1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 STANLEY V., 7 Case No. 19-cv-02347-DMR Plaintiff, 8 v. ORDER ON CROSS MOTIONS FOR 9 SUMMARY JUDGMENT NANCY A. BERRYHILL, 10 Re: Dkt. Nos. 16, 21 Defendant. 11

12 Plaintiff Stanley V. moves for summary judgment to reverse the Commissioner of the Social 13 Security Administration’s (the “Commissioner’s”) final administrative decision, which found 14 Plaintiff not disabled and therefore denied his application for benefits under Title II of the Social 15 Security Act,

et seq. [Docket No. 16 (“Pltf. Mot.”).] The Commissioner cross- 16 moves to affirm. [Docket No. 21 (“Def. Mot.”).] For the reasons stated below, the court denies 17 Plaintiff’s motion and grants the Commissioner’s cross motion. 18 I. PROCEDURAL HISTORY 19 Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits on 20 July 21, 2015, alleging a disability onset date of August 30, 2014. Administrative Record (“A.R.”) 21 210-13. The application was initially denied on March 4, 2016 and again on reconsideration on 22 June 29, 2016. A.R. 102-05, 110-16. On July 8, 2016, Plaintiff filed a request for a hearing before 23 an Administrative Law Judge (“ALJ”). A.R. 118-19. After the April 27, 2018 hearing, ALJ Thomas 24 J. Gaye issued a decision finding Plaintiff not disabled. A.R. 19-37. The ALJ determined that 25 Plaintiff has the following severe impairments: degenerative disc disease (“DDD”) of the cervical 26 spine, DDD of the lumbar spine, and status-post right inguinal hernia surgery. A.R. 25. The ALJ 27 found that Plaintiff retains the following residual functional capacity (RFC): claimant can stand and walk for two hours. He can perform postural 1 movements occasionally except he can balance frequently and occasionally 2 perform overhead reaching. A.R. 27. 3 Relying on the opinion of a vocational expert (“VE”) who testified that an individual with 4 such an RFC could perform other jobs existing in the economy, including document preparer, order 5 clerk, and charge-account clerk, the ALJ concluded that Plaintiff is not disabled. A.R. 31-32. 6 The Appeals Council denied Plaintiff’s request for review on March 1, 2019. A.R. 1-8. The 7 ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc. Sec. 8 Admin.,

(9th Cir. 2011). Plaintiff then filed suit in this court pursuant to 42

(g). 10 11 II. THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS To qualify for disability benefits, a claimant must demonstrate a medically determinable 12 physical or mental impairment that prevents her from engaging in substantial gainful activity1 and 13 that is expected to result in death or to last for a continuous period of at least twelve months. Reddick 14 v. Chater,

(9th Cir. 1998) (citing

(d)(1)(A)). The impairment 15 must render the claimant incapable of performing the work she previously performed and incapable 16 of performing any other substantial gainful employment that exists in the national economy. Tackett 17 v. Apfel,

(9th Cir. 1999) (citing

(d)(2)(A)). 18 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. 19 §§ 404.1520, 416.920. The steps are as follows: 20 1. At the first step, the ALJ considers the claimant’s work activity, if any. If the 21 claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled. 22 2. At the second step, the ALJ considers the medical severity of the claimant’s 23 impairment(s). If the claimant does not have a severe medically determinable physical or mental 24 impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of 25 impairments that is severe and meets the duration requirement, the ALJ will find that the claimant 26 27 1 is not disabled. 2 3. At the third step, the ALJ also considers the medical severity of the claimant’s 3 impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 4 C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will 5 find that the claimant is disabled. 6 4. At the fourth step, the ALJ considers an assessment of the claimant’s residual 7 functional capacity (“RFC”) and the claimant’s past relevant work. If the claimant can still do his 8 or her past relevant work, the ALJ will find that the claimant is not disabled. 9 5. At the fifth and last step, the ALJ considers the assessment of the claimant’s RFC 10 and age, education, and work experience to see if the claimant can make an adjustment to other 11 work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is 12 not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the 13 claimant is disabled. 14

(a)(4);

; Tackett,

. 15 III. STANDARD OF REVIEW 16 Pursuant to

(g), this court has the authority to review a decision by the 17 Commissioner denying a claimant disability benefits. “This court may set aside the Commissioner’s 18 denial of disability insurance benefits when the ALJ’s findings are based on legal error or are not 19 supported by substantial evidence in the record as a whole.” Tackett v. Apfel,

, 1097 20 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the record that could 21 lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 22

