(SS) Valdez v. Commissioner of Social Security ( 2023 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 JUAN CALI VALDEZ, Case No. 1:22-cv-00477-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 1, 15). 16 Defendant. 17 18 This matter is before the Court on Plaintiff’s complaint for judicial review of an 19 unfavorable decision by the Commissioner of the Social Security Administration regarding his 20 application for supplemental security income benefits. The parties have consented to entry of 21 judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with 22 any appeal to the Court of Appeals for the Ninth Circuit. (ECF No. 10). 23 Plaintiff presents the following issue: 24 The ALJ failed to meet his Step Five burden to prove Plaintiff can perform other 25 work that exists in significant numbers in the national economy. 26 (ECF No. 15, p. 4). 27 Having reviewed the record, administrative transcript, the parties’ briefs, and the 28 applicable law, the Court finds as follows: 2 Plaintiff argues that the ALJ failed to show at Step 5 that Plaintiff can perform other work 3 that exists in significant numbers in the national economy. (ECF No. 15, p. 4). The Ninth Circuit 4 has noted the following regarding Step Five of the sequential evaluation process: 5 Under the Social Security Act, a claimant is considered “disabled” and entitled to disability benefits only if her impairments preclude her both from conducting her 6 past relevant work and from engaging “in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). Once a 7 claimant establishes at steps one through four of the sequential evaluation process 8 that she suffers from a severe impairment that prevents her from doing any work she has done in the past, or that she has a severe impairment and has no relevant 9 past work, she has made out a prima facie case of a disability. See Tackett v. Apfel, 10 180 F.3d 1094, 1098 (9th Cir. 1999). The burden then shifts to the Commissioner at step five to establish that the claimant can perform a “significant number[ ]” of 11 jobs in the national economy given the claimant’s physical and mental limitations, age, education, and work experience. 20 C.F.R. § 416.960(c)(2); Thomas v. 12 Barnhart, 278 F.3d 947, 955 (9th Cir. 2002). 13 White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022). 14 Here, the ALJ proceeded through Steps 1 through 4, and determined that Plaintiff had no 15 past relevant work. (A.R. 29). After concluding that Plaintiff could perform sedentary work with 16 some limitations, the ALJ stated as follows regarding Step 5: 17 To determine the extent to which [Plaintiff’s] limitations erode the unskilled sedentary occupational base, the Administrative Law Judge asked the vocational 18 expert whether jobs exist in the national economy for an individual with the 19 claimant’s age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be 20 able to perform the requirements of representative occupations such as: 21 • Document preparer, DOT #249.587-018, SVP 2, sedentary work. There are approximately 46,000 jobs in the national economy 22 • Addresser, DOT #209.587-587-010, SVP 2, sedentary work. There are 23 approximately 20,000 jobs in the national economy • Escort car driver, DOT #919.663-022, SVP 2, sedentary work. There 24 are approximately 22,000 jobs in the national economy 25 Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s testimony is consistent with the information contained in the Dictionary of 26 Occupational Titles. 27 Based on the testimony of the vocational expert, the undersigned concludes that, considering the claimant’s age, education, work experience, and residual 28 other work that exists in significant numbers in the national economy. A finding of 2 “not disabled” is therefore appropriate under the framework of the above-cited rule. 3 (A.R. 30). 