James Richard Reguero v. Carolyn W. Colvin

Filing 29

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (See document for complete details) (afe)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

10

JAMES RICHARD REGUERO,

)
)
)
)
)
)
)
)
)
)
)
)

11

Plaintiff,
12

v.
13
14
15

NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,
Defendant.

16

Case No. ED CV 16-2408-AS
MEMORANDUM OPINION

17

PROCEEDINGS
18
19

On November 21, 2016, Plaintiff filed a Complaint seeking review
20

of the denial of his applications for Disability Insurance Benefits
21

(“DIB”) and Supplemental Security Income (“SSI”).

(Dkt. No. 1).

The

22

parties

have

consented

to

proceed

before

the

undersigned

United

23

States Magistrate Judge.

(Dkt. Nos. 11, 13).

On April 17, 2017,

24

Defendant

filed

an

Answer

along

with

the

Administrative

Record

25

(“AR”).

(Dkt. Nos. 16, 17).

On March 13, 2018, the parties filed a

26
27
28

1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W. Colvin
in this case. See 42 U.S.C. § 205(g).
1

1

Joint Stipulation (“Joint Stip.”), setting forth their respective

2

positions regarding Plaintiff’s claims.

(Dkt. No. 28).

3
4
5

The Court has taken this matter under submission without oral
argument.

See C.D. Cal. L.R. 7-15.

6

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

7
8
9

On January 29, 2010 and February 6, 2010, Plaintiff, formerly

10

employed as an automotive technician, (see AR 163), filed DIB and SSI

11

applications alleging an inability to work because of a disability

12

since August 11, 2009.

13

Administrative Law Judge, Marti Kirby (“ALJ”), heard testimony from a

14

vocational

15

(See AR 32-76).

16

denying

17

Council denied Plaintiff’s request to review the ALJ’s decision on

18

January 31, 2013.

19

sought review of the decision by filing a Complaint in this Court.

20

(See Reguero v. Covin, EDCV 13-0576-AS, Dkt. No. 1).

21

2014, the Court issued an order vacating the Commissioner’s decision

22

and remanding the case for further administrative proceedings.

23

Dkt. No. 26, 27).

expert

and

(AR 135, 142).

Plaintiff,

who

was

On November 4, 2011, an

represented

by

counsel.

On December 6, 2011, the ALJ issued a decision

Plaintiff’s

applications.

(AR 1-4, 7).

(See

AR

12-27).

The

Appeals

On Marchy 28, 2013, Plaintiff

On April 30,

(Id.,

24
25

On remand, the same ALJ held a hearing on February 10, 2015,

26

during which he heard testimony from another vocational expert, Lizet

27

Campos (“VE”), and Plaintiff, who was represented by counsel.

28

466-504).

(AR

On March 12, 2015, the ALJ issued a partially favorable
2

1

decision.

(AR 444-60).

On September 21, 2015, the ALJ issued a

2

revised decision that was “identical to the original decision except

3

for disapproval of the fee agreement, as it [was] a two-tier fee

4

agreement.”

(AR 423; see AR 423-39).

5
6

The ALJ applied the five-step sequential process in evaluating

7

Plaintiff’s case.

At step one, the ALJ determined that Plaintiff has

8

not engaged in substantial gainful activity since August 11, 2009,

9

the alleged onset date.

(AR 426).

At step two, the ALJ found that

10

Plaintiff has had the following severe impairments since the alleged

11

onset date: “chronic fatigue syndrome; fibromyalgia; osteoarthritis

12

in the shoulders and hands; obesity; and social anxiety disorder.”

13

(Id.).

14

has had the additional severe impairments of “stroke” and “left sided

15

weakness.”

16

impairments do not meet or equal a listing found in 20 C.F.R. Part

17

404, Subpart P, Appendix 1.

The ALJ further found that since January 2, 2012, Plaintiff

(Id.).

At step three, the ALJ found that Plaintiff’s

(Id.).

18
19

Before proceeding to step four, the ALJ found that in the period

20

between August 11, 2009, the alleged onset date, and January 2, 2012,

21

Plaintiff had the following Residual Functional Capacity (“RFC”)2:

22
23

[Plaintiff

could]

perform

light

work

.

.

