Grether Amela Davila v. Andrew Saul

Filing 25

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. LET JUDGMENT BE ENTERED ACCORDINGLY. (See document for details) (vmun)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GRETHER A. D.,

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Plaintiff,
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v.
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ANDREW SAUL, Commissioner of
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Social Security,
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Defendant.
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____________________________________)

NO. CV 20-3356-E

MEMORANDUM OPINION

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PROCEEDINGS

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Plaintiff filed a complaint on April 9, 2020, seeking review of

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the Commissioner’s denial of benefits.

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proceed before a United States Magistrate Judge on October 28, 2020.

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Plaintiff filed a motion for summary judgment on February 3, 2021.

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Defendant filed a motion for summary judgment on April 19, 2021.

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Court has taken the motions under submission without oral argument.

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See L.R. 7-15; “Order,” filed April 13, 2020.

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The parties consented to

The

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BACKGROUND

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Plaintiff filed an application for supplemental security income

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on January 30, 2017 (Administrative Record (“A.R.”) 203-12).

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Plaintiff asserts disability since August 11, 2016, based on alleged

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“mental illness” (i.e., epilepsy and anxiety) (A.R. 51, 203, 238).

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Administrative Law Judge (“ALJ”) reviewed the record and heard

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testimony from Plaintiff, Plaintiff’s mother and a vocational expert

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(A.R. 21-34, 39-67).1

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The ALJ found that Plaintiff has severe epilepsy and anxiety

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(A.R. 23).

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residual functional capacity to perform a range of medium work as

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defined in 20 C.F.R. § 416.967(c):

However, the ALJ also found that Plaintiff retains the

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She can lift, carry, push and pull 50 lbs. occasionally and

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25 lbs. frequently.

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in an 8-hour workday and sit for 6 hours in an 8-hour

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workday.

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She can occasionally climb ramps or stairs.

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occasionally balance, stoop, kneel, crouch, and crawl.

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can frequently perform fine and gross manipulation.

She can stand and/or walk for 6 hours

She can never climb ladders, ropes, or scaffolds.
She can
She

She

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Plaintiff had filed a previous application for
benefits, which had been denied. See A.R. 75-86 (prior ALJ’s
decision), 91-96 (Appeals Council’s prior denial of review), 10008 (order and judgment in Grether A.D. v. Colvin, C.D. Cal. Case
No. CV 15-04504-DTB, affirming the administrative decision). As
detailed below, the present ALJ found new and material evidence
demonstrating “changed circumstances” to rebut any presumption of
continuing nondisability, and the ALJ proceeded through the
sequential evaluation process (A.R. 21-34).
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An

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should have no exposure to unprotected heights or dangerous

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machinery.

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simple, routine, and repetitive tasks, involving no fast

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paced or production type work.

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interaction with the general public and have only occasional

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interaction with supervisors and coworkers.

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perform work that requires teamwork or close collaboration

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with others.

She cannot operate vehicles.

She can perform

She should have no

She cannot

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(A.R. 26).

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capacity could work as a night cleaner (Dictionary of Occupational

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Titles (“DOT”) “358.687-010,” medium work), cleaner (DOT

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“323.687-014,” light work), and advertising material distributor (DOT

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“230.687-010,” light work) (A.R. 33-34 (adopting vocational expert

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testimony at A.R. 60-62)).

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34).

The ALJ found that a person with this residual functional

Accordingly, the ALJ denied benefits (A.R.

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The Appeals Council considered additional evidence, but denied
review (A.R. 1-5; see also A.R. 314-74).

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the

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Administration used correct legal standards.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,
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See Carmickle v.

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682 F.3d 1157, 1161 (9th Cir. 2012).

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relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”

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(1971) (citation and quotations omitted); see also Widmark v.

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Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

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If the evidence can support either outcome, the court may

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not substitute its judgment for that of the ALJ.

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Commissioner’s decision cannot be affirmed simply by

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isolating a specific quantum of supporting evidence.

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Rather, a court must consider the record as a whole,

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weighing both evidence that supports and evidence that

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detracts from the [administrative] conclusion.

But the

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

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quotations omitted).

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Where, as here, the Appeals Council “considers new evidence in

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deciding whether to review a decision of the ALJ, that evidence

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becomes part of the administrative record, which the district court

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must consider when reviewing the Commissioner’s final decision for

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substantial evidence.”

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“[A]s a practical matter, the final decision of the Commissioner

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includes the Appeals Council’s denial of review, and the additional

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evidence considered by that body is evidence upon which the findings

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and decision complained of are based.”

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Brewes v. Commissioner, 682 F.3d at 1163.

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Id. (citations and quotations

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omitted).2

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the first time to the Appeals Council.

