1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 LAYTON S., Case No.: 20cv0642-MDD

11 Plaintiff, ORDER DENYING PLAINTIFF’S 12 v. MERITS BRIEF

13 ANDREW SAUL, Commissioner of Social Security, [ECF No. 17] 14 Defendant. 15 16 17 Layton S. (“Plaintiff”) filed this action pursuant to

(g) for 18 judicial review of the final administrative decision of the Commissioner of the 19 Social Security Administration (“Commissioner”) denying Plaintiff’s 20 application for Period of Disability and Disability Insurance Benefits under 21 Title XVI of the Social Security Act (“Act”). (AR 15-28)1. For the reasons 22 expressed herein, the Court DENIES Plaintiff’s Merits Brief. 23 I. BACKGROUND 24 Plaintiff was born in September 1960. (AR 23). On the alleged 25 disability onset date, September 19, 2014, Plaintiff was categorized as a 26 1 person closely approaching advanced age because he was 54 years old. 20

, 416.963. Plaintiff was 56 years old when the instant 3 application was filed on December 30, 2016, which categorized him as a 4 person of advanced age. (AR 189-91). 5 A. Procedural History 6 On December 30, 2016, Plaintiff filed an application for disability 7 insurance benefits under Title II and Part A of Title XVIII of the Act, alleging 8 a disability beginning on September 19, 2014. (AR 190). After his 9 application was denied initially and upon reconsideration, Plaintiff requested 10 an administrative hearing before an administrative law judge (“ALJ”). (AR 11 137-38). An administrative hearing was held on October 10, 2018. (See AR 12 90-107). Plaintiff appeared and was represented by attorney Lisa Mouradian 13 at the hearing. (AR 185). Testimony was taken from Plaintiff and Connie 14 Guillory, an impartial vocational expert (“VE”). (See AR 90-107). On 15 January 8, 2019, the ALJ issued a decision denying Plaintiff’s claim for a 16 period of disability and disability insurance benefits. (AR 15-24). 17 On March 5, 2019, Plaintiff sought review with the Appeals Council. 18 (AR 187-88). On February 10, 2020, the Appeals Council denied Plaintiff’s 19 request for review and declared the ALJ’s decision to be the final decision of 20 the Commissioner of Social Security in Plaintiff’s case. (AR 1-6). This timely 21 civil action followed. 22 II. DISCUSSION 23 A. Legal Standard 24 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 25 unsuccessful applicants to seek judicial review of a final agency decision of 26 the Commissioner.

(g), 1383(c)(3). The scope of judicial review is limited in that a denial of benefits will not be disturbed if it is 1 supported by substantial evidence and contains no legal error. Id.; see also 2 Batson v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2004). 3 Substantial evidence “is a ‘term of art’ used throughout administrative 4 law to describe how courts are to review agency factfinding.” Biestek v. 5 Berryhill,

(2019). Courts look “to an existing 6 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 7 support the agency’s factual determinations.”

“[T]he threshold for such 8 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 9 Court] has said, is ‘more than a mere scintilla.’ It means—and means only— 10 ‘such relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.”

The Ninth Circuit explains that substantial 12 evidence is “more than a mere scintilla but may be less than a 13 preponderance.” Molina v. Astrue,

(9th Cir. 2012) 14 (quotation marks and citations omitted), superseded by regulation on other 15 grounds. 16 An ALJ’s decision is reversed only if it “was not supported by 17 substantial evidence in the record as a whole or if the ALJ applied the wrong 18 legal standard.”

“To determine whether substantial evidence supports 19 the ALJ’s determination, [the Court] must assess the entire record, weighing 20 the evidence both supporting and detracting from the agency’s conclusion.” 21 Ahearn v. Saul, No. 3:18-cv-05699-MLP,

, at *5 22 (9th Cir. Feb. 17, 2021) (citing Mayes v. Massanari,

(9th 23 Cir. 2001)). The Court “may not reweigh the evidence or substitute [it’s] 24 judgment for that of the ALJ.”

