Rashidi v. Kijakazi

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 AZIZEH R., Case No.: 20cv2016-MDD 12 Plaintiff, ORDER RESOLVING JOINT 13 v. MOTION FOR JUDICIAL REVIEW AND AFFIRMING THE [14] KILOLO KIJAKAZI,1 Acting COMMISSIONER’S FINAL 15 Commissioner of Social Security, DECISION 16 Defendant. [ECF No. 15] [17] 18 Azizeh R. (“Plaintiff”) filed this action pursuant to 42 U.S.C. § 405 (g) for 19 judicial review of the final administrative decision of the Commissioner of the 20 Social Security Administration (“Commissioner”) regarding Plaintiff’s Title 21 XVI application for Supplemental Security Income. (ECF No. 1). The ALJ 22 found that Plaintiff was disabled between June 24, 2011 and September 2, 23 2015, but denied Plaintiff’s claim for benefits from September 3, 2015 [25] 26 1 Kilolo Kijakazi became Acting Commissioner of Social Security on July 9, 2021 and is therefore substituted for Andrew M. Saul as the Defendant in this action. See 42 U.S.C. § 1 through the date of the decision, August 10, 2020. (AR at 467-88).2 On 2 October 25, 2021, the parties filed a Joint Motion for Judicial Review of the 3 ALJ’s decision. (ECF No. 15). 4 For the reasons expressed herein, the Court AFFIRMS the 5 Commissioner’s decision. 6 I. BACKGROUND 7 A. Procedural History 8 This case arises out of Plaintiff’s two applications for Supplemental 9 Security Income, filed under Title XVI of the Social Security Act. Plaintiff’s 10 initial claim, filed on June 24, 2011, was remanded to an ALJ by the Ninth 11 Circuit. See Rashidi v. Berryhill, 703 F. App’x 569 (9th Cir. 2017) (reversing 12 and remanding the case to allow the ALJ to follow up with the VE to 13 determine whether the jobs of sorter, stuffer, and polisher require both 14 hands). Plaintiff’s second claim was filed on September 17, 2014. (AR at 15 1072-82). Following the Ninth Circuit’s order remanding the case, the 16 Appeals Council ordered the ALJ to consolidate Plaintiff’s claims, associate 17 the evidence, offer the opportunity for a hearing, and decide the consolidated 18 claims. (AR at 611). 19 Accordingly, an administrative hearing was held on February 13, 2020. 20 (AR at 502-54). Plaintiff appeared and was represented by attorney 21 Lawrence Rohlfing at the hearing. (AR at 504). Testimony was taken from 22 Plaintiff and Nelly Katsell, an impartial vocational expert (“VE”). (See AR at 23 502-53). The ALJ issued a partially favorable decision on the consolidated 24 claims. (AR at 467-88). The ALJ granted benefits from June 24, 2011 to [26] 2 “AR” refers to the Certified Administrative Record filed on March 18, 2021. (ECF No. 1 September 2, 2015, but found Plaintiff was not disabled from September 3, 2 2015 onward. (Id.). 3 Plaintiff filed exceptions to the ALJ decision on remand; however, the 4 Appeals Council did not invoke own motion review within 60 days of the 5 decision and the ALJ decision thus became the final decision of the 6 Commissioner on October 4, 2020. (See ECF No. 15 at 3). This timely civil 7 action followed. 8 II. DISCUSSION 9 A. Legal Standard 10 Sections 405(g) and 1383(c)(3) of the Social Security Act allow 11 unsuccessful applicants to seek judicial review of a final agency decision of 12 the Commissioner. 42 U.S.C. §§ 405 (g), 1383(c)(3). The scope of judicial 13 review is limited in that a denial of benefits will not be disturbed if it is 14 supported by substantial evidence and contains no legal error. Id.; see also 15 Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 16 Substantial evidence “is a ‘term of art’ used throughout administrative 17 law to describe how courts are to review agency factfinding.” Biestek v. 18 Berryhill, 139 S. Ct. 1148, 1154 (2019). Courts look “to an existing 19 administrative record and ask[] whether it contains ‘sufficien[t] evidence’ to 20 support the agency’s factual determinations.” Id. “[T]he threshold for such 21 evidentiary sufficiency is not high. Substantial evidence, [the Supreme 22 Court] has said, is ‘more than a mere scintilla.’ It means—and means only— 23 ‘such relevant evidence as a reasonable mind might accept as adequate to 24 support a conclusion.’” Id. The Ninth Circuit explains that substantial 25 evidence is “more than a mere scintilla but may be less than a 26 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012) 1 grounds. 2 An ALJ’s decision is reversed only if it “was not supported by 3 substantial evidence in the record as a whole or if the ALJ applied the wrong 4 legal standard.” Id. “To determine whether substantial evidence supports 5 the ALJ’s determination, [the Court] must assess the entire record, weighing 6 the evidence both supporting and detracting from the agency’s conclusion.” 