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Ilona A. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

December 19, 2019

ILONA A., Plaintiff,


          BRIAN A. TSUCHIDA, Chief United States Magistrate Judge.

         Plaintiff 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.

         Plaintiff 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.

         For the 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. § 405(g).


         1. The RFC Determination and Light Exertional Work

         Plaintiff 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.

         2. Whether Jobs Exist in Significant Numbers

         The VE 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[1] 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.

         The 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. 2005).

         The 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.

         As in 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.

         3. Evaluation of the Lay Testimony

         Plaintiff 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 ...

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