1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CINDY WOOLBERT, No. 2:20-CV-2203-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 5 and 7, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c) see also ECF No. 8 (minute order reassigning case to Magistrate Judge). Pending 23 before the Court are the parties’ briefs on the merits, ECF Nos. 14 and 15. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. 15 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied;

22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; 24 Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 27

28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied;

4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on December 18, 2017. See CAR 15.1 3 In the application, Plaintiff claims disability began on June 2, 2017. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative 5 hearing, which was held on February 12, 2020, before Administrative Law Judge (ALJ) Daniel 6 Myers. In a March 16, 2020, decision, the ALJ concluded Plaintiff is not disabled based on the 7 following relevant findings:

8 1. The claimant has the following severe impairments: degenerative joint disease and arthritis. 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; 11 3. The claimant has the following residual functional capacity: 12 lift/carry 10 pounds maximum; cane use for ambulation; stand/walk four hours total; sit six hours total; stoop occasionally; 13 no ladder climbing, no crouching; no crawling; no kneeling; and avoiding all exposure to hazards such as unprotected heights and 14 dangerous moving machinery.

15 4. Considering the claimant’s age, education, work experience, residual functional capacity, vocational expert testimony, and the 16 Medical-Vocational Guidelines, there are jobs that exist in significant numbers in the national economy that the claimant can 17 perform.

18 See CAR 17-24. 19 After the Appeals Council declined review on September 2, 2020, this appeal followed. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 1 Citations are to the Certified Administrative Record (CAR) lodged on July 30, 28 2021, ECF No. 11. 1 III. DISCUSSION 2 In her motion for summary judgment, Plaintiff argues: (1) the final decision of the 3 Commissioner arises from an unconstitutional administrative process, and (2) where the ALJ 4 relies on vocational findings in conflict with the Dictionary of Occupational Titles (DOT) and 5 fails to resolve that conflict, the Court should reverse and remand. 6 A. Constitutionality of the Administrative Process 7 In her brief, Plaintiff argues that this matter must be remanded because the 8 Commissioner’s final decision arose from an unconstitutional process. See ECF No. 24, pgs. 6- 9 10. Specifically, Plaintiff challenges the ALJ’s authority to hear a case under Seila Law LLC v. 10 CFPB, 140 S.Ct. 2183 (2020), and Collins v. Yellen, 141 S.Ct. 1761 (2021), and contends that, 11 during the times relevant to this case, the Commissioner of Social Security (Andrew Saul) had 12 been appointed pursuant to an unconstitutional statute. See id. According to Plaintiff:

13 Here, the ALJ heard this claim on February 12, 2020. AR 29-52. The ALJ issued the decision on March 11, 2020. AR 12-28. The Appeals 14 Council denied review on September 2, 2020. AR 1-6. Thus, the relevant agency actions (hearing, decision, administrative review) were all 15 completed within the unconstitutional tenure of Commissioner Saul. As the single member-head in an unconstitutional structure, the 16 Commissioner had no authority to delegate to the ALJ in this case or to the Appeals Council to make findings of fact and issue final decisions as to 17 benefits eligibility. Where an agency’s actions have been completed under unconstitutional authority, these actions are also constitutionally defective. 18 Lucia v. SEC, 138 S.Ct. 2044, 2055 (2018).