7 Ahearn v. Saul, 988 F.3d 1111 , 1115 (9th Cir. 2021) (citing Mayes v. 8 Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The Court “may not reweigh 9 the evidence or substitute [its] judgment for that of the ALJ.” Id. “The ALJ 10 is responsible for determining credibility, resolving conflicts in medical 11 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035 , 12 1039 (9th Cir. 1995). “When the evidence can rationally be interpreted in 13 more than one way, the court must uphold the [ALJ’s] decision.” Mayes, 276 14 F.3d at 459. 15 Section 405(g) permits a court to enter a judgment affirming, modifying 16 or reversing the Commissioner’s decision. 42 U.S.C. § 405 (g). The reviewing 17 court may also remand the matter to the Social Security Administration for 18 further proceedings. Id. 19 B. Summary of the ALJ’s Findings 20 In rendering his decision, the ALJ followed the Commissioner’s five-step 21 sequential evaluation process. See 20 C.F.R. § 404.1520 . At step one, the 22 ALJ found that Plaintiff had not engaged in substantial gainful activity since 23 June 24, 2011. (AR at 471). 24 At step two, the ALJ found that from June 24, 2011 through September 25 2, 2015, Plaintiff had the following severe impairments: “degenerative disc 26 disease of the cervical spine; degenerative disc disease of the lumbar spine; 1 headaches; major depressive disorder; and generalized anxiety disorder.” 2 (Id.). The ALJ determined that Plaintiff’s current severe impairments are 3 the same. (Id. at 476). 4 At step three, the ALJ found that Plaintiff did not have an impairment 5 or combination of impairments that met or medically equaled one of the 6 impairments listed in the Commissioner’s Listing of Impairments. (AR at 7 472 and 476). 8 The ALJ accepted the prior, unreversed ruling regarding Plaintiff’s RFC 9 for the period of June 24, 2011 through October 26, 2012. (AR at 472). After 10 reviewing the prior RFC finding and the subsequent record, the ALJ 11 determined that from June 24, 2011 through September 2, 2015, Plaintiff had 12 the residual functional capacity (“RFC”) to perform sedentary work as defined 13 in 20 C.F.R. 416.967(a) with the following limitations: 14 [S]he could lift, carry, push, and/or pull up to twenty pounds occasionally and ten pounds frequently with her left upper [15] extremity. She could stand and/or walk for two hours in an eight16 hour workday. She could sit for six hours in an eight-hour workday. She could never climb ladders, ropes, or scaffolds. She [17] could frequently bend, stoop, and crouch. She could occasionally 18 kneel and crawl. She could occasionally walk on uneven terrain or unprotected heights. She could occasionally use her right upper [19] extremity for fine and gross manipulative movements. She was 20 limited to unskilled work. (Id.). [21] 22 The ALJ determined that medical improvement occurred as of 23 September 3, 2015, ending Plaintiff’s period of disability. (AR at 478). The 24 ALJ determined that, beginning September 3, 2015, Plaintiff had the RFC to 25 perform light work as defined in 20 CFR 416.967(b) where she can lift and/or 26 carry up to twenty pounds occasionally and ten pounds frequently with the 1 She can sit, stand, and/or walk for six hours each in an eight-hour workday. She can occasionally balance, stoop, kneel, crouch, and crawl. [2] She can occasionally climb ramps or stairs but never climb ladders, rope 3 or scaffolds. She can frequently reach, handle, finger, and feel, bilaterally. She must avoid dusts, odors, fumes, allergens, and other [4] respiratory irritants. She needs to avoid work at unprotected heights 5 and around dangerous moving machinery. She needs to avoid work that requires driving as a duty of the job. She needs to avoid a loud noise [6] environment. She is limited to simple, routine tasks. She can 7 occasionally interact with co-workers and supervisors. She cannot interact with the public. She requires a stable workplace in which any [8] changes in the work environment or work routine are gradually 9 introduced. (AR at 479). [10] 11 The ALJ stated that his RFC assessments were based on all the 12 evidence and the extent to which Plaintiff’s symptoms are consistent with the 13 objective medical evidence and other evidence. (AR at 472). The ALJ also 14 stated that he considered the opinion evidence in accordance with the 15 requirements of 20 C.F.R. 416.927. (Id.). 