Robert E. Philbrook v. Carolyn W. Colvin

Filing 26

MEMORANDUM AND OPINION by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT E. PHILBROOK,

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Plaintiff,
v.

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NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.

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Case No. ED CV 16-1500 JCG
MEMORANDUM OPINION AND
ORDER

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Robert E. Philbrook (“Plaintiff”) challenges the Social Security Commissioner’s

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decision denying his application for disability benefits. Plaintiff contends that the

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Administrative Law Judge (“ALJ”) improperly relied on the vocational expert

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(“VE”)’s testimony to determine that Plaintiff could perform light, unskilled work as a

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bench assembler2 with approximately 230,000 jobs available nationally. (See Joint

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Stip. at 4-7, 12-16.) Plaintiff suggests that the VE’s testimony was in conflict with the

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The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A.
Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d).
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Dictionary of Occupational Titles (“DOT”) code 206.684-022.

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Occupational Outlook Handbook (“OOH”)3 because that source suggested a smaller

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amount of available jobs than those identified by the VE in response to the ALJ’s

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hypothetical questions. The Court finds that reversal is not warranted.

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A.

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Preliminarily, as a rule, “when claimants are represented by counsel, they must

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raise all issues and evidence at their administrative hearings in order to preserve them

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on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). This is particularly

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true in the case of statistical evidence, as “[t]he ALJ, rather than this Court, [is] in the

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optimal position to resolve the conflict between [a claimant’s] new evidence and the

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Challenge to VE’s Testimony Not Properly Preserved for Appeal

statistical evidence provided by the VE.” Id.
In the instant case, Plaintiff was represented by counsel at the administrative

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hearing and was allowed to pose questions to the VE, but she failed to challenge the

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VE’s methodology for calculating the number of estimated jobs or offer any evidence

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supporting a different figure.4 (AR at 82-83); see Howard v. Astrue, 330 F. App’x

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128, 130 (9th Cir. 2009) (claimant waived argument that ALJ’s hypotheticals were

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inadequate where claimant’s attorney had opportunity to pose hypotheticals but never

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mentioned allegedly erroneously omitted limitation); Meanel, 172 F.3d at 1115

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(claimant’s argument — that there was insufficient jobs in local area for a particular

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position — not properly preserved for appeal); Marchbanks v. Colvin, 2014 WL

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5756932, at *1 (C.D. Cal. Nov. 4, 2014) (claimant’s argument that OOH statistics

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conflicted with DOT and VE’s testimony was waived because claimant was

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represented by counsel and failed to raise issue before ALJ or Appeals Council).

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Plaintiff requests that this Court take judicial notice of portions of the OOH and other online
sources. [Dkt. No. 20.] The Court grants the request, but only as to the information contained in
those sources. See Walker v. Berryhill, 2017 WL 1097171, at *3 (C.D. Cal. Mar. 23, 2017) (taking
judicial notice of job information contained in OOH, but not that such information was more reliable
than the DOT, which is a matter “subject to reasonable dispute” and therefore inappropriate for
judicial notice).
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The ALJ even held the record open after the administrative hearing for additional evidence,
but Plaintiff submitted nothing regarding job numbers. (Administrative Record (“AR”) at 17, 52, 8384, 1276-1598.)

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Accordingly, the issue was not properly preserved for appeal.

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B.

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Plaintiff has failed to identify any legal error for three reasons.

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First, Plaintiff’s repeated argument that “no reasonable person would ever

No Legal Error Identified

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believe” there are 230,000 bench assembler jobs in the national economy is not the

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standard by which this Court must review the Agency’s decision. (Joint Stip. at 7, 9,

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15-16); see Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (the court must

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affirm the Commissioner’s decision if it is based on proper legal standards and the

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findings of fact are supported by substantial evidence in the “record as a whole”);

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Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (“When the

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evidence before the ALJ is subject to more than one rational interpretation, [the court]

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must defer to the ALJ’s conclusion.”).

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Second, even assuming the OOH established a smaller pool of estimated

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available jobs, Plaintiff has failed to identify any authority that the VE or the ALJ were

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bound by that source, or that the ALJ was required to ask about any alleged conflict.

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See Meza v. Berryhill, 2017 WL 3298461, at *8 (C.D. Cal. Aug. 2, 2017) (claimant’s

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argument that DOT and OOH should be on “equal footing” has been rejected by a

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number of district courts in Ninth Circuit); Walker, 2017 WL 1097171, at *3 (C.D.

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Cal. Mar. 23, 2017) (rejecting argument that OOH precludes claimant from performing

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jobs VE testified he could do because claimant “cites no authority for the proposition

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that an ALJ must address conflicts between the testimony of the VE and the OOH”);

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Simpson v. Colvin, 2016 WL 3091487, at *5 (C.D. Cal. May 31, 2016) (finding no

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error where VE’s job numbers were inconsistent with information from Bureau of

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Labor statistics in OOH because a VE may rely on any number of sources).

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Third, and finally, Plaintiff has failed to show that the VE’s testimony itself is

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not substantial evidence. (AR at 27-28, 78-83); see Bayliss v. Barnhart, 427 F.3d

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1211, 1218 (9th Cir. 2005) (ALJ may rely on a VE’s testimony as a reliable source of

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information about job numbers because a VE’s “recognized expertise provides the
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