United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge
Pauline D. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
supplemental security income (“SSI”) under Title
II of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
only issue before the Court is whether the Administrative Law
Judge (“ALJ”) improperly relied on the vocational
expert's (“VE”) job numbers when she found
that Plaintiff could perform work that exists in significant
numbers in the national economy. Because the ALJ erred in
failing to address a direct and significant conflict in the
evidence, the Commissioner's decision is REVERSED and
this matter is REMANDED for further proceedings.
applied for SSI on April 22, 2014, and alleged disability
since May 10, 1982. Tr. 19, 227. Her claim was denied
initially and upon reconsideration. Tr. 19, 164. Plaintiff
timely requested a hearing and appeared before an ALJ on
March 15, 2017. Tr. 44, 167. The ALJ denied Plaintiff's
claim on July 6, 2017. Tr. 35. Plaintiff sought review from
the Appeals Council and was denied on June 5, 2018. Tr. 1,
226. Plaintiff now seeks judicial review of the ALJ's
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. See 42 U.S.C. § 405(g); Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th
Cir. 2004). “Substantial evidence is ‘more than a
mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Hill v.
Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting
Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
1997)). To determine whether substantial evidence exists, the
court reviews the administrative record as a whole, weighing
both the evidence that supports and that which detracts from
the ALJ's conclusion. Davis v. Heckler, 868 F.2d
323, 326 (9th Cir. 1989) (citing Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986)).
“‘If the evidence can reasonably support either
affirming or reversing,' the reviewing court ‘may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
1996)). Finally, the ALJ need not discuss all evidence
presented, but must explain why she rejected significant
probative evidence. See Howard ex rel. Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
Social Security Administration uses a five-step sequential
evaluation to determine whether a claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The
burden of proof rests on the claimant for steps one through
four and on the Commissioner for step five. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)). At step five, the Commissioner's burden is to
demonstrate that the claimant can make an adjustment to other
work existing in significant numbers in the national economy
after considering the claimant's residual functional
capacity, age, education, and work experience. 20 C.F.R.
§ 404.1520(a)(4)(v). The Commissioner may
satisfy this burden by referring to the Medical-Vocational
Guidelines (“Grids”) or by obtaining testimony
from a VE. Tackett, 180 F.3d at 1100-01. If the
Commissioner fails to meet its burden, then the claimant is
considered disabled. Id.
stipulates to the ALJ's findings at steps one through
four. Pl.'s Br. 3, ECF No. 15. The only issue before the
Court is whether the ALJ's reliance on the VE's job
numbers at step five was improper. Plaintiff argues that the
ALJ failed to consider evidence submitted by Plaintiff that
directly contradicted the VE's testimony. Id. at
5-6. Defendant responds that the VE's testimony provided
substantial evidence regarding the number of jobs available
and Plaintiff's alternate job numbers do not diminish the
reliability of the VE's job numbers. See
Def.'s Br. 3-4, ECF No. 16. The Court finds that the ALJ
erred in not addressing a direct and significant conflict in
administrative hearing, the VE testified that someone with
Plaintiff's characteristics and limitations could perform
two jobs that existed in the national economy: taper and
wafer breaker. Tr. 69-70. The VE claimed that there were
90, 100 taper jobs nationally and 64, 200 wafer breaker jobs
nationally. Id. He testified that he obtained these
numbers from the electronic database “SkillTRAN.”
Tr. 72. On cross-examination, Plaintiff questioned whether
the VE's numbers were reflective of Standard Occupational
Classification (“SOC”) codes rather than the
specific Dictionary of Occupational Title codes for each
individual job. Tr. 71-72. The VE confirmed that his numbers
were not based on SOC codes. Tr. 72. The VE further testified
that he “just use[d] [the numbers that] SkillTRAN
gave” him and relying on these numbers is a
“usual and customary practice” for VEs throughout
the country. Tr. 72-73.
days after the hearing, Plaintiff submitted a letter to the
ALJ arguing that the VE over-reported the number of taper and
wafer breaker jobs based on their relative SOC codes. Tr.
330-39. Plaintiff relied on the Bureau of Labor Statistics in
this letter and requested more time to submit additional
evidence on the issue. Id. Importantly, only four
days later, Plaintiff submitted a second letter to the ALJ
with reports allegedly from SkillTRAN, the same database
relied on by the VE, showing disparate job numbers for taper
and wafer breaker. Tr. 346. The reports from Plaintiff's
second letter suggest that only 243 taper jobs and 640 wafer
breaker jobs exist nationally. Tr. 349, 351. The ALJ relied
on the VE's testimony in finding that Plaintiff is able
to perform work that exists in significant numbers in the
national economy, thereby denying Plaintiff's claim for
benefits. Tr. 34-35. The ALJ acknowledged Plaintiff's
first letter in a footnote but did not address the second
letter. See tr. 34 n.1.
VE's recognized expertise provides the necessary
foundation for his or her testimony.” Bayliss v.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
“[I]n the absence of any contrary evidence, a VE's
testimony is one type of job information that is regarded as
inherently reliable; thus, there is no need for an ALJ to
assess its reliability.” Buck v. Berryhill,
869 F.3d 1040, 1051 (9th Cir. 2017). Even so, VE testimony is
not irrefutable. Id. The ALJ still maintains a
“special duty to fully and fairly develop the
record.” Booz v. Sec'y of Health and Human
Servs., 734 F.2d 1378, 1381 (9th Cir. 1984) (quoting
Brown v. Heckler, 713 F.2d 441, 443 (9th Cir.
1983)). Additionally, the ALJ must resolve any conflict
between a VE's testimony and the DOT or the Grids.
Buck, 869 F.3d at 1051-52. An ALJ's decision may
be reversed and remanded where the ALJ failed to address
evidence of conflicting job numbers at step five. See
Id. at 1047, 1052. The plaintiff in Buck
submitted post-hearing evidence of job numbers to the
ALJ-allegedly using the same database as the VE-which showed
significantly less jobs than the VE's numbers.
Id. at 1047. In Buck, the Ninth Circuit
reversed and remanded for further proceedings because
“the vast discrepancy between the VE's job numbers
and those tendered by [plaintiff], presumably from the same
source, is simply too striking to be ignored.”
Id. at 1052.
Plaintiff submitted post-hearing evidence to the ALJ which
showed a vast discrepancy in the number of taper and wafer
breaker jobs as compared to the VE's job numbers. Like
the plaintiff in Buck, who obtained job numbers from
the same source as the VE, Plaintiff obtained job numbers
allegedly using SkillTRAN, the same database that the VE
relied on. The ALJ did address Plaintiff's concerns
raised in the first letter. Tr. 34 n.1. However, there is no
evidence that the ALJ considered Plaintiff's second
letter. While Plaintiff's first letter contains
information only on wafer breaker jobs and relies on the
Bureau of Labor Statistics, Plaintiff's second letter
contains data for both ...