1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 VALERIE H.,1 Case No. 2:20-cv-05317-GJS

12 Plaintiff MEMORANDUM OPINION AND 13 v. ORDER

14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Valerie H. (“Plaintiff”) filed a complaint seeking review of 19 Defendant Commissioner of Social Security’s (“Commissioner”) denial of her 20 applications for Disability Insurance Benefits (“DIB”) and Supplemental Security 21 Income (“SSI”). The parties filed consents to proceed before the undersigned 22 United States Magistrate Judge [Dkts. 11, 12] and briefs addressing disputed issues 23 in the case [Dkt. 17 (“Pltf.’s Br.”), Dkt. 20 (“Def.’s Br.”), and Dkt. 21 (Pltf.’s 24 Reply).] The Court has taken the parties’ briefing under submission without oral 25 26 1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 27 2 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi, the Acting 28 Commissioner of Social Security, is hereby substituted as the defendant. 1 2 be affirmed. 3 II. ADMINISTRATIVE DECISION UNDER REVIEW 4 Plaintiff filed applications for DIB and SSI alleging disability since March 19, 5 2014, based primarily on problems with her hands and knees. [Administrative 6 Record (“AR”) 20.] Defendant denied her applications on initial review and 7 reconsideration, and she was found not disabled by an Administrative Law Judge 8 (“ALJ”) in a September 22, 2016 decision. [AR 14-28.] After the Appeals Council 9 denied review, Plaintiff appealed to this Court, which remanded the case for further 10 proceedings—finding error in the ALJ’s step four determination that Plaintiff could 11 perform her past relevant work. 12 The ALJ held a hearing on the remanded application on January 22, 2020. 13 [AR 1060-1108.] The ALJ issued a second unfavorable decision on March 12, 14 2020. [AR 1032-1059.] Plaintiff sought review of the ALJ’s second decision, 15 which was denied. The present case before the Court followed. 16 As relevant here, the 2020 ALJ decision under review found that Plaintiff had 17 severe impairments as of 2014 including degenerative joint disease, namely 18 osteoarthritis of both knees; as of 2015, she also has carpal tunnel syndrome; and as 19 of 2018, she also has fibromyalgia. The ALJ then found that Plaintiff did not have 20 an impairment or combination of impairments that met or medically equaled a listed 21 impairment. [AR 1042.] Based on her impairments, the ALJ found that Plaintiff 22 had the Residual Functional Capacity (“RFC”) to perform a reduced range of light 23 work as defined in 20 CFR 404.1567 and 416.967(c) except with the following 24 additional restrictions:

25 As of 2014, she could lift 20 lbs occasionally and 10 lbs frequently; she 26 could sit up to 6 hours in an 8 hour workday, and stand or walk up to 4 hours; she was precluded from climbing; she could occasionally kneel, 27 crouch, or crawl; she could occasionally maneuver uneven terrain; and 28 she could occasionally sustain other posturals. As of 2016, she could 1 hours and stand or walk up to 4 hours; she was precluded from 2 kneeling, crouching, and crawling; she could maneuver uneven terrain occasionally; she could sustain other posturals occasionally; and 3 pushing, pulling, handling, and fingering all could be sustained 4 frequently with the right upper extremity, but only occasionally with the left upper extremity. As of June 2018, she could lift 20 lbs 5 occasionally and 10 lbs frequently; she could stand or walk up to 2 6 hours in an 8 hour workday and sit up to 6 hours; she was precluded from kneeling, crouching, or crawling; other posturals could be 7 sustained occasionally; she could maneuver uneven terrain 8 occasionally; pushing, pulling, handling, or fingering could be sustained occasionally with the left upper extremity, and frequently 9 with the right upper extremity; and overhead reaching with the left 10 upper extremity would be limited to frequently. 11 [AR 1042.] 12 At step four, the ALJ determined that Plaintiff was able to perform her past 13 relevant work as a receptionist, as that job is generally performed in the national 14 economy. [AR 1052.] As a result, the ALJ concluded that Plaintiff did not suffer 15 from a disability between the alleged onset date and the date of the ALJ’s decision. 16 [AR 1052.] 17 III. GOVERNING STANDARD 18 Under

(g), the Court reviews the Commissioner’s decision to 19 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 20 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 21 Soc. Sec. Admin.,