.

except

[he

24

could] lift, carry, push and/or pull 20 pounds occasionally

25

and 10 pounds frequently; he [could] sit, stand and/or walk

26
2

27
28

A Residual Functional Capacity is what a claimant can still do
despite existing exertional and non-exertional limitations.
See 20
C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

3

1

for six hours out of an eight-hour workday, but only one

2

hour at a time and would need to alternate positions every

3

15 minutes for a brief 1-3 minutes; he [could] perform

4

occasional

5

crawling,

6

ramps and stairs, but [could not] climb ropes, ladders, or

7

scaffolds;

8

reaching bilaterally; he [was] precluded from working at

9

unprotected

bending,
and

he

stooping,

balancing;

[could]

heights

or

he

squatting,

[could]

occasionally

occasionally

around

kneeling,

perform

hazardous

or

climb

overhead

moving

10

machinery; he [was] limited to a non-public working setting

11

with

12

indirect interaction with co-workers; and he [was] limited

13

to simple routine repetitive tasks.

only

occasional

interaction

with

supervisors

and

14
15

(AR 427).

The ALJ found that beginning on January 2, 2012, Plaintiff

16

has had the following RFC:

17
18

[Plaintiff can] perform light work . . . except [he] can

19

lift no more than 10 pounds; he can stand and/or walk for

20

four hours out of an eight-hour workday, but no more than

21

15 minutes at a time; he can sit for 6 hours in an 8-hour

22

workday with brief position changes after 30-45 minutes for

23

3-5 minutes at a time; he can perform occasional bending,

24

stooping, squatting, kneeling, crawling, and balancing; he

25

can occasionally climb ramps and stairs, but cannot climb

26

ropes, ladders, or scaffolds; he is precluded from working

27

at unprotected heights, moving machinery, or other hazards;

28

he must avoid concentrated exposure to walking on uneven
4

1

terrain,

2

noises;

3

occasional non-intense interaction with supervisors or co-

4

workers; he cannot perform jobs requiring teamwork, but can

5

perform object-oriented work; he can occasionally perform

6

overhead reaching bilaterally; he can frequently perform

7

fine and gross manipulation; he cannot perform jobs that

8

require

9

repetitively push and/or pull with the lower extremities,
as

extreme
he

is

temperatures,
limited

forceful

the

use

to

foot

crowds,

non-public

gripping

of

large

or

pedals,

grasping;

with

loud

with

work

and

only

he

the

left

cannot

10

such

lower

11

extremity; and he would require an additional 20-30 minute

12

break in addition to regular work breaks any time during

13

the regular workday.

14
15

(AR 434-35).

16

At step four, the ALJ noted that Plaintiff has been unable to

17
18

perform any past relevant work since August 11, 2009.

(AR 435).

19
20

Relying on the VE’s testimony at step five, the ALJ found that

21

before January 2, 2012, Plaintiff, with his age, education, work

22

experience, and RFC, could perform the following representative jobs

23

existing

24

folder (Dictionary of Occupational Titles (“DOT”) 789.687-066); table

25

worker (DOT 783.687-030); and dowel inspector (DOT 669.687-014).

26

437).

in

significant

numbers

in

27
28

5

the

national

economy:

garment

(AR

1

The ALJ found that beginning on January 2, 2012, Plaintiff has

2

not been able to perform any jobs existing in significant numbers in

3

the national economy.

(AR 438).

4
5

Accordingly, the ALJ concluded that Plaintiff “was not disabled

6

prior to January 2, 2012, but became disabled on that date and has

7

continued to be disabled through the date of th[e] decision.”

(Id.).

8
9

On September 28, 2016, the Appeals Council denied Plaintiff’s

10

request

to

review

11

Plaintiff

12

stands as the final decision of the Commissioner.

13

405(g), 1383(c).

now

seeks

the

ALJ’s

judicial

decision
review

of

(AR

398-400,

412,

414).

the

ALJ’s

decision

which

See 42 U.S.C. §§

14

STANDARD OF REVIEW

15
16
17

This Court reviews the Administration’s decision to determine if

18

it is free of legal error and supported by substantial evidence.

19

Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012).

20

evidence”

21

preponderance.

22

2014).

23

“a court must consider the record as a whole, weighing both evidence

24

that supports and evidence that detracts from the [Commissioner’s]

25

conclusion.”