Thus, this Court has reviewed the evidence submitted for

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DISCUSSION

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After consideration of the record as a whole, Defendant’s motion

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is granted and Plaintiff’s motion is denied.

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findings are supported by substantial evidence and are free from

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material3 legal error.

The Administration’s

Plaintiff’s contrary arguments are unavailing.

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I.

Relevant Portions of the Record

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A.

The Treatment Evidence

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The record does not contain many treatment records relating to

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Plaintiff’s epilepsy.

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July of 2016, reporting that she had a seizure despite having taken

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Plaintiff presented to Bell Medical Clinic in

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And yet, the Ninth Circuit sometimes had stated that
there exists “no jurisdiction to review the Appeals Council’s
decision denying [the claimant’s] request for review.” See,
e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir.
2011); but see Smith v. Berryhill, 139 S. Ct. 1765 (2019) (court
has jurisdiction to review Appeals Council’s dismissal of request
for review as untimely); see also Warner v. Astrue, 859 F. Supp.
2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming
irony of reviewing an ALJ’s decision in the light of evidence the
ALJ never saw).
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The harmless error rule applies to the review of
administrative decisions regarding disability. See Garcia v.
Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
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her medications daily (A.R. 377; see also A.R. 388 (report of same)).

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Her medications were continued (A.R. 378).

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In October of 2016, Plaintiff presented to neurologist Dr.

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Munther Hijazin, reporting a history of seizures since age seven,

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developmental delay, a learning disability, forgetfulness, depression,

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anxiety and headaches, for which Dr. Hijazin continued Plaintiff’s

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medications (A.R. 381, 384-85).

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reportedly was doing well and had not had a seizure since June or July

In December of 2016, Plaintiff

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of 2016 (A.R. 381, 383, 565; see also A.R. 388-92, 560-70 (neurology

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treatment notes in 2016 and 2017 reporting no new seizures)).

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and October of 2018, Plaintiff reported no new seizures since January

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of 2018 (A.R. 571, 574).

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notes regarding any January, 2018 seizure.

In May

The record does not contain any treatment

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Plaintiff returned to the Bell Medical Clinic in May of 2018,

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complaining of almost daily migraines (A.R. 514-15).

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began a trial of Imitrex (A.R. 514-15).

Plaintiff then

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Mental health treatment notes generally suggest that Plaintiff’s

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symptoms of depression and anxiety were adequately controlled with

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medications.

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control); A.R. 413 (April, 2016 note reporting Plaintiff was “doing

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well”); A.R. 416 (June, 2016 note reporting Plaintiff was “doing good

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in school”); A.R. 419 (August, 2016 note reporting Plaintiff was

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“doing well on her meds”); A.R. 422 (September, 2016 note reporting

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Plaintiff was “responding well to meds”); A.R. 485 (September, 2017

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note reporting Plaintiff had been taking her medication and

See, e.g., A.R. 407 (February, 2016 note reporting

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“everything is fine”); A.R. 476 (January, 2018 note reporting

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Plaintiff was “taking her meds as rx’d and noticing feeling better, no

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mania, no psychosis, > mood/energy, feeling happy. . . .”); A.R. 494

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(April, 2018 note reporting that Plaintiff felt things were “good” and

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she was happy); A.R. 495 (July, 2018 note reporting that Plaintiff was

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“ok” and doing well).

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Starting in January of 2016, Plaintiff attended mental health
treatment by telephone (A.R. 431-47).

In March of 2016, Plaintiff

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reported concern in connection with school and her “SSI appeal” –

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Plaintiff “[did] not want to affect her eligibility” (A.R. 433).

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Plaintiff reportedly was encouraged to enroll back in her continuation

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program to get her GED (A.R. 433). In June and August of 2016,

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Plaintiff expressed concern over financial stressors and sought help

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applying for a reduced fare bus pass so she could attend school (A.R.

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435-37).

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August of 2016, due to Plaintiff’s isolation and supposed difficulty

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“motivating self” (A.R. 438).

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provider reported that Plaintiff had symptoms of depressed mood which

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“display impairments in employment, education and social support”

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(A.R. 441).

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things were “good” and she was not having any problems or symptoms at

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that time (A.R. 442).

Plaintiff’s treatment provider went to her home later in

In October of 2016, Plaintiff’s

However, in November of 2016, Plaintiff reported that

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A “Community Functioning Evaluation” from October of 2016

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asserted that Plaintiff needed assistance with her social skills and

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her independent/daily living skills in that she: (a) had difficulty

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developing friendships and interacting with others because of her
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anxiety; (b) needed help from her mother with daily activities; and

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(c) needed reminders due to poor concentration and anxiety (A.R. 406).

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However, a January, 2017 mental status examination reported results

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within normal limits (A.R. 400-02).

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examination also reported results within normal limits (A.R. 462-64).