16 The ALJ then proceeded to step four of the sequential evaluation 17 process and found that Plaintiff has not performed a position within the past 18 fifteen years for earnings at a level that constitutes substantial gainful 19 activity. (AR at 475, 487). 20 For the purposes of his step five determination, the ALJ accepted the 21 testimony of the VE. (AR at 487-88). The VE identified the jobs of Conveyor 22 Bakery Worker (DOT No. 524.687-022); Iron Zipper (DOT No. 590.685-042); 23 and Shipping and Receiving Weigher (DOT No. 222.387-074) as jobs Plaintiff 24 could perform as of September 3, 2015, and which exist in significant 25 numbers in the national economy. (Id.). The ALJ therefore found that 26 Plaintiff’s disability ended on September 3, 2015 and Plaintiff has not become 1 C. Issues in Dispute 2 The issues in dispute are: (1) whether the vocational expert provided a 3 basis for reliable testimony; (2) whether the ALJ properly resolved conflict in 4 the vocational evidence; and (3) whether the ALJ’s decision arose from an 5 unconstitutional delegation of authority and violated Plaintiff’s due process 6 rights. 7 1. Vocational Expert’s Basis for Reliable Testimony 8 Plaintiff argues substantial evidence does not support the ALJ’s 9 decision at step five because when asked at the hearing, the VE did not 10 provide a reliable methodology for assessing job numbers. (ECF No. 15 at 8). 11 Defendant counters that in the Ninth Circuit, challenges to VE methodology 12 in evaluating job numbers have been “uniformly rejected.” (Id. at 9). 13 “A VE’s recognized expertise provides the necessary foundation for his 14 or her testimony.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) 15 (clarifying that no additional foundation is required). Also, “[a]n ALJ may 16 take administrative notice of any reliable job information, including 17 information provided by a VE.” Id. (citing Johnson v. Shalala, 60 F.3d 1428 , 18 1435 (9th Cir. 1995)). “Given its inherent reliability, a qualified vocational 19 expert’s testimony as to the number of jobs existing in the national economy 20 that a claimant can perform is ordinarily sufficient by itself to support an 21 ALJ’s step-five finding.” Ford v. Saul, 950 F.3d 1141 , 1160 (9th Cir. 2020) 22 (citing Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999) (“[T]he 23 Commissioner [can] meet the burden of showing that there is other work in 24 ‘significant’ numbers in the national economy that [a] claimant can perform 25 . . . by the testimony of a vocational expert.”). 26 However, “VE testimony is not incontestable.” Buck v. Berryhill, 869 1 testimony by asking an expert about (for example) her sources and 2 methods—where she got the information at issue and how she analyzed it 3 and derived her conclusions.” Biestek v. Berryhill, 139 S. Ct. 1148 , 1156 4 (2019). Whether VE testimony constitutes substantial evidence is assessed 5 on a case-by-case basis, considering all features of the VE testimony as well 6 as the remainder of the administrative record. Id. at 1157 . In this 7 assessment, the court “defers to the presiding ALJ, who has seen the hearing 8 up close.” Id. 9 Plaintiff’s argument is based on her counsel’s examination of the VE at 10 the February 13, 2020 hearing, as excerpted below: 11 Q: Okay. Can you tell us briefly your methodology for estimating job numbers? [12] A: Well, I basically have a knowledge of DOTs with – let me just -- 13 hold on. Let me get organized here. May I have a minute and I’ll tell you? Just a minute please. I’ve got a lot of stuff going here. So [14] we do refer to the -- basically not only the DOT but the 15 occupational titles and as well we do validation of statistics of physical limitations and as well we -- where did it go? Hold on [16] please. US Bureau of Labor Statistics and Occupational 17 Employment Quarterly and US [INAUDIBLE] Publishing and -- Q: What was the last one? [18] A: -- DDD, and we draw the interpretations and we basically 19 figure out where the numbers come from and estimate all that and figure out where and how the three can conclude. [20] (AR at 548-49). 21 Upon further questioning, the VE clarified that when she said 22 “Bureau of Labor Statistics” she was referring to both the employment 23 projections that are reported by the Occupational Outlook Handbook 24 and the occupational employment statistics that BLS reports elsewhere. 25 (AR at 549). Plaintiff’s counsel also questioned the VE about whether 26 the Occupational Employment Quarterly was a private publication. 