(9th Cir. 2008); Hoopai v. Astrue,

(9th Cir. 2007). Substantial evidence is “such relevant evidence as a 23 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 24 Perales,

(1971) (internal citation and quotations omitted); see 25 also Hoopai,

. The Court will uphold the Commissioner’s decision 26 when the evidence is susceptible to more than one rational interpretation. Burch v. 27 Barnhart,

(9th Cir. 2005). However, the Court may review only 28 the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a 1 2 2007). 3 IV. DISCUSSION 4 1. The ALJ Properly Resolved Any Apparent Conflict Between the 5 DOT and the VE 6 The primary issue in dispute is whether the ALJ failed to resolve an apparent 7 conflict between the vocational expert (“VE”)’s testimony and the Dictionary of 8 Occupational Titles (“DOT”) when determining that Plaintiff could perform her past 9 relevant work. [Pltf.’s Br. at 5-15.] Specifically, Plaintiff argues that the ALJ erred 10 in finding that an individual limited to “occasional handling/fingering of the non- 11 dominant hand can perform Plaintiff’s past work as a receptionist as generally 12 performed.” [Pltf.’s Br. at 7.] According to Plaintiff, the handling demands of the 13 receptionist job as set out in the DOT and other non-DOT sources exceed her stated 14 abilities. [Pltf.’s Br. at 5-15.] 15 A. Background 16 In the first decision denying benefits, the ALJ found that an individual limited 17 to frequent handling and fingering with the dominant hand and occasional handling 18 and fingering with the non-dominant hand could perform Plaintiff’s past relevant 19 work as a receptionist and accounting clerk, as generally performed. [AR 24.] On 20 January 8, 2018, Plaintiff appealed that ALJ’s decision arguing that the ALJ failed 21 to obtain a reasonable explanation as to how an individual limited to occasional 22 handling could perform the receptionist position which requires frequent handling. 23 This Court found reversible error because the prior ALJ did not discuss whether the 24 VE’s explanation for the apparent conflict was reasonable and instead merely 25 concluded that the VE’s testimony was consistent with the DOT. [AR 1205-1216.] 26 Having found error, this Court remanded the case for further proceedings in order 27 for the ALJ to address the apparent inconsistency between Plaintiff’s limitation to 28 occasional handling and the frequent handling required by receptionist position. 1 2 Pursuant to this Court’s instructions, on remand the ALJ addressed the 3 apparent inconsistency at a second hearing on January 22, 2020. At the hearing, the 4 Court heard testimony from vocational expert, Linda Ferra. [AR 1061, 1085.] At 5 the outset, the ALJ asked the VE the handling and fingering requirements of the 6 receptionist position and whether the reception position required handling and 7 fingering bilaterally. [AR 1086-1089.] The VE responded that the receptionist 8 position requires frequent handling, but only occasional fingering. The VE further 9 testified that the DOT is silent as to whether handling and fingering is required 10 bilaterally. [AR 1087.] 11 Using that explanation, the ALJ asked the VE whether a hypothetical 12 individual limited to frequent handling/fingering in the dominant hand and 13 occasional handling/fingering in the non-dominant hand could perform Plaintiff’s 14 past work as a receptionist. [AR 1086.] The VE responded yes: an individual 15 limited to occasional fingering/handling of the non-dominant hand could perform 16 the receptionist job. [AR 1086.] In addressing the alleged conflict between 17 Plaintiff’s “occasional” non-dominant hand limitations and the “frequent” handling 18 requirements of the receptionist position, the VE admitted that the situation was 19 “borderline,” but that she believed Plaintiff could complete the receptionist position 20 “based partially on her experience” and “partially” on the fact that Plaintiff is right- 21 handed. [AR 1087. 1092.] The VE testified: “so she is probably writing notes with 22 her right hand, and not using her left more of the time. And based on all of that, I 23 believe that the receptionist would still be consistent with that hypothetical.” [AR 24 1087.] 25 In follow up questioning by Plaintiff’s attorney, the VE further explained that 26 she came to the conclusion that a person with Plaintiff’s non-dominant hand 27 limitations could complete the receptionist position by relying on her professional 28 experience including routinely performing several “ergonomic evaluations for 1 2 ALJ ultimately found that Plaintiff could perform the work of a receptionist while 3 limited to occasional handling/fingering with the non-dominant hand. [AR 1086, 4 1091.] 5 B. Applicable Law 6 At step four of the five-step sequential analysis, a claimant has the burden of 7 proving that she cannot return to her past relevant work, either as actually or 8 generally performed in the national economy. Pinto v. Massanari,

