Jaquez v. Berryhill

          REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANT THE COMMISSIONER'S CROSS MOTION FOR SUMMARY JUDGMENT [ECF 14, 15, 18]

          Hon. Bernard G. Skomal United States Magistrate Judge

         Plaintiff Jose Raul Jaquez has filed a complaint seeking judicial review of Defendant Commissioner of Social Security's (“Defendant” or “Commissioner”) denial of disability and supplemental security income benefits under the Social Security Act. (ECF 1.) Plaintiff's Motion for Summary Judgment seeks reversal of the ALJ's decision denying benefits and a remand for further administrative proceedings. (Pl.'s Mot. for Summ. Judgment [EFC No. 14] (“Pl.'s Mot.”).) Plaintiff argues the Administrative Law Judge (“ALJ”) committed reversible error by failing to resolve a conflict between a vocational expert's testimony and sources upon which ALJs may rely in determining whether a claimant is capable of other available work. (Id.) The Commissioner argues in her Cross Motion for Summary Judgment and Response in Opposition to Plaintiff's Motion for Summary Judgment that the ALJ's decision was supported by substantial evidence and should be affirmed. (Def.'s Cross Mot. for Summ. J., [ECF Nos. 15-16] (“Def.'s Cross Mot.”).) Both parties filed reply briefs. (ECF Nos. 17, 19.^[1])

         The Honorable Gonzalo P. Curiel has referred this matter to the undersigned for a report and recommendation. After careful consideration of the parties' arguments, the administrative record and the applicable law and for the reasons discussed below, the Court RECOMMENDS Plaintiff's Motion for Summary Judgment be DENIED and the Commissioner's Cross Motion for Summary Judgment be GRANTED.

         I. PROCEDURAL HISTORY

         Plaintiff's applications for benefits with disability commencing on April 24, 2013 were denied initially and on reconsideration. (AR 328-41 (applications); 228-31 (disapproved claim); 232-34 (request for reconsideration); 235-40 (denial on reconsideration).) Plaintiff requested a hearing before an ALJ. (AR 243-44.) The hearing was held on April 1, 2016. (AR 122-61.) Plaintiff was represented by counsel and testified, along with a vocational expert. (Id.) On May 9, 2016, the ALJ issued a decision finding Plaintiff was not disabled and denied Plaintiff's applications for benefits. (AR 50-64.) Plaintiff sought Appeals Council review and submitted new information not provided to or raised with the ALJ. (AR 8-49, 326-27, 404-415.) The Appeals Council denied review on January 24, 2018. (AR 1-7.) This action followed.

         II. SUMMARY AND ANALYSIS OF THE ALJ DECISION

         The Court briefly summarizes the ALJ's five-step analysis. Because the issue in this case arises at the fifth step of the five-step evaluation, the Court's discussion of the earlier steps that are not at issue is brief. Because Plaintiff does not raise any challenges regarding the Plaintiff's RFC or the medical evidence, (Pl.'s Mot. at 4), the Court does not discuss the underlying medical evidence. The particular challenges raised by Plaintiff are discussed more below. (See Section IV.)

         The ALJ's decision goes through each potentially dispositive step of the familiar five-step evaluation process for determining whether an individual has established his or her eligibility for disability benefits. (AR 39-50); see Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724-25 (9th Cir. 2011); see 20 C.F.R. §§ 404.1520, 416.920.

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date of April 24, 2013. (AR 55.) At step two, the ALJ found Plaintiff had diabetic retinopathy secondary to insulin dependent diabetic mellitus which the ALJ found severe. (AR 55). At step three, the ALJ considers whether the claimant's impairments “meet or equal” one or more of the specific impairments or combination of impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1, the listings. See §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(d), 404.1525, 404.1526, 416.925, 416.926. Here, the ALJ found Plaintiff's impairments did not meet a listing. (AR 57.)

         If the claimant does not meet a listing, the ALJ “assess[es] and makes a finding about [the claimant's] residual functional capacity based on all the relevant medical and other evidence in [the claimant's] case record.” 20 C.F.R. §§ 404.1520(e), 416.920(e). A claimant's residual functional capacity (“RFC”) is the “maximum degree to which the individual retains the capacity for sustained performance of the physical-mental requirements of jobs.” 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(c); see also Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998). The RFC is used at the fourth and fifth steps to determine whether the claimant can do their past work (step four) or adjust to other available work (step five). Id.

         Here, the ALJ found the following RFC for Plaintiff:

[C]laimant has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b) except the claimant is limited to single eye vision; sans depth perception; sans hazards (such as heights and dangerous machinery); sans concentrated exposure to chemicals or fumes; requires dark glasses for vision protection against bright light; is limited to occasional reaching, handling, fingering; and occasional fine visual acuity.

(AR 58.)

