1 NOT FOR PUBLICATION 2

3 UNITED STATES DISTRICT COURT 4 SOUTHERN DISTRICT OF CALIFORNIA 5 MARY M., Case No.: 20-cv-1457-AGS 6 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTION (ECF 10) 7 v. 8 Kilolo KIJAKAZI, Acting Commissioner of Social Security, 9

10 Defendant. 11 12 Social Security disability claimants are entitled to a fair administrative process. But 13 not necessarily a perfect one. Although the Social Security Administration made minor 14 missteps here in reviewing plaintiff’s claim, none warrant reversal. 15 BACKGROUND 16 The Social Security Administration, after initial review and reconsideration by 17 social-security doctors and adjudicators, rejected plaintiff Mary M.’s application for 18 disability benefits. (AR 109, 124.) Then Mary had a hearing before an Administrative Law 19 Judge. (AR 13.) The ALJ found that Mary had severe depression, anxiety, and lumbar spine 20 changes. (AR 16.) But the ALJ concluded that Mary could still work, including as a cleaner, 21 stores laborer, and linen room attendant. (AR 25.) 22 To support that conclusion, the ALJ reasoned that Mary could perform medium- 23 exertion work with some postural limitations. (AR 19.) Due to Mary’s mental-health 24 impairments, the ALJ also restricted Mary to “noncomplex tasks,” “goal[-]oriented tasks,” 25 and “simple work-related decisions” with no “tasks that require a fast[-]paced production 26 quota” or “public contact.” (Id.) 27 Mary appeals the ALJ’s decision. She argues that the ALJ mishandled the 28 restrictions imposed by her mental-health impairments, failed to consider her husband’s 1 statements about her condition, and relied on jobs that lack sufficient numbers in the 2 national economy. (See generally ECF 10.) 3 DISCUSSION 4 A. Residual Functional Capacity: Mental-Health Limitations 5 As part of the disability determination, an ALJ must often determine a claimant’s 6 residual functional capacity, which is the most a claimant can do on a sustained basis. 7 Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P, 8

. Mary argues that the ALJ failed to appropriately incorporate her mental- 9 health limitations in her residual functional capacity. Specifically, Mary asserts that the 10 ALJ failed to adequately consider two medical opinions in the record and even failed to 11 incorporate the ALJ’s own findings concerning Mary’s mental health. 12 1. Medical-Opinion Evidence 13 a. The Evolving Law on Medical-Opinion Evidence 14 For decades, the Social Security Administration considered medical opinions under 15 what became known as the “treating-physician rule,” see 20 C.F.R. 404.1527, and 16 interpretations of that regulation led to a large body of case law. See, e.g., Trevizo v. 17 Berryhill,

(9th Cir. 2017); Arakas v. Comm’r of Soc. Sec.,

83 (4th Cir. 2020); Jones v. Astrue,

(D.C. Cir. 2011); Calvert v. Firstar 19 Finance, Inc.,

(6th Cir. 2005); Gilbertson v. Allied Signal, Inc.,

(10th Cir. 2003); Hackett v. Barnhart,

(10th Cir. 2005); Leggett v. Chater, 21

(5th Cir. 1995). But for claims filed after March 2017, like this one, that 22 regulation was replaced with

.1520c. The new regulation streamlined the 23 consideration of medical opinions, removing the old rule’s medical-provider hierarchy and 24 increasing ALJ discretion by cutting down the number of considered factors. 25 So, the Court is limited to the familiar and forgiving review that the ALJ may not 26 abuse that discretion. See Smith v. Berryhill,

(2019) (“[T]he standard 27 of review [is an] abuse of discretion as to the overall conclusion, and ‘substantial evidence’ 28 ‘as to any fact.’” (quoting