26

2001) (internal quotation omitted).

27

can support either affirming or reversing the ALJ’s conclusion, [a

is

more

than

a

mere

scintilla,

but

See

“Substantial
less

than

a

Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

To determine whether substantial evidence supports a finding,

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

28

6

As a result, “[i]f the evidence

1

court]

may

not

substitute

[its]

judgment

for

that

of

the

2

ALJ.”

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

3

PLAINTIFF’S CONTENTIONS

4
5

Plaintiff

6

alleges

that

the

ALJ

erred

in

(1)

rejecting

7

Plaintiff’s testimony and (2) relying on the VE’s testimony regarding

8

job numbers.

(See Joint Stip. at 7-36).

9

DISCUSSION

10
11
12

After considering the record as a whole, the Court finds that

13

the Commissioner’s findings are supported by substantial evidence and

14

are free from material legal error.3

15
16

A.

The ALJ Did Not Err in Evaluating Plaintiff’s Credibility

17
18

An ALJ’s assessment of a claimant’s credibility is entitled to

19

“great weight.”

See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th

20

Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985).

21

“[T]he ALJ is not required to believe every allegation of disabling

22

pain, or else disability benefits would be available for the asking,

23

a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

Molina v.

24
25
26
27

3

The harmless error rule applies to the review of
administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d
676, 679 (9th Cir. 2005) (an ALJ’s decision will not be reversed for
errors that are harmless).

28

7

1

Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

In order to determine

2

whether a claimant’s testimony is credible, the ALJ engages in a two-

3

step analysis.

4

2014).

Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

5

First, the claimant “must produce objective medical evidence of

6
7

an

underlying

8

produce the pain or other symptoms alleged.’”

9

947

F.2d

impairment

341,

344

‘which

(9th

Cir.

reasonably

expected

to

Bunnell v. Sullivan,

1991)

(quoting

impairment, “the claimant need not produce objective medical evidence

12

of the pain or fatigue itself, or the severity thereof.”

Smolen, 80

13

F.3d

that

14

impairment] could reasonably have caused some degree of the symptom.”

15

Id.

the

claimant

“need

of

the

U.S.C.

11

Instead,

evidence

42

§ 423(d)(5)(A)(1988)).

1282.

producing

be

10

at

In

could

only

show

underlying

[the

16
17

Second, once the claimant has produced the requisite objective

18

medical

evidence,

19

regarding

20

affirmative evidence of malingering, however, the ALJ may reject a

21

plaintiff’s

22

convincing reasons for doing so.”

23

alleged symptoms, an ALJ may consider the following:

the

the

severity

testimony

“ALJ
of

may

her

only

reject

the

symptoms.”

“by

Id.

offering
Id.

claimant’s
at

testimony

1284.

specific,

Absent

clear

In assessing a claimant’s

24
25

(1) ordinary techniques of credibility evaluation, such as

26

claimant’s

27

statements concerning the symptoms, and other testimony by

28

the

claimant

reputation

that

for

appears

lying,

to
8

be

and

prior

less

than

inconsistent

candid;

(2)

1

unexplained

or

inadequately

explained

failure

to

seek

2

treatment or to follow a prescribed course of treatment;

3

and (3) the claimant’s daily activities.

4
5

Id.

An ALJ may also consider observations of treating and examining

6

physicians and other third parties.

Id.

7

Here, the ALJ found Plaintiff’s allegations “less than fully

8
9

credible.”

(AR 429).
of

This determination was based on the ALJ’s

10

consideration

Plaintiff’s

daily

activities,

11

work history, and the objective medical record.

treatment

history,

(See AR 428-34).

12
13

The ALJ found that Plaintiff “has engaged in a somewhat normal

14

level of daily activity and interaction,” which included “caring for

15

his own personal hygiene, preparing simple meals, completing basic

16

household chores, driving, running errands, and grocery shopping.”

17

(AR

18

Plaintiff’s

19

maintaining employment.

20

various

21

Plaintiff’s credibility.

22

(9th

23

discredited where claimant was able to care for her own personal

24

needs, cook, clean, shop, interact with her boyfriend, and manage

25

finances).

26

unimpaired, the ALJ reasonably found them inconsistent with the level

27

of impairment that Plaintiff alleges.