, 9 844 (9th Cir. 2001);

(f), 416.920(f). However, the ALJ has a 10 duty to make factual findings to support a conclusion of non-disability at step four. 11 See Pinto,

. The ALJ can meet this burden by comparing the 12 physical and mental demands of the past relevant work with the claimant’s RFC.

13 at 844-45. 14 To ascertain the requirements of occupations as generally performed in the 15 national economy, the ALJ may rely on VE testimony or information from the DOT. 16 Pinto,

. Should an “apparent or obvious” conflict arise between a 17 VE’s testimony regarding the claimant’s ability to perform a certain job and the 18 DOT’s description of that job, “the ALJ must ask the [VE] to reconcile the conflict” 19 and must determine whether the VE’s explanation is reasonable before relying on 20 the VE’s testimony. Gutierrez v. Colvin,

(9th Cir. 2016); see 21 Massachi v. Astrue,

(9th Cir. 2007) (explaining that neither 22 the DOT nor VE evidence “automatically trumps when there is a conflict” and that 23 if the ALJ determines that a conflict exists, “the ALJ must then determine whether 24 the vocational expert’s explanation for the conflict is reasonable and whether a basis 25 exists for relying on the expert rather than the [DOT].”). 26 C. Analysis 27 Here, as Defendant notes, the ALJ solicited a detailed explanation from the 28 VE about whether Plaintiff could perform the receptionist job despite her limited 1 2 becomes whether the VE provided a reasonable and reliable explanation for the 3 alleged conflict using the VE’s knowledge and expertise. 4 There is limited caselaw about what constitutes “a reasonable explanation for 5 an apparent conflict.” Anna F. v. Saul, No. ED CV 19-511-SP, 2020 U.S. Dist.

, at *1 (C.D. Cal. Nov. 30, 2020); See Lamear v. Berryhill,

(9th Cir. 2017) (noting that to avoid unnecessary appeals, “an ALJ 8 should ordinarily ask the VE to explain in some detail why there is no conflict 9 between the DOT and the applicant’s RFC”). SSR 00-4p, 2000 SSR LEXIS 8 10 provides two examples of a reasonable explanation that would justify deviating from 11 the DOT: (1) when evidence from a VE includes information not listed in the DOT; 12 and (2) when a VE is able to provide more specific information about a job or 13 occupation than the DOT. See also Massachi,

(examples of 14 reasonable explanations from deviating from the DOT include that “the Dictionary 15 does not provide information about all occupations, information about a particular 16 job not listed in the Dictionary may be available elsewhere, and the general 17 descriptions in the Dictionary may not apply to specific situations.”). 18 Despite her arguments to the contrary, Plaintiff is incorrect that the VE failed 19 to offer a reasonable explanation for the alleged conflict. As noted at the hearing, 20 the ALJ instructed the VE to address the specific ambiguity between Plaintiff’s left 21 hand limitations and the dexterity requirements of the receptionist position; and the 22 VE did so using her professional expertise in the area. The VE confirmed that, 23 although the DOT stated that frequent handling was required for the receptionist 24 position, it did not state whether the position required frequent handling of both 25 hands or just one hand. [AR 1087.] Because the DOT was silent as to whether both 26 hands are required to perform the position, the VE, using her specific knowledge 27 acquired from performing ergonomic evaluations of clerical positions, testified that 28 she was supplementing the information in the DOT with her experience and 1 2 with the DOT. [AR 1087.] When asked for further clarification, the VE also 3 testified that she looked at labor market information, reviewed occupational 4 outlooks, watched job orders, assisted people in looking for work, and determined 5 specific job requirements. [AR 1094.] See Buckner-Larkin v. Astrue,