(g)). ALJs abuse their discretion when they fail 1 to (1) “consider” the medical-opinion evidence as required by regulation; (2) “articulate” 2 specific and legitimate reasons—particularly the consistency and supportability of the 3 opinion—for the persuasiveness of the opinion; or (3) support those reasons with 4 “substantial evidence” from the record. See 20 C.F.R. 404.1520c(a) (“[W]e will consider 5 those medical opinions or prior administrative medical findings from that medical source 6 together using the factors listed . . . .”); 20 C.F.R. 404.1520c(b) (“We will articulate in our 7 determination or decision how persuasive we find all of the medical opinions and all of the 8 prior administrative medical findings in your case record.”); 20 C.F.R. 404.1520c(b)(2) 9 (“The factors of supportability . . . and consistency . . . are the most important factors. . . . 10 We may, but are not required to, explain how we considered the [other] factors . . . .”); 11

(g) (“The findings of the Commissioner of Social Security as to any fact, 12 if supported by substantial evidence, shall be conclusive . . . .”). 13 b. Dr. Durr’s Examination 14 Due to her mental-health claims, the Social Security Administration sent Mary to 15 see clinical psychologist Dr. Jessica Durr for a one-time evaluation. The ALJ found Dr. 16 Durr’s opinions “somewhat persuasive,” accepting most of Dr. Durr’s recommendations 17 and rejecting one. (AR 23.) Mary complains that the ALJ failed to include the memory 18 problems mentioned in Dr. Durr’s opinions in her residual functional capacity. 19 Not so. Far from failing to reasonably consider Dr. Durr’s opinion concerning 20 memory deficits, the ALJ instead adopted it wholesale into the residual functional capacity. 21 Dr. Durr, in her mental-status examination, mentioned that Mary had some memory 22 concerns: “She was able to recall 3 out of 3 objects immediately and 1 out of 3 objects at 23 5 minutes. She was able to recall what she had for breakfast. She was able to recall her date 24 of birth.” (AR 439.) When explaining the results of that data, though, Dr. Durr said that 25 Mary had “a mild inability to understand, remember[,] and carry out detailed instructions,” 26 but could “remember and carry out short, simplistic instructions without difficulty.” 27 (AR 440 (emphasis added).) The ALJ adopted the limitation Dr. Durr recommended based 28 on Mary’s memory deficits, specifically finding Mary “limited” to “noncomplex tasks.” 1 (AR 22; see also

(“These limitations are supported by the claimant’s ongoing anxiety 2 and depressive symptoms coupled with her mental status examination at a consultative 3 examination . . . .”).) Since the ALJ adopted Dr. Durr’s recommended limitations because 4 of Mary’s memory problems, Mary’s argument that the ALJ failed to consider Dr. Durr’s 5 memory-deficit findings is meritless. 6 c. Nurse Practitioner Harwood’s Opinion 7 Next, Mary argues the ALJ failed to adequately wrestle with the opinions of 8 Nurse Practitioner Paula Harwood, who treated Mary for her mental-health symptoms. 9 Harwood opined to greater memory restrictions than the ALJ ultimately adopted, 10 including: “P[atien]t would not be able to remember and sustain work day procedures”; 11 “She would struggle to understand and carry out simple instructions with efficiency”; 12 “Memory is erratic and inconsistent”; “She cannot process information easily or perform 13 tasks that require critical thinking”; “She cannot remember detailed instructions, process, 14 or carry out instructions easily.” (AR 448-49.) Harwood also rated Mary as “Unable to 15 meet competitive standards”—the second-highest restriction—in nearly every avenue of 16 mental ability or aptitude to work. (See AR 447-49.) She opined that Mary had a “Marked” 17 limitation—again, the second-most extreme restriction—in every area asked about: 18 understanding, remembering, and applying information; interacting with others; 19 concentration; persistence; maintaining pace; and adapting/managing in the workplace. 20 (AR 450.) Finally, Harwood opined that Mary would miss “[m]ore than four days per 21 month” from work due to her mental health. (AR 451.) 22 The ALJ found Harwood’s opinion unpersuasive because it “is not supported by any 23 contemporaneous treatment notes or objective findings,” “was authored over one year after 24 the last date insured,” and was “inconsistent with [Mary’s] unremarkable mental status 25 examinations throughout the treatment record.” (AR 24.) Mary fails to address―and thus 26 concedes―that the opinion was authored a year after her date last insured. (See ECF 10, 27 at 15.) Under the old standard, the Ninth Circuit held that “medical evaluations made after 28 the expiration of a claimant’s insured status are relevant to an evaluation of the 1 preexpiration condition.” Lester v. Chater,

