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finding that "two occupations are sufficient to establish 'significant range of work' pursuant to Rule 202.00(c)"
Summary of this case from Tina C. v. Comm'r, Soc. Sec. Admin.Opinion
No. 6:17-cv-1083-PK
08-24-2018
SUSAN M., Plaintiff, v. NANCY A. BERRYHILL, Commissioner, Social Security Administration Defendant.
FINDINGS AND RECOMMENDATION :
Susan M. ("Plaintiff") seeks judicial review of the Commissioner of Social Security's final decision denying her application for disability insurance benefits ("DIB") under Title II and supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction over Plaintiff's action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I have considered all of the parties' briefing and the relevant evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision should be AFFIRMED and this case should be DISMISSED.
In the interest of privacy, this opinion uses only the first name and the initial of the last name of the non-governmental parties or parties in this case. Where applicable, this opinion uses the same designation for non-governmental party's immediate family member(s).
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, an Administrative Law Judge ("ALJ") considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)-(b), 416.920(a)-(b). Otherwise, the evaluation proceeds to the second step,
At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Id. (quoting Social Security Ruling ("SSR") 85-28, available at 1985 WL 56856).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, Subpt. P, App. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404. 1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments, the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related, physical and mental activities on a regular and continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a). 416.945(a). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8p, available at 1996 WL 374184.
At the fourth step, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner.
At the fifth step, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether the claimant can perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate that the claimant is capable of performing jobs existing in significant numbers in the national economy, the claimant is conclusively found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966
A claimant will be found entitled to benefits if the Commissioner fails to meet his burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).
BACKGROUND
Born in 1957, Plaintiff was 53 years old on her alleged onset date, Tr. 18, 81, 109. She has completed her GED and has attended some community college. Tr. 29, 117, 292, 532. Plaintiff has past work experience as an auto salesperson, office manager/owner, liquor store cashier, and tradeshow salesperson. Tr. 28-29. In October 2012, Plaintiff filed for DIB and SSI with an alleged onset dale of December 6, 2011. Tr. 237, 243. She alleged disability in her applications due to traumatic brain injury, hepatitis C, memory and focus problems, and headaches. Tr. 81. After her applications were denied initially and upon reconsideration, Plaintiff requested a hearing before an ALJ. See Tr. 81-104, 109-46, 171-73. In September 2015, an ALJ conducted a hearing; on October 9, 2015, the ALJ issued a decision finding Plaintiff was not disabled. Tr. 15-30; 36-78. Plaintiff sought review of the ALJ's decision before the Appeals Council, who denied review making the ALJ's decision the final decision of the Commissioner. Tr. 1-7. This appeal followed.
Citations to "Tr." Refer to the page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 15.
SUMMARY OF THE ADMINISTRATIVE RECORD
I. The Medical Record
The medical record is extensive and the parties are familiar with it. As Plaintiff challenges neither the ALJ's weighing of the medical evidence nor adverse credibility finding and the sole issues on appeal are legal in nature, the record will be discussed only as relevant below.
II. The ALJ's Findings
At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. At step two, the ALJ determined the following impairments were medically determinable and severe: "mild right knee patellofemoral osteoarthritis, status post meniscectomy; lumbago; bilateral carpal tunnel syndrome (CTS), status post CTS release on (he left hand; and an intracerebral hemorrhage." Tr. 20. At step three, the ALJ determined Plaintiff's impairments, neither individually nor in combination, met or equaled the requirements of a listed impairment. Tr. 23.
Because presumptive disability was not established at step three, the ALJ continued to evaluate how Plaintiff's impairments affected her ability to work. The ALJ resolved Plaintiff had the RFC to perform light work with the following limitations:
[She should] lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently. [She could] sit, stand, and walk for 6 hours each. [She could] frequently operate foot controls with her right lower extremity. [She could] occasionally handle bilaterally. [She could] frequently climb ramps and stairs but only occasionally climb ladders and scaffolds, [She could] occasionally balance, sloop, and kneel. [She could not] work around unprotected heights or moving mechanical parts.Tr. 23.
At step four, the ALJ determined Plaintiff was unable to perform her past relevant work as an "auto salesperson" or "office manager/owner." Tr. 28. Additionally, the ALJ found that Plaintiff had acquired transferable work skills, which included "merchandising sales." Tr. 29.
