumably from the

same source,” the discrepancy cannot be ignored and the “inconsistency in the record must be

addressed by the ALJ on remand.” Buck, 869 F.3d at 1052. There is a vast discrepancy between

54,000 jobs and 10,026 jobs in the national economy.

Even though there may be a discrepancy between the job numbers testified to by the VE

and the new job numbers submitted by Plaintiff to the Appeals Council, the error may be harmless

if 10,026 is still a significant number of jobs in the national economy. “If there are not sufficient

numbers of these jobs, this error would not be harmless.” Id. at 1051 n.2.

Although the Ninth Circuit has not “set out a bright-line rule for what constitutes a

‘significant number’ of jobs,” it has signaled 25,000 jobs in the national economy was a “close

call.” Gutierrez, 740 F.3d at 528-29. In an unpublished decision interpreting Gutierrez, the

Ninth Circuit rejected 10,000 as a significant number. Randazzo v. Berryhill, 725 F. App’x 446,

448 (9th Cir. 2017). Moreover, courts in this district have found 11,000 jobs was not a significant

number. Lisa L. v. Comm’r of Soc. Sec., Case No. 3:17-cv-01874-AA, 2018 WL 6334996, at *4

(D. Or. Dec. 5, 2018) (holding that “that 11,084 jobs [did] not meet the significant number

standard”); Watkins v. Comm’r Soc. Sec. Admin., Case No. 6:15-cv-01539-MA, 2016 WL

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4445467, at *7 (D. Or. Aug. 22, 2016) (holding that “11,000 [] jobs in the national economy does

not represent a significant number”).

Accordingly, the court concludes that job numbers totaling 10,026 is not a significant

number in the national economy, and the ALJ’s step five finding is not supported by substantial

evidence; the ALJ has erred.

II. Remand for Further Proceedings

The decision whether to remand for further proceedings or for the immediate payment of

benefits lies within the discretion of the court. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d

1090, 1101-02 (9th Cir. 2014). A remand for award of benefits is generally appropriate when:

(1) the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) the record has

been fully developed, there are no outstanding issues that must be resolved, and further

administrative proceedings would not be useful; and (3) after crediting the relevant evidence, “the

record, taken as a whole, leaves not the slightest uncertainty” concerning disability. Id. at 1100-

01 (internal quotation marks and citations omitted); see also Dominguez v. Colvin, 808 F.3d 403,

407-08 (9th Cir. 2015) (summarizing the standard for determining the proper remedy). The

second and third prongs of the test often merge into a single question: Whether the ALJ would

have to award benefits if the case were remanded for further proceedings. Harman v. Apfel, 211

F.3d 1172, 1178 n.7 (9th Cir. 2000).

Plaintiff argues that the ALJ’s decision contains errors of law and therefore should be

reversed and remanded for further proceedings. Here, the ALJ relied on the vocational expert’s

testimony that there were 54,000 jobs in the national economy that Plaintiff could perform, and

the conflicting evidence provided by Plaintiff to the Appeals Council shows a vast discrepancy in

the job numbers. This discrepancy between the VE’s job numbers and those tendered by Plaintiff

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must be resolved. Because it is not clear whether a significant number of jobs exist in the

national economy that Plaintiff can perform, the case must be remanded for additional proceedings.

On remand, the ALJ should review the evidence submitted to the Appeals Council to

address the inconsistency in the record and provide Plaintiff an additional hearing with vocational

testimony to resolve the dispute, if desired.

Conclusion

Based on the foregoing, pursuant to sentence four of 42 U.S.C. § 405(g), the

Commissioner’s final decision REVERSED and REMANDED for further administrative

proceedings consistent with this opinion.

IT IS SO ORDERED.

DATED this 18th day of March, 2022. We

HN V. ACOSTA

United States Magistrate Judge

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