(9th Cir. 1995). It’s unclear 2 whether an opinion’s late vintage can still be a specific and legitimate reason for 3 discounting that opinion under the new regulations.1 It doesn’t matter, though, as the ALJ’s 4 other reasons are more than sufficient. See Molina v. Astrue,

(9th Cir. 5 2012) (holding an “ALJ’s error was harmless where the ALJ provided one or more invalid 6 reasons” to reject testimony or an opinion, “but also provided valid reasons that were 7 supported by the record.”). 8 The ALJ correctly noted that Harwood’s opinion is not supported by 9 contemporaneous medical records. On May 6, 2019, Harwood examined Mary and then 10 wrote her opinion that same day. (See AR 452-56.) Her examination notes do not suggest 11 anything like the extreme limitations in her opinion. Although Harwood diagnosed Mary 12 with “[m]ajor depressive disorder, recurrent, moderate” and found “mild” judgment 13 impairment along with impairment in “concentration” and “memory,” she also noted that 14 Mary “is reasonably well managed on current meds” and had a GAF score of 62.2 (AR 452, 15 16 17 1 The Court believes that considering a medical opinion’s date is not an abuse of 18 discretion. Under the new regulations, the ALJ must simply explain how “persuasive” an opinion is. See 20 C.F.R. 404.1520c. In determining an opinion’s persuasiveness, an ALJ 19 can properly consider whether the opinion was written during the alleged disability period 20 or well after it. Even under the old standard, which was far less flexible, opinions written long after the disability period were considered “relevant.” See Lester,

. 21

22 2 The Global Assessment of Functioning is a 100-point mental-health scale for rating a patient’s social, occupational, and psychological functioning, with 100 being the highest 23 functioning and 1 the least. Keyes-Zachary v. Astrue,

(10th Cir. 2012) 24 (citation omitted). A series of GAF ranges that can be compared to Mary’s 62-65 GAF scores have been included: 25

26  61-70: “Some mild symptoms (e.g., depressed mood and mild insomnia), OR

some difficulty in social, occupational, or school functioning (e.g., occasional 27 truancy, or theft within the household), but generally functioning pretty well, has 28 some meaningful interpersonal relationships.” 1 454-55.) The ALJ reasonably concluded that the contemporaneous record stood in contrast 2 to the more extreme opinion penned later that day. See Molina,

(“[W]hen 3 the evidence is susceptible to more than one rational interpretation, we must uphold the 4 ALJ’s findings if they are supported by inferences reasonably drawn from the record.”). 5 And the record also bears out the ALJ’s conclusion that Harwood’s opinion 6 contrasted with the “unremarkable mental status examinations throughout the treatment 7 record.” (See AR 24.) For example, Harwood’s other mental-health examinations, which 8 are the most thorough in the record, are just as unremarkable as the May 2019 examination: 9 Date AR Mental Status Exam Other Notes 10 11/13/2018 457- “Normal,” “Average,” “Within “well managed on current 61 normal limits,” “Unremarkable,” meds”; “presents as well 11 or the like for 20 applicable adjusted, capable, cooperative” 12 categories. 6/26/2018 463- Similarly normal on 21 categories, “occasionally gets anxious, 13 65 except “mood is anxious,” feels a bit tense but it is 14 “[j]udgment is fair,” and “[i]nsight manageable”; “managing well, is fair.” she is able to think clearly, 15 concentrate and focus”; 16 “manages daily life stressors” 2/14/2018 468- Normal on all 21 categories. “mood is stable”; “has good 17 70 energy level”; “denies anxiety 18 [symptoms] for most part”; “handling stress well”; 19 “thinking clearly, concentration 20 and focus are good” 21