At step five, the ALJ found, based on Plaintiff's RFC, acquired skills, and the vocational expert ("VE") testimony, she could perform the jobs of "sales representative, commercial equipment and supplies" and "sales person, burial needs." Tr. 29 30 (citing Dictionary of Occupational Titles ("DOT"), 273.357-018 Salesperson Representative, Commercial Equip. & Supplies available at 1991 WL 672498; DOT, 273.357-042 Salesperson, Burial Needs available at 1991 WL 672545).
LEGAL STANDARD
A reviewing court must affirm an ALJ's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The court may not substitute its judgment for that of the Commissioner. See id., (citing Robbins, 466 F.3d at 882); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)).
ANALYSIS
Plaintiff argues the ALJ's step five findings are not supported by substantial evidence. Specifically, Plaintiff contends: (1) the ALJ failed to identify Plaintiff's transferable skills with sufficient specificity; and (2) the VE testimony was insufficient to establish her ability to engage in a "significant range of work."
I. Preservation for Appeal
The Commissioner contends Plaintiff's counsel failed to raise at the hearing any issue with regards to the VE testimony with sufficient specificity allow appellate review. Def.'s Br. 3. The Commissioner first relies on Meaml v. Apfel for the proposition that where a claimant is represented by counsel she "must raise all issues and evidence at [her] administrative hearings in order to preserve them on appeal." 172 F.3d 1111, 1115 (9th Cir. 1999). The Commissioner also cites Shaibi v. Berryhill for the proposition a claimant who fails to challenge a VE's job numbers at the administrative hearing and before the Appeals Council waives the issue on appeal to a district court. 883 F.3d 1102, 1109 (9th Cir. 2017). Finally, Plaintiff responds that because she raised the issue before the Appeals Council, her claim was preserved and cites Lamear v. Berryhill for the proposition that where a claimant raises an issue to the Appeals Council, and the ALJ has an affirmative duty imposed on her, the issue is properly preserved. 865 F.3d 1201, 1206 (9th Cir. 2017)
In her reply brief, Plaintiff asserts she was unable to verify the Commissioner's citation, and directs the Court to Shaibi v. Berryhill, 830 F.3d 874, 880-81 (9th Cir. 2017). Pl.'s Reply 2. The Court was able to locate the citation as directed by the Commissioner; the Court was unable to locate, however, "Shaibi v. Berryhill" at the pincite provide from Plaintiff. Thus, this Findings and Recommendation ("F&R") will refer to the Commissioner's citation.
Reading Meanel, Shaibi, and Lamear in context, the Court should find Plaintiff properly preserved her challenges on appeal. First, Meaml is not dispositive because in that case, the claimant relied "on new statistics that she admittedly failed" to present to the Commissioner and presented for the first time to the district court. Meanel, 172 F.3d at 1115. Plaintiff has presented no such new evidence to this Court. Second, unlike the claimant in Shaibi, Plaintiff did not fail to make her challenge before the agency. See Shaibi, 883 F.3d at 1109. Indeed, Plaintiff's counsel inquired how Plaintiff "acquired the merchandising sales skills" at the hearing and to the Appeals Council, properly preserving the issue. Tr. 78 (Administrative Hearing); Tr. 377 (Appeals Council); see also Lamear, 865 F.3d at 1206 ("Lamear raised this issue to the Appeals Council. And more importantly, our law is clear that a counsel's failure does not relieve the ALJ of his express duty to reconcile apparent conflicts through questioning[.]").
As such, the Court should find Plaintiff properly preserved her challenges on appeal and address the merits of her arguments.
II. Transferability of Work Skills
Plaintiff makes several arguments challenging the ALJ's identification of "merchandising sales" as a transferable work skill at step five. When an ALJ determines that a claimant cannot return to past relevant work at step four, the burden then shifts to the Commissioner to establish that the claimant is capable of performing other substantial gainful work at step five. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). In making a step five determination, the ALJ must first determine whether the claimant's exertional limitations by themselves merit a finding of disability under the decisional grids listed at 20 C.F.R. Part 404, Subpart P, Appendix 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1116 (9th Cir. 2006). If the grids do not mandate a finding of disability, the ALJ has the option of calling a VE to testify on the existence of jobs in the national economy that Plaintiff is capable of performing. Tackett, 180 F.3d at 1100-01. The ALJ must consult with the VE, however, if the claimant suffers from sufficiently severe non-exertional limitations, which are not contemplated by the grids. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988).