A January, 2018 mental status

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In February of 2018, another “Community Functioning Evaluation”

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asserted that Plaintiff needed assistance with concentration and time

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management skills because Plaintiff supposedly was having “difficulty

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concentrating and completing tasks” (A.R. 467).

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Plaintiff denied any depressive episodes (A.R. 468).

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Plaintiff reported that she needed only two classes to complete her

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GED and then she might transfer to college (A.R. 496).

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asked how doing so might affect her SSI appeal (A.R. 496).

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stated that she wanted to continue with school and, if possible, “get

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a career,” but she was afraid her mother “might get mad” (A.R. 496).

At that time,
In July of 2018,

Plaintiff
Plaintiff

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In August of 2018, Plaintiff indicated that she had no major

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depressive episodes, that she had been denied SSI for her epilepsy and

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that she was “now using mental health as a reason for SSI application

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submittal” (A.R. 470; but see A.R. 497 (August, 2018 treatment note

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indicating that Plaintiff said she had been “fine” and things were

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good).

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family feel she is unable to work.

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her, she states that mother has her doing a lot of chores & she is

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unable to go out or have a BF [boyfriend]” (A.R. 470).

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Her treatment provider noted, “I’m uncertain as to why she &
Family tends to be protective of

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In September of 2018, Plaintiff reported that she was in the

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process of ending her classes and that she wanted to start a program

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to train for a job (A.R. 498).

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for SSI to be affected by her decision” (id.).

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Plaintiff reportedly was interested in applying for a vocational

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program through the Department of Rehabilitation, but Plaintiff had

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been informed by a representative of the Department that applying for

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a vocational program might affect Plaintiff’s SSI appeal (A.R. 500).

However, she “did not want her case
In October of 2018,

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B.

The Opinion Evidence

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Consultative examiner Dr. Rosa Colonna examined Plaintiff and

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prepared a Complete Psychological Evaluation, dated April 12, 2017

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(A.R. 450-54).

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she was seven years old, and depression, anxiety and insomnia since

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2008 (A.R. 451).

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language classes” and reported she was able to do her personal care

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and household chores, use the computer and watch television (A.R.

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451).

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“suboptimal,” her intellectual functioning was estimated to be in the

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low average range, she had a euthymic mood, mildly diminished memory,

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attention and concentration, poor fund of knowledge, and an IQ score

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of 80 (which Dr. Colonna believed to be an underestimation

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“particularly on the memory testing due to inconsistencies with

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reported activities of daily living”) (A.R. 452-53).

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diagnosed dysthymia, high borderline to low average intellectual

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functioning per testing and probable low average intellectual

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functioning per activities of daily living (A.R. 453).

Plaintiff reported having had a seizure disorder since

Plaintiff was attending “English as a second

On mental status examination, Plaintiff’s effort was

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Dr. Colonna

Dr. Colonna

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assigned a Global Assessment of Functioning (“GAF”) score of 60

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(id.).4

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understand, remember and carry out short, simplistic instructions

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without difficulty, would have mild inability to understand, remember

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and carry out detailed instructions, could make simplistic work-

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related decisions without special supervision, could interact

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appropriately with supervisors, coworkers and peers, and could manage

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finances on her own (A.R. 453-54).

Dr. Colonna opined that Plaintiff would be able to

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Consultative psychologist Dr. Steven I. Brawer examined Plaintiff

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and prepared a Psychological Evaluation, dated January 28, 2019 (A.R.

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577-84).

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receptive and expressive verbal abilities and mild attentional

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deficits which required that questions and instructions be repeated on

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occasion (A.R. 577).

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adequate effort” (A.R. 577).

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seizures approximately once a year (A.R. 578).

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job application three to four years earlier (A.R. 578).

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reported that she was depressed because she stays at home and does not

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study or work (A.R. 578).

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“depression and future suicidal thoughts” (A.R. 578).

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that her problems affect her ability to work “because I’m worried that

Plaintiff appeared slightly withdrawn, with mildly limited

Plaintiff appeared “to be putting forth an
Plaintiff reported suffering grand mal
She last submitted a
Plaintiff

Plaintiff reportedly was worried by her
Plaintiff said

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The GAF scale is used by clinicians to report an
individual’s overall level of functioning. See American
Psychological Association, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000) (“DSM”). A GAF of 51-60
indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g.,
temporarily falling behind in schoolwork).” Id.
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I’ll faint and have seizures” (A.R. 578).

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able to manage her personal care, do household chores (but not

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cooking), go shopping, run errands, exercise at the gym, talk on the

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telephone, watch television, listen to music and take bus

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transportation with others (A.R. 579).

