1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EIN G., Case No. 20-cv-06713-JSC

8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. TO ALTER OR AMEND JUDGMENT

10 KILOLO KIJAKAZI, Re: Dkt. No. 25 Defendant. 11

12 13 Plaintiff seeks Disability Insurance Benefits (DIB) and Supplemental Security Income 14 Benefits (SSI) for the physical impairments of herniated disc, arthritis, hernia. (Administrative 15 Record (“AR”) 69, 81.) Pursuant to

(g), Plaintiff filed this lawsuit for judicial 16 review of the final decision by the Administrative Law Judge (“ALJ”) finding Plaintiff not 17 disabled.1 On December 6, 2021, the Court concluded that substantial evidence supported the 18 ALJ’s step five determination, denied Plaintiff’s motion for summary judgment, and granted the 19 Commissioner’s cross-motion for summary judgment. (Dkt. No. 23.) Plaintiff now moves to alter 20 or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). (Dkt. No. 25.) The 21 Commissioner has not filed a response and the time to do has run. See Civ. L.R. 7-3(a). Having 22 considered Plaintiff’s motion and the relevant legal authority, the Court concludes that oral 23 argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and DENIES the motion. 24 LEGAL STANDARD 25 Rule 59(e) provides that a party may file a “motion to alter or amend a judgment.” Fed. R. 26 Civ. P. 59(e). While amending a judgment is an extraordinary remedy, “the district court enjoys 27 1 considerable discretion in granting or denying the motion.” McDowell v. Calderon,

1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam) (internal quotation marks omitted). In 3 general, there are four basic grounds upon which a Rule 59(e) motion may be granted: “(1) if such 4 motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if 5 such motion is necessary to present newly discovered or previously unavailable evidence; (3) if 6 such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 7 intervening change in controlling law.” Allstate Ins. Co. v. Herron,

(9th Cir. 8 2011). Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present 9 evidence that could have been made prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 10

, 485 n.5 (2008) (citation omitted). 11 DISCUSSION 12 In his motion for summary judgment, Plaintiff raised a single issue: whether the ALJ’s 13 step five finding that Plaintiff was not disabled was supported by substantial evidence given that 14 the job numbers cited by the vocational expert are not (in Plaintiff’s view) based on reliable data. 15 The Court concluded that the ALJ’s finding was based on substantial evidence. In so concluding, 16 the Court relied on the Ninth Circuit’s holding in Bayliss that “[a] VE’s recognized expertise 17 provides the necessary foundation for his or her testimony. Thus, no additional foundation is 18 required.” See Bayliss v. Barnhart,

(9th Cir. 2005) (holding that an ALJ may 19 rely on a vocation expert’s testimony regarding the number of relevant jobs in the national 20 economy.). “[A]s is clear from the language of Bayliss, at least in the absence of contrary 21 evidence, a VE’s testimony is one type of job information that is regarded as inherently reliable; 22 thus, there is no need for an ALJ to assess its reliability.” See Buck v. Berryhill,

, 23 1051 (9th Cir. 2017). 24 Here, the ALJ relied on the vocational expert’s testimony to identify certain 25 “representative occupations” which were present in significant numbers in the national economy. 26 (AR 23.) The vocational expert testified that the evidentiary basis for the job numbers he provided 27 was the Department of Labor Statistics, and in particular, the “occupational employment survey, 1 65.) In his motion for summary judgment, Plaintiff argued that in calculating the job numbers, the 2 vocational expert relied upon the numbers for the entire job category as opposed to for the sub- 3 category; that is, he relied upon the Standard Occupational Classification Groups which are 4 “groups of occupations classified together based on similarity of job functions or other 5 characteristics.” (Dkt. No. 19 at 9.) Plaintiff speculated that the vocational expert determined the 6 number of jobs in each subcategory by dividing the Standard Occupational Group job number by 7 the number of DOT occupations in each Standard Occupational Group. (Id. at 10.) Plaintiff 8 referred to this as the equal distribution method which he argued has been “widely discredited.” 9 (Id. (citing Chavez v. Berryhill,

(7th Cir. 2018)).) 10 In his motion to alter or amend judgment, Plaintiff insists that the Court committed 11 manifest error when it rejected Plaintiff’s challenge to the ALJ’s reliance on the vocational 12 expert’s testimony because the vocational expert provided a “demonstrably false statement 13 regarding the source of his job number estimates.” (Dkt. No. 25 at 3.) In particular, Plaintiff 14 contends that the Department of Education publication the vocation expert relied upon only breaks 15 down the Standard Occupation Group by DOT occupation and does not provide job number 16 estimates for each subgroup of jobs within the DOT occupation. 17 Plaintiff has not demonstrated that the extraordinary remedy of amendment of the Court’s 18 judgment in his favor is warranted. First, his arguments are simply a recasting of the arguments 19 the Court previously considered and rejected. See Exxon Shipping Co. v. Baker,

, 20 485 n.5 (2008) (“Rule 59(e) permits a court to alter or amend a judgment, but it may not be used 21 to relitigate old matters, or to raise arguments or present evidence that could have been raised prior 22 to the entry of judgment.”) (cleaned up). On summary judgment, Plaintiff speculated that the only 23 way the vocational expert could have derived the numbers he did was by employing the equal 24 distribution method. The Court rejected this argument because it was merely speculation and 25 there were other possible explanations for how the vocational expert derived his job numbers, such 26 as that he employed his labor market experience. (Dkt. No. 23 at 5.) Plaintiff now argues that “it 27 is clear from [the vocational expert’s] testimony that he was not relying on his ‘labor market 1 “where a vocational expert specifically testifies that his job number estimates for individual DOT 2 || occupations come from a particular publication, he is necessarily deferring to the methodology 3 used by the creator of that publication.” (Dkt. No. 25 at 4-5.) Plaintiff provides no basis for this 4 || theory—he did not question the vocational expert regarding his reliance on the publication and 5 || whether he was also relying on his own labor market experience. (AR 65 (“Q And does the 6 || Department of Labor break down — break down jobs by DOT number? A No. This would be based 7 on the occupational employment survey, OES Statistical Group, which is what I use and that’s 8 || cross-walked with a publication found at www.ed.gov. A: Okay. And let’s see here. Okay. No 9 || further questions, Your Honor.”)). Plaintiffs insistence that he did not know to question the 10 || vocational expert further until after he reviewed the Department of Education publication is 11 unavailing as nothing precluded him from questioning the vocational expert regarding the contents 12 || of that publication and his methodology. 5 13 Second, as the Court previously noted, “an ALJ may take administrative notice of any 14 || reliable job information, including information provided by a VE. A VE’s recognized expertise 3 15 provides the necessary foundation for his or her testimony. Thus, no additional foundation is 16 required.” Bayliss v. Barnhart,

(9th Cir. 2005) (internal citation omitted). 3 17 || Because “a vocational expert’s testimony may count as substantial evidence even when 18 || unaccompanied by supporting data,” substantial evidence supports the ALJ’s step five 19 || determination. Biestek v. Berryhill,

(2019). 20 Accordingly, Plaintiff's motion to alter or amend the judgment is DENIED. 21 This Order disposes of Docket No. 25. 22 IT IS SO ORDERED. 23 Dated: February 1, 2022 gut Seto 25 JACQUELINE SCOTT CORLE United States Magistrate Judge 26 27 28