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Jennie J. Gonzales v. Carolyn W. Colvin

April 15, 2013

JENNIE J. GONZALES,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). She claims that the Administrative Law Judge ("ALJ") erred when she:

(1) relied on the vocational expert's testimony regarding the number of jobs in the economy; and (2) found that Plaintiff was not credible. For the reasons discussed below, the Agency's decision is affirmed.

II. SUMMARY OF PROCEEDINGS

In March 2009, Plaintiff applied for DIB and SSI, alleging that she was disabled due to arthritis and constant pain in her neck, back, legs, and joints. (Administrative Record ("AR") 124-33, 168, 183.)

Her applications were denied. (AR 74, 76, 79-83.) She then requested and was granted a hearing before an ALJ. (AR 85, 88-89.) On July 13, 2010, she appeared with counsel for the hearing. (AR 45-72.) On February 9, 2011, the ALJ issued a decision denying benefits. (AR 23-33.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-6, 17-18.) This action followed.

III. ANALYSIS

A. The Vocational Expert's Testimony The vocational expert testified that Plaintiff could not perform her past work but could perform work as a ticket checker, order clerk, and final assembler, despite her limitations. (AR 65-66.) He determined that there were approximately 2,900 ticket checker jobs locally and 75,000 nationally, 500 order clerk jobs locally and 18,000 nationally, and 2,500 final assembler jobs locally and 60,000 nationally. (AR 65-66.) Relying on this testimony, the ALJ concluded that Plaintiff was not disabled since there were a significant number of jobs that she could still perform in the economy. (AR 31-32.)

After the ALJ issued her decision, Plaintiff appealed to the Appeals Council, submitting jobs reports from two sources--Job Browser Pro and Specific Occupational Employment - Unskilled Quarterly--that compile and analyze job statistics. (AR 209--19.) According to the information contained in these reports, there were significantly fewer jobs available in the local and national economy than the vocational expert claimed. (AR 209--19.) Based on this data, Plaintiff argues that the ALJ erred in relying on the vocational expert's testimony that there were a significant number of jobs in the economy which she could perform. (Joint Stip. at 4-11, 17-19.) For the following reasons, this argument is rejected.

Generally speaking, an ALJ is entitled to rely on a vocational expert's testimony regarding the number of jobs in the economy. See 20 C.F.R. § 416.966(e) (authorizing ALJs to rely on vocational expert testimony to determine occupational issues); Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005) (upholding ALJ's reliance on vocational expert's testimony regarding job numbers). Further, this testimony amounts to substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001) (testimony of vocational expert constitutes substantial evidence). And a vocational expert is not required to provide a foundation for this testimony as his expertise alone is a sufficient foundation. Bayliss, 427 F.3d at 1218. For this reason, the ALJ's reliance on the vocational expert's testimony that there were a significant number of jobs in the economy---and the Appeals Council's affirmation of that finding--was supported by substantial evidence.

Plaintiff disagrees. She contends that the Appeals Council should have overturned the ALJ's decision and relied on the jobs reports she submitted. There is no merit to this argument. Because the ALJ reached an appropriate decision after considering the available evidence, the Appeals Council was free to reject the jobs reports Plaintiff submitted, which were provided after the ALJ's decision. See Gomez v. Chater, 74 F.3d 967, 971-72 (9th Cir. 1996) (explaining Appeals Council free to reject evidence acquired by claimant after adverse decision by ALJ). And, in doing so, the Appeals Council was not required to explain why it was rejecting them. Id. at 972.

Even if the law were different, the Court would still affirm the Agency here. The fact that jobs numbers in the reports Plaintiff submitted to the Appeals Council differ from the vocational expert's numbers does not mean that the Agency's decision was infirm. The Agency is charged with resolving conflicts in the evidence. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (holding ALJ's decision must be upheld where it is susceptible to more than one rational interpretation). The Court cannot say that the Agency erred in its resolution of the conflict.

Further, the Court does not find these reports to be as nearly as compelling as Plaintiff does, largely because it is not clear what the numbers mean. The Job Browser Pro report lists raw data for job numbers and also provides adjusted and weighted figures for the same occupations. The raw numbers approximate the vocational expert's numbers. The adjusted and weighted figures are significantly lower than the vocational expert's numbers, but there is no explanation as to how the lower figures were calculated. Absent expert ...


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