22 23  51-60: “Moderate symptoms (e.g., flat affect and circumlocutory speech,

24 occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” 25  41-50: “Serious symptoms (e.g., suicidal ideation, severe obsessional rituals,

26 frequent shoplifting) OR any serious impairment in social, occupational, or 27 school functioning (e.g., no friends, unable to keep a job).”

(citation omitted; boldfacing added). 28 1 Mary nonetheless complains that the ALJ erred by remarking that Harwood’s 2 opinion was “not supported by any . . . objective findings.” (AR 23.) Relying on Buck v. 3 Berryhill,

(9th Cir. 2017), Mary argues that “objective findings are not 4 required to show mental impairments.” (See ECF 10, at 15-16 (citing Buck,

).) But Buck doesn’t stand for that point. It holds instead that an ALJ may not reject 6 an opinion solely because the mental-health practitioner relied in part on claimant’s self- 7 reported symptoms. See 869 F.3d at 1049. More specifically, even though “clinical 8 interview[s]” and “mental status evaluation[s]” contain patient self-reports, the Buck Court 9 defined both of those procedures as “objective measures.” See 869 F.3d at 1049. And the 10 Court concluded that it was error to reject an opinion because it was based on such 11 “objective measures.” See id. By contrast, the ALJ here rejected Harwood’s opinion not 12 because of client self-reporting, but because it conflicted with Harwood’s own medical 13 records and the objective record as a whole, including the clinical interviews and mental- 14 status evaluations. The Ninth Circuit has upheld ALJs who rejected mental-health opinions 15 on these same bases―lack of “objective medical data” and lack of “clinical evidence.” See 16 Bayliss v. Bayhart,

(9th Cir. 2005). 17 The two most important factors in determining the persuasiveness of a medical- 18 source opinion are “consistency” and “supportability.” See

.1520c(b)(2). 19 Based on substantial record evidence, such as the lack of contemporaneous support for 20 Harwood’s opinion and the inconsistencies with other exams, the ALJ reasonably 21 concluded that both these factors undermined Harwood’s opinion. Thus, the ALJ did not 22 abuse her discretion. 23 2. The ALJ’s Own Mental-Health Findings 24 As part of the ALJ’s opinion, and before writing a residual functional capacity, an 25 ALJ must first decide whether a claimant has a severe impairment that meets or equals a 26 “listing.” “The listings define impairments that would prevent an adult, regardless of his 27 age, education, or work experience, from performing any gainful activity, not just 28 ‘substantial gainful activity.’” Sullivan v. Zebley,

(1990). “The reason 1 for this difference between the listings’ level of severity and the statutory standard is that, 2 for adults, the listings were designed to operate as a presumption of disability that makes 3 further inquiry unnecessary.”

4 When doing that review for mental-health impairments, an ALJ must review the four 5 “paragraph B” criteria and assign each a limitation. Those four criteria are the ability to 6 “[u]nderstand, remember, or apply information; interact with others; concentrate, persist, 7 or maintain pace; and adapt or manage oneself.”

