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3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 MAGDALENA SHAPIRO, Case No. 2:18-cv-01411-DJA 7 Plaintiff, 8 ORDER v. 9 NANCY A. BERRYHILL,1 Commissioner of 10 Social Security,

11 Defendant.

12 13 This matter involves the review of an administrative action by the Commissioner of Social 14 Security (“Commissioner”) denying Plaintiff Magdalena Shapiro’s (“Plaintiff”) application for 15 disability insurance benefits under Title II of the Social Security Act. The Court has reviewed 16 Plaintiff’s Motion for Reversal and/or Remand (ECF No. 15), filed on January 7, 2019, and the 17 Commissioner’s Response and Cross-Motion to Affirm (ECF Nos. 16-17), filed on February 6, 18 2019. Plaintiff filed a Reply (ECF No. 18) on February 26, 2019. 19 I. BACKGROUND 20 1. Procedural History 21 On September 22, 2014, Plaintiff protectively applied for disability insurance benefits, 22 alleging an onset date of September 9, 2014. AR2 229-32. Plaintiff’s claims were denied 23 initially, and on reconsideration. AR 170-173, 176-178. A hearing was held before an 24 Administrative Law Judge (“ALJ”) on April 11, 2017. AR 117-138. On August 2, 2017, the ALJ 25 issued a decision denying Plaintiff’s claim. AR 16-32. The ALJ’s decision became the 26

27 1 Andrew Saul is now the Commissioner of Social Security and substituted as a party. 1 Commissioner’s final decision when the Appeals Council denied review on June 19, 2018. AR 1- 2 7. On July 31, 2018, Plaintiff commenced this action for judicial review under

405(g). (See Motion/Application for Leave to Proceed in forma pauperis. (ECF No. 1).) 4 2. The ALJ Decision 5 The ALJ followed the five-step sequential evaluation process set forth in

404.1520. AR 16-32. At step one, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity from the alleged onset date of September 9, 2014 through the date of the decision. 8

. At step two, the ALJ found that Plaintiff had medically determinable “severe” 9 impairments of degenerative disc disease of the lumbar spine, depression, and obesity.

At 10 step three, the ALJ found that Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 12 Appendix 1.

He rated the paragraph B criteria as no limitation, moderate, moderate, and no 13 limitation.

. The ALJ found that Plaintiff did not meet the C criteria.

. 14 At step four, the ALJ found that Plaintiff has the residual functional capacity to perform 15 light work as defined in 20 CFR 404.1567(b) except that she can lift/carry up to 20 pounds 16 occasionally, 10 pounds frequently; can perform frequent postural maneuvers but can only 17 occasionally crawl and kneel; she can stand/walk for 4 to 5 hours in an 8 hour workday, and sit 18 for 6 hours in an 8 hour workday, with normal breaks; she is precluded from working around 19 hazards such as unprotected heights and dangerous moving machinery; she can perform simple, 20 non-detailed, non-complex work and can make decisions and attend appropriately with peers and 21 bosses, with occasional changes; she can occasionally interact with co-workers and supervisors, 22 but never with the public; she could not work in joint projects and could not work in any job that 23 would involve a high production quota or assembly line. AR 22-23. 24 The ALJ found that Plaintiff is not capable of performing any past relevant work.

at 25 26. At step five, the ALJ found Plaintiff to be a younger individual age 18-49 on the alleged 26 disability onset date, have a limited education, able to communicate in English, and transferability 27 of job skills not material, and there are jobs that exist in significant numbers in the national 1 202.18 along with the erosion of the unskilled light occupational base due to the additional RFC 2 limitations and relied on vocational expert testimony to find the following jobs were capable of 3 being performed: sealer/basket filler, bagger, and cleaner. AR 27. Accordingly, the ALJ 4 concluded that Plaintiff was not under a disability at any time from September 9, 2014 through 5 the date of the decision.

. 6 II. DISCUSSION 7 1. Standard of Review 8 Administrative decisions in social security disability benefits cases are reviewed under 42

(g). See Akopyan v. Barnhart,

(9th Cir. 2002). Section 405(g) 10 states: “Any individual, after any final decision of the Commissioner of Social Security made 11 after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 12 review of such decision by a civil action . . . brought in the district court of the United States for 13 the judicial district in which the plaintiff resides.” The court may enter “upon the pleadings and 14 transcripts of the record, a judgment affirming, modifying, or reversing the decision of the 15 Commissioner of Social Security, with or without remanding the cause for a rehearing.”