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Plaintiff had somewhat concrete thinking, slightly withdrawn mood,

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constricted affect with current symptoms of depression and anxiety

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reported, and somewhat mildly diminished attention span, but an

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ability to sustain concentration and to work without distraction

Plaintiff reportedly was

On mental status examination,

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“during performance tasks” (A.R. 580).

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the borderline range of nonverbal intelligence, in the low average

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range for visual memory, in the borderline range for auditory memory,

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visual working memory, intermediate memory and delayed memory, in the

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borderline range for short-term visual memory, and in the borderline

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range for word reading, sentence comprehension, spelling and math

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computation (A.R. 581-83).

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disorder (recurrent, moderate per report), and nonverbal intellectual

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functioning in the borderline to average range (A.R. 583).

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opined that Plaintiff can learn simple, repetitive tasks and likely

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can perform some detailed, varied or complex nonverbal tasks (A.R.

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584).

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periods may be mildly diminished due to emotional factors (A.R. 584).

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Plaintiff may have moderate limitations in her ability to manage

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customary work stress and to “persist for a regular workday” (A.R.

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584).

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moderate limitations “in organizing for high level tasks” (A.R. 584).

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Plaintiff would be able to work independently on basic tasks, and may

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Testing placed Plaintiff in

Dr. Brawer diagnosed major depressive

Dr. Brawer

Her ability to sustain attention and concentration for extended

Plaintiff would be capable of following a routine but may have

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have mild limitations sustaining cooperative relationships with

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coworkers and supervisors (A.R. 584).

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Consultative examiner Dr. Sarah L. Maze Prepared a Neurological

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Evaluation dated June 15, 2017 (A.R. 457-60).

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reported seizure was in June of 2016 (A.R. 457).

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of monthly headaches for the past year (A.R. 457).

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Plaintiff was cooperative with reduced insight and “somewhat

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simplistic speech” (A.R. 458).

Plaintiff’s last
Plaintiff complained
On examination,

She spoke very little English,

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recalled two out of three items after five minutes, followed simple

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instructions, and had impaired intelligence which appeared to be in

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the dull normal to borderline range (A.R. 458-59).

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seizure disorder and opined that Plaintiff was capable of medium work

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(i.e., lifting 50 pounds occasionally, 25 pounds frequently, standing

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and walking six hours in an eight hour day and sitting six hours in an

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eight hour day), with frequent fine motor activities with her hands

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and legs (A.R. 459-60).

Dr. Maze diagnosed

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State agency physicians reviewed the record in May and July of

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2017 and opined that Plaintiff’s mental impairment(s) were non-severe

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(A.R. 109-21).

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exertional limitations, but she would have some postural and

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environmental limitations (i.e., no climbing ladders, ropes or

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scaffolds, no exposure to hazards and no operation of vehicles) (id.).

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According to these physicians, Plaintiff would have no

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C.

The Hearing Testimony

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At the March, 2019 hearing, Plaintiff testified that she could

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not work because of her epilepsy and “nerves” (anxiety) (A.R. 51).

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Plaintiff said her most recent seizure occurred in January of 2018

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(A.R. 51).

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seizure in two years (A.R. 52).

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medications (A.R. 52).

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every two months for her anxiety (A.R. 52).

Prior to that seizure, Plaintiff had not suffered a
Plaintiff was taking anti-seizure

Plaintiff also was seeing a psychologist once
Her doctor reportedly

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prescribed anxiety medication (A.R. 52).

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medication sometimes worked and sometimes did not work (A.R. 52).

According to Plaintiff, the

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Plaintiff had unsuccessfully applied for jobs at fast food

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restaurants and at a motel (A.R. 47).

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like to work, but she said employers would not hire her (A.R. 50-51).5

Plaintiff claimed she would

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Plaintiff testified that she lived with her mother and spent her

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days watching television, listening to music, sometimes helping with

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cleaning and doing “the wash,” and going to the corner store near her

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house under her mother’s supervision (A.R. 48-50).

When Plaintiff was

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Plaintiff reportedly has a developmental delay and
borderline intellectual functioning (A.R. 43). At the time of
the hearing, she was 27 years old and scheduled to finish her
high school education within a few months (A.R. 43). Plaintiff
attended adult school – where her classes were in English – and
she passed her classes with some difficulty (A.R. 49).
Plaintiff’s counsel argued that Plaintiff’s intellectual
functioning would limit her to performing one- and two-step
instructions with extra supervision (A.R. 43-45). The vocational
expert opined that, if Plaintiff were so limited, there would be
no jobs she could perform, given her other limitations (A.R. 61,
64).
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going to school, Plaintiff’s brother would take Plaintiff to the bus

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stop, but Plaintiff would take the bus alone, to and from school,

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Monday through Friday (A.R. 59-60).

