ALJ harmfully erred by relying on VE testimony in response to a 5 | hypothetical that omitted a limitation assessed in the RFC, “thereby describing [to 6 || the VE] a hypothetical person with greater functional capacity than Claimant 7 || possesse[d]” (emphasis added)
How later courts described this case
- ALJ harmfully erred by relying on VE testimony in response to a 5 | hypothetical that omitted a limitation assessed in the RFC, “thereby describing [to 6 || the VE] a hypothetical person with greater functional capacity than Claimant 7 || possesse[d]” (emphasis added)
- ALJ error harmless if 22 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path 23 || may reasonably be discerned despite the error (citation and quotation marks 24 || omitted)
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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ROSALBA B.Q.,1 Case No. 2:24-cv-10052-JC
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Plaintiff,
12 MEMORANDUM OPINION
v.
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14 FRANK BISIGNANO,
Commissioner of Social Security,
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Defendant.
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17 I. SUMMARY
18 On November 20, 2024, Plaintiff filed a Complaint seeking review of the
19 Commissioner of Social Security’s denial of Plaintiff’s application for benefits.
20 On January 21, 2025, Defendant filed an Answer consisting of the Administrative
21 Record (“AR”).
22 This matter is before the Court on the parties’ cross-briefs (respectively,
23 “Plaintiff’s Brief” and “Defendant’s Brief”). The Court has taken this matter
24 under submission without oral argument. See SSA Supp. Rule 5; November 25,
25 2024 Case Management Order ¶ 4.
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27 1Plaintiff’s name is partially redacted to protect Plaintiff’s privacy in compliance with
Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court
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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 June 28, 2021, Plaintiff filed an application for supplemental security
7 income (SSI), alleging disability beginning on June 1, 2021, due to low bone
8 density, lower back, water retention in leg, stiff hands, heart problems, chest pain/
9 difficulty breathing, low blood pressure, anxiety, and insomnia. (AR 333, 359).
10 The ALJ subsequently examined the medical record and, on November 15, 2023,
11 heard testimony from Plaintiff (who was represented by counsel) and a vocational
12 expert. (AR 60-85).
13 On January 31, 2024, the ALJ determined that Plaintiff has not been
14 disabled since June 28, 2021, the application date. (AR 23-53). Specifically, the
15 ALJ found: (1) Plaintiff suffers from the following severe impairments: an
16 anxiety disorder, schizophrenia, a learning disability, and obesity (AR 26);
17 (2) Plaintiff’s impairments, considered individually or in combination, do not meet
18 or medically equal a listed impairment (AR 28); (3) Plaintiff retains the residual
19 functional capacity (“RFC”) to perform light work (20 C.F.R. § 416.967(b)), with
20 additional limitations2 (AR 32); (4) Plaintiff has no past relevant work (AR 51);
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2“Light work involves lifting no more than 20 pounds at a time with frequent lifting or
23 carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 416.967(b). The ALJ additionally
24 determined that Plaintiff: (i) can lift and/or carry up to twenty pounds occasionally and up to ten
pounds frequently; (ii) can stand and/or walk for four hours out of an eight-hour workday;
25 (iii) can sit for six hours out of an eight-hour workday; (iv) can frequently push or pull; (v) can
occasionally climb ramps, balance, stoop, and crouch; (v) cannot climb stairs, ladders, ropes, or
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scaffolds; (vi) cannot kneel or crawl; (vii) cannot work with or near hazards, such as unprotected
27 heights, power tools, or instrumentalities that are hazardous, such as an open furnace;
(viii) cannot work in atmospheric conditions involving concentrated exposure to pulmonary
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(continued...)
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| || and (5) there are jobs that exist in significant numbers in the national economy that
2 || Plaintiff can perform, such as parking lot attendant; “assembler, power screw
3 || driver”; and “assembler, small products” (AR 51-52).
4 On October 11, 2024, the Appeals Council denied Plaintiff's application for
5 || review. (AR 1-3).