The 16 Ninth Circuit reviews a decision affirming, modifying, or reversing a decision of the 17 Commissioner de novo. See Batson v. Comm’r,

(9th Cir. 2004). 18 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 19 See

(g); Ukolov v. Barnhart,

(9th Cir. 2005). However, the 20 Commissioner’s findings may be set aside if they are based on legal error or not supported by 21 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin.,

(9th Cir. 22 2006); Thomas v. Barnhart,

(9th Cir. 2002). The Ninth Circuit defines 23 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 24 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 25 Andrews v. Shalala,

(9th Cir. 1995); see also Bayliss v. Barnhart,

, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 27 supported by substantial evidence, the court “must review the administrative record as a whole, 1 conclusion.” Reddick v. Chater,

(9th Cir. 1998); see also Smolen v. Chater, 80

(9th Cir. 1996). 3 Under the substantial evidence test, findings must be upheld if supported by inferences 4 reasonably drawn from the record. Batson,

. When the evidence will support 5 more than one rational interpretation, the court must defer to the Commissioner’s interpretation. 6 See Burch v. Barnhart,

(9th Cir. 2005); Flaten v. Sec’y of Health and Human 7 Serv.,

(9th Cir. 1995). Consequently, the issue before the court is not whether 8 the Commissioner could reasonably have reached a different conclusion, but whether the final 9 decision is supported by substantial evidence. It is incumbent on the ALJ to make specific 10 findings so that the court does not speculate as to the basis of the findings when determining if the 11 Commissioner’s decision is supported by substantial evidence. Mere cursory findings of fact 12 without explicit statements as to what portions of the evidence were accepted or rejected are not 13 sufficient. Lewin v. Schweiker,

(9th Cir. 1981). The ALJ’s findings “should 14 be as comprehensive and analytical as feasible, and where appropriate, should include a statement 15 of subordinate factual foundations on which the ultimate factual conclusions are based.”

16 2. Disability Evaluation Process 17 The individual seeking disability benefits has the initial burden of proving disability. 18 Roberts v. Shalala,

(9th Cir 1995). To meet this burden, the individual must 19 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 20 determinable physical or mental impairment which can be expected . . . to last for a continuous 21 period of not less than 12 months.”

(d)(1)(A). More specifically, the individual 22 must provide “specific medical evidence” in support of his/her claim for disability.

404.1514. If the individual establishes an inability to perform his/her prior work, then the burden 24 shifts to the Commissioner to show that the individual can perform other substantial gainful work 25 that exists in the national economy. Reddick,

. 26 The ALJ follows a five-step sequential evaluation process in determining whether an 27 individual is disabled. See

; Bowen v. Yuckert,

(1987). If 1 determination will be made and no further evaluation is required. See

404.1520(a)(4); Barnhart v. Thomas,

(2003). Step one requires the ALJ to 3 determine whether the individual is engaged in substantial gainful activity (“SGA”).

404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 5 doing significant physical or mental activities usually for pay or profit.

§ 404.1572(a)-(b). If 6 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 7 engaged in SGA, then the analysis proceeds to the step two. Step two addresses whether the 8 individual has a medically determinable impairment that is severe or a combination of 9 impairments that significantly limits her from performing basic work activities. Id. § 10 404.1520(c). An impairment or combination of impairments is not severe when medical and 11 other evidence establishes only a slight abnormality or a combination of slight abnormalities that 12 would have no more than a minimal effect on the individual’s ability to work. Id. § 404.1521; see 13 also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.3 If the individual does not have a 14 severe medically determinable impairment or combination of impairments, then a finding of not 15 disabled is made. If the individual has a severe medically determinable impairment or 16 combination of impairments, then the analysis proceeds to step three. 17 Step three requires the ALJ to determine whether the individual’s impairments or 18 combination of impairments meet or medically equal the criteria of an impairment listed in 20 19 C.F.R. Part 404, Subpart P, Appendix 1.

