1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRMA M.,1 Case No. 5:18-cv-01146-AFM 12 Plaintiff, 13 v. MEMORANDUM OPINION AND

ORDER AFFIRMING DECISION

14 ANDREW SAUL, Commissioner OF COMMISSIONER 15 of Social Security,2

16 Defendant. 17 Plaintiff seeks review of the Commissioner’s final decision denying her 18 application for Social Security disability insurance benefits and supplemental 19 security income. In accordance with the Court’s case management order, the parties 20 have filed memorandum briefs addressing the merits of the disputed issues. This 21 matter is now ready for decision. 22

23 24 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 25 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 26 Management of the Judicial Conference of the United States. 27 2 Andrew Saul is now the Commissioner of the Social Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew Saul is substituted for Acting Commissioner 28 Nancy A. Berryhill as the defendant in this suit. 1 BACKGROUND 2 On September 25, 2014, Plaintiff applied for disability insurance benefits and 3 supplemental security income, alleging disability since June 14, 2012. Plaintiff’s 4 claims were denied initially and on reconsideration. (Administrative Record (“AR”) 5 164-169, 170-176.) A hearing was held before an Administrative Law Judge (“ALJ”) 6 on November 28, 2016, at which Plaintiff, her attorney, and a vocational expert 7 (“VE”) were present. (AR 75-120.) The ALJ issued a decision on April 26, 2017, 8 finding that Plaintiff suffered from the severe impairment of degenerative disc 9 disease of the lumbar spine. (AR 28.) The ALJ determined that Plaintiff retained the 10 RFC to perform light work with the following limitations: Plaintiff could 11 occasionally lift and/or carry 25 pounds and frequently lift and/or carry 10 pounds; 12 sit for 6 hours in an 8-hour workday with customary breaks; stand for 3 hours in an 13 8-hour workday, but not longer than 45 minutes at one time with the need to sit one 14 to two minutes while remaining on task; walk 2 hours in an 8-hour workday but no 15 longer than 30 minutes at one time with the need to sit one to two minutes but still 16 working; occasionally climb ramps and stairs with bannisters; occasionally kneel, 17 crouch, and stoop, but not repetitively; never climb ladders, ropes, scaffolds, crawl, 18 be around heavy vibratory machinery or dangerous equipment, unprotected heights, 19 extreme cold, or uneven terrain. (AR 29.) Relying on the testimony of the VE, the 20 ALJ concluded that Plaintiff was able to perform her past relevant work as an order 21 clerk. (AR 33.) Accordingly, the ALJ determined that Plaintiff was not disabled from 22 June 4, 2012 through the date of the decision. (AR 33-34.) The Appeals Council 23 denied review, thereby rendering the ALJ’s decision the final decision of the 24 Commissioner. (AR 1-7.) 25 DISPUTED ISSUES 26 1. Whether Plaintiff waived her right to challenge ALJ’s determination 27 regarding her past relevant work. 28 1 2. Whether the ALJ erred in finding Plaintiff’s past relevant work was an “order 2 clerk.” 3 STANDARD OF REVIEW 4 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 5 determine whether the Commissioner’s findings are supported by substantial 6 evidence and whether the proper legal standards were applied. See Treichler v. 7 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 8 evidence means “more than a mere scintilla” but less than a preponderance. See 9 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 10 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 12 U.S. at 401. Where evidence is susceptible of more than one rational interpretation, 13 the Commissioner’s decision must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 14 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 15 2004) (“When evidence reasonably supports either confirming or reversing the ALJ’s 16 decision, [the court] may not substitute [its] judgment for that of the ALJ.”). The 17 Court will not reverse the Commissioner’s decision if it is based on harmless error, 18 which exists only when it is “clear from the record that an ALJ’s error was 19 ‘inconsequential to the ultimate non-disability determination.’” Robbins v. Soc. Sec. 20 Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm’r, Soc. Sec. 21 Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch v. Barnhart, 400 22 F.3d 676, 679 (9th Cir. 2005). 23 DISCUSSION 24 1. Claimed Waiver of Plaintiff’s Challenge to ALJ’s Past Relevant Work 25 Finding 26 The Commissioner argues that Plaintiff waived her step four arguments by 27 failing to raise them at the hearing while being represented by counsel. (ECF No. 31 28 at 3) (citing Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999); Shaibi v. Berryhill, 1 870 F.3d 874, 881-82 (9th Cir. 2017), amended 883 F.3d 1102 (9th Cir. 2018)). In 2 Meanel, the plaintiff attempted to present new evidence regarding statistics on job 3 numbers that her counsel failed to raise at the administrative hearing. 