“The ALJ is responsible for determining 25 credibility, resolving conflicts in medical testimony, and for resolving 26 ambiguities.” Andrews v. Shalala,

(9th Cir. 1995). “When 1 must uphold the [ALJ’s] decision.” Mayes,

. 2 Section 405(g) permits a court to enter a judgment affirming, modifying 3 or reversing the Commissioner’s decision.

(g). The reviewing 4 court may also remand the matter to the Social Security Administration for 5 further proceedings.

6 B. Summary of the ALJ’s Findings 7 In rendering his decision, the ALJ followed the Commissioner’s five-step 8 sequential evaluation process. See C.F.R. § 404.1520. At step one, the ALJ 9 found that Plaintiff had not engaged in substantial gainful activity since 10 September 19, 2014. (AR 17). 11 At step two, the ALJ found that Plaintiff had the following severe 12 impairments: degenerative changes in the lumbar spine and obesity. (AR 13 18). 14 At step three, the ALJ found that Plaintiff did not have an impairment 15 or combination of impairments that met or medically equaled one of the 16 impairments listed in the Commissioner’s Listing of Impairments. (AR 19) 17 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 18 404.1525 and 404. 1526)). 19 Next, after considering the entire record, the ALJ determined that 20 Plaintiff had the residual functional capacity (“RFC”) to perform light work 21 with the following limitations: “[T]he claimant can occasionally climb stairs 22 and ramps but should never climb ropes, ladders, or scaffolds; he can 23 occasionally stoop, kneel, crouch, or crawl; and he should avoid concentrated 24 exposure to unprotected heights and moving dangerous machinery.” (AR 25 19). Light work involves “lifting and carrying 20 pounds occasionally and ten 26 pounds frequently, sitting for six hours out of eight; and standing/walking for six hours out of eight.” (Id.); see also 20 CFR 404.1567(b). 1 The ALJ stated that his RFC assessment was based on all the evidence 2 and the extent to which Plaintiff’s symptoms are consistent with the objective 3 medical evidence and other evidence. (AR 19). The ALJ also stated that he 4 considered the opinion evidence in accordance with the requirements of 20 5 C.F.R. 404.1527. (Id.). 6 The ALJ then proceeded to step four of the sequential evaluation 7 process. He found Plaintiff was not able to perform his past relevant work. 8 (AR 22). For the purposes of his step five determination, the ALJ accepted 9 the testimony of the VE. (Id.). The VE identified the jobs of food assembler 10 (DOT No. 319.484-010); short order cook (DOT No. 313.374-014); and food 11 sales clerk (DOT No. 290.477-018) as jobs Plaintiff could perform, and which 12 exist in significant numbers in the national economy. (AR 23-24). The ALJ 13 therefore found that Plaintiff was not disabled. (AR 24). 14 C. Issues in Dispute 15 The issues in dispute are: (1) whether the skills obtained from 16 Plaintiff’s past work are transferable to the occupations identified by the VE; 17 and (2) whether a person with Plaintiff’s RFC could work as a short order 18 cook or food assembler.2 19 1. Substantial Evidence Supports that Plaintiff’s Skills 20 are Transferable to a Food Sales Clerk Occupation 21 Plaintiff argues that the skills obtained from his past occupation as 22 head cafeteria cook do not transfer to a food sales clerk occupation. (ECF No. 23 17 at 6-9). According to Plaintiff, under the Program Operations Manual 24 System (“POMS”), “the Commissioner directs the search for occupations 25