(d), 404.1525, and 404.1526. If 20 the individual’s impairment or combination of impairments meet or equal the criteria of a listing 21 and the duration requirement (

), then a finding of disabled is made. 20

(h). If the individual’s impairment or combination of impairments does not 23 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 24 to step four. 25

26 3 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. 27 Comm’r of Soc. Sec. Admin.,

(9th Cir. 2009); see also

(b)(1). They are entitled to some deference as long as they are consistent with the Social Security Act and 1 Before moving to step four, however, the ALJ must first determine the individual’s 2 residual functional capacity (“RFC”), which is a function-by-function assessment of the 3 individual’s ability to do physical and mental work-related activities on a sustained basis despite 4 limitations from impairments. See

(e); see also SSR 96-8p. In making this 5 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 6 which the symptoms can reasonably be accepted as consistent with the objective medical 7 evidence and other evidence.

; see also SSRs 96-4p and 16-3p. To the 8 extent that statements about the intensity, persistence, or functionally limiting effects of pain or 9 other symptoms are not substantiated by objective medical evidence, the ALJ must evaluate the 10 individual’s statements based on a consideration of the entire case record. The ALJ must also 11 consider opinion evidence in accordance with the requirements of

and 12 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 13 Step four requires the ALJ to determine whether the individual has the RFC to perform 14 his/her past relevant work (“PRW”).

(f). PRW means work performed 15 either as the individual actually performed it or as it is generally performed in the national 16 economy within the last 15 years or 15 years before the date that disability must be established. 17 In addition, the work must have lasted long enough for the individual to learn the job and 18 performed at SGA.

(b) and 404.1565. If the individual has the RFC to 19 perform his past work, then a finding of not disabled is made. If the individual is unable to 20 perform any PRW or does not have any PRW, then the analysis proceeds to step five. 21 The fifth and final step requires the ALJ to determine whether the individual is able to do 22 any other work considering his/her RFC, age, education, and work experience.

404.1520(g). If he/she is able to do other work, then a finding of not disabled is made. Although 24 the individual generally continues to have the burden of proving disability at this step, a limited 25 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 26 responsible for providing evidence that demonstrates that other work exists in significant numbers 27 in the national economy that the individual can do. Yuckert,

. 1 3. Analysis 2 a. Whether the ALJ’s Step Five Finding Is Supported 3 Plaintiff contends that the three jobs cited at step five by the vocational expert (“VE”) and 4 adopted by the ALJ in his decision are not present in significant numbers in the national 5 economy. (ECF No. 15, 11-17). She argues that the VE’s representation of the number of jobs 6 available conflicts with the projection numbers reported by Job Browser Pro (“JBP”) and Bureau 7 of Labor Statistics (“BLS”). (Id.) Plaintiff presented these numbers to the Appeals Council and 8 argues that no plausible explanation exists for the VE’s testimony deviating from published 9 governmental statistics. (Id.) 10 The Commissioner responds that the ALJ reasonably found the number of jobs the VE 11 identified were significant and the VE’s testimony was substantial evidence that the ALJ properly 12 relied on. (ECF No. 16, 5). Additionally, the Commissioner argues that Plaintiff is not a 13 vocational expert, relies on different sources for job numbers, fails to provide authentication for 14 the JBP and BLS numbers, and the ALJ had no further duty to develop the record by cross- 15 examining the VE as the VE’s testimony was reliable job information. (Id. at 6-10). Further, the 16 Commissioner claims that Plaintiff’s post-ALJ decision submission of job numbers to the 17 Appeals Council is not enough to disturb the ALJ decision. (Id. at 10). 18 Plaintiff replies that the Commissioner takes administrative notice of the existence of 19 unskilled work in the national economy from sources like the Occupational Outlook Handbook 20 (“OOH”), which Plaintiff relies on in support of her argument that the step five finding is not 21 supported. (ECF No. 18, 3). She claims that the information from JBP is available through 22 ONET and JBP’s projections for the jobs cited do not establish they are available in significant 23 numbers in the national economy. (Id. at 4-7). Plaintiff also argues that she needs no foundation 24 to establish that JBP is reliable and cites to First Circuit law. (Id. at 7-8). Plaintiff also raises a 25 circuit split that has yet to be decided by the Supreme Court in Biestek v. Berryhill regarding the 26 Seventh Circuit’s on-demand rule. (Id. at 8). Plaintiff contends that the VE gave testimony that 27 is not statistically supported. (Id. at 9). 1 The Court must follow the current state of the law in the Ninth Circuit. As a result, it 2 finds that ALJ’s step five finding is supported by substantial evidence. The Ninth Circuit has not 3 set out a “bright-line rule for what constitutes a ‘significant number’ of jobs.” Gutierrez v. 4 Colvin,

