2:25-cv-02507•Humphries v. Commissioner of Social Security Administration
Testo completo
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Tivon Humphries, Plaintiff, v. Frank Bisignano, Commissioner of Social Security Administration, Defendant. No. CV-25-02507-PHX-SPL (DMF) REPORT AND RECOMMENDATION TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE: This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 10).1 At issue is the denial of Plaintiff’s application for disability insurance benefits under the Social Security Act (“Act”). On July 16, 2025, Plaintiff Tivon Humphries (“Plaintiff” and/or “Humphries”) filed a Complaint with this Court through counsel (Doc. 1). In the Complaint, Plaintiff seeks review of the denial of benefits (Id.). After careful review of the record, including Plaintiff’s Opening Brief (Doc. 12), Defendant’s Answering Brief 1 Citation to the record as “Doc.” indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-25-02507-PHX-SPL (DMF). Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 1 of 19
- 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Doc. 14), Plaintiff’s Reply Brief (Doc. 15), and the administrative record (Doc. 11 hereafter, “R.”), it is recommended that the final decision of the Commissioner of Social Security (“Commissioner”) be affirmed. I. BACKGROUND On July 27, 2020, Plaintiff filed an application for disability benefits under Title II of the Act (R. at 222-23). Plaintiff’s application was denied initially on November 24, 2020 (R. at 63-82) and upon reconsideration on June 30, 2021 (R. at 83-92). Plaintiff thereafter requested a hearing, which was held on January 11, 2022 (R. at 14). On May 27, 2022, Administrative Law Judge (“ALJ”) Kathleen Mucerino issued a decision finding Plaintiff not disabled (R. at 14-29). The Appeals Council denied Plaintiff’s request for review, at which point the ALJ’s May 27, 2022, decision became final (R. at 1-6). Plaintiff thereafter filed a complaint in this Court in case number 2:23-CV-01104-PHX-JJT. Upon stipulation of the parties (R. at 3294-95), District Judge John J. Tuchi remanded this matter to the Social Security Administration (“SSA”) for further proceedings and a new ALJ decision (R. 3292-93). On remand to the SSA, the Appeals Council vacated the ALJ’s May 27, 2022, decision and remanded the case to an ALJ for a new decision (R. 3298-3303). On April 15, 2025, ALJ Kelly Walls issued a new decision finding Plaintiff not disabled (R. at 3228- 50). The Appeals Council did not initiate review of the ALJ’s April 15, 2025, decision, at which point the decision became final. Plaintiff then filed the present appeal. In the April 15, 2025, decision, the ALJ determined that Plaintiff met the insured requirements of the Act through September 30, 2018 (R. at 3235). After considering the record and Plaintiff’s testimony, the ALJ found that Plaintiff did not engage in substantial gainful activity from the alleged onset date, July 24, 2014, through Plaintiff’s date last insured (R. 3235-36). Through the date last insured, the ALJ found that Plaintiff had the following severe impairments: status-post cervical disc herniations; lumbar degenerative disc disease status-post L5/S1 fusion with post-laminectomy syndrome; sacroiliitis status- post right sacroiliac joint fusion; Bertolotti’s syndrome; tear of the left medial meniscus; Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 2 of 19
- 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and obesity (R. 3236-38). Plaintiff does not challenge the ALJ’s finding with respect to Plaintiff’s impairments (Doc. 12 at 5). The ALJ further found that, through the date last insured, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1 (R. at 3238-40). In analyzing Plaintiff’s residual functional capacity (“RFC”), the ALJ considered the statements of Plaintiff and his wife as well as prior administrative medical findings and medical opinions. The ALJ determined that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the evidence of record and that Plaintiff’s wife’s statements regarding the effects of Plaintiff’s impairments were not consistent with the medical evidence of record (R. at 3240-41). The ALJ further considered the prior administrative medical findings and the medical opinions of agency medical consultant N. Sapin, M.D.; agency medical consultant Yosef Schwartz, M.D.; and physical medicine and rehabilitation specialist James Lee, M.D. (R. 3244-47). Ultimately, the ALJ concluded that through the date last insured Plaintiff had the RFC to: perform sedentary work as defined in 20 C.F.R. § 404.1567(a) including that the [Plaintiff] could lift and carry 10 pounds occasionally and frequently; sit for six hours out of an eight-hour day; and stand and/or walk four hours out of an eight-hour day. He could occasionally balance, stoop, crouch, and climb ramps and stairs; and never kneel, crawl, or climb ladders, ropes, or scaffolds. [Plaintiff] could