1 Plaintiff submitted a post-hearing brief objecting to the VE’s testimony 2 pertaining to the number of jobs that exist in the national economy. (AR at 3 1259-68). Plaintiff argued that the VE “could not identify a methodology with 4 any particularity for discerning the number of jobs that exist in the national 5 economy.” (Id.). The ALJ explicitly overruled this objection and explained: 6 The regulations indicate that sufficient basis for vocational expert testimony can be professional knowledge and experience, as well [7] as reliance on job information available from various government 8 publications or other publications the Social Security Administration takes notice of (20 CFR 404.960 and 404.966). In [9] this case, the vocational expert’s professional knowledge and 10 experience is substantial, including over twenty-five years of experience in the field of vocational rehabilitation (See Exhibit [11] 38E). 12 (AR at 468). 13 In the Joint Motion, Plaintiff presents a more developed version of her 14 methodology argument. (ECF No. 15 at 5-8). Plaintiff relies on non-binding 15 caselaw from outside the Ninth Circuit to support her argument. (Id. at 7-8) 16 (citing Brace v. Saul, 970 F.3d 818 (7th Cir. 2020); Goode v. Comm’r of Soc. 17 Sec., 966 F.3d 1277 (11th Cir. 2020)). In Brace, the Seventh Circuit 18 remanded Plaintiff’s case where the Court found the VE’s methodology 19 testimony to be “inscrutable” and determined that the VE either relied on a 20 flawed “equal distribution method,” or an impermissibly vague “weighting.” 21 See Brace, 970 F.3d at 819, 821-23. In Goode, the Eleventh Circuit remanded 22 Plaintiff’s case for a new hearing where the VE cited job numbers from the 23 wrong SOC group code. See Goode, 966 F.3d at 1282. Plaintiff argues this 24 Court should not create a conflict with these Seventh and Eleventh Circuit 25 decisions. (ECF No. 15 at 10). 26 This case is distinguishable from Brace and Goode because the VE’s 1 her methodology. Further, Plaintiff fails to provide authority from this 2 Circuit that persuades the Court that the VE’s methodology explanation was 3 so lacking that it precludes her job numbers testimony from constituting 4 substantial evidence. 5 VE testimony regarding job numbers has been upheld in this Circuit 6 based on a record that was less compelling than the record at issue here. See 7 Frayer v. Berryhill, No. 2:17-cv-2437-EFB, 2019 U.S. Dist. LEXIS 41883 , at 8 *9-10 (E.D. Cal. Mar. 14, 2019) (upholding the VE’s job numbers testimony 9 despite finding the VE’s methodology explanation that “she looked to 10 information compiled by the BLS” to be unclear). In Frayer, the Court noted 11 that an alternative interpretation of the VE’s stated methodology was that 12 she used BLS data in conjunction with her labor market experience to 13 estimate job numbers. Id. at 10 . 14 Here, the VE’s testimony regarding her methodology is more specific 15 than simply looking to BLS information and the ALJ appears to have 16 determined that further questioning regarding the VE’s methodology was 17 unnecessary. (AR at 549-50). See also Biestek, 139 S. Ct. at 1157 (explaining 18 that in “tak[ing] into account all features of the vocational expert’s testimony, 19 as well as the rest of the administrative record,” the Court “defers to the 20 presiding ALJ, who has seen the hearing up close.”). The VE explained that 21 she refers to the DOT and occupational titles, validates statistics of physical 22 limitations, references the employment projections reported in the 23 Occupational Outlook Handbook and additional occupational employment 24 statistics reported by the U.S. Bureau of Labor Statistics, uses U.S. 25 Publishing’s Occupational Employment Quarterly, draws interpretations, 26 and comes up with estimates. (See AR at 549-50). Further, a VE’s obligation 1 estimate is limited. See Biestek, 139 S. Ct. at 1157 (explaining that 2 sometimes, “[e]ven though the applicant might wish for [the data supporting 3 the VE’s job numbers], the expert’s testimony still will clear (even handily so) 4 the more-than-a-mere-scintilla threshold.”). 5 While Plaintiff highlights the VE’s flawed belief that the Occupational 6 Employment Quarterly is a government publication, she provides no 7 authority demonstrating that this or any other mistake warrants remand, 8 and the Court declines to discredit the VE’s testimony based on this 9 misunderstanding.3 (ECF No. 15 at 6-7). VEs regularly utilize the 10 Occupational Employment Quarterly in order to determine the availability of 11 jobs in the economy. See, e.g., Tracey Anne P. v. Kijakazi, No. 20cv116312 LAB(RBB), 2021 U.S. Dist. LEXIS 207430 , at *34 (S.D. Cal. Oct. 27, 2021); 13 Anaya v. Berryhill, No. ED CV 17-769-PJW, 2018 U.S. Dist. LEXIS 32838 , at 14 *12 (C.D. Cal. Feb. 27, 2018) (“This resource is frequently used by vocational 15 experts in social security cases to obtain jobs numbers.”). See also Shaibi v. 16 Saul, No. 1:18-cv-00056-BAM, 2019 U.S. Dist. LEXIS 129753 , at *17-18 (E.D. 17 Cal. Aug. 1, 2019) (upholding the VE’s testimony regarding job numbers 18 where the VE relied on the U.S. Publishing data to calculate job numbers but 19 was not able to explain the methodology used by U.S. Publishing). 