(1971). It is more than a mere scintilla, but less than a preponderance. See Saelee 23 v. Chater,

(9th Cir. 1996) (internal citation omitted). When performing this 24 analysis, the court must “consider the entire record as a whole and may not affirm simply by isolating 25 a specific quantum of supporting evidence.” Robbins v. Soc. Sec. Admin.,

(9th 26 Cir. 2006) (citation and quotation marks omitted). 27 If the evidence reasonably could support two conclusions, the court “may not substitute its

, 1066 (9th Cir. 1997) (citation omitted). “Finally, the court will not reverse an ALJ’s 2 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was 3 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue,

, 4 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 5 IV. DISCUSSION 6 Plaintiff argues that the ALJ erred in his step five analysis by (1) finding that Plaintiff is 7 capable of light work even though he can only stand and walk for 2 hours in an 8-hour workday; (2) 8 finding that the jobs of order clerk and charge-account clerk exist in sufficient numbers in the 9 national economy; and (3) failing to ask the VE whether her testimony was consistent with the 10 Dictionary of Occupational Titles (“DOT”) and its companion publication, the Selected 11 Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (“SCO”). 12 A. Legal Standard for Step Five Analysis 13 At the fifth step of the sequential evaluation, the ALJ considers the assessment of the 14 claimant’s RFC and age, education, and work experience to see if the claimant can make an 15 adjustment to other work. If the claimant cannot make an adjustment to other work, the ALJ will 16 find that the claimant is disabled. If the claimant can make an adjustment to other work, the ALJ 17 will find that the claimant is not disabled.

(a)(4);

; 18 Tackett,

. Should the ALJ decide that the claimant is not disabled, “the [SSA] 19 is responsible for providing evidence that demonstrates that other work exists in significant numbers 20 in the national economy that [the claimant] can do, given [his RFC] and vocational factors.” 20

(c)(2). 22 Social Security Ruling (“SSR”) 00-4p governs the use of occupational evidence.2 At step 23 five of the sequential evaluation, ALJs rely on the DOT, including the SCO, and testimony from 24 vocational experts in making disability determinations. SSR 00-4p,

at *2 (S.S.A. 25 Dec. 4, 2000). The DOT is a reference guide in the form of a job catalog that contains standardized 26 2 SSRs “are entitled to ‘some deference’ as long as they are consistent with the Social Security Act 27 and regulations.” Massachi v. Astrue,

(9th Cir. 2006) (citations omitted). 1 occupational information about each occupation. An ALJ is to “rely primarily on the DOT 2 (including its companion publication, the SCO) for information about the requirements of work in 3 the national economy.”

An ALJ may also call upon a VE to provide occupational evidence 4 through testimony at a disability benefits hearing.

As part of a disability determination, an ALJ 5 must address any conflicts between the VE’s testimony and information contained in the DOT.

6 at *1. The ALJ has an “affirmative responsibility to ask about any possible conflict between [the 7 VE’s testimony about the requirements of a job] and information provided in the DOT.” Id. at *4. 8 B. “Light” Work 9 The Social Security Administration classifies jobs as sedentary, light, medium, heavy, or 10 very heavy, depending on the physical exertion requirements of the position. See 20 C.F.R. 11 404.1567. Even for sedentary jobs, “a certain amount of walking and standing is often necessary in 12 carrying out job duties.”

(a). Light work, on the other hand, may require “a 13 good deal of walking or standing.”

(b). SSR 83-10 explains that periods of 14 standing or walking for a sedentary job “should generally total no more than about 2 hours of an 8- 15 hour workday,” while light work may require standing or walking for up to 6 hours. 16 In this case, the ALJ determined that Plaintiff has the capacity “to perform light work . . . 17 except [he] can stand and walk for two hours,” in addition to some postural limitations. A.R. 27. 18 Plaintiff argues that the ALJ erred in finding that he can perform light work even though he can only 19 stand or walk for up to 2 hours per day. Pltf. Mot. at 4-5. Plaintiff’s argument is not convincing. 20 The ALJ explicitly acknowledged Plaintiff’s standing and walking limitations in his RFC 21 assessment. Thus, the ALJ’s finding that Plaintiff can perform light work as modified is not 22 inconsistent with Plaintiff’s standing and walking limitations. In addition, even if the ALJ erred in 23 finding that Plaintiff is capable of light work with limitations, all three job positions he identified as 24 available to Plaintiff are sedentary. See A.R. 31-32. Since any error in classifying Plaintiff’s 25 exertional limitations as “light” would not impact the ALJ’s ultimate finding that Plaintiff can 26 perform the identified sedentary occupations, the error is harmless. See Molina v. Astrue,