28

at 1113 (“Even where [claimant’s] activities suggest some difficulty

429;

see

AR

activities

everyday

Cir.

172-74,

2005)

283).

require

The

abilities

(AR 429).

activities

is

ALJ

a

remarked
that

are

that

some

needed

of
for

Plaintiff’s ability to perform
legitimate

basis

to

discount

See Burch v. Barnhart, 400 F.3d 676, 680-81

(claimant’s

allegations

of

disability

properly

Even if Plaintiff’s activities do not show that he was

9

See Molina v. Astrue, 674 F.3d

1

functioning,

they

may

be

grounds

for

discrediting

the

claimant’s

2

testimony to the extent that they contradict claims of a totally

3

debilitating impairment.”).

4

The ALJ noted that Plaintiff “had gone on several vacations

5
6

since the alleged onset date, including gambling in Laughlin.”

(AR

7

429;

ALJ

8

mischaracterized the evidence because there were only two vacations,

9

in the summers of 2010 and 2011, and “[b]oth were for a brief few

see

AR

48-49,

280,

304).

Plaintiff

contends

that

the

10

days which [Plaintiff] did not enjoy.”

11

hearing in 2011, Plaintiff testified that during his camping trip

12

with his wife that summer, he “pretty much stayed in the RV” and

13

“felt anxious and sick to his stomach,” but he also stated that the

14

trip was “kind of nice, because [he and his wife] were able to go on

15

a walk together.”

16

previous summer “just wasn’t as fun” as trips in the past “because

17

[he] wasn’t drinking” anymore.

18

2010 that he “won money” in Laughlin, suggesting that he was able to

19

participate

20

Plaintiff testified at the 2011 hearing that the chief cause of his

21

inability

22

Therefore, notwithstanding Plaintiff’s contentions, it was reasonable

23

for the ALJ to find that Plaintiff’s “decision to go on vacation,

24

particularly a vacation that placed him [in] a likely crowded casino,

25

tends to suggest that [his] symptoms and limitations may have been

26

somewhat overstated.”

to

in

(AR 49, 68).

casino

work

his

At the

He stated that his camping trip the

(AR 68).

gambling.

was

(Joint Stip. at 16).

(AR

“fear

(AR 429).

27
28

10

of

Plaintiff reported in May

280,

coming

304).

In

outside.”

contrast,

(AR

42).

The ALJ also found that Plaintiff’s treatment history has not

1
2

reflected

3

remarked that Plaintiff has made “relatively infrequent” trips to the

4

doctor, with “significant gaps in treatment.”

5

the

6

routine

and

7

(Id.).

Plaintiff contends that the ALJ did not “point to the record

8

to

9

[Plaintiff] to do.”

ALJ

the

existence

noted

that

of

that

debilitating

Plaintiff’s

conservative,

demonstrate

a

treatment

primarily

there

was

in

(Joint Stip. at 14).

(AR 429).
“has

the

anything

condition.

been

form

more

of

the

The

ALJ

Moreover,
essentially

medications.”

doctors

wanted

To the contrary, the ALJ

10

gave examples, including Plaintiff’s failure to follow through with

11

his treating doctor’s referral to physical therapy, as well as his

12

decision to discontinue mental health treatment in 2010.

13

30).

14

October 2009 states, for example, that when Plaintiff presented with

15

shoulder pain, he “opted for conservative measures but was offered

16

Specialist

17

Plaintiff has stated that cost was the reason why he has not done

18

physical therapy (at $40 per session) and why he stopped his mental

19

health treatment in 2010.

20

this explanation but discredited, noting that Plaintiff nonetheless

21

affords a pack of cigarettes a day, as well as vacations and a

22

gambling trip in 2010, thus indicating that Plaintiff’s “symptoms

23

were not as severe or as limiting as he purports.”

24

485).

The

record

and

supports

[doctors]

this

urged

finding.

Physical

A

treatment

Therapy.”

(See AR 56, 482-84).

(AR 429note

(AR

from

210).

The ALJ acknowledged

(AR 430; see AR

25
26

The ALJ also noted that Plaintiff “stopped working due to a

27

business-related

layoff

rather

than

28

disabling impairments,” and Plaintiff suggested that he would have
11

because

of

the

allegedly

1

kept working but for the layoff.

