Donna Citizen v. Andrew Saul

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNA RENEE CITIZEN, No. 18-55734
Plaintiff-Appellant, D.C. No. 5:17-cv-01505-AGR
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Alicia G. Rosenberg, Magistrate Judge, Presiding
Submitted November 23, 2020**
Before: GOODWIN, SCHROEDER, and SILVERMAN, Circuit Judges.
Donna Renee Citizen appeals the district court’s judgment affirming the
Commissioner of Social Security’s denial of Citizen’s application for disability
insurance benefits and supplemental security income under Titles II and XVI of the
Social Security Act. We review de novo, Ford v. Saul, 950 F.3d 1141, 1153-54
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(9th Cir. 2020), and we affirm.
The administrative law judge (“ALJ”) did not err in failing to afford Citizen
the opportunity to cross-examine the vocational expert or to assist her with cross-
examination. The vocational expert’s testimony that Citizen could perform three
occupations despite her ability to stand and walk for only six hours in an eight-
hour workday did not trigger the ALJ’s duty to develop the record because it did
not conflict with the Dictionary of Occupational Titles (“DOT”), which describes
these occupations as light work. See Ford, 950 F.3d at 1160 (an obvious or
apparent conflict between a vocational expert’s testimony and the DOT triggers the
ALJ’s duty to develop the record, and the ALJ is obligated to investigate and
resolve the conflict); Social Security Ruling 83-10, 1983 WL 31251, at *5 (Jan. 1,
1983) (defining light work). Nor did any apparent conflict between the vocational
expert’s testimony and the Occupational Outlook Handbook (“OOH”) or other
publications trigger the ALJ’s duty to further develop the record. See Shaibi v.
Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2018) (rejecting the claimant’s
contention that ALJ was required sua sponte to investigate a conflict between the
vocational expert’s testimony and the OOH or a publication other than the DOT).
Citizen has not raised a colorable due process claim in the ALJ’s failure to
orally advise her of her right to cross examine the vocational expert because
Citizen twice received written notice of her right to question witnesses. See Dexter
2
v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (a claimant generally must exhaust
administrative remedies, but an exception exists for a colorable due process claim
that implicates the right to a meaningful opportunity to be heard); Roberts v.
Comm’r of the Soc. Sec. Admin., 644 F.3d 931, 934 (9th Cir. 2011) (per curiam)
(agency satisfied its duty to inform pro se claimant of his statutory right to
representation at a hearing by sending written notices that explained that right).
Moreover, although the ALJ did not orally advise Citizen of her right to cross
examine the vocational expert, immediately after the vocational expert testified the
ALJ asked Citizen, “Now is there anything else that I need to know before I make
this decision? Anything that we haven’t covered?”
Citizen’s motion for judicial notice (Docket Entry No. 12) is DENIED.
AFFIRMED.
3