(9th Cir. 2012) (finding that an ALJ’s error is harmless “where it is inconsequential to 1 C. Jobs Available in the National Economy 2 At step five of the sequential evaluation process, “an ALJ must determine whether a 3 disability claimant who cannot perform past relevant work is nevertheless capable of performing 4 other work that exists in significant numbers in the national economy.” Shaibi v. Berryhill, 883

, 1108 (9th Cir. 2017); see

(a). “Work which exists in the national 6 economy” is defined as “work which exists in significant numbers either in the region where such 7 individual lives or in several regions of the country.”

(d)(2)(A). The Ninth Circuit 8 has not set a “bright-line rule” for what constitutes a “significant number” of jobs, although a court 9 may look to other cases for comparison numbers. Beltran v. Astrue,

(9th Cir. 10 2012). The Commissioner bears the burden of establishing that work exists in significant numbers. 11 Tackett,

. 12 Here, the ALJ found that Plaintiff could perform the requirements of a document preparer 13 (25,000 jobs nationally), order clerk (7,500 jobs), and charge-account clerk (5,000 jobs). Plaintiff 14 concedes that there are a significant number of document preparer jobs in the national economy. 15 See Pltf. Mot. at 5 n. 1; see also Gutierrez v. Comm’r of Soc. Sec.,

(9th Cir. 2014) 16 (holding that 25,000 jobs available nationally meets the statutory standard). However, Plaintiff 17 argues that the ALJ did not meet his burden to show that the positions of order clerk and charge- 18 account clerk exist in significant numbers. Plaintiff’s argument fails because the ALJ can meet his 19 burden by identifying just one occupation with a sufficient number of available positions. See 20

(b) (“Work exists in the national economy when there is a significant number of 21 jobs (in one or more occupations) having requirements which you are able to meet with your 22 physical or mental abilities and vocational qualifications.” (emphasis added)); see also Ojeda v. 23 Saul, No. 19-cv-02415-VKD,

, at *4 (N.D. Cal. Oct. 7, 2020) (“The number of 24 jobs considered is the collective total across all identified possible positions, not each position 25 individually.”); Garner v. Saul,

, 459 (9th Cir. 2020) (finding that one job existing 26 in significant numbers is sufficient in a step five finding). Since, as Plaintiff concedes, the ALJ 27 identified at least one job that exists in significant numbers, he did not err in failing to address 1 D. VE Testimony 2 An ALJ “has an affirmative responsibility to ask about any possible conflict between that 3 VE or VS [vocational specialist] evidence and information provided in the DOT.” SSR 00-4p; see 4 also Gutierrez v. Colvin,

(9th Cir. 2016) (“If the expert’s opinion that the 5 applicant is able to work conflicts with, or seems to conflict with, the requirements listed in 6 the [DOT], then the ALJ must ask the expert to reconcile the conflict before relying on the expert 7 to decide if the claimant is disabled.”). However, in order “[f]or a difference between an expert’s 8 testimony and the [DOT]’s listings to be characterized as a conflict, it must be obvious or apparent,” 9 which means that the VE’s testimony “must be at odds with the [DOT]’s listing of job requirements 10 that are essential, integral or expected.” Gutierrez,

. 11 Plaintiff argues that the ALJ erred in failing to ask the VE whether her testimony was 12 consistent with the DOT and SCO. Specifically, Plaintiff’s RFC limits him to only occasional 13 overhead reaching, but the three positions identified by the VE all require frequent reaching.3 The 14 Commissioner concedes that those three positions require frequent reaching and also concedes that 15 the ALJ erred in failing to ask the VE whether her testimony was consistent with the DOT. 16 However, the Commissioner argues that any error was harmless because the ALJ only limited 17 Plaintiff’s overhead reaching, which is not inconsistent with jobs that require frequent reaching in 18 all directions. 19 Gutierrez, cited by the Commissioner, is instructive. In that case, the ALJ found that a 20 claimant could not lift her right arm above her shoulder (among other limitations) and the VE 21 testified that a person with the claimant’s RFC could work as a cashier.

. The ALJ 22 asked the VE if his testimony was consistent with the DOT, and the VE responded that it was.

23 The ALJ then found that the claimant was not disabled. On appeal, the claimant argued that the 24 ALJ erred by failing to ask more specific questions about her limitations. In particular, the DOT 25 specifies that cashiers must perform frequent reaching, which the claimant asserted was inconsistent 26 with the limitation that she could not reach overhead with her right arm.