.1520a(c)(3). Each 8 criterion is given a rating of “[n]one, mild, moderate, marked, [or] extreme.”

at (c)(4). 9 The ALJ determined that Mary had “mild” limitations in every category except interacting 10 with others, for which she assessed a “moderate” limitation. Mary argues that the ALJ’s 11 residual functional capacity did not incorporate any restriction based on the “mild” 12 findings. (ECF 10, at 16-18.) 13 The paragraph B criteria are broad categories used at the severity and listing stages 14 to screen out cases. But those categorical determinations are not necessarily part of the 15 residual functional capacity determination. Titles II & XVI: Assessing Residual Functional 16 Capacity in Initial Claims, SSR 96-8P,

, at *4 (“The adjudicator must 17 remember that the limitations identified in the ‘paragraph B’ . . . criteria are not an RFC 18 assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 . . . .”). 19 The mental RFC determination “requires a more detailed assessment by itemizing various 20 functions contained in the broad categories found in paragraph[] B . . . .”.

The 21 “itemized” functions “include the abilities to: understand, carry out, and remember 22 instructions; use judgment in making work-related decisions; respond appropriately to 23 supervision, co-workers and work situations; and deal with changes in a routine work 24 setting.” Id. at *6; see also

(b) (listing the same as “basic work 25 activities” an ALJ may need to review in deciding an RFC). In the mental RFC 26 determination, the ALJ addressed each of those categories by limiting Mary to 27 “noncomplex tasks,” “simple work-related decisions,” no “fast[-]paced production quota,” 28 and no “public contact,” but allowing “goal[-]oriented tasks.” (AR 19.) Nothing in the 1 regulations suggests that the ALJ is required to provide one-to-one RFC limitations based 2 on the broad paragraph B categories used in the severity and listing steps. 3 Hutton v. Astrue, the unpublished case Mary relies on, does not suggest a different 4 result. See

(9th Cir. 2012). In Hutton, the Ninth Circuit reversed 5 an ALJ who initially found “mild” limitations in concentration, persistence, or pace due to 6 the claimant’s PTSD, determining the claimant’s “PTSD existed but was ‘nonsevere.’” 7 See

. But then, when deciding the RFC, the ALJ found the PTSD to be “in great 8 doubt” and assessed no limitations in the claimant’s RFC.

The Ninth Circuit held it was 9 error for the ALJ to entirely change tack midstream, rejecting his own earlier finding.

10 at 851. In contrast, the ALJ here never disregarded her own earlier findings, imposing 11 several RFC limitations reflecting her earlier paragraph B conclusions. At any rate, Hutton 12 does not require paragraph B criteria to be automatically converted one-to-one into RFC 13 restrictions. 14 Finally, even if the paragraph B criteria had to be translated to the RFC on a one-to- 15 one basis, the ALJ arguably did so here. The mild limitation in understanding, 16 remembering, or applying information is covered by the “noncomplex” limitation. See 17 Rebecca L. v. Berryhill, No. 6:18-cv-00500-MK,

, at *5 (D. Or. Feb. 14, 18 2019) (affirming a “moderate” limitation in understanding, remembering, or applying by 19 limitation to “simple routine, repetitive tasks”). The mild limitation in concentration, 20 persistence, or maintaining pace is captured by both the “noncomplex” and no “fast[-]paced 21 production quota” limitations. See Stubbs-Danielson v. Astrue,

, 1173-74 22 (9th Cir. 2008) (affirming a “moderate” limitation in concentration, persistence, or pace by 23 limiting claimant to “simple” work). And the mild limitation in adapting or managing 24 herself is addressed by limiting her to “simple work-related decisions,” no “fast[-]paced 25 production quota,” “noncomplex tasks,” and “no public contact.” See Stevens v. Comm’r 26 of Soc. Sec., No. 1:18-CV-1082-JLT,

, at *11 (E.D. Cal. Mar. 20, 2020) 27 (“The ALJ included limitations to ‘simple and routine tasks,’ ‘low-stress work,’ ‘a relaxed 28 production pace,’ and ‘occasional interaction with supervisors and brief and superficial 1 interaction with coworkers and the public.’ . . . Courts have determined that restrictions 2 such as those identified by the ALJ in the RFC—limiting a claimant to simple, routine tasks 3 with limitations on interactions with coworkers and the public—are consistent with 4 ‘marked’ limitations in adaption . . . .”). 5 So, however the cake is cut, the ALJ did not abuse her discretion in handling Mary’s 6 mental-health RFC. 7 B. Charles’s Statement 8 The ALJ concluded that Mary’s husband Charles’s “observations and statements” in 9 support of Mary’s disability application “have the same lack of support and consistency 10 problems as [Mary’s] allegations.” (AR 24; see also AR 232-39.) Mary argues that this 11 was an insufficient basis to reject his statement. 12 Under the new regulations, Charles’s statement is a “nonmedical source.” See 13