20 Based on the foregoing, Plaintiff has not persuaded the Court that 21 the VE’s stated methodology precludes her job numbers testimony from 22 constituting substantial evidence. [24] 25 3 Plaintiff’s Reply regarding the methodology issue also indicates that the VE presented conflicting evidence. (ECF No. 15 at 10). Conflict in the VE testimony is relevant to 26 whether it meets the threshold of substantial evidence. See Ford v. Saul, 950 F.3d 1141 , 1159 (9th Cir. 2020). Following the organization of the parties’ Joint Motion, the Court 1 2. Conflict in the Vocational Evidence 2 Plaintiff argues the vocational information she submitted in her post3 hearing brief raised conflicts with the VE’s testimony that the ALJ was 4 obligated to address. (ECF No. 15 at 11-15). Defendant argues that 5 Plaintiff’s lay analysis of Job Browser Pro data does not undermine the VE’s 6 testimony, and any errors regarding Plaintiff’s ability to perform the 7 suggested occupations were harmless. (Id. at 16-18). 8 Where there is a striking discrepancy in the record, the ALJ may be 9 required to address the inconsistency on remand. See Buck, 69 F.3d at 1052 10 (remanding based on an unaddressed inconsistency where Plaintiff’s counsel 11 used the same methodology as the VE and found a vastly different number of 12 jobs). But “where the expert is qualified and presents cogent testimony that 13 does not conflict with other evidence in the record,” the VE’s testimony will 14 clear the more-than-a-mere-scintilla threshold. Ford, 950 F.3d at 1159. For 15 the reasons expressed below, the Court finds there was no “striking 16 discrepancy” or conflict that warrants remand of Plaintiff’s case. 17 a. Conflict with Non-DOT Sources 18 Plaintiff argues that the data sources identified by the VE do not 19 support the VE’s testimony, and that the ALJ was required to resolve the 20 conflict between national BLS job numbers and the VE’s local experience. 21 (ECF No. 15 at 14-15). In support, Plaintiff references vocational information 22 enclosed within Plaintiff’s rebuttal brief, consisting of approximately 500 23 pages of printouts from OCCU COLLECT and the U.S. Bureau of Labor 24 Statistics website. (See AR at 1259-1768). 25 Remand is not warranted where, “[a]t best, Plaintiff has presented 26 evidence sufficient to support an alternative finding regarding the number of 1 LEXIS 28907 , at *9 (C.D. Cal. Mar. 1, 2013). “Where the evidence is 2 susceptible to more than one rational interpretation, one of which supports 3 the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 4 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). See also Merryflorian, No. 125 cv-2493-IEG (DHB), 2013 U.S. Dist. LEXIS 127615 , at *16-17 (S.D. Cal. Aug. 6 15, 2013) (“[P]laintiff’s lay assessment of the raw vocational data derived 7 from Job Browser Pro does not undermine the reliability of the vocational 8 expert’s opinion, which the ALJ adopted at step five.”) (quoting Valenzuela v. 9 Colvin, No. CV 12-0754-MAN, 2013 U.S. Dist. LEXIS 73439 , at *11 (C.D. Cal. 10 May 23, 2013)). 11 Plaintiff does not dispute the VE’s qualifications. (See AR at 1257-58) 12 (listing Ms. Katsell’s experience in the field of vocational rehabilitation from 13 1986 to present and specifically as a VE testifying in Social Security 14 Disability Court in San Diego, California since 2005). Nor does Plaintiff 15 provide expert testimony to refute the VE’s testimony. (ECF No. 15 at 1016 15). 17 Instead, Plaintiff first appears to argue that the ALJ should have 18 addressed the tension between the SOC codes provided by the DOT-O*NET 19 Crosswalk and Job Browser Pro for the Bakery Worker, Conveyor Line 20 position. (See AR at 1468 (providing hyperlink to the O*NET OnLine DOT 21 Crosswalk which lists the SOC Code 51-9199 Production Workers, All Other); 22 AR at 1527 (providing Job Browser Pro data which lists the SOC Code 5123 3099 Food Processing Workers, All Other)). These sources were both 24 submitted by Plaintiff, and not mentioned by the VE. (ECF No. 15 at 13). 