(9th Cir. 2014) (work can exist in significant numbers either in the 5 region where the plaintiff lives or in several regions of the country); see also Beltran v. Astrue, 6

(9th Cir. 2012). Notably, in Gutierrez, the Ninth Circuit found 25,000 jobs in 7 the national economy to be sufficient to constitute a significant number of jobs. Here, the VE 8 testified that a person having the RFC limitations assigned to Plaintiff could perform jobs existing 9 in significant numbers in the national economy; specifically, the VE testified that 60,000, 70,000, 10 and 55,000 jobs exist in the national economy for the seal/basket filler, bagger, and cleaner jobs, 11 respectively. AR 27 and 132-135. 12 Plaintiff’s counsel never challenged the job numbers the VE presented, never inquired 13 about the sources of the job numbers, or made any argument to the ALJ about the reliability of 14 those numbers. AR 137. Plaintiff’s counsel also never presented any other jobs data or cross- 15 examined the VE, even though the ALJ provided her with that opportunity. AR 137. After the 16 ALJ issued his adverse decision, Plaintiff submitted additional vocational evidence to the Appeals 17 Council. AR 5. At the Appeals Council and now, Plaintiff claims that JBP notes far fewer jobs 18 available for the seal/basket filler, bagger, and cleaner positions identified at step five. After 19 considering the additional evidence submitted by plaintiff, the Appeals Council denied review, 20 noting that the evidence did not provide a basis for changing the ALJ's decision. AR 1-7. 21 Under these circumstances, the ALJ’s findings are entitled to deference. See Lewis v. 22 Astrue,

(9th Cir. 2007) (“[I]f evidence is susceptible of more than one rational 23 interpretation, the decision of the ALJ must be upheld.”). First, the ALJ was entitled to rely on 24 the VE’s testimony regarding the number of jobs in the economy. See

. 966(e) 25 (authorizing the ALJs to rely on vocational expert’s testimony to determine occupational issues); 26 Bayliss, 427 F.3d at 1217–18 (upholding ALJ’s reliance on vocational expert’s testimony 27 regarding job numbers). 1 Second, the vocational expert’s testimony amounts to substantial evidence. Osenbrock v. 2 Apfel,

(9th Cir. 2001) (testimony of a vocational expert constitutes 3 substantial evidence). Contrary to Plaintiff’s contention, neither the ALJ nor the VE was required 4 to identify the methodology used to determine the jobs that Plaintiff can perform. The VE’s 5 expertise is a sufficient foundation by itself.

. Indeed, on February 20, 2020, the Ninth 6 Circuit just reiterated this point that an ALJ is not required to order a vocational expert to identify 7 or provide his source material for his testimony on the number of jobs that exist in the national 8 economy that a claimant could perform. Ford v. Saul, No. 18-35794 (9th Cir. Feb. 20, 2020). In 9 that decision the Ninth Circuit noted that the qualified vocational expert’s testimony as to the 10 number of jobs existing in the national economy is inherently reliable and ordinarily sufficient by 11 itself to support the ALJ’s step five finding.

It also found that the vocational expert’s failure 12 to produce the data underlying the testimony did not undermine its reliability.

13 Third, Plaintiff’s assessment of the raw vocational data derived from JBP does not 14 undermine the reliability of the VE’s opinion, which the ALJ adopted at step five. The data cited 15 by Plaintiff was not presented through an expert source to put the raw data into context. Also, 16 JBP is not included in the list of published sources recognized as authoritative by Social Security 17 regulations. See

(d). Further, Plaintiff cited no Ninth Circuit decisions that 18 hold that a VE must rely on JBP or that JBP controls when it conflicts with the VE’s testimony. 19 Rather, the Ninth Circuit has instructed that where evidence is susceptible to more than on 20 rational interpretation, the ALJ’s conclusion must be upheld. Thomas v. Barnhart,

, 21 954 (9th Cir. 2002). Moreover, the Ninth Circuit’s most recent review of this issue supports 22 upholding the ALJ’s step five finding as the VE’s testimony was inherently reliable. Ford, No. 23 18-35794. At best, Plaintiff has presented evidence sufficient to support an alternative finding 24 regarding the number of relevant jobs available in the economy.4 That is not enough to warrant 25 remand.