(“Evidence from nonmedical sources is any information or 14 statement(s) from a nonmedical source (including you) about any issue in your claim.”); 15

(“Nonmedical source[s] include[] . . . [f]amily members . . . .”). An 16 ALJ is “not required to articulate how [she] considered evidence from nonmedical sources 17 using the requirements [for medical sources].”

.1520c(d). The district 18 courts have split whether, considering these new regulations, an ALJ needs to articulate 19 any reason at all. Compare Cody T. v. Saul, No. 3:20-CV-00310-AC,

, 20 at *13 (D. Or. June 28, 2021) (“The amended regulations, however, do not eliminate the 21 need for the ALJ to articulate his assessment of the lay-witness statements.” (citation 22 omitted)), with Dubord v. Comm’r of Soc. Sec., No. 2:20-CV-634-KJM-KJN,

2661879, at *11 (E.D. Cal. June 29, 2021) (“[T]hese new regulations plainly allow for the 24 ALJ to resolve plaintiff’s case without articulating findings [on] plaintiff’s sister’s 25 statement.”). 26 The Court has been unable to locate any requirement in the current regulations that 27 ALJs articulate their reasoning for rejecting nonmedical-source testimony. This is 28 particularly glaring because the old regulations that were replaced in 2017 did have such 1 an explicit requirement. See 20 C.F.R. 404.1527(f)(2) (“The adjudicator generally should 2 explain the weight given to opinions from these [nonmedical] sources . . . .”). In specifically 3 omitting that requirement in the new regulations, the most natural conclusion is that the 4 Administration sought to relieve the ALJs of that obligation. Cf. Dupont Circle Citizen’s 5 Ass’n v. D.C. Zoning Comm’n,

(D.C. 1975) (Reilly, C.J., dissenting) 6 (“Under well established canons of construction, when a legislative body enacts an 7 amendment in the nature of a substitute to a particular statute but omits an exemption 8 contained in the original statute, such omission is presumed to be deliberate.”). Instead, the 9 regulations only generally require that the ALJ “consider all of the evidence presented,” 10 including “nonmedical sources,” when weighing symptom testimony. See 20 C.F.R. 11 § 404.1529(c)(3). 12 The Court concludes that ALJs are not required to articulate specific reasons for their 13 findings about the persuasiveness of nonmedical-source testimony, and instead must 14 merely show that they considered such evidence in deciding the claim. See Jerri F. v. 15 Kijakazi, No. 1:20-4037-RMG-SVH,

, at *13-14 (D.S.C. July 29, 2021) 16 (contrasting the approaches taken by various courts and concluding that an ALJ’s “failure 17 to address the lay witness statements” at all “renders his decision unsupported by 18 substantial evidence”). The ALJ here specifically mentioned Charles’s statement and 19 clearly considered it in her decision (see AR 24), and so she fulfilled her obligations. 20 But even if the ALJ was required to provide “germane” reasons—as ALJs had to 21 under the old regulations—the ALJ’s opinion would survive review. See Molina,

at 1111. Under the old regulations, after all, an ALJ could disregard a nonmedical source’s 23 statements when the “testimony was similar to [claimant’s] complaints” and the ALJ had 24 already rejected the claimant’s testimony. See Valentine v. Comm’r of Soc. Sec.,