6] 10. APPLICABLE LEGAL STANDARDS
7 A. Administrative Evaluation of Disability Claims
8 To qualify for disability benefits, a claimant must show that she is unable
9 || “to engage in any substantial gainful activity by reason of any medically
10 || determinable physical or mental impairment which can be expected to result in
11 || death or which has lasted or can be expected to last for a continuous period of not
12 || less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
13 || (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded
14 || by regulation on other grounds as stated in Sisk v. Saul, 820 F. App’x 604, 606
15 || (9th Cir. 2020); 20 C.F.R. § 416.905(a). To be considered disabled, a claimant
16 || must have an impairment of such severity that she is incapable of performing work
17 || the claimant previously performed (“past relevant work’’) as well as any other
18 || “work which exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094,
19 | 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
20 To assess whether a claimant is disabled, an ALJ is required to use the five-
21 || step sequential evaluation process set forth in Social Security regulations. See
22 || Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)
23 || (describing five-step sequential evaluation process (citing 20 C.F.R. §§ 404.1520,
24]
25 *(...continued)
irritants; (ix) cannot walk on uneven terrain or work at heights; (x) can perform simple tasks and
make simple work-related judgments; (xi) can have frequent interaction with the public,
27 || co-workers, and supervisors; and (xii) can adapt to occasional changes in the work environment.
3g (AR 32).
1 || 416.920)). The claimant has the burden of proof at steps one through four — i.e.,
2 || determination of whether the claimant was engaging in substantial gainful activity
3 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or
4 || combination of impairments that meets or medically equals one of the conditions
5 || listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and
6 || retains the residual functional capacity to perform past relevant work (step 4).
7 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The
8 || Commissioner has the burden of proof at step five — i.e., establishing that the
9 || claimant could perform other work in the national economy. Id.
10 B. Federal Court Review of Social Security Disability Decisions
11 A federal court may set aside a denial of benefits only when the
12 || Commissioner’s “final decision” was “based on legal error or not supported by
13 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
14 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
15 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r
16 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation
17 || marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could
18 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at
19 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must
20 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec.
21 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if
22 || (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path
23 || may reasonably be discerned despite the error (citation and quotation marks
24 || omitted)).
25 Substantial evidence is “such relevant evidence as a reasonable mind might
26 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining
27 || “substantial evidence” as “more than a mere scintilla, but less than a
28 || preponderance” (citation and quotation marks omitted)). When determining
1 || whether substantial evidence supports an ALJ’s finding, a court “must consider the
2 || entire record as a whole, weighing both the evidence that supports and the
3 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.
4 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).
5 Federal courts review only the reasoning the ALJ provided, and may not
6 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”
7 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need
8 | not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s
9 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,
10 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).
11 A reviewing court may not conclude that an error was harmless based on
12 || independent findings gleaned from the administrative record. Id. When a
13 || reviewing court cannot confidently conclude that an error was harmless, a remand
14 || for additional investigation or explanation is generally appropriate. See Marsh v.
15 | Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citations omitted).
16], IV. DISCUSSION
17 Plaintiff's sole claim is that the ALJ’s hypothetical to the vocational expert
18 || (or “VE”) included an additional limitation that was not ultimately included in the
19 | ALJ’s RFC assessment. (See Plaintiff's Brief at 7-8). For the reasons stated
20 || below, Plaintiff has not shown that a reversal or remand is warranted on this
21 || ground.
22 A. Applicable Law
23 To assess whether a claimant is disabled at steps four and five of the
24 || sequential evaluation process, the ALJ must determine the claimant’s residual
25 || functional capacity, or RFC. “A claimant’s residual functional capacity is what
26 || [she] can still do despite [her] physical, mental, nonexertional, and other
27 || limitations.” Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989) (citing
28 || 20 C.F.R. § 404.1545); see also 20 C.F.R. § 416.945. An RFC assessment
1 || requires the ALJ to consider a claimant’s impairments and any related symptoms
2 || that may “cause physical and mental limitations that affect what [she] can do ina
3 || work setting.” 20 C.F.R. § 416.945(a)(1). In determining a claimant’s RFC at
4 || step four of the sequential analysis, an ALJ must consider “all of the relevant
5 || medical and other evidence” in the record, 20 C.F.R. §§ 416.945(a)(3),
6 || 416.946(c), and must consider all of the claimant’s “medically determinable
7 || impairments,” including those that are not severe, 20 C.F.R. § 416.945(a)(2); Orn
8 || v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “[A]Jn RFC that fails to take into
9 || account a claimant’s limitations is defective.” Valentine v. Comm’r. of Soc. Sec.
10 || Admin., 574 F.3d 685, 690 (9th Cir. 2009).
11 At step five, the Commissioner must prove that an individual with the same
12 || RFC, age, education, and work experience as the claimant could perform the
13 || demands of work which exists in “significant numbers” in the national economy.