172 F.3d at 4 1115. The Ninth Circuit ruled that claimants, “must raise issues at their 5 administrative hearings in order to preserve them on appeal.” Id. However, in a later 6 case, the Ninth Circuit held that, if an argument raised for the first time on appeal is 7 a pure question of law and the Commissioner would not be unfairly prejudiced by 8 the plaintiff’s failure to raise the issue below, it may nevertheless be considered by 9 the court. Silveira v. Apfel, 204 F.3d 1257 n.8 (9th Cir. 2000). Following the Supreme 10 Court’s decision in Sims v. Apfel, 530 U.S. 103, 112 (2000), the Ninth Circuit 11 reaffirmed its holding in Meanel: “when a claimant fails entirely to challenge a 12 vocational expert’s job numbers during administrative proceedings before the 13 agency, the claimant forfeits such a challenge on appeal, at least when that claimant 14 is represented by counsel.” Shaibi, 883 F.3d at 1109. Nevertheless, the Court of 15 Appeals went on to exclude from waiver any apparent conflict between a VE’s 16 testimony and the DOT, i.e., where new evidence is not presented for the first time 17 on appeal: “an ALJ is required to investigate and resolve any apparent conflict 18 between the VE’s testimony and the DOT, regardless of whether a claimant raises 19 the conflict before the agency.” Id; see also SSR 00-4p, 2000 WL 1898704 (S.S.A. 20 Dec. 4, 2000); Lamear v. Berryhill, 865 F.3d 1201, 1206-07 (9th Cir. 2017). 21 Plaintiff contends that she did not waive her step four argument because she is 22 not presenting new evidence and instead challenging the VE’s testimony and the 23 DOT classification. (ECF No. 32 at 2-3.) Plaintiff asserts error in the ALJ’s reliance 24 on the VE’s testimony that her past relevant work was that of an order clerk, based 25 on a DOT description that (she argues) does not match her actual job duties. (ECF 26 No. 18 at 10.) Given the distinction in Shaibi between bringing in new evidence of 27 job numbers and challenging an ALJ’s duty to resolve any conflicts between the VE’s 28 testimony and the DOT and given that Plaintiff is not relying on new evidence, the 1 Court finds that Plaintiff did not waive her argument and may raise it here. See Yang 2 v. Berryhill, 2017 WL 5878203, at *3 (E.D. Cal. Nov. 29, 2017) (holding Plaintiff 3 “need not raise a conflict between the VE’s testimony and the DOT regarding 4 functional requirements of job duties (as opposed to only challenging the number of 5 jobs) before the ALJ to preserve the issue”); see also Milne v. Berryhill, 2018 WL 6 3197749, at *5-7 (C.D. Cal. June 27, 2018) (same); Skinner v. Berryhill, 2018 WL 7 1631275, n.9 (C.D. Cal. Apr. 2, 2018) (no waiver where plaintiff was challenging the 8 availability of the occupation itself). 9 2. The ALJ’s Finding Regarding Past Relevant Work 10 Plaintiff contends that the ALJ erred in the step four determination by finding 11 that Plaintiff’s past relevant work was that of an order clerk. 12 a. Relevant Law 13 At step four, the claimant bears the burden of showing that she is no longer 14 able to perform her past relevant work. 20 C.F.R. § 404.1520(e); Pinto v. Massanari, 15 249 F.3d 840, 844 (9th Cir. 2001). If a claimant can perform such work, she is not 16 disabled. Id. Past relevant work is defined as work that the claimant has “done within 17 the past 15 years, that was substantial gainful activity, and that lasted long enough 18 for [the claimant] to learn to do it.” 20 C.F.R. § 404.1560. Substantial gainful activity 19 (“SGA”) is work that (a) involves doing significant physical or mental activities and 20 (b) is done for pay or profit. 20 C.F.R § 404.1572. The primary factor in determining 21 whether work constitutes as SGA is earnings. 20 C.F.R. § 404.1574(a)(1). If the 22 claimant earned less than the agency’s prescribed amount, there is a presumption that 23 she did not engage in SGA. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). 24 Although the burden of proof rests on the claimant in step four, an ALJ must 25 make specific factual findings to support her conclusions. Pinto, 249 F.3d at 845. 26 This is done by looking at the “residual functional capacity and the physical and 27 mental demands” of the claimant’s past relevant work. 20 C.F.R. § 404.1520(e). 28 While the claimant is “the primary source for vocational documentation,” the ALJ 1 may utilize a VE or other resources such as the Dictionary of Occupational Titles 2 (“DOT”) to assist in this determination. 20 C.F.R. § 404.1560(b)(2). In relying on 3 VE testimony about claimant’s past work, the ALJ has an “affirmative responsibility 4 to ask about any possible conflict between the VE evidence and information provided 5 in the DOT.” SSR 00-4p, 2000 WL 1898704 (S.S.A. Dec. 4, 2000); Massachi v. 6 Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). 