25 The Court sees no reason for this conflict to disturb the VE’s testimony, 26 especially where there is no indication the VE relied on the wrong SOC code 1 the VE’s erroneous testimony that the Bakery Worker (524.687-022) position 2 corresponded to the SOC group for “Food Processing Workers, All Other.”). 3 Plaintiff also argues that the industry-specific job numbers estimates 4 for the Bakery Worker, Conveyor Line and Ironer4 positions submitted in her 5 post-hearing brief created a conflict in the evidence that the ALJ was 6 required to address. (ECF No. 15 at 13-15). Plaintiff’s argument relies on 7 one unpublished Ninth Circuit decision. (See ECF No. 15 at 14) (citing 8 Erickson v. Saul, 840 F. App’x 167 , 168 (9th Cir. 2021)). Plaintiff explains 9 that the Bakery Worker, Conveyor Line and Ironer positions fall under the 10 Production Worker SOC Code, along with 1,588 other DOT codes. (ECF No. 11 15 at 13-14). Accordingly, Plaintiff argues that based on the statistics she 12 submitted, only 14,700 production workers work in any food-related industry, 13 and 1,940 work in bakeries and tortilla manufacturing. (Id.). She likewise 14 argues Job Browser Pro provides that 4,691 production workers work in the 15 miscellaneous manufacturing industry, with only 19 of those jobs applicable 16 to the Ironer position. (Id.). 17 The VE testified that there were 35,000 Conveyor Bakery Worker 18 positions and 22,000 Iron Zipper positions, and the ALJ adopted her 19 testimony. (See AR at 487-88 and 537). Plaintiff appears to argue that the 20 VE’s job numbers are inflated because they do not account for the industry 21 designation of the jobs. (ECF No. 15 at 14). Plaintiff further argues that two 22 of the data sources identified by the VE do not support her job numbers 23 testimony. (Id.). 24 At the hearing, the VE testified that she used both employment [26] 4 At the hearing, the VE explained that the “Iron Zipper” position she testified about is 1 projections and occupational employment statistics (in addition to other 2 sources) in order to estimate job numbers. (AR at 549). She testified that she 3 used 2017 data. (Id.). Plaintiff’s lay interpretation of allegedly conflicting 4 BLS Employment Projections providing 2018 employment numbers and BLS 5 Occupational Employment Statistics reported by OCCU COLLECT for an 6 unspecified year does not convince the Court that the VE’s testimony fails to 7 meet the threshold for substantial evidence. The Court is inclined to follow 8 the numerous decisions in this Circuit which find lay analysis of occupational 9 data is not compelling. See, e.g., Kirby v. Berryhill, No. SA CV 18-497-E, [10] 2018 U.S. Dist. LEXIS 174698 , at *12-13 (C.D. Cal. Oct. 10, 2018) (collecting 11 cases). 12 Other courts have also rejected similar industry-specific arguments. 13 See id. at *11-12 (rejecting Plaintiff’s argument that the VE’s job numbers for 14 two “production worker” DOT occupations were inflated where Plaintiff relied 15 on her own interpretation of job numbers listed by Job Browser Pro and the 16 OOH); Munroe v. Colvin, No. 13-cv-03897-MEJ, 2014 U.S. Dist. LEXIS 17 164252, at *26-27 (N.D. Cal. Nov. 24, 2014) (rejecting Plaintiff’s argument 18 that, rather than accepting the VE’s job numbers, the ALJ should have relied 19 on Department of Labor statistics for “production workers, all others” and 20 reduced the estimates based on relevant subcategories, to conclude that there 21 were only 650 applicable jobs available nationally). Accordingly, the Court 22 finds that Plaintiff’s lay analysis of job numbers data regarding the Bakery 23 Worker, Conveyor Line and Iron Zipper positions did not present a striking 24 discrepancy or apparent conflict that the ALJ was required to resolve. 25 Plaintiff next appears to argue that the physical demands of 26 “Production Workers, All Other” positions are incompatible with Plaintiff’s 1 the SOC Code for Production Workers, All Other (51-9199.00) as one of the 2 SOC Codes corresponding with the positions of Bakery Worker, Conveyor 3 Line (DOT Code 524.687-022) and Ironer (DOT Code 590.685-042). Plaintiff 4 argues the data she supplied shows that “[p]roduction workers engage in 5 medium work in 63.9% of jobs,” “53% of production workers engage in 6 unskilled work,” and “[p]roduction workers stood/walked at least 6.75 hours 7 per day.” (See ECF No. 15 at 15). However, as Plaintiff acknowledges, 8 “Production workers contained 1,590 DOT codes.” (Id. at 14). 