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Plaintiff’s mother testified that Plaintiff helps out in the

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kitchen at home, but only under the mother’s supervision and

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instruction because Plaintiff has a limited intellect and a history of

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three suicide attempts (A.R. 53-55).

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open because her mother was afraid Plaintiff might have a seizure

Plaintiff bathes with the door

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(A.R. 56).

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market a block away from where they live because Plaintiff’s mental

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capacity is like that of a little girl (A.R. 56-57).

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mother also said Plaintiff cannot be left alone (A.R. 58).

Plaintiff’s mother said she watches Plaintiff go to the

Plaintiff’s

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The ALJ asked the vocational expert to consider a person who
“could perform medium work” and who:

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. . . should never climb ladders, ropes or scaffolds.

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could occasionally climb ramps and stairs.

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frequently balance, stoop, kneel, crouch, and crawl.

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could frequently engage in fine gross manipulation.

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should be no unprotected heights or dangerous machinery.

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operation of a vehicle.

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routine, repetitive tasks.

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fast pace or a production pace.

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general public, and only occasional interaction with

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supervisors and coworkers.

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teamwork or close collaboration with others.

They

They could
They
There

They would be limited to simple,
There should be no work at a
No interaction with the

And no jobs that require

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No

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(A.R. 60-61).

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job and two light jobs such a person could perform (i.e., night

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cleaner (DOT 358.687-101 [sic]6 medium work with a Specific Vocational

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Preparation (“SVP”) level two); cleaner (DOT 323.687-014, light); and

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advertising material distributor (DOT 230.687-010, light)) (A.R. 61-

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62).

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vocational expert omitting the frequent manipulation limit and adding

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a limit to one- and two-step tasks, and the vocational expert asked

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for clarification regarding what the hypothetical question included

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The vocational expert purportedly identified one medium

After some discussion, the ALJ posed another hypothetical to the

(A.R. 63-64).

The ALJ replied:

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It’s 50, 25, 6 or [sic] 8, 6 of 8, never climb ladders,

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ropes or scaffolds, occasionally climb ramps and stairs,

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frequently balance, stoop, kneel, crouch, and crawl. No

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unprotected heights or dangerous machinery.

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a vehicle.

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be one and two-step tasks.

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interaction with the general public.

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interaction with supervisors and coworkers.

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that require teamwork or close collaboration with others.

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Simple routine, repetitive tasks.

These would

No fast-paced work.

No

Only occasional
And no jobs

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No operation of

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This DOT reference appears to have been an error.
There is no entry under this number in the current DOT. There is
an entry for DOT 358.687-010, Change-House Attendant, which
involves medium janitor-type work for locker or shower rooms.
See DOT 358.687-010, 1991 WL 672957. It is unclear whether the
vocational expert intended to reference Change-House Attendant
work in her testimony. A housecleaner, also known as a “night
cleaner,” is DOT 323.687-018 and is classified as heavy work.
See DOT 323.687-018, 1991 WL 672784.
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(A.R. 64).

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person with that capacity could perform (A.R. 64).

The vocational expert did not identify any jobs that a

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The vocational expert testified that her testimony was consistent

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with the DOT and the Selected Characteristics Handbook (A.R. 64-65).

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At the hearing, Plaintiff’s counsel did not challenge the vocational

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expert’s testimony (A.R. 65-66).

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II.

Substantial Evidence Supports the Conclusion that Plaintiff Can
Work.

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Substantial evidence supports the ALJ’s conclusion Plaintiff is

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not disabled.

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endorsed a capacity less than, or equal to, the residual functional

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capacity for medium work assessed by the ALJ.

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459-60, 584 (consultative examiners’ opinions finding Plaintiff was

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capable of medium work performing simple tasks and interacting with

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others) with A.R. 26-33 (ALJ’s assessment).

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substantial evidence to support the ALJ’s determination of non-

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disability.

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(opinion of examining physician based on independent clinical findings

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can provide substantial evidence to support administrative conclusion

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of non-disability).

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Plaintiff retains a residual functional capacity for work at all

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exertion levels with no mental limitations provide further substantial

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evidence supporting the ALJ’s decision.

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F.3d 1144, 1149 (9th Cir. 2001) (opinion of non-examining physician

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“may constitute substantial evidence when it is consistent with other

As summarized above, the consultative examiners

Compare A.R. 453-54,

These opinions constitute

See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007)

The state agency physicians’ opinions that

16

See Tonapetyan v. Halter, 242

1

independent evidence in the record”); Andrews v. Shalala, 53 F.3d

2

1035, 1041 (9th Cir. 1995) (where the opinions of non-examining

3

physicians do not contradict “all other evidence in the record” an ALJ

4

properly may rely on these opinions).

5

source opined that Plaintiff had materially greater limitations than

6

those the ALJ found to exist.