19 ECF No. 14, pgs. 8-9. 20 As Plaintiff correctly notes, Andrew Saul held the office of Commissioner of 21 Social Security as the sole person dischargeable only for cause between June 17, 2019, and July 22 9, 2021. Ramos v. Comm'r of Soc. Sec., No. 1:20-cv-01606-EPG, 2022 U.S.Dist.LEXIS 5721, 23 *5-6 (E.D. Cal. Jan. 10, 2022). Plaintiff relies on an Office of Legal Counsel opinion that 24 considered the Supreme Court’s decisions in Seila Law and Collins and concluded that “[w]e 25 believe that the best reading of those decisions compels the conclusion that the statutory 26 restriction on removing the Commissioner is unconstitutional.” ECF No 14, pg. 7 (citing 45 Op. 27 O.L.C. __, at Section II.B (July 8, 2021)). Plaintiff concludes that Commissioner Saul’s 28 1 appointment pursuant to an unconstitutional statutory restriction on removal only for cause 2 tainted the entire administrative process in this case and requires remand. 3 Other federal district courts that considered the Social Security Commissioner’s 4 removal power found that the removal clause of 42 U.S.C. § 902(a)(3) did indeed violate the 5 separation of powers doctrine insofar as it granted for-cause removal protection to the 6 Commissioner of Social Security. See Lisa Y. v. Comm'r of Soc. Sec., No. C21-5207-BAT, 2021 7 U.S. Dist. LEXIS 215767, at *16 (W.D. Wash. Nov. 8, 2021); see Ramos, 2022 U.S.Dist.LEXIS 8 5721 at *5. Although there is no controlling authority on this point, federal district courts agree 9 that to have standing on the claim that the unconstitutional removal provision for the Social 10 Security Commissioner requires remand, the Plaintiff must show some connection between the 11 unconstitutional provision and the unfavorable decision rendered by the ALJ. See Rivera-Herrera 12 v. Kijakazi, No. 1:20-cv-01326-GSA 2021 U.S.Dist.LEXIS 225340, at *19 (E.D.Cal. Nov. 21, 13 2021) (“[G]iven the lack of any controlling or persuasive authority to that effect, the Court will 14 defer to the holdings of the only district courts in this Circuit who have spoken on the issue and 15 found that such claims fail for lack of standing because the denial of disability benefits is not a 16 harm fairly traceable to § 902(a)(3)'s removal provision.”); Frank W. v. Kijakazi, No. 20-cv- 17 1439, 2021 U.S. Dist. LEXIS 227031, at *4 (S.D. Cal. Nov. 24, 2021) (“Here, there is no 18 allegation even suggesting a direct nexus between the adjudication of plaintiff's disability claim 19 by the SSA and the alleged separation of powers violation in the removal statute that applies to 20 the Commissioner.”); Shaun A. v. Comm'r of Soc. Sec., No. C21-5003-SKV, 2021 U.S. Dist. 21 LEXIS 225120, at *4-6 (W.D. Wash. Nov. 22, 2021) (“Plaintiff cannot show any connection 22 between the unconstitutional limit on Commissioner Saul's removal and the ALJ's decision 23 denying him benefits.”); Brinkman v. Kijakazi, No. 2:21-CV-00528-EJY, 2021 WL 4462897, at 24 *2 (D. Nev. Sept. 29, 2021) (“In this case, unlike Seila Law, Plaintiff does not allege facts that 25 support a finding that her injury, the denial of disability benefits, can be or is traced to the 26 conduct of the SSA Commissioner.”); Jordan v. Comm'r of SSA, No. CV-21-08022-PCT-DGC, 27 2022 U.S. Dist. LEXIS 51133, at *11-12 (D. Ariz. Mar. 22, 2022) (“Because Plaintiff has shown 28 no cognizable harm from § 902(a)(3)'s removal provision, he is not entitled to a new 1 administrative hearing.”); Ramos, 2022 U.S.Dist.LEXIS 5721 at *9 (“Here, Plaintiff has not 2 shown any connection between the denial of benefits and the unconstitutional removal provision. 3 Accordingly, remand is not warranted.”). 4 In the instant case, Plaintiff has not met this burden because she does not show the 5 requisite connection between the unconstitutional removal provision associated with former 6 Commissioner Saul’s appointment and the ALJ’s decision denying her benefits. Plaintiff alleges 7 no facts which would indicate how the decision to deny benefits was affected by the 8 unconstitutional provision. Therefore, Plaintiff’s request for relief based on the 9 unconstitutionality of the removal provision under which former Commissioner Saul was 10 appointed is denied. 11 B. Vocational Findings 12 At Step 5, the Medical-Vocational Guidelines (Grids) provide a uniform 13 conclusion about disability for various combinations of age, education, previous work 14 experience, and residual functional capacity. The Grids allow the Commissioner to streamline 15 the administrative process and encourage uniform treatment of claims based on the number of 16 jobs in the national economy for any given category of residual functioning capacity. See 17 Heckler v. Campbell, 461 U.S. 458, 460-62 (1983) (discussing creation and purpose of the 18 Grids). 19 The Commissioner may apply the Grids in lieu of taking the testimony of a 20 vocational expert only when the Grids accurately and completely describe the claimant’s abilities 21 and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v. 22 Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the 23 Grids if a claimant suffers from non-exertional limitations because the Grids are based on 24 exertional strength factors only. See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). “If 25 a claimant has an impairment that limits his or her ability to work without directly affecting his 26 or her strength, the claimant is said to have non-exertional . . . limitations that are not covered by 27 the Grids.” Penny v. Sulliacvan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, 28 Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids 1 even when a claimant has combined exertional and non-exertional limitations, if non-exertional 2 limitations do not impact the claimant’s exertional capabilities. See Bates v. Sullivan, 894 F.2d 3 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988). 4 In cases where, as here, the Grids are not fully applicable, the ALJ may meet 5 his burden under step five of the sequential analysis by propounding to a vocational expert 6 hypothetical questions based on medical assumptions, supported by substantial evidence, that 7 reflect all the plaintiff’s limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). 8 Specifically, where the Medical-Vocational Guidelines are inapplicable because the plaintiff 9 has sufficient non-exertional limitations, the ALJ is required to obtain vocational expert 10 testimony. See Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988). 11 Hypothetical questions posed to a vocational expert must set out all the substantial, 12 supported limitations and restrictions of the particular claimant. See Magallanes v. Bowen, 881 13 F.2d 747, 756 (9th Cir. 1989). If a hypothetical does not reflect all the claimant’s limitations, the 14 expert’s testimony as to jobs in the national economy the claimant can perform has no evidentiary 15 value. See DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). While the ALJ may pose to 16 the expert a range of hypothetical questions based on alternate interpretations of the evidence, the 17 hypothetical that ultimately serves as the basis for the ALJ’s determination must be supported by 18 substantial evidence in the record as a whole. See Embrey v. Bowen, 849 F.2d 418, 422-23 (9th 19 Cir. 1988). 20 Here, the ALJ made the following vocational findings at Step 5:

