United States District Court, S.D. California
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]
Bernard G. Skomal United States Magistrate Judge
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.)
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
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
SUMMARY AND ANALYSIS OF THE ALJ DECISION
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.)
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. §§
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.
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.
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.
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.
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 - 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.)
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.
SCOPE OF REVIEW
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).
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).
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.
Commissioner's cross motion, she concedes “the
counter clerk position is outside of Plaintiff's
functional limitations.” (Cross-Motion at
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
Plaintiff's Challenges Regarding the Usher
argues the ALJ erred in failing to resolve conflicts between
the VE's testimony and the Dictionary of Occupational
Titles (“DOT” or
“Dictionary”), Occupational Outlook Handbook
(“OOH”), County Business Patterns
(“CBP”), and the Occupational Information Network
(“O*NET”). 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.
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 ...