The decisional grids listed at 20 C.F.R. Part 404, Subpart P, Appendix 2, are individualized according to occupational bases, including: "'[m]aximum sustained work capacity limited to sedentary work,' '[m]aximum sustained work capacity limited to light work,' and '[m]aximum sustained work capacity limited to medium work.'" Tackett, 180 F.3d at 1101 (citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, 200.00). The decisional tables then recommend a decision of disabled or not disabled based on the age, educational attainment, and skill level of the claimant. 20 C.F.R. Pt. 404, Subpt. P, App. 2.
The decisional grid for claimants who are limited to light work, direct that a claimant of advanced age (55-60) with a high school education or more and non-transferable work skills be found disabled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, 202.06. However, the same decisional grids instruct a finding of not disabled where an identical claimant has transferable work skills. Id. at 202.07. Regardless of whether the ALJ's disability determination relies upon the grid or the testimony of a VE, the ALJ must make specific findings on the transferability of work skills when they are relevant to the ultimate determination. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citing SSR 82-41 available at 1982 WL 31389) Pursuant to 20 C.F.R. §§ 404.1568(d)(2) and 416.968(d)(2), transferable skills are most likely to be found amongst jobs in which "(i) The same or a lesser degree of skill is required; (2) The same or similar tools and machines are used; and (iii) The same or similar raw materials, products, processes, or services are involved." There are varying degrees of transferability, and all three factors need not be present for a skill to be considered transferable. Id.; see also C.F.R. §§ 404.1568(d)(3), 416.968(d)(3); Aldrich v. Barnhart, 151 F. App'x 561, 562 (9th Cir. 2005).
Regarding the transferability of skills, SSR 82-41 provides, in relevant part:
When the issue of skills and their transferability must be decided, the . . . ALJ is required to make certain findings of fact and include them in the written decision. Findings should be supported with appropriate documentation.SSR 82-41 available at 1982 WL 31389.
When a finding is made that a claimant has transferable skills, the acquired work skills must be identified, and specific occupations to which the acquired work skills are transferable must be cited in the . . . ALJ's decision . . . . It is important that these findings be made at all levels of adjudication to clearly establish the basis for the determination or decision for the claimant and for a reviewing body including a Federal district court.
Plaintiff's first contention is essentially "merchandising sales" is not sufficiently defined and directs the Court to an online dictionary definition of the word "merchandising." The Commissioner responds and directs the Court to Burton v. Astrue, 2013 WL 2949593 (D. Nev. June 12, 2013). In reply, Plaintiff declined to distinguish Burton's analysis, noting only the decision "does not bind this Court." Pl.'s Reply 3.
In Burton, the ALJ found the claimant's past relevant work in "high end jewelry sales" provided "transferable skills" in sales or sales related areas. Burton 2013 WL 2949593 at *7. On appeal, the claimant challenged the ALJ's finding of transferable skills because "the vocational expert never identified the precise skills that [were] transferable, nor did he describe how those skills could be applied to each of the jobs identified." Burton 2013 WL 2949593 at *15. The court rejected the argument and found the claimant's own testimony about her past relevant work in sales - combined with the VE's testimony that those skills were transferable - sufficient to support the ALJ's finding the skills were "transferable to other sales positions." Id. (citing Prince v. Apfel, 1998 WL 317525 at *3 (10th Cir. 1998)). The Court is persuaded by Burton's reasoning and finds it applicable in this case.
Here, the ALJ's factual finding is similarly sufficiently specific. The ALJ's decision found Plaintiff had "acquired skills from past relevant work." Tr. 29. The decision additionally stated that finding was based on the VE testimony "that [Plaintiff's] past relevant work as a salesperson . . . would have allowed her to obtain transferable work skills, including merchandising sales." Id. Notably, the VE testimony in this case was more detailed, although at times difficult to follow, than the VE testimony at issue in Burton. Compare Tr. 73-78 with Burton 2013 WL 2949593 at *16 ("Yes, Your Honor, there are. She does have transferable skills in sales or sales related areas. A Sales Associate using telephone which is sedentary, SPV3, DOT 299.357-014. There are 2,000 in Las Vegas and 321,000 nationally. For a Sales Review Clerk, this is sedentary, SPV4, DOT 209.687-018. There are 1,100 positions in Nevada and 239,000 nationally."). Accordingly, the Court should find the ALJ's factual finding of Plaintiff's transferable work skills was sufficiently supported by substantial evidence.