21 If the claimant had the residual functional capacity to perform the full range of sedentary work, a finding of “not disabled” would be directed by 22 Medical-Vocational Rule 201.24. However, the claimant’s ability to perform all or substantially all of the requirements of this level of work 23 has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled sedentary occupational base, 24 the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant’s age, 25 education, work experience, and residual functional capacity. The

26 / / /

27 / / /

28 / / / 1 vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations 2 such as:

3 • Office helper (DOT 239.567-010, SVP 2, light exertion), for which 112,000 positions exist nationally. 4 • Information clerk (DOT 237.367-018, SVP 2, light exertion), for 5 which 83,000 positions exist nationally.

6 Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s testimony is consistent with the information contained in the 7 Dictionary of Occupational Titles.

8 Based on the testimony of the vocational expert, the undersigned concludes that, considering the claimant’s age, education, work 9 experience, and residual functional capacity, the claimant is capable of making a successful adjustment to other work that exists in significant 10 numbers in the national economy. A finding of “not disabled” is therefore appropriate under the framework of the above-cited rule. 11

CAR 23-24.

12 13 Plaintiff argues that the ALJ’s vocational findings at Step 5 should be reversed as 14 invalid because the ALJ failed to resolve an apparent conflict between the vocational expert’s 15 testimony and the DOT job classifications. See EFC No. 14, pgs. 10-12. According to Plaintiff:

16 Although the ALJ found that the vocational expert’s testimony was consistent with the DOT, he did not ask her if it was consistent with the 17 DOT. AR 23, 49-50. The ALJ did ask the vocational expert if there would be any change in job numbers in light of the lifting limitation to 10 pounds 18 maximum and needing a cane for any ambulation. AR 49. The vocational expert stated that she would not erode the job numbers because “there 19 really isn’t much lifting in those two occupations.” AR 49. The ALJ sought no explanation for the deviation from the DOT regarding the 20 standing/walking limitations.