685, 694 (9th Cir. 2009) (holding that when the wife’s “testimony was similar to 26 [claimant’s] complaints” and the ALJ properly rejected claimant’s testimony, “it follows 27 that the ALJ also gave germane reasons for rejecting [the wife’s] testimony”); see also 28 Molina,

(finding an ALJ’s failure to address a nonmedical source at all 1 harmless in those circumstances). That is exactly what happened here. The ALJ discredited 2 Charles’s statement because it had “the same lack of support and consistency problems as 3 [Mary’s] allegations.” (See AR 24.) Their statements were in fact very similar,3 and Mary 4 does not contest the ALJ’s rejection of her own testimony. (See generally ECF 10.) Thus, 5 the ALJ’s treatment of Charles’s statement was proper under any standard. 6 C. Jobs in the National Economy 7 Mary argues that the ALJ made two mistakes in determining that there were jobs 8 “that existed in significant numbers in the national economy that the claimant could have 9 performed.” (AR 25.) Specifically, Mary contends that (1) she didn’t meet the reasoning 10 or mathematics requirements of a Linen Room Attendant, and, regardless, (2) the identified 11 jobs are insufficiently numerous to meet the necessary threshold. 12 1. Linen Room Attendant 13 The ALJ “has the burden ‘to identify specific jobs existing in substantial numbers in 14 the national economy that [a] claimant can perform despite [her] identified limitations.’” 15 Zavalin v. Colvin,

(9th Cir. 2015) (citation omitted). To that end, the 16 17 18 3 In Mary’s testimony and Charles’s sworn statement, they both offered similar 19 outlooks on Mary’s: limited ability to do chores, anxiety in public, trouble with sleeping, need for grocery-shopping assistance, inability to help with more than simple meals, 20 driving capability, and TV-watching habits. (See AR 63 (Mary’s testimony: “vacuum and 21 dust and things like that”); AR 234 (Charles’s statement: “Some indoor chores – wash, dishes nothing outside.”); AR 65 (Mary: “I have a hard time with the public”); AR 238 22 (Charles: “Always fearful in public.”); AR 67 (Mary: “I don’t sleep.”); AR 233 (Charles: 23 “Some nights only 1 or 2 hours [sleep] total, very tired next day.”); AR 69 (Mary: “When my husband and I will go. I will go with him [to shop].”); AR 235 (Charles: “I usually go 24 with her to help [shop].”); AR 63 (Mary: “My husband makes dinner and we just have, you 25 know, frozen dinner or light cereal or something. And I’ll try to help with dinner . . . .”); AR 234 (Charles: prepares “mostly snack[s] – cer[e]als, sweets, yog[urt],” “she just doesn’t 26 cook like when she felt better”); AR 69 (Mary’s testimony: Q: “Do you drive?” A: “Yes.”); 27 AR 235 (Charles: checking the “Yes” answer to “Does the disabled person drive?”); AR 68 (Mary: “Sit on the couch, maybe watch TV”); AR 236 (Charles: “TV every day, newspaper 28 1 ALJ looks to the Department of Labor’s Dictionary of Occupational Titles, which sets forth 2 the physical and educational prerequisites for various jobs.

. 3 When a vocational expert testifies that a claimant “can perform an occupation 4 involving [Dictionary] requirements that appear more than the claimant can handle,” the 5 ALJ must “reconcile the inconsistency.” Zavalin,

. “For a difference 6 between an expert’s testimony and the Dictionary’s listings to be fairly characterized as a 7 conflict, it must be obvious or apparent.” Gutierrez v. Colvin,

, 808 8 (9th Cir. 2016). 9 According to the Dictionary, Linen Room Attendant requires Reasoning level 3 and 10 Math level 2. See Dictionary of Occupational Titles § 222.387-030,

. 11 Reasoning level 3 is the ability to “[a]pply commonsense understanding to carry out 12 instructions furnished in written, oral, or diagrammatic form” and “[d]eal with problems 13 involving several concrete variables in or from standardized situations.” See Dictionary of 14 Occupational Titles, Appendix C,

