United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING
A. TSUCHIDA, Chief United States Magistrate Judge.
appeals the ALJ's decision finding her not disabled. The
ALJ found spine disorders, osteoarthritis and allied
disorders, affective disorders, anxiety disorders and obesity
are severe impairments; plaintiff has the residual functional
capacity (RFC) to perform light work subject to additional
limitations; and plaintiff cannot perform past relevant work
but is not disabled because she can perform other jobs in the
national economy. Tr. 50-71.
contends the ALJ: 1) issued a RFC determination inconsistent
with the ability to perform light exertional work; 2)
erroneously found the jobs identified by the VE exist in
significant numbers; 3) failed to include limitations
contained in medical opinions to which the ALJ gave great
weight; 4) misevaluated lay testimony omitted; and 5) omitted
“significant relevant evidence.” Dkt. 12 at 1.
reasons below, the Court REVERSES the
Commissioner's final decision and
REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
The RFC Determination and Light Exertional Work
contends the RFC determination is “inconsistent with
the ability to perform work at the light exertional
level” and the ALJ therefore erred at step five in
finding plaintiff can work as a garment sorter or mail clerk,
which are classified as light jobs. Dkt. 12 at 6-7. The
argument fails. The ALJ did not find plaintiff can perform
the full range of work at the light exertional level, as
plaintiff's argument implies. Rather the ALJ asked the VE
if there are jobs plaintiff could perform given the
limitations set forth in the RFC. Tr. 70-71. The VE
identified two jobs given those limitations. The
inconsistency claimed does not exist and the Court
accordingly rejects the argument.
Whether Jobs Exist in Significant Numbers
testified plaintiff can work as a garment sorter or mail
clerk and there are respectively 50, 000 and 30, 000 jobs
that exist in the national economy. Tr. 151. The Commissioner
concedes plaintiff lacks the RFC to work as a mail
clerk but the Court should affirm because
plaintiff waived challenging the VE's testimony by not
raising the issue at the administrative level; the
Commissioner contends the ALJ thus properly relied upon the
expert testimony of the VE. Dkt. 14 at 3-4.
record shows plaintiff was represented by counsel at the
hearing in which the VE testified, and that counsel
questioned the VE but did not challenge the VE regarding the
number of jobs. Tr. 153-156. The ALJ “need not inquire
sua sponte into the foundation for the expert's
opinion.” Shaibi v. Berryhill, 883 F.3d 1102,
1110 (9th Cir. 2017). When the hypothetical the ALJ poses the
VE contains all limitations in the RFC, the ALJ may rely on
the testimony the VE gave in response to the hypothetical.
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.
record establishes plaintiff's attorney did not challenge
the VE's testimony about the number of jobs that existed
in the national economy. “When a claimant fails
entirely to challenge a vocational expert's job numbers
during administrative proceedings before the agency, the
claimant forfeits such a challenge on appeal, at least when
that claimant is represented by counsel.”
Shaibi, 883 F.3d at 1109. In Shaibi, the
plaintiff presented evidence for the first time on appeal
regarding the number of jobs in existence and argued the
Court should take judicial notice of evidence. The Court
rejected the argument finding Shaibi failed to
demonstrate good cause and provided no explanation for the
failure to challenge the VE's numbers during
administrative proceedings. Id. Consistent with
Shaibi, the Court finds plaintiff waived challenging
the VE's numbers testimony by failing to challenge the
testimony at the administrative level.
Shaibi, plaintiff argues the Court in this case
should find the ALJ erred based upon evidence presented for
the first time on appeal. Dkt. 12 at 7-8. However, the Court
cannot reverse the Commissioner based upon evidence presented
on appeal for the first time unless plaintiff shows
“good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” 42
U.S.C. § 405(g). The evidence plaintiff asks the Court
to consider is not new evidence. Rather it is evidence based
upon information from 1977 and 1987, as plaintiff's
opening brief notes, existed before the hearing the ALJ
conducted and thus could have been presented then. Dkt. 12 at
7-8. As plaintiff could have but did not present this
evidence during administrative proceedings she fails to
demonstrate good cause. See e.g. Mayes v. Massanari,
276 F.3d 453, 463 (9th Cir. 2001) (citing Key v.
Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)).
(“[a] claimant does not meet the good cause requirement
by merely obtaining a more favorable report once his or her
claim has been denied. To demonstrate good cause, the
claimant must demonstrate that the new evidence was
unavailable earlier.”). The Court accordingly affirms
the ALJ's determination that based upon the VE's
testimony, garment sorter jobs exist in significant number in
the national economy.
Evaluation of the Lay Testimony
contends the ALJ misevaluated the lay testimony of her aunt
and her cousin. Dkt. 12 at 10. She contends the ALJ failed to
give “specifics of why the aunt's statements”
were rejected and failed to mention her cousins'
statements about her depression and joint pain. Id.
at 11-12. As the Commissioner correctly notes, even if the
ALJ erred, the error is harmless because the ALJ rejected
plaintiff's testimony about limitations which are similar
to the limitations indicated by the lay witnesses. The ALJ
rejected plaintiff's testimony as unsupported by the
medical record and inconsistent with her activities. Tr. 69.
Plaintiff does not challenge these determinations. Because
the ALJ rejected plaintiff's testimony for reasons that
are equally relevant to the lay witnesses any error the ALJ
may have committed is harmless. Molina v. Astrue,
674 F.3d 1104, 1115 (9th Cir. 2012) (Where ALJ gives reasons
for rejecting claimant's testimony regarding her symptoms
that are equally relevant to the similar testimony of the lay
witnesses, and that would support a finding that the lay
testimony was similarly not credible, any error the ALJ
committed in failing to address the lay testimony is
harmless.). Plaintiff contends in her reply that the
Commissioner argument is a post hoc argument. That is not the
case. In Molina the Circuit Court held that even if