The claimant argued 27 1 that the ALJ was required to resolve the apparent conflict before relying on the VE’s testimony. 2 The Ninth Circuit rejected her argument. The court noted that “not every job that involves reaching 3 requires the ability to reach overhead,” and observed that “anyone who’s made a trip to the corner 4 grocery store” knows that a typical cashier never has to perform overhead reaching.

. 5 Because “there was no apparent or obvious conflict” between the VE’s testimony and the DOT, the 6 court held that the ALJ properly relied on the VE’s testimony.

Here, as in Gutierrez, the ALJ 7 assessed limitations only in Plaintiff’s ability to reach overhead. The three positions identified by 8 the VE require frequent reaching, but the DOT does not specify that they require frequent overhead 9 reaching. Thus, the requirement of “frequent reaching” does not, on its own, raise an obvious 10 conflict with the VE’s testimony that Plaintiff can perform the listed jobs. 11 Plaintiff distinguishes Gutierrez on the basis that the positions of document preparer, order 12 clerk, and charge-account clerk are not as widely known as cashier jobs, and therefore the court 13 cannot rely on common experience to resolve potential conflicts. See Lamear v. Berryhill,

(9th Cir. 2017) (observing that “[t]he more obscure the job, the less likely common 15 experience will dictate the result”). However, Lamear (relied on by Plaintiff) explains that there are 16 other methods to identify “obvious” conflicts. In that case, the plaintiff was limited in reaching with 17 his left arm and limited in handling, fingering, and feeling with his left hand. Id. at 1204. The VE 18 testified that he could perform the positions of office helper, mail clerk, or parking lot cashier. Id. 19 The Ninth Circuit examined the DOT’s descriptions of those positions and determined that the 20 “general tasks for these jobs include opening and sorting mail, stuffing envelopes, distributing 21 paperwork, and counting change.” Id. at 1205. All three jobs also required frequent handling, 22 fingering, and reaching. Id. at 1206. The court found that the job descriptions raised an “apparent 23 discrepancy” that the ALJ was required to reconcile with the VE’s testimony, and accordingly 24 remanded the case. Id. 25 In Lamear, the DOT’s job descriptions provided a basis for the Ninth Circuit to conclude 26 that there was an obvious conflict between the VE’s testimony and the DOT. Lamear,

1205 (“The DOT’s lengthy descriptions for these jobs strongly suggest that it is likely and 1 tasks in an acceptable and efficient manner.”). For example, activities like sorting mail and counting 2 || change specifically implicate handling and fingering. The plaintiff in Lamear had limitations in 3 those activities, and so the ALJ was required to investigate whether he could still perform the 4 || identified jobs despite his limitations. In this case, by contrast, the DOT’s descriptions for document 5 preparer, order clerk, and charge-account clerk do not list any activities that necessarily implicate 6 || reaching overhead. A document preparer uses a paper cutter, photocopying machine, rubber stamps 7 and other work devices to cut, copy, and stamp documents. See DOT 249.587-018. An order clerk 8 takes food and beverage orders, answers questions regarding food or service, and distributes order 9 tickets. See DOT 209.567-014. A charge-account clerk interviews customers, assists them in 10 || completing applications for charge accounts, and reviews and files the applications. See DOT 11 205.367-014. Unlike in Lamear, where the DOT job descriptions listed tasks with a clear «12 relationship to the plaintiff's limitations, there is no such apparent connection here. While Plaintiff

13 speculates that a document preparer might be required to reach overhead depending on where the

v 14 || listed supplies are stored, an ALJ’s obligation to reconcile a VE’s testimony with the DOT only

15 extends to “apparent or obvious” conflicts. Gutierrez,

. Because Plaintiff has not © 16 || identified an apparent conflict, any error the ALJ committed in failing to elicit additional testimony

17 || from the VE is harmless.

4 18 || Vv. CONCLUSION 19 For the reasons stated above, the Commissioner’s motion for summary judgment is granted 20 || and Plaintiff's motion is denied. The clerk shall enter judgment for the Commissioner and against 21 Plaintiff and close this case. ASS DISTR aD GC 22 xO aA 23 IT IS SO ORDERED. 5 ORDERED 2[\xr 18> 24 Dated: December 7, 2020 ~ < 25 WN LAA ian 6 PNY gee States Magistraejydge <p CY 27 DISTRICLS 28