7

physician’s opinion concerning Plaintiff’s functional limitations.

Significantly, no medical

The record contains no treating

8
9

As summarized above, the vocational expert testified that a

10

person who “could perform medium work” with the limitations the ALJ

11

found to exist could work as a night cleaner, cleaner and advertising

12

material distributor (A.R. 61-64).

13

(see footnote 6 supra), the vocational expert still identified two

14

jobs that such a person could perform (id.).

15

on the vocational expert’s testimony in denying disability benefits.

16

See Barker v. Secretary of Health and Human Services, 882 F.2d 1474,

17

1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 774-75

18

(9th Cir. 1986).

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///

Excluding the night cleaner job

17

The ALJ properly relied

1

III. Plaintiff’s Arguments are Unavailing.7

2
3

Plaintiff argues that the ALJ’s hypothetical questioning of the

4

vocational expert was incomplete because the ALJ assertedly did not

5

include a limitation to standing and/or walking six hours in an eight

6

hour workday.

7

that the ALJ erred in finding Plaintiff capable of performing a wider

8

range of work than Plaintiff was found capable of performing during

9

Plaintiff’s prior application for disability benefits.

10

See Plaintiff’s Motion, pp. 5-7.

Plaintiff also argues

See

Plaintiff’s Motion, pp. 8-10.

11
12

A.

13

The ALJ Did Not Materially Err in the Hypothetical
Questioning of the Vocational Expert.

14
15

Social Security Ruling (“SSR”) 83-10 defines “medium work” as

16

requiring “standing or walking, off and on, for a total of

17

approximately 6 hours in an 8-hour workday,” and the same SSR provides

18

that “sitting may occur intermittently during the remaining time.” SSR

19

83-10, 1983 WL 31251, at *6.

20

hypothetical question expressly included a limitation to “medium

21

work,” and the ALJ later stated “6 or 8” and “6 of 8,” presumably

22

referencing the sitting and standing/walking limitations of medium

As detailed above, the ALJ’s

23
24
25
26
27
28

7

The Court has considered and rejected all of
Plaintiff’s arguments. The Court discusses Plaintiff’s principal
arguments herein. Neither Plaintiff’s arguments nor the
circumstances of this case show any “substantial likelihood of
prejudice” resulting from any error allegedly committed by the
ALJ. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th
Cir. 2011) (discussing the standards applicable to evaluating
prejudice).
18

1

work (A.R. 60-64).

2

of the vocational expert was not materially incomplete.

3

v. Saul, 2019 WL 8112507, at *2 (C.D. Cal. Dec. 13, 2019) (“Given that

4

SSR 83-10 has been in play for over thirty years, there is no reason

5

to think the [vocational expert] understood light work to encompass

6

anything other than approximately six hours of standing or walking.”);

7

James T. v. Saul, 2019 WL 3017755, at *2 (C.D. Cal. July 10, 2019)

8

(“SSR 83-10 was published in 1983.

9

[vocational experts] with experience conducting social security

On this record, the ALJ’s hypothetical questioning
See Mitzi D.

Since that time, ALJs and

10

disability benefits hearings have understood medium work as requiring

11

the ability to stand or walk for up to 6 hours.

12

reference to medium work supplied a 6-hour limitation on walking and

13

standing, and the ALJ did not pose an incomplete hypothetical to the

14

[vocational expert].”); see also Lawson v. Saul, 2020 WL 6055148, at

15

*4 (S.D. Cal. Oct. 13, 2020) (“numerous courts have interpreted SSR

16

83-10 to entail the ability to stand and walk for only six hours”;

17

collecting cases and rejecting claim that failure to mention standing

18

and walking limitations rendered hypothetical question referencing

19

“medium work” incomplete), appeal filed, No. 20-56205 (9th Cir.

20

Nov. 17, 2020); Christopher P. v. Saul, 2020 WL 551596, at *3 (C.D.

21

Cal. Jan. 31, 2020) (“By definition, a full range of medium work

22

involves . . . standing or walking up to approximately six hours in an

23

eight-hour workday”; “the ALJ's reference to medium work in his

24

hypothetical sufficiently capture[d] the standing and walking

25

limitations”); Bailey v. Astrue, 2010 WL 1233459, at *6 (C.D. Cal.

26

Mar. 22, 2010) (because “both light and medium work by definition

27

require standing or walking approximately six hours of an eight hour

28

day,” the ALJ’s hypothetical, which referenced light work but not the
19

Thus, the ALJ’s

1

standing and walking limitations, was proper); but see Linda H. v.

2

Saul, 2020 WL 1244359, at *5 (C.D. Cal. Mar. 16, 2020) (deeming

3

hypothetical question regarding medium work incomplete where the ALJ

4

did not inquire of the vocational expert whether a person limited to

5

standing and/or walking six hours per day could do a job that the

6

vocational expert said would permit no sitting “at all”).