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27 4 The Court notes that Plaintiff has not presented any reason as to why she did not proffer her evidence, which presumably was available at the time of the hearing, to the ALJ, rather than waiting to 1 b. Whether the ALJ’s Treatment of Plaintiff’s Mental Impairment Is 2 Supported 3 Plaintiff argues that the ALJ did not address chart notes and Dr. Change’s report regarding 4 Plaintiff’s distractibility, crying spells, and withdrawal. (ECF No. 15, 18-19). She further 5 contends that there is no forensic evaluation by a psychiatrist or psychologist in the record.

6 As a result, Plaintiff argues that the ALJ’s B criteria assessment and mental RFC limitations are 7 not supported by substantial evidence.

8 The Commissioner responds that the ALJ properly considered the mental health treatment 9 in the record to craft Plaintiff’s mental RFC limitations. (ECF No. 16, 11). For example, the 10 Commissioner highlights Plaintiff’s GAF score that corresponds to moderate symptoms, 11 improvement in Plaintiffs psychiatric condition by September 10, 2015 with medication, and the 12 ALJ’s consideration of the reports by Dr. Chang that do not include any examination findings that 13 warrant more severe RFC restrictions. (Id. at 12-13). The Commissioner also argues that the 14 ALJ gave appropriate weight to the State agency reviewing psychologist, Tawnya Brode, 15 Psy.D.’s opinion that supports the assigned mental RFC limitations. (Id. at 14). Plaintiff replies 16 that she has severe, recurrent depression and the evidence from Dr. Change was not considered by 17 the ALJ. (ECF No. 18, 10). 18 The Court has reviewed the record in its entirety, weighed both the evidence that supports 19 and the evidence that detracts from the ALJ’s conclusion, and finds the ALJ’s decision on 20 Plaintiff’s mental impairment and corresponding RFC limitations is supported by substantial 21 evidence. The ALJ’s decision demonstrates that he thoroughly considered the treatment records 22 along with the opinion evidence to craft the assigned mental RFC limitations. “[T]he ALJ is 23 responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. 24 Comm’r Soc. Sec. Admin.,

(9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 25

(9th Cir. 2008)). The ALJ translated Plaintiff’s mental impairment, 26 including mental limitations, into a concrete and succinct RFC that accounts for the moderate 27 limitations assigned in the B criteria. The Court is not persuaded that the ALJ simply ignored the 1 charts of Dr. Chang and in fact, that argument by Plaintiff is belied by the ALJ’s summary of the 2 medical record. AR 23-26. 3 Although Plaintiff claims she should be given more restrictive mental RFC limitations 4 based on Dr. Chang’s charts, the Court cannot second-guess the ALJ’s decision under these 5 circumstances. Dr. Brode’s opinion does not reflect that more restrictive mental RFC limitations 6 were warranted and the ALJ noted minimal mental health treatment along with Plaintiff’s 7 testimony at the hearing demonstrated she was able to concentrate well enough to answer his 8 questions. AR 25-26. If the record will support more than one rational interpretation, the court 9 must uphold the Commissioner’s interpretation. See Trevizo v. Berryhill,

(9th 10 Cir. 2017). The ALJ’s findings in this case are amply supported by the record and inferences 11 reasonably drawn from the record. The ALJ did not err by finding someone with Plaintiff’s 12 depression to have moderate RFC limitations as adopted in the ALJ’s RFC finding. Therefore, 13 the Court concludes that the ALJ’s decision is supported by substantial evidence and free from 14 reversible legal error. 15 III. CONCLUSION AND ORDER 16 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (ECF No. 17 15) is denied. 18 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm (ECF No. 19 16) is granted. 20 The Clerk shall enter judgment accordingly and close the case. 21 DATED: February 20, 2020 22 23 DANIEL J. ALBREGTS 24 UNITED STATES MAGISTRATE JUDGE 25 26 27