26 2 Defendant argues Plaintiff waived both arguments. In light of the Court’s resolution of 1 related to the claimant’s past relevant work using the same or similar: guide 2 for occupational exploration (GOE) code; materials, products, subject matter, 3 and services (MPSMS) code; work field (WF) code; occupation group (first 4 three digits of DOT code); or industry designation.” (Id. at 7). Starting with 5 the DOT codes for Plaintiff’s past relevant occupation as head cafeteria cook 6 and the proposed occupation of food sales clerk, Plaintiff provides the 7 corresponding GOE, MPSMS, WF, and Occupation Group codes, and Industry 8 Designations. (Id. at 8). Plaintiff juxtaposes the data to show that none of 9 the codes or designations are the same or similar. (Id. at 8-9). 10 “POMS constitutes an agency interpretation that does not impose 11 judicially enforceable duties on either this court or the ALJ.” Lockwood v. 12 Comm'r SSA,

(9th Cir. 2010) (citing Lowry v. Barnhart, 13

(9th Cir. 2003); see also Barajas v. Colvin, No. CV 15- 14 1208-SP,

, at *16-17 (C.D. Cal. Aug. 3, 2016) 15 (“[Plaintiff] argues the ALJ failed to follow the transferability of skills 16 analysis (‘TSA’) as set forth in the agency’s Policy Operations and Manual 17 System (‘POMS’) manual….But POMS ‘does not impose judicially enforceable 18 duties on either this court or the ALJ.’”) (citing Lockwood,

). 19 Plaintiff’s argument fails because the ALJ has no legal duty to follow POMS. 20 Additionally, courts have rejected similar code-based transferability of skills 21 arguments. See Danaian v. Saul, No. 2:18-cv-5261-SK, 2019 U.S. Dist.

, at *3-4 (C.D. Cal. Nov. 13, 2019) (collecting cases rejecting 23 argument that skills are not transferable where the occupations do not have 24 matching materials, products, subject matter, and services (MPSMS) codes or 25 work field (WF) codes.); Engel v. Colvin, No. SACV 14-01989-JEM,

Dist. LEXIS 144467, at *13 (C.D. Cal. Oct. 23, 2015). 1 establish a conflict between the VE’s testimony and the DOT. To establish a 2 conflict, the difference between a vocational expert's testimony and 3 information in the DOT “must be obvious or apparent." Gutierrez v. Colvin, 4

(9th Cir. 2016). The transferability of skills “depends 5 largely on the similarity of occupationally significant work activities among 6 different jobs.”

(d)(1). 7 A plain reading of the DOT reveals similarities between Plaintiff’s past 8 occupation as head cafeteria cook, DOT 313.131-018 (“Supervises and 9 coordinates activities of workers engaged in preparing, cooking, and serving 10 food…”), and the food sales clerk, DOT 290.477-018 occupation (“Fills 11 customer order, performing duties such as obtaining items from shelves, 12 freezers, coolers, bins, tables, or containers; cleaning poultry; scaling and 13 trimming fish; slicing meat or cheese, using slicing machine; preparing take- 14 out sandwiches and salads; dispensing beverages; and warming food items in 15 oven.”). Due to understaffing, Plaintiff often filled in for workers he 16 supervised as head cafeteria cook. (AR 100). Plaintiff testified that he moved 17 cases of fruit, cut meats, and obtained items from the freezer. (AR 100-01). 18 As such, the two positions share similar occupationally significant work 19 activities and there is no obvious or apparent conflict between the VE’s 20 testimony and the DOT. 21 Moreover, the ALJ appropriately identified the acquired work skills 22 that are transferable to specific occupations. See SSR 82-41, 1982 SSR