7
8
9

Plaintiff argues that the Court may not conclude on this record
that the jobs identified are performable by a person limited to

10

standing/walking for 6 hours out of an 8 hour day.

11

Motion, pp. 6-7.

12

(1) the DOT descriptions for the jobs identified; (2) Occupational

13

Information Network (“ONET”) data for the occupations of janitor and

14

cleaner, maid and housekeeping cleaner, and production worker;

15

(3) “Occu Collect” data provided by Plaintiff to the Appeals Council

16

at A.R. 314-74;8 and (4) “commonsense understanding.”

17

argument is unpersuasive.

See Plaintiff’s

In so arguing, Plaintiff purports to rely on:

Plaintiff’s

18
19
20

First, the DOT does not address standing/walking requirements;
the DOT addresses a “strength” requirement in terms of “pounds of

21
22
23
24
25
26
27
28

8

A colleague of the undersigned recently observed that:

Occu Collect is a for-profit company and historical
archive, for which Plaintiff’s attorney [Lawrence D.
Rohlfing] is the president and has a 51% financial
interest.
See Tommy D. J. v. Saul, 2021 WL 780479, at *3 n. 3 (C.D. Cal.
Mar. 1, 2021) (citations and quotations omitted) (Occu Collect is
a “non-DOT” source of alternative job information; ALJ need not
reconcile conflicts between a vocational expert’s testimony and a
non-DOT source).
20

1

force” exerted.

2

Hospital); DOT 230.687-010, 1991 WL 672162 (Advertising-Material

3

Distributor).

See, e.g., DOT 323.687-010, 1991 WL 672782 (Cleaner,

4
5

Second, the non-DOT sources Plaintiff cites are not conclusive

6

regarding the standing requirements for the jobs the vocational expert

7

identified.

8

the ALJ had been presented with these sources, the ALJ would have had

9

no duty to consider whether the vocational expert’s testimony was

The ALJ was not presented with these sources and, even if

10

consistent with these sources.

11

1102, 1108-10 (9th Cir. 2017) (“Shaibi”) (when a claimant who is

12

represented by counsel fails to challenge a vocational expert’s job

13

numbers during administrative proceedings, the claimant forfeits such

14

a challenge on appeal;9 an ALJ need not resolve conflicts between

15

vocational expert testimony and a source other than the DOT, and an

16

ALJ need not inquire sua sponte into the foundation for the expert’s

17

opinion), as amended (Feb. 28, 2018); see also Talley v. Saul, 2020 WL

18

8361923, at *1 (C.D. Cal. Dec. 17, 2020) (collecting cases rejecting

19

claims that vocational expert testimony conflicted with ONET and Occu

20

Collect information; ALJ did not have to consider whether the

21

vocational expert’s testimony was consistent with these sources),

22

appeal filed, No. 21-55071 (9th Cir. Jan. 28, 2021).

23

properly determined from the testimony of the vocational expert that

See Shaibi v. Berryhill, 883 F.3d

Here, the ALJ

24
25
26
27
28

9

Because the administrative decision in the present case
is adequately supported for the other reasons discussed herein,
this Court need not and does not determine whether Shaibi’s
forfeiture-related holding survives the United States Supreme
Court’s recent decision in Carr v. Saul, 2021 WL 1566608 (U.S.
April 22, 2021).
21

1

the expert’s opinions did not conflict with the DOT.

2

obvious conflict between Plaintiff’s limitation to standing and

3

walking six hours in an eight-hour day and the jobs the vocational

4

expert identified.

There was no

5
6

B.

The ALJ Did Not Materially Err in Finding Plaintiff Capable

7

of a Greater Residual Functional Capacity than the Capacity

8

Found During the Prior Administrative Proceedings.

9
10

Plaintiff argues that the ALJ erred in finding Plaintiff capable

11

of medium work with occasional interaction with supervisors and

12

coworkers and no work involving teamwork or cooperation, because,

13

during prior administrative proceedings, Plaintiff had been found

14

capable of light work with only superficial and incidental contact

15

with others.

16

Social Security Acquiescence Ruling 97-4(9)).

See Plaintiff’s Motion, pp. 8-10 (citing Chavez and

17
18

The prior ALJ found that Plaintiff had severe epilepsy and

19

depression, not otherwise specified, and retained a residual

20

functional capacity for a range of light work which would not require

21

any interaction with others apart from superficial and incidental

22

contact (A.R. 77, 79).

23

disabled (id.).

24

final.

25

Court’s order affirming the administrative decision on review).