7 b. Analysis 8 The ALJ found that Plaintiff could perform her past work as an order clerk, as 9 described in the DOT. Plaintiff challenges the ALJ’s SGA determination and 10 contends that a conflict between the VE’s testimony and the DOT should have been 11 resolved by the ALJ. The Commissioner relies upon wages in 2002 and 2013 to meet 12 the SGA requirement for past relevant work and contends that there was no error in 13 the ALJ’s finding of past relevant work. 14 i. 2013 15 For 2013, Plaintiff argues that she did not meet the requisite SGA amount. The 16 Commissioner responds that Plaintiff met the requisite SGA amount for 2013 when 17 she made $8311. The SGA amount for 2013 was $1040 per month. See Substantial 18 Gainful Activity, Social Security Administration, (2019), https://www.ssa.gov/oact/ 19 cola/sga.html. According to the Commissioner, Plaintiff testified that she worked 20 three months in 2013 − in September, October and possibly November − earning well 21 above the SGA amount. (ECF No. 31 at 5.) 22 During the hearing, the ALJ questioned Plaintiff regarding when she stopped 23 working. (AR 82-84.) At one point, the ALJ asked Plaintiff if she worked for all 12 24 months in 2013, and Plaintiff responded that she did not know. (AR 83-84.) The ALJ 25 then continued questioning Plaintiff about when she stopped working, asking “… do 26 you remember selling things around Christmas or did you stop before then like in 27 September or --.” (AR 84.) Plaintiff responded, “I think it was before. I think around 28 November, October.” (AR 84.) The ALJ then asked, “Okay. So maybe the end of 1 September, beginning of October?” (AR 84.) And Plaintiff responded “Yes, ma’am.” 2 (AR 84.) 3 At no point during this line of questioning did Plaintiff state that she had 4 worked only two to three months in 2013. (AR 82-84.) Instead, Plaintiff answered 5 the ALJ’s question regarding when she stopped working by stating that she thought 6 it was around November or October. (AR 84.) Thus, the record is unclear as to how 7 many months Plaintiff worked in 2013. If Plaintiff worked eight months out of the 8 year or more (averaging $1038 per month or less), she could not have met the SGA 9 amount for 2013. The Commissioner’s contention that claimant worked only three 10 months in 2013 is not supported by substantial evidence. At most, the record 11 regarding 2013 contains insufficient or ambiguous information that the ALJ should 12 have resolved – but did not. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 13 2001) (holding that an ALJ has a duty to fully and fairly develop the record where 14 the evidence is ambiguous); see also Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 15 2015) (“ALJ’s failure to resolve an apparent inconsistency may leave us with a gap 16 in the record that precludes us from determining whether the ALJ’s decision is 17 supported by substantial evidence.”). Accordingly, the Court concludes that the 18 record does not support a finding that Plaintiff had SGA for 2013. 19 ii. 2002 20 For 2002, Plaintiff concedes that she met the requisite SGA amount, but she 21 argues that the ALJ failed to resolve a conflict between the DOT description of order 22 clerk and the VE testimony confirming this as her past relevant work. Specifically, 23 Plaintiff argues that her work in 2002 included door-to-door sales to find new 24 customers, which is not included in the duties of an order clerk under the DOT. 25 In her opening brief, Plaintiff argued that the record was unclear whether she 26 walked door-to-door as a sales representative in 2002. (ECF No. 18 at 8 (“The record 27 is unclear whether [Plaintiff] walked door-to-door in 2002 . . . ”).) In her reply, 28 however, Plaintiff claimed that she did in fact do door-to-door sales in 2002, thus 1 precluding a finding of order clerk. (ECF No. 32 at 4 (“In 2002, [Plaintiff] did not 2 work as an order clerk, she walked door-to-door as well as taking orders.”).) The ALJ 3 directly addressed this issue with the VE and with Plaintiff at the hearing. Plaintiff’s 4 testimony supports the conclusion that Plaintiff was servicing existing customers 5 over the past 15 years and that she was not involved in door-to-door sales for new 6 customers in this period: 7 [ALJ]: Okay. How about when she was just doing the deliveries of the 8 products for the Natural Products? She said for the last two years, she 9 had clients and she didn’t actually sell them so much as she was 10 delivering the products they ordered through her. 11 [VE]: Right. Well that would still be an element of sales but they were 12 returning customers, but – 13 [ALJ]: But what I guess I’m wondering is, is it still door-to-door sales? 