2

with the other factors, this was a persuasive basis on which to

3

discount the credibility of Plaintiff’s complaints.

4

Comm’r of Soc. Sec. Admin., 468 F. App’x 754, 755 (9th Cir. 2012)

5

(ALJ

6

partly because claimant stopped working only when he was laid off due

7

to a plant closure); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir.

8

2001)

9

complaints where claimant “stated at the administrative hearing and

10

to at least one of his doctors that he left his job because he was

11

laid off, rather than because he was injured”); Drouin v. Sullivan,

12

966

13

rejecting credibility partly on the basis that claimant was laid off

14

for business reasons, not impairments).

permissibly

(ALJ

F.2d

did

1255,

discounted

not

1256,

err

1258

(AR 430; see AR 71, 283).

claimant’s

in

(9th

Cir.

See Brackett v.

subjective

discrediting

1992)

pain

claimant’s

(ALJ

Along

did

testimony

subjective

not

err

in

15
16

In addition, the ALJ provided a detailed review of the medical

17

evidence, (see AR 431-33), noting that, among other evidence, in

18

August

19

control, and his Norco medication helped alleviate his pain, (AR 359-

20

60, 431), and that examining doctors described Plaintiff as alert and

21

oriented,

22

(See, e.g., AR 284, 347, 350, 354).

23

such evidence in determining that the record did not support the

24

severity of Plaintiff’s complaints.

25

(“Although lack of medical evidence cannot form the sole basis for

26

discounting pain testimony, it is a factor that the ALJ can consider

27

in his credibility analysis.”).

2010,

not

Plaintiff’s

agitated

or

myalgia

anxious,

28

12

and

and

myositis

in

no

were

under

apparent

fair

distress.

The ALJ appropriately considered

See Burch, 400 F.3d at 681

1

Accordingly, the ALJ properly discounted Plaintiff’s credibility

2

by giving specific, clear, and convincing reasons that are supported

3

by substantial evidence in the record.

4
5

B.

The ALJ Did Not Err in Relying on the VE’s Testimony at Step Five

6
7

Plaintiff contends that the ALJ erred by relying on the VE’s

8

testimony to conclude that there are a significant number of jobs

9

that Plaintiff can perform during the period between August 11, 2009

10

and January 2, 2012.

11

that

12

aggregates of various occupations, not simply the jobs that the ALJ

13

found Plaintiff can perform – garment folder (DOT 789.687-066706.684-

14

022);

15

669.687-014).

the

job

table

(See Joint Stip. at 24-31).

numbers

worker

that

(DOT

the

VE

provided

783.687-030);

and

Plaintiff contends

actually

dowel

represented

inspector

(DOT

(See id.; AR 437).

16
17

The ALJ bears the burden at step five to establish that work

18

exists in significant numbers in the national economy that Plaintiff

19

can perform.

20

An ALJ may properly rely on the testimony of a VE regarding job

21

numbers in the national economy to make this showing.

22

Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

23

expertise provides the necessary foundation for his or her testimony.

24

Thus, no additional foundation is required.”

25

F.3d 1040, 1051 (9th Cir. 2017) (quoting Bayliss, 427 F.3d at 1218).

Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

Bayliss v.

“A VE’s recognized

Buck v. Berryhill, 869

26

At the hearing on February 10, 2015, the VE testified that there

27
28

are

approximately

427,000

garment
13

folder

jobs

in

the

national

1

economy; approximately 426,000 table worker jobs; and approximately

2

472,000 dowel inspector jobs.

3

job numbers “are based on occupational employment statistics,” which

4

the VE obtained from “Skill Tran,” apparently referring to the Skill

5

Tran source “Job Browser Pro.”

6

also

7

individuals

8

information to bring it in here [to the hearing] to compare it, no.”

9

(Id.).

collects

information

that

she

Plaintiff’s

(AR 491).

(AR 496).

about

counsels,

counsel

The VE stated that these

job
but

asked

The VE explained that she

numbers
she

as

does

the

VE,

she

not

“Does

meets

with

“utilize

that

that

[number]

10

represent the number of jobs that exist for those DOT individual

11

codes

12

aggregate group of occupations?”

13

aggregate number.”