9 Even if accepted, these statistics do not foreclose the possibility that 10 Plaintiff can perform the Production Worker jobs specific to Bakery Worker, 11 Conveyor Line and Iron Zipper positions as they exist in the national 12 economy. For one, Plaintiff’s statistics regarding standing/walking 13 requirements only show that at the 25th percentile, Production Workers, All 14 Other stand/walk for approximately 6.75 hours. (See AR at 1495). For the 15 period at issue here, Plaintiff “can sit, stand, and/or walk for six hours each 16 in an eight-hour workday.” (See AR at 479). Plaintiff’s RFC can be read to 17 mean she could stand for up to six hours and walk for up to six hours in the 18 same day. Further, Plaintiff cites no information from the DOT that 19 indicates the demands of these positions exceed Plaintiff’s RFC. (ECF No. 15 20 at 10-15). 21 The Court finds Plaintiff did not provide probative evidence 22 demonstrating a conflict that the ALJ was required to address. A reasonable 23 mind could accept the VE’s testimony as adequate to support the conclusion 24 that even given her RFC, Plaintiff was capable of performing Production 25 Worker jobs specific to the Bakery Worker, Conveyor Line and Iron Zipper 26 positions which exist in significant numbers. Accordingly, the Court affirms 1 the Bakery Worker, Conveyor Line and Iron Zipper positions. 2 b. Conflict with the DOT 3 Plaintiff also argues that there was an apparent conflict between the 4 VE’s testimony and the DOT regarding the proposed occupation of Shipping 5 and Receiving Weigher. (ECF No. 15 at 11). Where there is an apparent 6 conflict between a VE’s testimony and the DOT, the ALJ must investigate 7 and resolve the conflict. See SSR 00-4p, 2000 SSR LEXIS 8; Lamear v. 8 Berryhill, 865 F.3d 1201, 1206-07 (9th Cir. 2017). 9 Plaintiff’s RFC limits her to “simple, routine tasks” yet the DOT defines 10 the Shipping and Receiving Weigher position as requiring Reasoning Level 3. 11 (See AR at 479, DICOT 222.387-074). The Ninth Circuit has determined 12 “there is an apparent conflict between the residual functional capacity to 13 perform simple, repetitive tasks, and the demands of Level 3 Reasoning.” 14 Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (remanding for the ALJ 15 to resolve this conflict where both proposed jobs had a Level 3 Reasoning 16 requirement). Like in Zavalin, the ALJ here failed to identify any conflict 17 and the conflict with the DOT was left unresolved. Accordingly, the Court 18 finds the ALJ erred. Next, the Court must determine whether the error was 19 harmless. 20 Harmless error only occurs if the error is inconsequential to the 21 ultimate nondisability determination. Robbins v. Soc. Sec. Admin., 466 F.3d 22 880, 885 (9th Cir. 2006). Errors that do not affect the ultimate result are 23 harmless. See Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007). Here, the 24 ALJ also accepted the testimony of the VE regarding other jobs existing in 25 significant numbers which did not require Level 3 Reasoning. See Shaibi v. 26 Berryhill, 883 F.3d 1102 , 1110 n.7 (9th Cir. 2018) (finding the ALJ’s failure to 1 identified other occupations that constitute a significant amount of work in 2 the regional and national economies). Specifically, the VE testified that the 3 occupation of Conveyor Bakery Worker has approximately 35,000 positions in 4 the national economy, and the Iron Zipper position has approximately 22,000 5 positions in the national economy, totaling 57,000 positions. (AR at 537). 6 Plaintiff did not successfully challenge this testimony. 7 While there is no bright line number to reference in determining 8 whether the representative jobs exist in “significant numbers,” other courts 9 have found substantial evidence at step five based on job numbers below 10 45,000. See, e.g., Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 527-29 (9th 11 Cir. 2014) (25,000 jobs nationally “presents a close call” but is sufficient to 12 show work exists in significant numbers in the national economy); Shawn P. 13 v. Kijakazi, No. 20cv1054-MSB, 2021 U.S. Dist. LEXIS 187160 , at *13 (S.D. 14 Cal. Sep. 28, 2021) (finding harmless error at step five despite a conflict with 15 the DOT where the VE testified that the remaining two jobs totaled 42,000 16 jobs in the national economy); Anna F. v. Saul, No. ED CV 19-511-SP, 2020 17 U.S. Dist. LEXIS 224073 , at *13-15 (C.D. Cal. Nov. 30, 2020) (finding 18 harmless error where the remaining two jobs provided by the VE totaled 19 21,100 jobs in the national economy). 