As for Plaintiff's attempt to manufacture a conflict between her definition of "merchandising" and the DOT description of an auto salesperson, the argument lacks merit and should similarly fail. Without citing to any authority, Plaintiff quotes from the Merriam-Webster online dictionary definition of "merchandising," which according to Plaintiff defines the term as: "sales promotion as a comprehensive function including market research, development of new products, coordination of manufacture and marketing, and effective advertising and selling." Pl.'s Op. Br 6. Plaintiff next quotes from a portion of the DOT definition for auto sales person as follows:
Sells new or used automobiles, trucks, and vans on premises of vehicle sales establishment: Explains features and demonstrates operation of car in showroom or on road. Suggests optional equipment for customer to purchase. Computes and quotes sales price, including tax, trade-in allowance, license fee, and discount, and requirements for financing payment of vehicle on credit.Pl.'s Op. Br 6. Plaintiff then asserts nothing in the DOT description of auto salesperson "includes 'market research,' 'development of new products,' or 'coordination of manufacture and marketing;' and 'effective advertising and selling' is at most tenuously implied." Pl.'s Op. Br. 6.
Essentially, Plaintiff manufactures her own legal standard for the word "merchandising" and then proceeds to select evidence from the DOT that fails to meet it. First, Plaintiff failed to direct the Court to any authority indicating her definition rather than the DOT should be controlling. Cf. Zavalin v. Colvin, 778 F.3d 842, 845-46 (9th Cir. 2015) (ALJ's rely "on the DOT, which is the SSA's 'primary source of reliable job information' regarding jobs that exist in the national economy"); see also 20 C.F.R. §§ 404.1566, 416.966 (taking administrative notice of DOT). Second, the Court is unpersuaded by the distinctions upon which Plaintiff relies. Indeed, the Commissioner directs the Court to Plaintiff's self-report of spending hours following up on sales leads and marketing work. Def.'s Br. 6 (citing Tr. 308-11). Thus, assuming arguendo Plaintiff's online dictionary definition may be used to supplant the DOT, substantial evidence supports the ALJ's finding Plaintiff had the transferable skill of merchandising.
Notably, Plaintiff's citation to the DOT failed to include the final substantive sentence of the DOT's definition, which provides: "Performs other duties as described under SALESPERSON (retail trade; wholesaler tr.) Master Title," DOT, 273.353-010 Salesperson Automobiles 1991 WL 672465.
Plaintiff next asserts the ALJ's finding Plaintiff had merchandising skills is "no more informative than saying a carpenter has 'carpentry skills' . . . ." Pl.'s Op. Br. 5, 7 (citing SSR 82-41 at *6 available at 1982 WL 31389). The argument would be well taken if, for example, the ALJ had found only the general skill of "sales skills." However, the ALJ found Plaintiff had a specific skill (merchandising), which she obtained from her past work as "auto salesperson" (in the broad field of sales). Tr. 28; see also Tr. 74 ("So merchandising sales is skill that was obtained. It's in the sales fields. . . . And so that would directly transfer and that's actually the biggest skill that transfers.").
For context, SSR 82-41 uses a "carpenter" as an example in its explanation of how a hypothetical ALJ should apply the transferability analysis.
Plaintiff next argues, clarifying in her reply brief: "If additional skills are required to perform the occupations supplied by the VE, then these occupations cannot satisfy the ALJ's burden." Pl.'s Reply 3. Plaintiff relies on SSR 82-41, which states in relevant part: the "skilled job duties of their past work must be so closely related to other jobs which they can perform that they could be expected to perform these other identified jobs at a high degree of proficiency with a minimal amount of job orientation." SSR 82-41 at *6 available at 1982 WL 31389. Plaintiff then identifies an alleged additional skill for both of the jobs listed by the VE.
First, with regard to the burial needs salesperson occupation, Plaintiff argues that her past "high volume, stressful sales" work "is radically different than contacting grieving families at their homes." Id. Although a successful burial salesperson would likely need to demonstrate empathy to sell cemetery plots, nothing in the DOT description of that job requires a potential worker to act as a grievance counselor. Moreover, Plaintiff's self-reported work experience closely parallels the DOT occupation description. Compare Tr. 310 (Plaintiff's responsibilities included: "finalizing sales & delivery. Hours of lead follow up, product demonstration, finalizing sales.") with DOT Salesperson, Burial Needs available at 1991 WL 672545 ("Contacts prospects at their homes in response to telephone inquiries, referrals from funeral homes, and leads from obituary notices.").