occasionally reach overhead and frequently push and pull with upper extremities. [Plaintiff] needed to avoid even moderate exposure to hazards, like dangerous moving machinery and unprotected heights. (R. at 3240). Additionally, Plaintiff “stipulates that ALJ Walls fairly and accurately summarized the relevant medical evidence” in the April 15, 2025, decision (Doc 12 at 5; see also R. 3236-47). The ALJ also found that Plaintiff had at least a high school education, Plaintiff had no past relevant work, and that transferability of job skills was not an issue because Plaintiff had no past relevant work (R. at 3247). After considering Plaintiff’s age education, work Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 3 of 19
- 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 experience, and RFC, the ALJ determined that, through the date last insured, there were jobs that existed in significant numbers in that national economy that Plaintiff could have performed (R. at 3248-49). In making such determination, the ALJ cited interrogatory responses of vocational expert Shirly Ripp (“VE Ripp”) who identified three occupations that Plaintiff could have performed: Telephone Solicitor (DOT 299.357-014) with 12,515 jobs available within Plaintiff’s RFC; Survey Worker (DOT 205.367-054) with 10,047 jobs available within Plaintiff’s RFC; and Fund Raiser II (DOT 293.357-014) with 31,353 jobs available within Plaintiffs RFC (R. 3248-49). Accordingly, the ALJ determined that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy (R. at 3249). The ALJ concluded that Plaintiff was not under a disability as defined in the Act at any time from the alleged onset date through the date last insured (R. at 3249-50). II. LEGAL FRAMEWORK A district court reviews only the issues raised by the party challenging an ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). If the court finds that the ALJ’s decision was not based on substantial evidence or was based on legal error, the court may set aside the decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence requires “more than a mere scintilla but less than a preponderance” and should be enough evidence “as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). An ALJ’s decision should be upheld if “evidence is susceptible to more than one rational interpretation,” but a district court should “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quotations and citations omitted). In determining whether a claimant is disabled under the Act, the ALJ must follow a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). First, the ALJ must determine whether a claimant is participating in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Second, the ALJ determines if Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 4 of 19
- 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Id. Third, the ALJ determines whether the claimant’s impairment meets or equals a listing in Appendix 1 of Subpart P of 20 C.F.R. § 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the ALJ will find the claimant disabled, and the inquiry ends. Id. If the ALJ must proceed to step four, the ALJ determines whether the claimant’s RFC allows the claimant to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled. Id. If the ALJ must proceed to step five, the ALJ determines whether the claimant’s RFC allows the claimant to perform other work. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id. III. ANALYSIS Plaintiff challenges the ALJ’s determination with respect to step five of the sequential evaluation in which the ALJ determined that Plaintiff could make a successful adjustment to other work that existed in significant numbers in the national economy (Doc. 12 at 7-24; see also R. 3248-49). Plaintiff argues that the ALJ failed to take administrative notice of the Dictionary of Occupational Titles (or “DOT”) and determined that Plaintiff was not disabled based upon flawed vocational expert testimony and inflated job number estimates (Doc. 12 at 7-24; Doc. 15). Plaintiff asserts that the decision was not supported by substantial evidence and asks this Court to remand his case for calculation and payment of benefits (Doc. 12 at 3, 25; see also Doc. 15). In response, the Commissioner argues that substantial evidence supports the ALJ’s decision and asks the Court to affirm the ALJ’s finding that Plaintiff was not disabled (Doc. 14 at 12). A. Opinion of Vocational Expert Shirly Ripp Inconsistent with the DOT Plaintiff argues that the ALJ failed to take administrative notice of the DOT and the evidence presented by VE Ripp was unreliable (Doc. 12 at 7-18). Specifically, Plaintiff contends that the ALJ improperly accepted VE Ripp’s opinion that the occupation of Telephone Solicitor is unskilled although the DOT lists the occupation as semi-skilled and that the occupations of Survey Worker and Fund Raiser II are sedentary occupations Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 5 of 19
