1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 GLORIA PAREDES RUIZ, ) Case No.: 1:17-cv-00180-BAM 9 ) Plaintiff, ) ORDER DENYING DEFENDANT’S MOTION 10 v. ) TO ALTER OR AMEND JUDGMENT 11 ) ANDREW M. SAUL,1 Commissioner of ) 12 Social Security, ) ) 13 ) Defendant. ) 14 ) 15 16 I. INTRODUCTION 17 Pending before the Court is Plaintiff Gloria Paredes Ruiz’s (“Plaintiff”) Motion to Alter or 18 Amend Judgment filed pursuant to Federal Rule of Civil Procedure 59(e) (the “Motion”). (Doc. 21.) 19 For the reasons provided below, the Court DENIES this Motion. 20 II. BACKGROUND 21 The Court previously provided the full factual background for this case in its order entered on 22 August 4, 2017. (See Doc. 19). As pertinent here, an administrative law judge (the “ALJ”) 23 determined Plaintiff was not disabled under the Social Security Act, and issued an order denying 24 benefits on July 31, 2015. (Doc. 9-3 at 10-27). At step four of the sequential evaluation, the ALJ 25 determined that Plaintiff retained the residual functional capacity (“RFC”) to lift and/or carry 20 26

27 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. 28 Berryhill as the defendant in this suit. 1 pounds occasionally and 10 pounds frequently, sit 6 hours and stand and/or walk 6 hours in an 8-hour 2 workday, frequently climb, balance, stoop, kneel, crouch, or crawl, frequently handle and finger, and 3 occasionally perform tasks requiring full field of vision and depth perception due to left eye 4 impairment, but was limited to work involving only simple, repetitive tasks. (Id. at 18-25). Relying on 5 the vocational expert (“VE”), the ALJ found that with this RFC, Plaintiff could not return to her past 6 relevant work. However, also relying on the VE’s testimony, the ALJ determined at step five that 7 there were other jobs existing in significant numbers in the national economy that she could perform, 8 such as counter attendant, cafeteria attendant and sales attendant. (Id. at 25-27.) 9 In the appeal to this Court, Plaintiff argued two primary errors: (1) that the VE testified in 10 apparent conflict with the Dictionary of Occupational Titles (“DOT”) with respect to the position of 11 sales attendant, and (2) that the ALJ failed to explain Plaintiff’s degree of manipulative impairment. 12 Specifically, Plaintiff argued that there was an apparent conflict between Plaintiff’s RFC limitation to 13 simple, repetitive work and the demands of Level 3 Reasoning required by the position of sales 14 attendant. Plaintiff also argued that the ALJ failed to explain the basis for the degree of manipulative 15 limitation identified in the RFC, thereby eliminating the two remaining representative jobs of counter 16 attendant and cafeteria attendant. 17 As an initial matter, the Court agreed with Plaintiff that there was an apparent conflict between 18 Plaintiff’s RFC limitation to simple, repetitive work and the demands of Level 3 Reasoning required 19 by the position of sales attendant. The Court therefore determined that substantial evidence failed to 20 support the ALJ’s step-five finding that Plaintiff could perform the work of sales attendant. (Doc. 19 21 at 7.) The Court also agreed with Plaintiff that the ALJ erred by failing to explain the basis for the 22 degree of manipulative limitation in the RFC with respect to the two remaining jobs of counter 23 attendant and cafeteria attendant. In particular, the Court found that the ALJ erred by failing to 24 address the occasional use manipulative limitations identified by the state agency consultant, Dr. 25 Robert Mitgang. Nevertheless, the Court concluded that this latter error was harmless based on the 26 VE’s testimony that a person limited to occasional fingering, feeling and handling would be able to 27 perform other representative jobs in the national economy, such as counter clerk and bakery worker, 28 1 conveyor line. Accordingly, the Court denied Plaintiff’s appeal from the administrative decision of 2 the Commissioner of Social Security and directed entry of judgment against Plaintiff. (Doc. 19.) 3 By the instant motion, Plaintiff now request that judgment be amended in her favor, arguing 4 that the Court erroneously found harmless error at step five of the sequential evaluation. In relevant 5 part, Plaintiff asserts that the Court could not conclude that no reasonable ALJ would make a different 6 finding on evidence that the ALJ left out of the decision. (Doc. 21). In other words, Plaintiff contends 7 that the Court should not have considered the VE’s testimony identifying the positions of counter clerk 8 or bakery worker because this was not a reason upon which the ALJ found Plaintiff not disabled. (Id. 9 at 5.) Plaintiff further argues that by going outside the ALJ’s decision, the Court should now permit 10 Plaintiff to submit evidence from County Business Patterns and the Occupational Outlook Handbook 11 that the positions of counter clerk and bakery worker did not exist in significant numbers in the 12 national economy. (Id. at 7-9.) 13 The Commissioner counters that the Court properly applied the harmless error analysis and 14 correctly looked to the entire record, which supported the ALJ’s existing conclusion at step five based 15 on the VE’s testimony. (Doc. 24 at 3.) The Commissioner also contends that Plaintiff was required to 16 raise challenges regarding job numbers during cross-examination of the VE by Plaintiff’s counsel. (Id. 17 at 6.) 18 In reply, Plaintiff asserts that the Court could not credit testimony from the VE that the ALJ 19 did not consider, and because the ALJ did not explicitly consider it, Plaintiff should be permitted to 20 submit evidence of job numbers. (Doc. 25.) 21 III. LEGAL STANDARD 22 A district court may alter or amend its judgment pursuant to Rule 59(e) of the Federal Rules of 23 Civil Procedure. However, reconsideration is an “extraordinary remedy, to be used sparingly in the 24 interests of finality and conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 25 (9th Cir. 2003). The Ninth Circuit explained, 26 There are four grounds upon which a Rule 59(e) motion may be granted: 1) the motion is “necessary to correct manifest errors of law or fact upon which the judgment is 27 based;” 2) the moving party presents “newly discovered or previously unavailable 28 1 evidence;” 3) the motion is necessary to ‘prevent manifest injustice;” or 4) there is an “intervening change in controlling law.” 2 Turner v. Burlington Northern Santa Fe Railroad Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (quoting 3 McDowell v. Calderon, 197 F.3d 1253, 1254 n. 1 (9th Cir.1999)). A motion to amend judgment under 4 Rule 59(e) “may not be used to relitigate old matters, or to raise arguments or present evidence that 5 could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker, 554 U.S. 471, 6 486 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). 7 With respect to the instant motion, Plaintiff does not allege the existence of newly discovered 8 evidence or an intervening change in the controlling law;2 therefore, the only question is whether the 9 Court committed clear error that warrants an amendment of the judgment. 10