Second, with regard to the commercial equipment sales representative occupation, Plaintiff seems to argue in her reply brief that the lack of experience necessary to "train employees in use of equipment" is an additional skill a commercial sales representative performs that she did not acquire in her past work. Pl.'s Reply 3. However, as her own briefing acknowledges, the DOT description of that occupation contains qualifying language: "May train employees in use of equipment." DOT Salesperson Rep., Commercial Equip. & Supplies available at 1991 WL 672498 (emphasis added). Although Plaintiff argues there is nothing in the ALJ's decision to suggest the ALJ relied on the permissive use of the word "may" to exclude that sentence of the description of the occupation, the evidence upon which the ALJ relied - Plaintiff's self-reported work experience and hearing testimony reveals "training employees" was not a skill the ALJ could have found transferable because there would have been no legal basis to do so. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1072 (9th Cir. 2010) (courts "presume that ALJs know the law and apply it in making their decisions").
Plaintiff appears to have abandoned her position in her opening brief that the sales representative job was "in the field" and therefore required additional VE testimony to "address whether additional skills would be required for field sales," instead advancing the argument above. Compare Pl.'s Reply 3-4 with Pl.'s Op. Br. 7; United States v. Kimble, 107 F.3d712, 715 n.2 (9th Cir. 1997) (deeming an argument "to have been abandoned" where the party fails to "coherently develop[ ]" it in his briefs), Even on the merits, however, her opening argument fails. Reading the VE testimony in context suggests an "in the field" sales representative would likely be required to drive. See Tr. 76 ("I'm contemplating driving with that right foot. If you're doing a sales rep [sic] you're out in the field."). Assuming arguendo driving would be a required additional "skill," the bulk of the record evidence supports the conclusion Plaintiff retains the ability to drive. See, e.g., Tr. 42 (Administrative Hearing: "Are you able to drive a car?" Answer: "Yes"); Tr. 301 (Function Report: "When you do go out, how do you travel?" "[X] Drive a car"); see also DOT, Salesperson Automobiles available at 1991 WL 672465 (requiring "operation of a car in a showroom or on road" in occupational definition). The Court notes that although Plaintiff alleged she could not drive without becoming hysterical, the ALJ rejected that allegation in finding "she commuted from Bend to Portland for at least 3 months" (Tr. 24), and Plaintiff waived any challenge to that finding in declining to challenge the ALJ's credibility determination. See, e.g., United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011) ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.") (citation omitted; bracketing in original).
Finally, the Court should decline Plaintiff's request to "rely on common experience" to reject the ALJ's finding Plaintiff retained transferable work skills. Plaintiff asserts that in the absence of VE testimony or ALJ findings, a court may rely on common experience citing Lamear, 865 F.3d at 1205. Plaintiff's argument conflates two distinct analyses. Lamear held that where a conflict between the VE testimony and the DOT is "obvious or apparent" and cannot be resolved based upon "common experience," remand is appropriate to reconcile the conflict. Id. at 1205-06. Thus, Plaintiff's attempt to stretch the holding of Lamear to reject different occupations contained within the DOT based on "common experience" is meritless and should fail,
In sum, the ALJ's identification of "merchandising sales" as a transferable skill to the occupations of burial needs salesperson and commercial equipment sales representative are supported by substantial evidence and based upon proper legal standards and should be upheld.
II. "Significant Range of Work"
Plaintiff next argues the two occupations identified by the VE do not constitute a "significant range of work" and runs afoul of Lounsburry v. Barnhart, 468 F.3d 1111, 1116 (9th Cir. 2006). Pl.'s Op. Br. 8. Lounsburry examined whether a single occupation was sufficient to establish a "significant range of work" for a claimant, like Plaintiff, of advanced aged limited to light work based on the plain language of Rule 202.00(c), 20 C.F.R. pt. 404, Subpt. P, App'x. 2. Lounsburry 468 F.3d at 1117-18. To inform its definition of "significant range of work," the panel relied on SSR 83-10, which it noted was frequently used to provide definitions "in evaluating disability under the medical-vocational rules." Id. (quoting SSR 83-10 at *1 available at 1983 WL 31251). Examining SSR 83-10's definitions of "Range of Work" and "Significant Range of Work," the court observed that both definitions contained the word "occupations." Id. at 1117. Thus, the court construed the phrase "significant range of work" under Rule 202.00 (c) to require transferability to "a significant number of occupations." Id. (emphasis in original). In other words, "[o]ne occupation [did] not constitute a significant range of work" and reversed and remanded the decision. Id. at 1117-18.