14 | 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.920(a)(4)(v) & (g), 416.960(c);
15 || Heckler v. Campbell, 461 U.S. 458, 461-62 (1983); see Zavalin v. Colvin, 778
16 || F.3d 842, 845 (9th Cir. 2015) (describing legal framework for step five (citations
17 || omitted)). One way the Commissioner may satisfy this burden is by obtaining
18 || testimony from an impartial vocational expert about the type of work such a
19 || claimant is still able to perform, as well as the availability of related jobs in the
20 || national economy. See Gutierrez v. Colvin, 844 F.3d 804, 806-07 (9th Cir. 2016)
21 | (citation omitted); Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001)
22 || (citing Tackett, 180 F.3d at 1100-01). When a vocational expert is consulted at
23 || step five, the ALJ typically asks the vocational expert at the hearing to identify
24 || specific examples of occupations that could be performed by a hypothetical
25 || individual with the same characteristics as the claimant. Zavalin, 778 F.3d at 846
26 || (citations omitted); Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012) (citations
27 || omitted). “The hypothetical an ALJ poses to a vocational expert, which derives
28 || from the RFC, ‘must set out all the limitations and restrictions of the particular
1 claimant.’” Valentine, 574 F.3d at 690 (citing Embrey v. Bowen, 849 F.2d 418,
2 422 (9th Cir. 1988)). However, it is “proper to limit a hypothetical to those
3 impairments that are supported by substantial evidence in the record.” Osenbrock,
4 240 F.3d at 1165. So long as the ALJ’s hypothetical question included all of the
5 claimant’s limitations supported by the record, the vocational expert’s responsive
6 testimony may constitute substantial evidence of a claimant’s ability to perform
7 jobs existing in substantial numbers in the national economy. See Hill, 698 F.3d
8 at 1161-62 (citations omitted); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886
9 (9th Cir. 2006) (citation omitted).
10 B. Pertinent Facts
11 At the hearing on Plaintiff’s application, the ALJ presented the following
12 hypothetical to the VE:
13 [A] hypothetical individual of [Plaintiff’s] age, education, and work
14 experience limited to work at the light exertional level . . . [who]
15 would stand and/or walk a total of four hours in an eight-hour
16 workday with normal breaks and would use a front-wheel[ed] walker
17 for any standing or walking; . . . could sit a total of six hours with
18 normal breaks in an eight-hour workday; . . . could frequently push
19 and/or pull as much as they could lift and/or carry and that they could
20 occasionally lift and/or carry 20 pounds and frequently lift and/or
21 carry 10 pounds; . . . could occasionally use ramps, but could not use
22 stairs; . . . could never use ladders, ropes, or scaffolds; could
23 occasionally balance, stoop, or crouch; could never kneel or crawl;
24 could not work with or near hazards such as, for example,
25 unprotected heights, power tools, or instrumentalities that are
26 hazardous such as an open furnace; . . . could not perform work on an
27 uneven terrain; could not do work at heights; could not do work in
28 atmospheric conditions involving concentrated exposure to
7
1 pulmonary irritants such as dust, pollen, fumes, or smoke; . . . could
2 perform simple tasks and make simple work-related judgments; could
3 have frequent interaction with the public, supervisors, and coworkers
4 and could adapt to occasional changes in the work environment.
5 (AR 74-75 (emphases added)). The VE testified that such person could perform
6 the occupations of parking lot attendant; assembler, power screwdriver; and
7 assembler, small products.3 (AR 75).
8 Subsequently, in the decision, the ALJ determined that Plaintiff had an RFC
9 which included all the limitations set forth in the above-quoted hypothetical except
10 that it omitted the use of a front-wheeled walker (or other assistive device). (AR
11 32). The ALJ expressly determined that the record did not support the need for a
12 walker. (See AR 34). The ALJ then relied on the VE’s testimony in response to
13 the above-quoted hypothetical to find, at step five, that Plaintiff could perform the
14 representative jobs of parking lot attendant; “assembler, power screw driver”; and
15 “assembler, small products.” (AR 52). In making this finding, the ALJ remarked
16 as follows:
17 Although I have concluded the record does not establish that
18 [Plaintiff] requires the use of a walker, the vocational expert testified
19 that even if [Plaintiff] were further limited to using a walker for
20 standing and walking, she would be able to perform the occupations
21 identified above.
22 (AR 52).
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3The ALJ also presented a second hypothetical that included the same limitations as the
25 first, except that it was further limited to sedentary (rather than light) exertion and an ability to
sit for a total of eight hours (rather than six) in an eight-hour workday. (AR 75-76). The VE
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testified that such an individual could perform the occupations of document preparer, ticket
27 checker, and surveillance system monitor. (AR 76-77). As the ALJ ultimately found that
Plaintiff is capable of light work and six hours of sitting (AR 32), the second hypothetical and
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response are not pertinent here.