4 Plaintiff argues that (1) the occupations of document preparer and addresser are obsolete 5 and thus cannot be counted towards the number of jobs for purposes of determining whether other 6 work exists in significant numbers in the national economy and (2) the remaining 22,000 jobs for 7 escort car driver are not enough to satisfy the Commissioner’s burden of showing that a 8 significant number of jobs exist.1 (ECF No. 15, pp. 12-14). 9 Defendant offers no rebuttal to Plaintiff’s argument that document preparer and addresser 10 are obsolete occupations for purposes of determining whether other work exists in significant 11 numbers in the national economy. Moreover, Plaintiff correctly points out that some courts have found 12 these positions obsolete. See Skinner v. Berryhill, No. CV 17-3795-PLA, 2018 WL 1631275, at *6 (C.D. 13 Cal. Apr. 2, 2018) (“[I]t is not unreasonable to assume that the occupation of ‘addresser,’ which—as 14 described by the DOT—provides for addressing envelopes by hand or by typewriter, is an occupation that 15 has significantly dwindled in number since 1991 in light of technological advances. That being the case, a 16 reasonable mind would not accept the VE’s testimony that there are over 3,000 such positions in the 17 region of California alone, or even that there are over 10,000 in the national economy.”); Sandra M. H. v. 18 Saul, No. SA CV 18-1933-PLA, 2019 WL 5209245, at *3 (C.D. Cal. Oct. 16, 2019) (“Some courts have 19 found that the occupations of ‘addressing clerk’ and ‘document preparer’ are obsolete.”); Wood v. 20 Berryhill, No. 3:17-CV-5430-RJB-BAT, 2017 WL 6419313, at *2 (W.D. Wash. Nov. 17, 2017), report 21 and recommendation adopted, No. 3:17-CV-5430-RJB-BAT, 2017 WL 6372590 (W.D. Wash. Dec. 13, 22 2017) (“T]he positions of document preparer and nut sorter do not exist in significant numbers in the 23 national economy.”). 24 25 1 Plaintiff also summarily argues “that one occupational prospect is insufficient to sustain a finding that Plaintiff is not disabled.” (ECF No. 15, p. 15 (citing Maxwell v. Saul, 971 F.3d 1128, 1131 (9th Cir. 26 2020)). However, Maxwell interpreted a ruling, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.00(c), that applies only to “individuals of advanced age.” 971 F.3d at 1131. It does not apply to persons, like Plaintiff, 27 who was classified as a “younger individual,” being 31 years old when the application was filed. (A.R. 29); see Noni W. B. v. Kijakai, No. 5:20-CV-01917-PD, 2022 WL 2114571, at *7 (C.D. Cal. Apr. 5, 2022) 28 (noting that Maxwell did not apply to 40-year-old Plaintiff). 2 constitute a significant number of jobs. (ECF No. 19, p. 3). The Ninth Circuit has “never set out a 3 bright-line rule for what constitutes a ‘significant number’ of jobs.” Beltran v. Astrue, 700 F.3d 4 386, 389 (9th Cir. 2012). It has, however, found “a comparison to other cases . . . instructive.” Id. 5 A “‘significant number of jobs’ can be either regional jobs (the region where a claimant resides) 6 or in several regions of the country (national jobs).” Id. (citing 42 U.S.C. §§ 423(d)(2)(A)). Upon 7 finding “either of the two numbers ‘significant,’” the Court “must uphold the ALJ’s decision.” Id. 8 at 390. 9 In Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 29 (9th Cir. 2014), the Ninth Circuit 10 concluded that 25,000 nationwide jobs constitutes a significant number but found this to be a 11 “close call.” In so holding, the Court noted that it had previously found 1,680 jobs to be 12 insignificant and that the Eighth Circuit had found 10,000 nationwide jobs to be significant. Id. 13 (citing Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997)). Cases looking at numbers less than 14 25,000 vary on how many jobs need to exist to be considered “significant.” Compare, e.g., Nelson 15 v. Berryhill, No. 3:17-CV-00614-AJB-KSC, 2018 WL 799162, at *13 (S.D. Cal. Feb. 8, 2018), 16 report and recommendation adopted, No. 17-CV-0614-AJB-KSC, 2018 WL 1638222 (S.D. Cal. 17 Apr. 5, 2018) (“In the Ninth Circuit, national job numbers lower than 25,000 are typically deemed 18 not significant, consistent with the Gutierrez court’s holding that 25,000 jobs is a ‘close call.”’); 19 Baker v. Comm’r of Soc. Sec., 2014 WL 3615497, at *8 (E.D. Cal. July 21, 2014) (14,500 20 national jobs insignificant); Valencia v. Astrue, 2013 WL 1209353 at *18 (N.D. Cal. Mar. 25, 21 2013) (14,082 national jobs insignificant); with Anna F. v. Saul, No. ED CV 19-511-SP, 2020 22 WL 7024924, at *6 (C.D. Cal. Nov. 30, 2020) (“Whether 21,100 jobs in the national economy is 23 ‘significant’ is not entirely settled, yet the relevant caselaw indicates it is.”); Aguilar v. Colvin, 24 2016 WL 3660296 at *3 (C.D. Cal. July 8, 2016) (11,850 national jobs and 1,080 regional jobs 25 significant); Montalbo v. Colvin, 231 F. Supp. 3d 846, 863 (D. Haw. 2017) (12,300 national jobs 26 significant in light of discretion afforded ALJ in determining whether number of jobs available is 27 significant). 28 Upon review of case authority, whether 22,000 national jobs for escort drivers constitutes 2 court tasked with reviewing a similar number of available jobs. In Ochoa v. Colvin, the VE 3 testified that there were 80 jobs in the Sacramento area, 1,233 in California, and 19,122 in the 4 national economy. Ochoa v. Colvin, No. 1:12-CV-00604-SKO, 2013 WL 4816130, at *7 (E.D. 5 Cal. Sept. 6, 2013). Noting that the number of jobs identified was “a close call when determining 6 whether the ALJ has met the Step Five burden of showing that there is a significant number of 7 jobs existing that Plaintiff could perform,” the Court ultimately concluded that, because the ALJ 8 had mistakenly relied upon the occupation of school bus monitor in determining whether 9 significant jobs existed, “the ALJ did not have the opportunity to determine whether the 10 [remaining occupation of] call out operator, taken alone, is work that exists in significant numbers 11 to meet the Step Five burden,” and remanded for that purpose. Id. at 9. 12 Likewise, the ALJ here determined that a significant number of jobs existed across 13 multiple occupations—document preparer, addresser, and escort car driver—with the estimated 14 number of jobs totaling 88,000 nationally. Because the occupations of document preparer and 15 addresser cannot be considered, the ALJ never had the opportunity to decide whether 22,000 jobs 16 for escort drivers alone is significant. Given the closeness of this issue, the Court believes that the 17 ALJ should have the opportunity to address it in the first instance whether a significant number of 18 jobs would be available to Plaintiff.2 Id.; Cardona v. Colvin, No. EDCV 12-0895-CW, 2013 WL 19 2285354, at *5 (C.D. Cal. May 22, 2013) (“In this case, the ALJ concluded that there were 20 significant numbers of jobs available to plaintiff based on his finding that plaintiff could perform 21 the jobs of Bottle Packer, Cashier II, and Stitching Machine Operator. The ALJ, however, did not 22 have the opportunity to determine whether the job of Stitching Machine Operator, taken alone, is 23 ‘work which exists in significant numbers’ for purposes of the Social Security Act. Under these 24 circumstances, the Court finds that the proper course is to remand the matter to the ALJ to make 25 this determination in the first instance.”). 26 /// 27 2 Plaintiff does not ask for an award of benefits but requests “that the ALJ decision be vacated and the 28 matter be remanded for further administrative proceedings.” (ECF No. 15, p. 15). 1 | I. CONCLUSION AND ORDER 2 For the reasons given above, the Court remands this case to the Commissioner for the 3 || limited purpose of reevaluating Step Five to determine whether there is a significant number of 4 | jobs available for escort drivers and without consideration of the jobs available to document 5 || preparers and addressers. 6 Accordingly, the decision of the Commissioner of the Social Security Administration is 7 | REVERSED and REMANDED for further administrative proceedings consistent with this 8 || decision. The Clerk of Court is respectfully directed to enter judgment in favor of Plaintiff and 9 | against Defendant. 10 ul IT IS SO ORDERED. 12 | Dated: _March 24, 2023 [spe hey □□ 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28