14

further questions were asked about the VE’s job numbers.

that

[the

VE]

identified

(Id.).

or

does

(AR 498).

that

represent

like

an

The VE replied, “It’s an

The VE did not elaborate further, and no

15
16

Plaintiff contends that it is clear that the VE “did not

17

testify that each of the three occupations had approximately 426,000-

18

427,000 each; rather the 426,000-427,000 number for each occupation

19

represents . . .

20

unidentified occupations.”

21

claims that the ALJ erred by relying on a mischaracterization of the

22

VE’s testimony to find that the respective job numbers applied to the

23

three particular occupations.

24

Skill Tran actually groups each of these three jobs with hundreds of

25

other occupations, and the VE’s “aggregate” job numbers should be

26

understood to apply to these larger groups.

27

example, Plaintiff states that Skill Tran groups the garment folder

28

occupation with 553 other occupations in the category “Helpers –

the

total

aggregate

number

for

(Joint Stip. at 26-27).

(Id. at 27).

14

a

group

of

Thus, Plaintiff

Plaintiff asserts that

(See id. at 28-30).

For

(Id. at 28).4

1

Production Workers.”

Plaintiff points out that if the

2

VE’s “aggregate” number of 427,000 jobs were divided evenly among

3

each of the 553 occupations, it would result in only 770 garment

4

folder jobs and claims that “Skill Tran demonstrates that in fact

5

only 63 full time jobs are available for the specific DOT code of

6

garment sorter.”

(Id.).

7

Plaintiff

8
9

never

raised

this

issue

before

the

Commissioner.

Though he was represented by counsel, Plaintiff did not challenge the

10

basis

or

accuracy

of

the

VE’s

job

numbers

during

administrative

11

proceedings.

12

v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“We now hold that

13

when a claimant fails entirely to challenge a vocational expert’s job

14

numbers

15

claimant

16

claimant is represented by counsel.”); see also Meanel v. Apfel, 172

17

F.3d 1111 (9th Cir. 1999) (holding that claimants represented by

18

counsel “must raise all issues and evidence at their administrative

19

hearings in order to preserve them on appeal”).

Plaintiff, therefore, has waived the issue.

during
waives

administrative
such

a

proceedings

challenge

on

before

appeal,

at

the

See Shaibi

agency,

least

when

the
that

20

Regardless of waiver, however, Plaintiff has failed to establish

21
22

any

error

in

the

ALJ’s

step-five

finding.

Notwithstanding

23

Plaintiff’s contentions, the ALJ was entitled to rely on the VE’s

24

testimony on job numbers, which constitutes substantial evidence.

25
26
27
28

4

Plaintiff cites “Exhibit 1,” but no such exhibit has been
filed in this action.
Regardless, the absence of the referenced
exhibit – which presumably contains the Skill Tran data – does not
affect the Court’s analysis.
There is no indication that Plaintiff
ever presented such information to the ALJ or the Appeals Council.
15

1

See Bayliss, 427 F.3d at 1218.

2

ALJ’s

finding

in

this

3

misinterpreted

or

mischaracterized

4

explicitly

5

folder

6

worker jobs; and approximately 472,000 dowel inspector jobs.

7

491).

8

response to Plaintiff’s counsel’s question, that the number given for

9

each job is “an aggregate number.”

stated

jobs

in

that

the

The record does not contradict the

respect,

there

national

nor

are

does

the

it

VE’s

show

that

testimony.

“approximately

the
The

427,000”

ALJ
VE

garment

economy; approximately 426,000 table
(AR

The VE did not undermine this testimony when stating, in

is ambiguous.

(See AR 498).

This statement, at

10

best,

11

in relying on the VE’s testimony to find that there are significant

12

numbers of jobs in the national economy that Plaintiff can perform.

13

The

14

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is

15

susceptible to more than one rational interpretation, one of which

16

supports the ALJ's decision, the ALJ's conclusion must be upheld.”).

Court

must

The ALJ appropriately exercised his discretion

uphold

that

reasonable

finding.

See

Thomas

v.

17

ORDER

18
19
20
21

For the foregoing reasons, the decision of the Commissioner is
AFFIRMED.

22
23

LET JUDGMENT BE ENTERED ACCORDINGLY.

24
25

DATED: April 13, 2018
26
27

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

28

16