8
1 The ALJ thus concluded that Plaintiff was not disabled and denied her SSI
2 application. (AR 52-53).
3 C. Analysis
4 Plaintiff’s sole contention is that the ALJ erred by including the use of a
5 front-wheeled walker in her hypothetical to the VE and then omitting that
6 limitation from the RFC. (Plaintiff’s Brief at 7). Notably, Plaintiff does not
7 contend that she required the use of a walker, or that the ALJ erred by rejecting
8 walker use in the RFC finding.4 Rather, she complains only that “[n]o
9 hypotheticals were posed to [the VE] that removed the limitation of the front
10 wheeled walker for standing and walking.” (Plaintiff’s Brief at 7). On that basis,
11 Plaintiff asserts that the VE “was never presented with a complete hypothetical,”
12 and thus the ALJ’s finding at step five “rests upon an incomplete hypothetical.”
13 (Plaintiff’s Brief at 8 (emphasis added)).
14 It is true that an ALJ generally cannot rely on a VE’s testimony in response
15 to an incomplete hypothetical – i.e., a hypothetical that omits functional limitations
16 that are assessed in the RFC or are otherwise supported by substantial evidence in
17 the record. See Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023) (“If an
18 ALJ’s hypothetical does not reflect all of the claimant’s limitations, then the
19 expert’s testimony has no evidentiary value to support a finding that the claimant
20 can perform jobs in the national economy.” (quoting Bray v. Comm’r of Soc. Sec.
21 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)) (internal quotation marks omitted)).
22 Here, however, Plaintiff has not identified any limitation that was omitted from the
23 hypothetical. To the contrary, the hypothetical was complete because it included
24 every limitation assessed in the RFC, along with an extra limitation – use of a
25 front-wheel walker – that was then rejected and thus omitted from the RFC. The
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27 4Regardless, any error in omitting walker use from the RFC clearly would be harmless
since, as the ALJ noted, Plaintiff would still be able to perform the same jobs with a front-wheel
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walker. (See AR 52, 75).
9
1 || ALJ thus described to the VE a hypothetical person with Jess functional capacity
2 || greater functional limitation) than Plaintiff possessed. In that situation,
3 || rellance on the VE’s testimony does not result in material error. Compare Leach,
4 | 70 F.4th at 1257 (ALJ harmfully erred by relying on VE testimony in response to a
5 | hypothetical that omitted a limitation assessed in the RFC, “thereby describing [to
6 || the VE] a hypothetical person with greater functional capacity than Claimant
7 || possesse[d]” (emphasis added)), with Felton v. Colvin, 2015 WL 262953, at *12
8 | (C.D. Cal. Jan. 21, 2015) (ALJ was entitled to rely on VE’s testimony in response
9 || to hypothetical that contained “all the limitations [the ALJ] found credible based
10 || on the evidence of record (as well as additional limitations that he later
11 || determined were not credible)” (citing Bayliss v. Barnhart, 427 F.3d 1211, 1217
12 || (9th Cir. 2005)) (emphasis added)); Barragan v. Colvin, 2013 WL 5467430, at *6
13 | (C.D. Cal. Sept. 30, 2013) (any error in reliance on VE testimony was harmless
14 | where the hypothetical “included limitations actually more restrictive than
15 || included in Plaintiff's RFC,” such that “the VE’s resulting testimony was, in effect,
16 || less inclusive of jobs that Plaintiff [was] capable of performing”); Morris v.
17 | Astrue, 2013 WL 1000326, at *16 (D.R.I. Feb. 1, 2013) (when an ALJ assigns an
18 || RFC more restrictive than what is indicated by the evidence, the “ALJ has favored
19 || plaintiff and any error is harmless’’) (citing Stain v. Astrue, 2012 WL 1067867, at
20 || *6 (D. Me. Mar. 28, 2012), aff'd, 2012 WL 1313485 (D. Me. Apr. 17, 2012)),
21 || report and recommendation adopted, 2013 WL 997132 (D.R.I. Mar. 13, 2013).
22 Plaintiff therefore fails to demonstrate any material error in the ALJ’s
23 || decision, which 1s reasonable and supported by substantial evidence in the record.
24 | ///
25 | ///
26 |] ///
27 | ///
28 | ///
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1 V. CONCLUSION
2 For the foregoing reasons, the decision of the Commissioner of Social
3 Security is AFFIRMED.
4 LET JUDGMENT BE ENTERED ACCORDINGLY.
5 DATED: August 25, 2025
6 _____________/s/____________________
Honorable Jacqueline Chooljian
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UNITED STATES MAGISTRATE JUDGE
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