In her reply brief, Plaintiff raises various arguments parsing the Ninth Circuit's decision in Lounsburry, citing an online dictionary definition of "significant," and highlights that the occupations supplied by the VE make up less than two percent of the combined light and sedentary occupation pool. At bottom, however, Plaintiff asks the Court to extend the reasoning of Lounsburry that "[o]ne occupation does not constitute a significant range of work," Lounsburry 468 F.3d at 1118 (emphasis added), and instead hold two occupations are insufficient to meet the Commissioner's burden.
The Court was unable to locate and the parties did not supply any binding authority discussing the precise number of occupations necessary to constitute a "significant range of work" under Rule 202.00(c).
Although discerning where to draw the line on how many "occupations" are required by Rule 202.00(c), the Court should decline to extend the Commissioner's burden beyond Lounsburry's precise holding. On the one hand, Lounsburry's reasoning could be logically extended to find that two occupations is not a "significant number of occupations," especially where, as here, the VE identified only two occupations are available. Cf. Lounsburry, 468 F.3d at 1117 ("The record in this case establishes that [the claimant's] skills would transfer to precisely one occupation at her residual functional capacity.") (emphasis added).
In a footnote, Plaintiff cites an out-of-district decision, which elected to extend the holding of Lounsburry and held two occupations also insufficient. See Daniel v. Colvin, 2014 WL 2865127, at *4 (C.D. Cal. June 23, 2014). Daniel concluded "two occupations" was insufficient to meet the Commissioner's burden of providing a "significant range of work" for purposes of Rule 202.00(c). Id. The Court acknowledges Daniel elected to extend Lounsburry's holding, but the Court here should decline Plaintiff's invitation to extend Lounsburry on the facts of this case for the reasons discussed herein. Plaintiff's additional argument that the two sales-related occupations identified by the VE "cannot be said to represent a 'significant range' of sales occupations" relying on Lounsburry 468 F.3d at 1117, should also fail because nothing in that decision foreclosed identifying occupations within the same field of work. See SSR 96-9p at *3 n.4 available at 1996 WL 374185 ("An 'occupation' refers to a grouping of numerous individual 'jobs' with similar duties. Within occupations (e.g., 'carpenter') there may be variations among jobs performed for different employers (e.g., 'rough carpenter').").
On the other hand, Lounsburry repeatedly underscored its holding was applicable to instances where the claimant could engage in an isolated occupation, see, e.g., id. at 1117 ("The record in this case establishes that [the claimant's] skills would transfer to precisely one occupation at her residual functional capacity.") (emphasis added); ("One occupation does not constitute a significant range of work.") (emphasis added), and to extend Lounsburry to require more than "one occupation" would ignore this language. The Court recognizes the legal question in this case is a close one and that a higher court may see fit to resolve this interpretive question in a differing manner. Absent binding precedent holding two occupations insufficient in this context, however, the Court is compelled to recommend an application of Lounsburry faithful to its precise holding.
Here, the ALJ unquestionably supplied more than one occupation to which Plaintiff's work skills were transferrable. Tr. 29-30. Thus, because the standard articulated by Lounsburry is satisfied, the Court should affirm the ALJ's finding that two occupations constitute a "significant range of work."
Plaintiff's final argument in the second to last paragraph of her opening brief that the "very rare" occupation of burial needs salesperson is "not sufficient to distinguish this case from Lounsburry" should also fail. Pl.'s Op. Br. 9. Nothing in Lounsburry prohibits the Commissioner from relying on multiple occupations to meet her burden of establishing "a significant range of work" - even if one occupation independently would not meet the requisite standard. Here, the ALJ supplied two occupations, which together combined for 68,500 jobs in the national economy. Tr. 29-30; 20 C.F.R. §§ 404.1566, 416.966 ("Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements which you are able to meet with your physical or mental abilities and vocational qualification.") (emphasis added). That was sufficient. See Gutierrez v. Comm'r, 740 F.3d 519, 528 (9th Cir. 2014) ("[W]e affirm the ALJ's decision, because 25,000 jobs meets the statutory standard."). --------
In sum, two occupations are sufficient to establish "significant range of work" pursuant to Rule 202.00(c) and the ALJ's step five determination is supported by substantial evidence and should be upheld.
RECOMMENDATION
For the reasons set forth above, the Commissioner's final decision denying Plaintiff's application for disability insurance benefits and supplemental security income should be AFFIRMED.
SCHEDULING ORDER
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation. DATED this 24th day of August 2018.
/s/_________
Honorable Paul Papak
United States Magistrate Judge