. Courts “have found an apparent 15 conflict” between a limitation to “simple or non-complex work and the demands of Level 3 16 reasoning.” Valenzuela v. Saul, No. 1:18-CV-00295-BAM,

, at *4 17 (E.D. Cal. Aug. 30, 2019). Yet the ALJ here limited Mary to “noncomplex tasks” and 18 “simple work-related decisions” (AR 19)—determinations that are incompatible with 19 Reasoning level 3. Since the ALJ failed to reconcile this apparent conflict, she erred by 20 including the Linen Room Attendant job in her analysis. 21 Likewise, the ALJ erred in failing to reconcile the Math level 2 requirement with 22 Mary’s capabilities. Math level 2 requires the ability to, among other things, “[a]dd, 23 subtract, multiply, and divide all units of measure.” See Dictionary of Occupational Titles, 24 Appendix C,

. Yet Mary could not list her “serial sevens or threes”—in 25 other words, stating in a series 3, 6, 9, 12, etc. or 7, 14, 21, 28, etc. (See AR 23.) The ALJ 26 adopted and based part of her determination on this fact. (Id.) Other than noting Mary’s 27 high-school education level (see AR 24), the ALJ did not further discuss Mary’s 28 mathematical capabilities or in any other way attempt to resolve the apparent conflict 1 between her mathematical limitations and a Math level 2 job requirement. The 2 Commissioner apparently concedes this point, as she fails to address it in her response. 3 (See ECF 13, at 11-12); Greger v. Barnhart,

(9th Cir. 2006) (holding 4 that a Social Security “issue is waived” if not raised in briefing before the district court). 5 2. Significant Numbers in the National Economy 6 But this error was harmless, as there are still 26,120 jobs nationally that Mary can 7 perform. See Molina,

(holding that a court may not reverse an ALJ unless 8 an error was “consequential to the ultimate nondisability determination”). That is, Mary 9 fails to challenge two other jobs that the ALJ identified for her: Cleaner and Stores Laborer 10 (with 7,190 and 18,930 jobs nationally, respectively). (See AR 25.) 11 Mary first argues that those are insufficient by claiming that the Court must look at 12 each individually. (See ECF 10, at 12.) But the regulations make it clear that the ALJ is 13 supposed to consider the total number, rather than each identified job separately. See 14

(b) (“Work exists in the national economy when there is a significant 15 number of jobs (in one or more occupations) having requirements which you are able to 16 meet with your physical or mental abilities and vocational qualifications.” (emphasis 17 added)). 18 Mary next argues that 26,120 national jobs are insufficient because that number is 19 very similar to the 25,000 national jobs the Ninth Circuit considered a “close call.” See 20 Gutierrez v. Comm’r of Soc. Sec.,

(9th Cir. 2014) (“Under our current 21 case law, the ALJ’s finding that 25,000 national jobs is sufficient presents a close call.”). 22 But the holding of that opinion made clear that 25,000 national jobs is ultimately 23 significant.

(“A finding of 25,000 jobs likely does not fall into the category of isolated 24 jobs existing in very limited numbers. Accordingly, the ALJ’s national job finding satisfies 25 [the Social Security statute], because it represents a significant number of jobs in several 26 regions of the country.” (quotation marks omitted)). 27 So, there are sufficient jobs available in the national economy, based solely on the 28 combined Cleaner and Stores Laborer job numbers. The erroneous inclusion of the Linen 1 |}Room Attendant job statistics was not “consequential to the ultimate nondisability 2 || determination.” See Molina,

. 3 CONCLUSION 4 Thus, plaintiff Mary’s summary-judgment motion is denied. The Clerk is directed 5 || to issue a judgment and close this case. 6 AFFIRMED. 7 Dated: March 25, 2022 g A-—_ 9 Hon. ndrew G. Schopler United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15