21 ECF No. 14, pg. 11. 22 For Social Security benefits hearings, the DOT is the default presumption for 23 disability classifications. Massachi v. Astrue (9th Cir. 2007) 486 F.3d 1149, 1150. Moreover, the 24 ALJ has an affirmative responsibility to ask about any possible conflict between vocational expert 25 evidence and information provided in the DOT. Id. The ALJ may, however, rebut the 26 presumption of applicability of the DOT when expert testimony exists that is supported by 27 persuasive evidence contradicting the DOT. See Murry v. Apfel, 1999 U.S. App. LEXIS 28911, 28 1, 9 (9th Cir. 1999) (holding that the Administrative Law Judge is not bound by the DOT 1 descriptions but can instead rely on the testimony of the vocational expert and own findings 2 specific to the individual plaintiff before the Administrative Law Judge); see also Tackett v. 3 Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999) (holding that the ALJ can rely on vocational expert’s 4 testimony as to (1) the jobs a claimant can work in given the limitations and residual functional 5 capacity and (2) the availability of these jobs on a national scale); see also Moncada v. Chater, 60 6 F.3d 521, 524 (9th Cir. 1995) (concluding that vocational experts have the authority to testify 7 whether a particular plaintiff would be able to perform specific jobs within DOT 8 subcategories); Distasio v. Shalala, 47 F.3d 348, 350 (9th Cir. 1995); see also Barker v. Secretary 9 of Health and Human Svcs., 882 F.2d 1474, 1478 n.1 (9th Cir. 1989) (holding that a plaintiff 10 restricted to sedentary work is not automatically barred from performing all "light" jobs when 11 plaintiff was still capable of performing a subcategory of “light” jobs); see also Terry v. Sullivan, 12 903 F.2d 1273, 1277 (9th Cir. 1990). 13 The ALJ determined that Plaintiff is capable of light work requiring no more than 14 a total of four hours standing and walking. The ALJ also stated that Plaintiff requires a cane for 15 ambulation. As framed by Plaintiff, the issue is whether the ALJ adequately resolved an apparent 16 conflict between the jobs identified by the vocational expert and the DOT classifications with 17 respect to Plaintiff’s stand/walk limitations and use of a cane. For the reasons discussed below, 18 the Court finds no conflict and that the ALJ properly relief on the vocational expert’s testimony to 19 rebut the presumptive application of DOT classifications. 20 The transcript of the administrative hearing reflects the following exchange during 21 the ALJ’s examination of the vocational expert:

22 Q: Thank you. If you assumed a hypothetical individual who was limited to light duty work and further limited to lifting and carrying 23 20 pounds occasionally, ten pounds frequently, standing and walking four hours total, sitting up to six hours total, only occasional stooping, no 24 crouching, crawling, or kneeling, no ladders, must avoid all exposure to hazards such as unprotected heights and dangerous moving machinery. 25 Could that hypothetical individual perform the work that Ms. Woolbert just performed in the past? 26 A: No. 27 Q: What, if any, occupations in the national or regional 28 economies might that hypothetical individual be able to perform? 1 A: I would look at light, unskilled jobs. Examples would be an office helper and that number is 239.567-010, light, SVP 2, and that 2 grouping nationally, at least 112,000 positions, and information clerk, 237.367-018, light, SVP 2, and that grouping nationally, at least 83,000 3 positions, and a third would be a mail room clerk, 209.687-026, light, SVP 2, and in that grouping nationally, at least 68,000 positions. 4 Q: If the hypothetical individual actually was limited to - 5 - had all those limitations I’ve already described but was further limited to lifting and carrying ten pounds maximum and standing, let’s see -- 6 needing a cane for any ambulation. Could that hypothetical individual still work as an office helper, information clerk, or mail room clerk? 7 A: I would say the officer helper and the information clerk 8 would remain. The mail room clerk I would exclude.

9 Q: And with regard to office helper and information clerk, would the number of jobs available in the national or regional economies 10 remain the same?

11 A: Yes, I don’t -- there really isn’t much lifting in those two occupations, so I wouldn’t erode the numbers. 12 * * * 13 Q: And is that based on information that’s in the Dictionary of 14 Occupational Titles and Selected Characteristics of Occupations?

15 A: No, that information is not in the Dictionary of Occupational Titles. It would be based on my education, training, and 16 experience, and also the use of a cane is not in the DOT either.

17 CAR 48-50. 18 First, the Court rejects Plaintiff’s argument that the ALJ failed to ask the 19 vocational expert about possible conflicts with the DOT. To the contrary, as the hearing 20 transcript reflects, the ALJ expressly asked if the vocational expert’s testimony was based on the 21 DOT and the vocational expert responded that they were not. Second, the Court finds that, by 22 obtaining vocational expert testimony based on Plaintiff’s residual functional capacity – a finding 23 which she does not challenge – the ALJ adequately rebutted the presumptive application of the 24 DOT in this case. Finally, the vocational expert’s testimony regarding jobs someone with 25 Plaintiff’s sit/stand restriction and cane requirement can do constitutes substantial evidence to 26 support the ALJ’s vocational findings at Step 5. 27 / / / 28 / / / 1 IV. CONCLUSION 2 Based on the foregoing, the Court concludes that the Commissioner’s final 3 | decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 4 | ORDERED that: 5 1. Plaintiff's motion for summary judgment, ECF No. 14, is denied; 6 2. The Commissioner’s final decision is affirmed; and 7 3. The Clerk of the Court is directed to enter judgment and close this file. 8 9 | Dated: August 3, 2022 Ssvcqo_ 10 DENNIS M. COTA

UNITED STATES MAGISTRATE JUDGE

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12