         At step four, the ALJ found Plaintiff could not do his past work as an inventory clerk. (AR 61.) “At step five . . . the ALJ considers the applicant's background and residual functional capacity, that is, what physical tasks the applicant can still perform despite his or her limitations, to decide if the applicant can make an adjustment to some other available job.” Gutierrez v. Colvin, 844 F.3d 804, 806 (9th Cir. 2016). If the claimant “can make an adjustment to other available work, ” the claimant will be found not disabled. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g); see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). If not, then the claimant is disabled. Bustamante, 262 F.3d at 954.

         Here, at step five, the ALJ heard and relied on testimony from Bonnie Sinclair, a vocational expert (“VE”) that work existed in significant numbers in the national economy for a person of Plaintiff's age, education, work experience, and subject to Plaintiff's limitations. (AR 150-161.) More specifically, the VE testified that a person subject to the limitations described in the ALJ's hypothetical would be capable of the counter clerk occupation, DOT 349.366-010^[2] - 117, 400 jobs available -and usher occupation, DOT 344.677-014 - 90, 200. (AR 151, 157-158.) Based on the initial hypothetical presented by the ALJ, the VE initially testified Plaintiff was capable of two other positions. (AR 151.) After questions from Plaintiff's counsel and further questioning of the VE by the ALJ, the ALJ set out a hypothetical that modified the prior hypothetical. (AR 157.) The VE then concluded Plaintiff was capable of the two positions noted above. (AR 157-158.)

         As discussed below, Plaintiff challenges the ALJ's reliance on the VE's testimony that Plaintiff was capable of these positions subject to the limitations of the RFC.

         III. SCOPE OF REVIEW

         Section 405(g) of the Social Security Act allows unsuccessful claimants to seek judicial review of a final agency decision. 42 U.S.C. § 405(g). This Court has jurisdiction to enter a judgment affirming, modifying, or reversing the Commissioner's decision. See id.; 20 C.F.R. § 404.900(a)(5). The matter may also be remanded to the Social Security Administration (“SSA”) for further proceedings. 42 U.S.C. § 405(g).

         If the Court determines that the ALJ's findings are not supported by substantial evidence or are based on legal error, the Court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). “‘Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007 (“quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). The Court “must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins, 466 F.3d at 882. “Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

         IV. DISCUSSION

         Plaintiff challenged the ALJ's reliance on the VE's testimony that Plaintiff could do two different occupations, counter clerk and usher, subject to the limitations found by the ALJ. These occupations provided the basis for the ALJ's conclusion that Plaintiff could adjust to other work that exists in significant numbers in the national economy.

         In the Commissioner's cross motion, she concedes “the counter clerk position is outside of Plaintiff's functional limitations.” (Cross-Motion at 4.^[3]) However, the Commissioner argues that error was harmless because the ALJ correctly found Plaintiff could perform the usher position based on the RFC and hypothetical presented to the VE and that occupation alone exists in significant enough numbers. (Id. at 7.) Accordingly, the Court's analysis addresses whether the ALJ erred or his decision was not supported by substantial evidence with regard to the usher position.^[4]

         A. Plaintiff's Challenges Regarding the Usher Position

         Plaintiff argues the ALJ erred in failing to resolve conflicts between the VE's testimony and the Dictionary of Occupational Titles (“DOT” or “Dictionary”), ^[5]Occupational Outlook Handbook (“OOH”), County Business Patterns (“CBP”), and the Occupational Information Network (“O*NET”).^[6] The Commissioner argues there was no conflict between the VE's testimony and the DOT and that any conflicts based on any other sources were waived because they were not raised in any respect before the ALJ. Additionally, the Commissioner argues that even if not waived, the ALJ did not err in not addressing these sources because he is not required to and the ALJ's decision was supported by substantial evidence.

         1. Conflicts Between VE Testimony and DOT

          Plaintiff argues the ALJ failed to recognize and resolve a conflict between the VE's testimony and the DOT regarding the usher position. At step five, an ALJ may rely on a VE “to provide testimony about jobs the applicant can perform despite his or her limitations.” Gutierrez, 844 F.3d at 806-07. If the VE's opinion conflicts with “the requirements listed in the DOT, then the ALJ must ask the expert to reconcile the conflict” before relying on that testimony. Gutierrez, 844 F.3d at 807 (emphasis added); see also Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017). The DOT is different from other sources in this respect because Social Security Ruling 00-4p requires ALJ's to consider it. Shaibi v. Berryhill, 883 F.3d 1102, 1109 n.6 (9th Cir. 2017). “The requirement for an ALJ to ask follow up questions is fact-dependent.” Gutierrez, 844 F.3d at 808. And, “[t]he conflict must be ‘obvious or apparent' to trigger the ALJ's obligation to inquire further.” Lamear, 865 F.3d at 1205 (quoting Gutierrez, 844 F.3d at 808). “This means that the testimony must be at odds ...