United States District Court, S.D. California
ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
[DOC. NOS. 15, 16]
Cathy Ann Bencivengo United States District Judge
before the Court are cross motions for summary judgment.
[Doc. Nos. 15 and 16.] For the reasons set forth below,
Plaintiff's motion for summary judgment [Doc. No. 15] is
GRANTED, Defendant's motion for summary
judgment [Doc. No. 16] is DENIED, and the
matter is REMANDED to the Social Security
Administration for further proceedings.
appeals the denial of his December 30, 2015 application for
Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (the “Act”) (Transcript of
Certified Administrative Record (AR) 139, 229-32). The
Commissioner denied the application initially and on
reconsideration (AR 160-64, 167-71). Plaintiff requested a
hearing before an administrative law judge (ALJ), and the ALJ
heard Plaintiff's case on February 7, 2018 (AR 70).
Plaintiff, his attorney, a medical expert, and a vocational
expert appeared, with Plaintiff and experts testifying (AR
70-71). In a March 27, 2018 decision, the ALJ found Plaintiff
was not disabled (AR 16-27). On February 27, 2019, the
Appeals Council declined further review, and the ALJ's
decision became the final of the Commissioner (AR 7-9).
Plaintiff seeks judicial review of the Commissioner's
final decision pursuant to 42 U.S.C. section 405(g) and 20
C.F.R. section 404.981.
used the five-step sequential evaluation process to guide the
decision. 20 C.F.R. § 416.920. The ALJ found that
Plaintiff did not engage in substantial gainful activity
since his November 11, 2015 alleged disability onset date.
(AR 19.) The ALJ found that Plaintiff has the following
severe impairments: blindness in the right eye; loss of
central acuity in the left eye; and contraction of the visual
field in the left eye. (AR 19.) The ALJ also found that
Plaintiff has the residual functional capacity
(“RFC”) to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: Plaintiff could not drive; must avoid even
moderate exposure to hazards such as moving machinery and
unprotected heights; was limited to indoor work; lacked depth
perception, so he could not engage in such tasks as holding
two small objects, one in each hand, and connecting them or
inserting one of them into the other; was limited to close-up
work (i.e. work that would be two feet in front of him); and
he could not read. (AR 22-23.) Finally, relying on
vocational-expert testimony, the ALJ found that Plaintiff
could perform jobs existing in significant numbers in the
national economy and identified the representative positions
of silver wrapper, with 28, 000 jobs existing in the national
economy (Dictionary of Occupational Titles (DOT) 318.687-018;
and garment sorter, with 35, 000 jobs existing in the
national economy (DOT 222.687-014 (AR 26-27, 95-96.)
42 U.S.C. section 405(g), courts review the ALJ's
decision to determine whether substantial evidence supports
the ALJ's findings and if they are free of legal error.
See Smolen v. Chater, 80 F.3d 1273, 1279 (9th
Cir.1996); DeLorme v. Sullivan, 924 F.2d 841, 846
(9th Cir.1991) (ALJ's disability determination must be
supported by substantial evidence and based on the proper
legal standards). Substantial evidence means “
‘more than a mere scintilla,' but less than a
preponderance.” Saelee v. Chater, 94 F.3d 520,
521-22 (9th Cir.1996) (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971)). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson, 402 U.S. at
401, 91 S.Ct. 1420 (internal quotation marks and citation
looking for substantial evidence, courts must review the
record as a whole and consider adverse as well as supporting
evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir.2006). Where evidence is susceptible to
more than one rational interpretation, the ALJ's decision
must be upheld. See Morgan v. Comm'r of the Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir.1999).
“However, a reviewing 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 (quoting Hammock v. Bowen,
879 F.2d 498, 501 (9th Cir.1989)); Orn v. Astrue,
495 F.3d 625, 630 (9th Cir.2007).
claimant is “disabled” as defined by the Social
Security Act if: (1) “he is unable to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than
twelve months, ” and (2) the impairment is “of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
§§ 1382c(a)(3)(A)-(B) (West 2004); Hill v.
Astrue, 698 F.3d 1153, 1159 (9th Cir.2012).
determine whether a claimant is disabled, an ALJ engages in a
five-step sequential analysis as required under 20 C.F.R.
sections 404.1520(a)(4)(i)-(v). Specifically under step five,
which is at issue here, a claimant is disabled unless the
Commissioner meets her burden and shows that there exist a
significant number of jobs in the national economy that
claimant can do. 20 C.F.R. §§ 416.920(a)(4)(v),
(g); 416.960(c); see also Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir.1999) (the Commissioner bears the burden
of showing the existence of significant jobs). Significant
jobs in the “national economy” must exist either
“in the region where such individual lives or in
several regions in the country.” 42 U.S.C. §
423(d)(2)(A). There is no bright-line rule for determining
how many jobs are “significant” under step five
in the Ninth Circuit, although “a comparison to other
cases is instructive.” Beltran v. Astrue, 700
F.3d 386, 389 (9th Cir.2012). Moreover, there must be more
than a few “scattered”, “isolated” or
“very rare” jobs available. Walker v.
Mathews, 546 F.2d 814, 820 (9th Cir.1976); see also
Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 529
(9th Cir.2014). Finally, even if there are not sufficient
jobs in the regional economy, courts must still look to the
availability of those jobs across several regions in the
national economy. Gutierrez, 740 F.3d at 528.
and VE Testimony.