20 Accordingly, the Court finds that the existence of 57,000 Conveyor 21 Bakery Worker and Iron Zipper positions illustrates that the representative 22 jobs exist in significant numbers, even without the Shipping and Receiving 23 Weigher positions being taken into account.5 The VE’s remaining testimony [25] 5 Plaintiff makes additional arguments regarding job numbers and contact with the public 26 as they relate to the Shipping and Receiving Weigher position. In light of the Court’s finding that significant numbers of Conveyor Bakery Worker and Iron Zipper positions 1 provides substantial evidence to support the ALJ’s step five finding that 2 Plaintiff “has been capable of making a successful adjustment to work that 3 exists in significant numbers in the national economy.” (AR at 488). 4 3. Delegation of Authority 5 Plaintiff also makes a constitutional argument that her due process 6 rights were violated because the Social Security Commission was “proceeding 7 in an unconstitutional framework during the tenure of Commissioner Saul.” 8 (ECF No. 15 at 23). She concedes that the ALJ in this case was properly 9 appointed, but argues her case should be remanded due to the possibility that 10 her administrative proceedings were tainted by Commissioner Saul 11 remaining in office in violation of the Constitution. (ECF No. 15 at 23, 33). 12 Defendant argues that this case should not be remanded because Plaintiff 13 does not sufficiently show that the outcome of her case was altered by the 14 Commissioner’s unconstitutional position. (Id. at 24). 15 Other district courts in the Ninth Circuit have addressed similar 16 constitutional arguments. See, e.g., Jesus V.O. v. Kilolo Kijakazi, No. 2:2017 CV-05536 (VEB), 2021 U.S. Dist. LEXIS 200515 , at *15-16 (C.D. Cal. Oct. 18, 18 2021) (“Plaintiff suggests . . . Collins v. Yellen, 141 S.Ct. 1761 , 1783-84, 210 19 L. Ed. 2d 432 (2021) and Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2192 , 207 20 L. Ed. 2d 494 (2020), as well as an opinion issued by the White House’s Office 21 of Legal Counsel (‘OLC’), cast doubt on the constitutionality of the statute 22 under which Andrew Saul (who was Commissioner of Social Security when 23 the Appeals Council denied his request for review) was appointed.”). 24 Numerous courts have deemed this argument “to be without merit or [26] exist in the national economy, the Court finds any error regarding the Shipping and 1 concluded that the claimant lacked standing.” Id. (collecting cases). 2 Here, Plaintiff argues there is a strong possibility she was “wrongfully 3 deprived of [her] due process rights through Mr. Saul’s politicization and 4 undermining of disability benefits during his tenure” based on a statement 5 from a White House official which was published in the Washington Post. 6 (ECF No. 15 at 34-35) (stating that “Commissioner Saul has undermined and 7 politicized Social Security disability benefits” and “reduced due process 8 protections for benefits appeals hearings.”). On this basis, Plaintiff argues 9 she “has proven the possibility of compensable harm warranting remand for 10 reconsideration of the claim.” (Id.). 11 The Court disagrees. Plaintiff received a partially favorable decision on 12 August 10, 2020. (AR at 458-88). Plaintiff fails to identify a connection 13 between the allegedly unconstitutional tenure protection of Commissioner 14 Saul and the partial denial of Plaintiff’s disability benefits claim by a 15 properly appointed ALJ. “[A] conclusory allegation that due process was 16 denied is not sufficient to raise a colorable constitutional claim.” Michele T. 17 v. Comm’r of Soc. Sec., No. 3:20-cv-06085-JRC, 2021 U.S. Dist. LEXIS 18 222300, at *17 (W.D. Wash. Nov. 17, 2021) (citing Hoye v. Sullivan, 985 F.2d 19 990, 992 (9th Cir. 1992)). Accordingly, remand of Plaintiff’s case is not 20 warranted. See also Frank W. v. Kijakazi, No. 20cv1439-KSC, 2021 U.S. Dist. 21 LEXIS 227031 , at *9 (S.D. Cal. Nov. 23, 2021) (explaining that while Seila 22 Law, Collins, and the Memorandum Opinion indicate that “Section 902(a)(3) 23 of Title 42 is like the statutory removal provisions at issue in these cases and 24 likely violates separation of powers, because it restricts the President’s power 25 to remove the Commissioner of the SSA . . . . that does not mean the 26 adjudication of plaintiff’s disability claim was ‘infected,’ ‘tainted,’ or decided 1 Ill. CONCLUSION 2 Based on the foregoing, the Court ORDERS the Joint Motion be 3 || GRANTED in favor of the Commissioner. Accordingly, the final decision of 4 Commissioner of Social Security is AFFIRMED. 5 IT IS SO ORDERED. Dated: December 22, 2021 My, tl s | [ Hon. Mitchell D. Dembin 8 United States Magistrate Judge