The prior ALJ also found Plaintiff not

The prior ALJ’s decision was upheld on appeal and is

See A.R. 91-108 (Appeals Council’s denial of review and this

26
27

Acquiescence Ruling 97-4(9), 1997 WL 742758 (adopting Chavez),

28

applies to cases such as this one involving a subsequent disability
22

1

claim with an unadjudicated period arising under the same title of the

2

Social Security Act as a prior claim in which there has been a final

3

administrative decision that the claimant is not disabled.

4

final determination of nondisability creates a presumption of

5

continuing nondisablity in the unadjudicated period. Id.; Lester v.

6

Chater, 81 F.3d 821, 827 (9th Cir. 1995).

7

of nondisability, a claimant bears the burden of proving changed

8

circumstances.

9

circumstances include the alleged existence of impairment(s) not

A previous

To overcome the presumption

See Chavez, 844 F.2d at 693.

Such changed

10

previously considered.

11

742758 at *3; Lester, 81 F.3d at 827 (same; “claimant need not . . .

12

demonstrate that his medical or psychiatric condition has worsened to

13

show changed circumstances”).

See Acquiescence Ruling 97-4(9), 1997 WL

14
15

In the present case, Plaintiff asserted that she was unable to

16

work due in part to her “nerves” (anxiety), an impairment Plaintiff

17

had not alleged specifically during the prior administrative

18

proceedings.

19

83 (prior ALJ’s decision discussing Plaintiff’s alleged impairments).

20

Accordingly, the ALJ discerned “new and material evidence

21

demonstrating ‘changed circumstances’” to overcome the presumption of

22

continued nondisability.

23

then proceeded through the sequential analysis and found Plaintiff

24

capable of a range of medium work which allowed for occasional contact

25

with supervisors and coworkers (A.R. 22-33).

26

the ALJ thereby erred by assigning a different residual functional

27

capacity, which assessed greater abilities.

Compare A.R. 51 (Plaintiff’s allegations) with A.R. 77-

See A.R. 21.

28
23

As summarized above, the ALJ

Plaintiff argues that

See Plaintiff’s Motion,

1

p. 8 (citing Chavez10 and Acquiescence Ruling 97-4(9) to argue that

2

factual findings carry a continuing presumption of application on

3

future claims).

4
5

Acquiescence Ruling 97-4(9) provides that where, as here, a

6

claimant rebuts the presumption of continuing nondisability, the

7

adjudicator must give effect to certain findings from the decision on

8

the prior claim while adjudicating the subsequent claim:

9
10

. . . adjudicators then must give effect to certain findings

11

. . . contained in the final decision by an ALJ or the

12

Appeals Council on the prior claim, when adjudicating the

13

subsequent claim.

14

. . . to a finding of a claimant’s residual functional

15

capacity . . . which was made in the final decision on the

16

prior disability claim.

17

finding from the final decision on the prior claim in

18

determining whether the claimant is disabled with respect to

19

the unadjudicated period unless there is new and material

20

evidence relating to such a finding. . . .

For this purpose, this Ruling applies

Adjudicators must adopt such a

21
22

Acquiescence Ruling 97-4(9), 1997 WL 742758 at *3.

23

generally found there was “new and material” evidence without further

24

discussion of the prior decision.

25

sequential evaluation process, discussing Plaintiff’s allegations and

26

the updated record, which included new medical source statements

Here, the ALJ

The ALJ then proceeded through the

27
10

28

Plaintiff’s subsequent argument that Chavez is “dead,”
even if correct, would not affect the result herein.
24

1

opining that Plaintiff was capable of medium work with some contact

2

with others (A.R. 21-33).

3

medical evaluations conducted after a prior adjudication, the ALJ is

4

not required to give preclusive effect to findings from the prior

5

adjudication.

6

*5 (E.D. Cal. Feb. 27, 2014); see generally Stubbs-Danielson v.

7

Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (evaluations presented

8

after a prior nondisability determination necessarily presented “new

9

and material” information not presented to the first ALJ).

Where, as here, an ALJ relies entirely on

See, e.g., Trofimuk v. Commissioner, 2014 WL 794343, at

10
11

Assuming, arguendo, the ALJ erred, any error was harmless.

In

12

the prior action, the vocational expert testified, and the ALJ found,

13

that light work jobs could be performed by a person having the

14

limitations the prior ALJ found to exist (A.R. 85).

15

findings were upheld on appeal (A.R. 91-108).

16

case, the ALJ had adopted the more restrictive residual functional

17

capacity from the prior decision, Plaintiff still would not have been

18

deemed disabled.

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///

27

///

28

///
25

All of those

If, in the present

1

CONCLUSION

2
3

For all of the foregoing reasons, Plaintiff’s motion for summary

4

judgment is denied and Defendant’s motion for summary judgment is

5

granted.

6
7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8
9

DATED: April 28, 2021.

10
11
12

/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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