IV. DISCUSSION

11 As indicated above, the Court found that the ALJ erred by failing to address the occasional use 12 manipulative limitations identified by Dr. Mitgang, but nevertheless concluded that this error was 13 harmless based on the VE’s testimony that a person limited to occasional fingering, feeling and 14 handling would be able to perform other representative jobs in the national economy, such as counter 15 clerk and bakery worker, conveyor line. 16 17 18 19 2 Following full briefing on the motion, Plaintiff filed notices of new authority on April 4, 2019 20 and on August 14, 2019. (Docs. 26, 27.) In the first notice, Plaintiff contends that Biestek v. Berryhill, 139 S.Ct. 1148 (2019), supports Plaintiff’s contention that the VE’s testimony lacks the attributes of 21 substantial evidence because it is feeble and contradicted without supporting job data. (Doc. 26 at 2.) Plaintiff’s argument is not persuasive. Biestek confirmed that “a vocational expert’s testimony may 22 count as substantial evidence even when unaccompanied by supporting data,” even if it may be more reliable and probative if she provided supporting data. Id. at 1155. Here, the VE had extensive 23 experience, including more than twenty years of experience as a VE at the time of the hearing (AR 202), and she testified to job numbers based, in part, on that experience (AR 65). Biestek does not 24 alter the proposition that the VE’s testimony may count as substantial evidence. The Court also notes that there was no objection to the VE’s qualifications. (AR 57.) 25 In the second notice, Plaintiff cites the decision of Regents of the Univ. of California v. Dept. 26 of Homeland Security, 908 F.3d 476, 5050 (9th Cir. 2018), to support the position that the Court was constrained to affirm the Commissioner’s decision solely on the grounds invoked by the agency. 27 (Doc. 27.) As discussed in this Order, however, the Court affirmed the agency’s decision based on the same grounds invoked by the ALJ; that is, Plaintiff’s ability to perform other work existing in 28 significant numbers in the national economy at step five of the sequential evaluation. 1 The Ninth Circuit “ha[s] long recognized that harmless error principles apply in the Social 2 Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citation omitted). In this 3 context, the “general principle” is “that an ALJ’s error is harmless where it is ‘inconsequential to the 4 ultimate nondisability determination.’” Id. (citation omitted). In each case, the reviewing court will 5 “look at the record as a whole to determine whether the error alters the outcome of the case.” Id. 6 “[A]n error is harmless so long as there remains substantial evidence supporting the ALJ’s decision 7 and the error ‘does not negate the validity of the ALJ's ultimate conclusion.’” Id. (quoting Batson v. 8 Comm’r. of Soc. Sec., 359 F.3d 1190, 1197 (9th Cir. 2004)). “The burden is on the party claiming error 9 to demonstrate not only the error, but also that it affected his ‘substantial rights,’ which is to say, not 10 merely his procedural rights.” Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). A reviewing 11 court must consider “an estimation of the likelihood that the result would have been different.” Id. at 12 1055 (finding that “[t]he ALJ's decision, and the record of [claimant’s] contradictions, make it plain 13 that the ALJ would have reached the same conclusion” as to disability if the ALJ had not erroneously 14 considered ex parte evidence). 15 Here, the ALJ’s ultimate nondisability determination was based on the VE’s testimony at step 16 five of the sequential evaluation process, concluding that a significant number of jobs exist in the 17 economy that the claimant could perform. AR 26. Contrary to Plaintiff’s suggestion, the Court did not 18 find a new basis on which to affirm the ALJ’s decision. Rather, the Court determined that the ALJ 19 would have reached the same conclusion at step five of the disability determination and affirmed the 20 ALJ’s step-five rationale that Plaintiff could perform other work in the national economy. In so doing, 21 the Court relied on “the record as a whole to determine whether the error alter[ed] the outcome of the 22 case.” Molina, 674 F.3d at 1115. 