Appx. 626, 628-29 (9th Cir. 2011) (unpublished) (finding a conflict between a 7 sit/stand option and the DOT was adequately addressed by the VE, who relied on his 8 own labor market surveys, experience, and research, and that the ALJ addressed this 9 in the decision) 10 An ALJ may use the DOT and VE testimony to determine whether there are 11 jobs that the claimant can perform. However, the VE’s testimony should be 12 consistent with the DOT and, if it is not, the VE must provide a reasonable 13 explanation for the conflict. See Social Security Ruling 00-4p, 2000 SSR LEXIS 8. 14 In this case, the ALJ complied with this duty. Namely, the VE and by extension the 15 ALJ acknowledged that while Plaintiff had limitations in her left hand, she was right 16 handed. [AR 1087.] Thus, while Plaintiff was limited to occasional handling with 17 the left hand, she could frequently handle with the right hand, which the VE 18 determined was sufficient to perform the receptionist job. [AR 1087.] In the ALJ’s 19 decision, she reiterated that at the hearing the VE testified that her testimony was 20 consistent with the DOT, and to the extent there were issues not covered by the 21 DOT, the VE applied her “extensive professional training and experience, such as 22 regarding the number of hands needed for any given function.” [AR 1052.] The 23 ALJ further explained that she found the VE’s qualifications sufficient to make such 24 professional determinations. [AR 1052.] Thus, pursuant to this Court’s instructions 25 upon remand, the ALJ properly addressed whether there was an inconsistency 26 between the VE’s testimony and the DOT and explained that she found the VE’s 27 qualifications sufficient to make such professional determinations. [AR 1058, 28 1214.]. 1 2 Plaintiff spends the bulk of her reply brief arguing that regardless of any 3 stated conflicts with the DOT, her left-hand limitations to occasional 4 handling/fingering exceed the real-life requirements of a receptionist position. 5 According to Plaintiff, data in various DOT related vocational guides including the 6 Bureau of Labor and Statistics’ Occupational Requirements Survey (ORS) 7 demonstrates that a majority of receptionist positions require “frequent 8 keyboarding”—a task Plaintiff cannot perform due to her occasional 9 fingering/handling limitation in her RFC. (Pltf.’s Br. at 11-14; Reply at 3-4.) 10 Plaintiff suggests that this evidence invalidates the VE’s testimony that she can 11 perform her past relevant work. 12 Plaintiff’s argument is meritless for at least two reasons. First, as is well 13 documented in the case law, the ALJ was not obligated to reconcile conflicts 14 between the VE’s testimony and non-DOT sources such as the ORS. See Long v. 15 Berryhill, No. 19-cv-02669-RMI,

, at *33 (N.D. Cal. 16 Sep. 16, 2020) ( While ALJs have a duty to resolve apparent conflicts between VE 17 testimony and the DOT, courts have refused to extend this duty to other sources of 18 occupational data, including the ORS.) Although the regulations provide that the 19 Administration will take administrative notice of data in the DOT, the County 20 Business Patterns, and the Occupational Outlook Handbook (“OOH”), among 21 others, see

(d), “[i]t does not follow that an ALJ must in every 22 case reconcile conflicts sua sponte between each of those data sources and the VE’s 23 testimony. That requirement was established in SSR 00-4p, 2000 SSR LEXIS 8, a 24 Social Security Ruling, only for the DOT and an associated document [the SCO].” 25 Shaibi v. Berryhill,

, 1109 n.6 (9th Cir. 2017). Thus, “it follows that 26 the ALJ need not reconcile conflicts between a VE’s testimony and information 27 contained in sources not even mentioned in the regulations.” See, e.g., Rosalie M. 28 M. v. Saul,

,

(C.D. Cal. Sep. 11, 1 2 (C.D. Cal. Jan. 17, 2018) (finding no further inquiry or explanation needed by ALJ 3 to rely on vocational expert’s testimony, even where a conflict with the OOH 4 exists). In fact, the ALJ was entitled to rely on the VE’s testimony alone, without 5 requiring more. See Bayliss v. Barnhart,