, at *19; Bray v. Comm’r of Soc. Sec. Admin.,

, 1223 24 (9th Cir. 2009). Based on the testimony of the VE, the ALJ found Plaintiff 25 obtained the following skills from his past relevant work as head cafeteria 26 cook: preparing, cooking, and serving food; maintaining daily records; 1 positions of food assembler, short order cook, and food sales clerk as 2 “occupations which could be performed by an individual with the same age, 3 education, past relevant work experience, and residual functional capacity as 4 the claimant and which require skills acquired in the claimant’s past relevant 5 work but no additional skills.” (AR 23-24). The ALJ also determined the 6 VE’s testimony was consistent with the DOT. (AR 24, 105). 7 Based on the foregoing, the ALJ properly relied on the VE’s 8 identification of the food sales clerk occupation as one to which Plaintiff’s 9 skills are transferable. Accordingly, the ALJ’s decision is supported by 10 substantial evidence. 3 11 2. Substantial Evidence Supports that Plaintiff Can 12 Work as a Short Order Cook or Food Assembler Given 13 His RFC 14 Plaintiff provides information from the 2018 ORS Dataset to argue that 15 substantial evidence does not support that Plaintiff can perform the short 16 order cook or food assembler positions given his residual functional capacity. 17 (ECF No. 17 at 14-15). The ALJ determined that Plaintiff’s RFC allows him 18 to perform light work, which permits standing/walking for up to 6 hours out 19 of 8, with additional limitations. (AR 19). Plaintiff uses information in the 20 2018 ORS Dataset to argue that he could not work as a short order cook or 21 food assembler when limited to six hours of standing/walking in an eight- 22 hour day. (ECF No. 17 at 12). Plaintiff contends that the ORS Dataset has 23

24 25 3 Plaintiff also argues that the remaining two occupations identified by the VE do not constitute a significant range of occupations to which Plaintiff’s skills transfer and 26 therefore contends that a finding of disabled is warranted under Rule 202.07, incorporating Rule 202.00(c). (ECF No. 17 at 9-11). The Court does not address the 1 been more recently updated than the “antiquated DOT” and therefore better 2 describes work as it exists in the national economy today. (Id. at 18). 3 ALJs have a duty to resolve apparent conflicts between VE testimony 4 and the DOT. SSR 00-4p, 2000 SSR LEXIS 8. Courts have refused to extend 5 this duty to other sources of occupational data, including the ORS. See Long 6 v. Berryhill, No. 19-cv-02669-RMI,

, at *33 7 (N.D. Cal. Sep. 16, 2020). The ORS is a governmental publication, but is not 8 even named in the regulations.

“[T]he court is not inclined to create a 9 duty that an ALJ must sua sponte identify any relevant, permissible sources 10 of employment data, take administrative notice of such data, and determine 11 and resolve any discrepancies between those sources, the VE testimony, and 12 the DOT.”

(finding ALJ did not err with regard to alleged 13 discrepancies between the ORS, DOT, and VE’s testimony). See also Rosalie 14 M. M. v. Saul,

, at *6 (rejecting Plaintiff’s 15 argument that the standing/walking requirements provided by the 2017 ORS 16 Dataset undermined the VE’s testimony because the ALJ “was not obligated 17 to reconcile conflicts between the VE’s testimony and the ORS.”). 18 Moreover, Plaintiff does not challenge the VE’s methodology or 19 qualifications. Instead, Plaintiff provides a lay assessment of an alternative 20 source—the 2018 ORS Dataset—to challenge the reliability of the VE’s 21 testimony and argue that substantial evidence does not support the decision. 22 Especially when submitted alone, lay assessments of statistical data do not 23 suffice to undermine a VE’s analysis, and such attempts have been uniformly 24 rejected. See e.g., Jose Alfredo G. v. Saul, No. 3:19-cv-00852-RBM,

Dist. LEXIS 211076, at *16 (S.D. Cal. Dec. 5, 2019) (collecting cases). 26 Accordingly, the ALJ did not err in relying on the VE’s testimony that 1 given his residual functional capacity. Substantial evidence supports the 9 || ALJ’s decision. 3 Ill. CONCLUSION 4 Based on the foregoing, the Court DENIES Plaintiff's motion and 5 | AFFIRMS the ALJ’s decision. The Clerk of Court is instructed to enter 6 ||judgment accordingly. 7 IT IS SO ORDERED. Dated: February 19, 2021 Mitel [> Hon. Mitchell D. Dembin 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27