23 As discussed in the Court’s decision, had the ALJ accepted the occasional use manipulative 24 limitations identified by Dr. Mitgang, the ALJ could have continued to rely on the VE’s testimony to 25 support the nondisability determination at step five. See, e.g., McGarrah v. Colvin, 650 Fed.App’x 26 480, 481 (9th Cir. 2016) (finding ALJ’s error in formulating hypothetical question did not negate the 27 validity of nondisability determination where VE testimony identified jobs that accounted for 28 claimant’s limitations). According to the record, the ALJ asked the VE to assume occasional 1 fingering, feeling and handling limitations. The VE testified that this limitation would eliminate 2 Plaintiff’s past work, but there were other jobs available, such as counter clerk (DOT 249.366-010) 3 with 43,761 jobs nationwide, and bakery worker, conveyor line (DOT 524.687-022) with 7,036 jobs 4 nationwide. AR 62-65. Together, these jobs constituted over 50,000 positions nationwide, and the 5 position of counter clerk alone was above the threshold for significance. See Gutierrez v. Colvin, 740 6 F.3d 519, 527-29 (9th Cir. 2014) (holding that 25,000 jobs nationally is a significant number). 7 Plaintiff does not dispute that Dr. Mitgang’s opinion regarding Plaintiff’s manipulative limitations 8 were encompassed in the ALJ’s hypothetical posited to the VE or that someone with Plaintiff’s 9 limitations could perform the positions of counter clerk and bakery worker, conveyor line. Plaintiff 10 instead challenges the job numbers and reliance on the VE’s testimony. 11 Plaintiff did not challenge the job numbers during the administrative hearing. “[W]hen a 12 claimant fails entirely to challenge a [VE]’s job numbers during administrative proceedings before the 13 agency, the claimant forfeits such a challenge on appeal, at least when that claimant is represented by 14 counsel.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). Plaintiff was represented by 15 counsel at the hearing. Therefore, she forfeited any challenge to the VE’s job numbers because she 16 failed to raise the issue during the administrative hearing. 17 Even if Plaintiff’s argument was not forfeited, it is foreclosed. Plaintiff suggests that the Court 18 should consider evidence from County Business Patterns and the Occupational Outlook Handbook 19 that indicate the positions of counter clerk and bakery worker did not exist in significant numbers in 20 the national economy. However, it is unnecessary to rely on these outside sources because “a 21 vocational expert’s testimony may count as substantial evidence even when unaccompanied by 22 supporting data.” See Biestek 139 S. Ct. at 1155-56. Indeed, as determined by the Ninth Circuit, a 23 vocational expert’s “recognized expertise provides the necessary foundation for his or her testimony” 24 and, therefore, “no additional foundation is required.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 25 Cir. 2005). The VE’s opinion therefore qualifies as “more than a mere scintilla” of evidence necessary 26 to support the decision. Biestek,139 S.Ct. at 1156. Further, Plaintiff’s effort to undermine the 27 reliability of the VE’s testimony through her own lay assessment of vocational information and job 28 data is unavailing. Courts considering similar arguments have found that such lay assessment of raw 1 data cannot rebut a vocational expert’s opinion. See, e.g., Frayer v. Berryhill, No. 2:17-cv-2437-EFB, 2 2019 WL 1206747, at *5 (E.D. Cal. Mar. 14, 2019) (noting other courts have found that lay 3 interpretation of raw job numbers insufficient to undercut a VE’s analysis.); Kirby v. Berryhill, No. SA 4 CV 18-497-E, 2018 WL 4927107 at *5 (C.D. Cal. Oct. 10, 2018) (same; rejecting counsel’s law 5 assessment of data derived from the Occupational Outlook Handbook and other sources). 6 V. CONCLUSION AND ORDER 7 For the reasons stated, Plaintiff has not demonstrated that the Court committed clear error 8 warranting amendment of the judgment. Accordingly, Plaintiff’s Motion to Amend the Judgment 9 (Doc. 21) is HEREBY DENIED. 10 11 IT IS SO ORDERED.

12 Dated: February 3, 2020 /s/ Barbara A. McAuliffe _ 13 UNITED STATES MAGISTRATE JUDGE

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