(9th Cir. 2005) 6 (explaining ALJ may take administrative notice of vocational expert’ s testimony 7 regarding job numbers without any additional foundation). 8 Second, while Plaintiff takes issue with the ORS data which states that the 9 majority of receptionist jobs require “frequent keyboarding” (Pltf.’s Reply at 3-5), 10 the “occasional” limitation at issue is not keyboarding but rather handling. The ALJ 11 found Plaintiff could handle and finger frequently with the right hand and 12 occasionally with the left hand. Per the VE’s testimony, the receptionist position 13 requires frequent handling but only occasional fingering. [AR 1086.] See DOT 14 code 237.367-038. Handling involves “seizing, holding, grasping, turning or 15 otherwise working primarily with the whole hand or hands,” whereas fingering 16 requires “picking, pinching, or otherwise working primarily with the fingers.” SSR 17 85-15. Thus, by definition, fingering is more akin to “keyboarding” and the 18 receptionist position only requires occasional “fingering” which Plaintiff can 19 sufficiently perform with both hands. There is nothing to suggest that Plaintiff’s 20 limitation to occasional fingering/handling precludes her from performing “frequent 21 keyboarding.” Any suggestion otherwise is pure speculation unsupported by 22 probative evidence. 23 Accordingly, the ALJ did not err in relying on the VE’s testimony that 24 Plaintiff could perform the receptionist position given her residual functional 25 capacity. Substantial evidence supports the ALJ’s decision and there is no basis for 26 remand. 27 2. Any Error By the ALJ in Redetermining Plaintiff’s RFC was Harmless 28 Plaintiff also briefly argues that the ALJ erred by re-assessing her RFC on 1 2 the “rule of mandate” and “law of the case” doctrines from changing her RFC 3 finding from “sedentary” to “a reduced range of light work” following remand from 4 this Court. See Stacy v. Colvin,

(9th Cir. 2016) (rule of 5 mandate and law of the case doctrine apply in the Social Security context, meaning 6 that the district court cannot reconsider “an issue that has already been decided by 7 that same court or a higher court in the same case” absent “evidence on remand is 8 substantially different” or a change in controlling law). 9 The ALJ in the 2016 Decision determined that Plaintiff had the RFC to 10 perform sedentary work, except she is limited to frequent handling and fingering 11 with the dominant hand and occasional handling and fingering with the non- 12 dominant hand. [AR 20.] Based on that RFC, the ALJ found that Plaintiff was able 13 to perform her past relevant work as a receptionist. [AR 20.] In the 2020 decision, 14 the ALJ determined that Plaintiff had the RFC to perform a limited range of light 15 work except she is limited to frequent handling and fingering with the dominant 16 hand and occasional handling and fingering with the non-dominant hand. Despite 17 the change from “sedentary” to a “reduced range of light work,” the ALJ again 18 determined Plaintiff was able to perform her past relevant work as a receptionist. 19 [AR 1089.] 20 By all indications, even if the ALJ erred by altering the residual functional 21 capacity assessment on remand, the error was harmless. See Tommasetti v. Astrue, 22

(9th Cir. 2008) (error is harmless when it is “inconsequential to 23 the ultimate nondisability determination”) (citation and internal quotations omitted). 24 When presented with a hypothetical question encompassing either the sedentary or 25 light RFC, the VE’s testimony remained the same—that a claimant limited to 26 occasional handling with the non-dominant left hand could perform Plaintiff's past 27 relevant work. As Plaintiff notes, the central issue upon which this Court previously 28 remanded this case, and which forms the basis for her current argument, is not 1 || whether she could complete sedentary or light work, but whether an individual 2 || limited to occasional handling and fingering with the non-dominant hand could 3 || perform her past relevant work. (Pltf.’s Brief at 7). That question was plainly 4 || within the scope of this Court’s mandate. As seen above, the vocational expert 5 || provided a sufficient explanation for her opinion to satisfy the Court’s concern 6 || regarding the dexterity requirements of the receptionist position, which included an 7 || RFC determination that was ultimately inconsequential to the VE’s conclusions. 8 || See Harrison v. Berryhill, No. ED CV 18-81-E,

9 || (C.D. Cal. Oct. 24, 2018) (finding harmless ALJ’s error in addressing issues outside 10 || the scope of mandate because the ALJ clarified with the vocational expert the issue 11 || identified on remand). Accordingly, Plaintiff fails to reveal any reversible error in 12 || this respect. 13 Vv. CONCLUSION 14 For all of the foregoing reasons, IT IS ORDERED that the decision of the 15 |} Commissioner finding Plaintiff not disabled is AFFIRMED. 16 17 IT IS SO ORDERED. 18 19 || DATED: August 27, 2021 20 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 12