Five, the ALJ determines whether the claimant is able to
perform any work other than the claimant's past relevant
work, considering the claimant's RFC, age, education and
work experience. 20 C.F.R. § 416.920(a)(4)(v). Should
the ALJ decide that the claimant is not disabled, “the
[SSA] is responsible for providing evidence that demonstrates
that other work exists in significant numbers in the national
economy that [the claimant] can do, given [the claimant's
RFC] and vocational factors.” 20 C.F.R. §
Security Ruling (“SSR”) 00-4p governs the use of
occupational evidence. At Step Five of the sequential
evaluation, ALJs rely on the DOT and testimony from
vocational experts in making disability determinations. SSR
00-4p, 2000 WL 1898704 at *2 (Dec. 4, 2000). The DOT is a
reference guide in the form of a job catalog that contains
standardized occupational information about each job. An ALJ
is to “rely primarily on the DOT.... for information
about the requirements of work in the national
economy.” Id. An ALJ may also call upon a VE
to provide occupational evidence through testimony at a
disability benefits hearing. Id.
provides specific information about each job, including
General Education Development (“GED”) and
Specific Vocational Preparation (“SVP”) scores.
The GED score includes a reasoning development level score,
which “embraces those aspects of education (formal and
informal) which are required of the worker for satisfactory
job performance.” DOT, Appendix C. The scale of
reasoning development levels is 1 to 6, with 6 being the most
advanced level. DOT, Appendix C. The SVP score refers to
“ ‘the amount of lapsed time required by a
typical worker to learn the techniques, acquire the
information, and develop the facility needed for average
performance in a specific job-worker situation.' ”
Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d
1219, 1230, n.4 (9th Cir. 2009) (quoting DOT,
Appendix C, p.1009 (4th ed. 1991)). “ ‘The DOT
lists [an SVP] time for each described occupation. Using the
skill level definitions in 20 C.F.R. 404.1568 and 416.968,
unskilled work corresponds to an SVP of 1-2; semi-skilled
work corresponds to an SVP of 3-4; and skilled work
corresponds to an SVP of 5-9 in the DOT.' ”
Bray, 554 F.3d at 1230, n.4 (quoting Policy
Interpretation Ruling: Titles II & Xvi: Use of Vocational
Expert & Vocational Specialist Evidence, & Other
Reliable Occupational Info. in Disability Decisions, SSR
00-4P (S.S.A. Dec. 4, 2000)).
there is [a conflict or an apparent conflict] between the
[VE's] testimony and the DOT-for example, expert
testimony that a claimant can perform an occupation involving
DOT requirements that appear more than the claimant can
handle-the ALJ is required to reconcile the
inconsistency.” Zavalin v. Colvin, 778 F.3d
842, 846 (9th Cir. 2015) (citing Massachi, 486 F.3d
at 1153-54); SSR 00-4p, 2000 WL 1898704 at *4 (The ALJ has an
“affirmative responsibility to ask about any possible
conflict between [the VE's testimony about the
requirements of a job] and information provided in the
DOT.”). The ALJ must first ask the “expert to
explain the conflict” and “ ‘then determine
whether the vocational expert's explanation for the
conflict is reasonable' before relying on the
expert's testimony to reach a disability
determination.” Zavalin, 778 F.3d at 846
(quoting Massachi, 486 F.3d at 1153-54); SSR 00-4p,
2000 WL 1898704 at *2 (“When there is an apparent
unresolved conflict between VE ... evidence and the DOT, the
[ALJ] must elicit a reasonable explanation for the conflict
before relying on the VE ... evidence to support a
determination or decision about whether the claimant is
order to trigger the ALJ's duty to inquire, the conflict
between the VE's testimony and the DOT's job
description must be “obvious or apparent.”
Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir.
2016). “This means that the testimony must be at odds
with the [DOT's] listing of job requirements that are
essential, integral, or expected.” Id.
“the requirement for an ALJ to ask follow up questions
is [necessarily] fact-dependent, ” Guiterrez,
844 F.3d at 808, “the more obscure the job, the less
likely common experience will dictate the result, ” and
the more incumbent it is on the ALJ to inquire. Lamear v.
Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017).
the ALJ fails to obtain an explanation for and resolve an
apparent conflict-even where the VE did not identify the
conflict-the ALJ errs.” Thompson v. Colvin,
No. ED CV 13-1851-SP, 2015 WL 1476001, at *3 (C.D. Cal. Mar.
31, 2015) (citing cases); see also Massachi, 486
F.3d at 1153-54 (reversible error where the ALJ failed to ask
the VE “whether her testimony conflicted with the
[DOT], and if so, whether there was a reasonable explanation
for the conflict.”); Zavalin, 778 F.3d at
847-848 (reversible error where the ALJ “failed to
recognize” a conflict between the claimant's
limitation to simple, routine tasks and the demands of the
Level 3 reasoning jobs); Lamear, 865 F.3d at 1206
(reversible error where the ALJ failed to inquire about the
apparent conflict between the claimant's left-hand
limitations and the VE's testimony).
Silver Wrapper Position.
argues that his RFC precludes him from inserting two small
objects into the other, which in turn would preclude him from
performing the component of the silver wrapper position that
entails inserting silverware into plastic bags. [Doc. No.
15-1 at 4-5.] Defendant argues that the vocational expert
(“VE”) specifically testified that she accounted
for the hypothetical individual's inability to ...