14 It’s not telemarketing anymore, is it? 15 [VE]: No, it would fall more along the lines of – well, it would be 16 because it’s a sales job, an element whether she’s actively selling or 17 maintaining the relationships of those return customers, that’s the 18 element of sales, but she may have been more heavily performing 19 duties that were consistent with an order clerk, if they were return 20 customers…. So that would be taking orders and processing the 21 orders. 22 [ALJ]: Is that what you ended up doing the last couple of years? 23 [Plaintiff]: Yes, ma’am. 24 [ALJ]: Is your clients would call you and you would process their order? 25 [Plaintiff]: Yeah, sometimes they will call me and sometimes I will tell 26 them, you know, I have this and this that I bought and then they will 27 come. Sometimes they would come to me and sometimes I will go, as I 28 said mostly family and friends as I said. 1 [ALJ]: When did you start primarily not having to go out and find 2 customers? 3 [Plaintiff]: That was like – maybe around 2000 – around 2000 – yeah, 4 maybe around 2002, around there, because I had done it before, you 5 know. 6 [ALJ]: Oh. So basically the last 15 years, you’ve just been servicing 7 your existing customers? 8 [Plaintiff]: Yes. 9 [VE]: Oh, okay. Okay. I would modify that then, Your Honor. That 10 would most appropriately fall under customer service order clerk. 11 [ALJ]: Okay 12 [VE]: So that is code 249.362-026, and that’s generally sedentary, SVP 13 4. 14 (AR 114-116) (emphasis added). 15 The DOT listing for order clerk describes the primary duties as “Process[ing] 16 orders for material or merchandise received by mail, telephone, or personally.” 17 Dictionary of Occupational Titles, U.S. Dep’t of Labor, No. 249.362-026. Plaintiff’s 18 testimony above confirms that for the past 15 years, 3 she processed and filled orders 19 for existing customers − rather than doing door-to-door sales looking for new 20 customers. (AR 115-116.) Thus, Plaintiff’s account of her work corresponds with the 21 DOT description − as the VE testified in response to the ALJ’s questions. (Id.) The 22 ALJ thus met her duty under SSR 00-4p to inquire about and obtain a reasonable 23 explanation from the VE relating to a possible conflict with the DOT. 24 At step four, the ALJ is required to determine the demands of the claimant’s 25 former work and to compare those demands with her RFC. 20 C.F.R. § 404.1520(e). 26

27 3 The administrative hearing took place on November 28, 2016, and the year 2002 is within the 15-year period before the hearing. 28 1 The ALJ fulfilled that obligation here by thoroughly questioning both the Plaintiff 2 and the VE regarding Plaintiff’s former job duties and by making a finding of past 3 relevant work that is supported by substantial evidence. (AR 109-120.) See Matthews 4 v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (holding Plaintiff’s testimony regarding 5 past relevant job duties to be highly probative.); Abreu v. Astrue, 303 F. App’x 556, 6 558-59 (9th Cir. 2008) (claimant’s “testimony itself provides substantial evidence to 7 support the ALJ’s conclusion that [claimant] could perform his past relevant work as 8 a customer service representative.”); Giordano v. Astrue, 304 F. App’x 507, 509 (9th 9 Cir. 2008) (“It was . . . reasonable for the ALJ to conclude that [the claimant] could 10 return to her past relevant work, given that [the claimant’s] own description of her 11 past jobs accommodated all of the limitations.”). Even if evidence in the record could 12 support a different conclusion regarding Plaintiff’s past relevant work, under the 13 “substantial evidence” standard it is not the Court’s role to reweigh evidence. See 14 Orn, 495 F.3d at 630. The Commissioner’s decision must be upheld if it is supported 15 by enough “evidence as a reasonable mind might accept as adequate to support a 16 conclusion.” Richardson, 402 U.S. at 401. That is the case here. 17 For these reasons, the ALJ’s decision is supported by substantial evidence, and 18 the ALJ did not err in finding that Plaintiff’s past relevant work was that of an order 19 clerk.4 20 ************** 21 /// 22 /// 23

24 4 Although the Commissioner has not shown that Plaintiff met the requisite SGA amount in 2013, 25 any error by the ALJ in this regard was harmless because substantial evidence shows that Plaintiff did meet the SGA amount in 2002 − which is within the relevant 15 year time period. See Molina 26 v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (where one or more reasons supporting ALJ’s credibility analysis are invalid, error is harmless if ALJ provided other valid reasons supported by 27 the record); Stout, 454 F.3d at 1055 (harmless error existed when ALJ error was “inconsequential to the ultimate nondisability determination”). 28 1 Accordingly, IT IS ORDERED that Judgment be entered affirming the 2 || decision of the Commissioner and dismissing this action with prejudice. 3 4 || DATED: 8/2/2019 Ghd ok— ° ALEXANDER F.MacKINNON 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11