- 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 although the DOT classifies both as light exertion occupations (Doc. 12 at 9-12; see also Doc. 15). While the Commissioner agrees that taking administrative notice of the DOT is appropriate, the Commissioner argues that the DOT is one of many sources of reliable job information (Doc. 14 at 7-9). The Commissioner reasons that under Social Security Ruling 24-3p, 2024 WL 4988840, evidence provided by a vocational expert is adequate to support the Commissioner’s decision and the DOT does not preclude an ALJ from relying on such vocational expert testimony (Id. at 8). 1. Legal Standard At step five, “the burden shifts to the Commissioner to show that the claimant can perform some other work that exists in ‘significant numbers’ in the national economy, taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (citing 20 CFR § 404.1560(b)(3)). “[T]he ALJ considers the applicant’s background and residual functional capacity, that is, what physical tasks the applicant can still perform despite his or her limitations, to decide if the applicant can make an adjustment to some other available job.” Gutierrez v. Colvin, 844 F.3d 804, 806 (9th Cir. 2016) (citing Tackett, 180 F.3d at 1100). If the claimant can make an adjustment to other work, the ALJ will find the claimant is not disabled; if the claimant cannot make an adjustment to other work, the ALJ will find that the claimant is disabled. 20 C.F.R. § 404.1520(e), (g). The Commissioner may meet his burden at step five “(1) by the testimony of a vocational expert, or (2) by reference to the Medical–Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” Maxwell v. Saul, 971 F.3d 1128, 1130 (9th Cir. 2020) (quoting Tackett, 180 F.3d at 1099). The Medical–Vocational Guidelines (or “Guidelines”) are a “short-hand method for determining the availability and numbers of suitable jobs for a claimant.” Id. (quoting Tackett, 180 F.3d at 1101). The Guidelines categorize jobs by the required physical exertion levels with one table for each category: sedentary work, light work, and medium work. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006); see also 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00. A combination of four factors— Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 6 of 19
- 7 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a claimant’s age, education, previous work experience, and physical ability—direct a finding of either disabled or not disabled under the Guidelines. Lounsburry, 468 F.3d at 1114-15. However, a claimant’s functional limitations may not be accurately and completely described by the Guidelines because they “are predicated on a claimant suffering from an impairment which manifests itself by limitations in meeting the strength requirements of jobs (‘exertional limitations’)” and “may not be fully applicable where the nature of a claimant’s impairment does not result in such limitations (‘non-exertional limitations’).” Id. at 1115 (citations omitted). For example, non-exertional limitations including postural and manipulative limitations such as difficulty reaching, handling, stooping, climbing, crawling, or crouching may “limit a claimant’s functional capacity in ways not contemplated by the [Guidelines].” Id. (first citing 20 C.F.R. § 404.1569, and then citing Tackett, 180 F.3d at 1101-02). Where a claimant suffers from both exertional and non- exertional limitations, the ALJ must first consult the Guidelines. Id. (citing Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989)). If the Guidelines direct a finding of disabled, the Commissioner must accept such finding. Id. at 1115-16; Cooper, 880 F.2d at 1157. If the Guidelines direct a finding of not disabled, the ALJ must separately examine the claimant’s non-exertional limitations. Lounsburry, 468 F.3d at 1116. In such cases where a claimant suffers from both exertional and non-exertional limitations and the Guidelines are not fully applicable, the Commissioner may meet his burden “by propounding to a vocational expert a hypothetical that reflects all the claimant’s limitations.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989)); see also Moore v. Apfel, 216 F.3d 864, 870 (9th Cir. 2000); Tackett, 180 F.3d at 1099. For the testimony of a vocational expert to be considered reliable, “the hypothetical posed must include ‘all of the claimant's functional limitations, both physical and mental’ supported by the record.” Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Given a properly posed hypothetical, “a qualified vocational expert’s testimony as Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 7 of 19
- 8 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the number of jobs existing in the national economy that a claimant can perform is ordinarily sufficient by itself to support an ALJ’s step-five finding.” Kilpatrick, 35 F.4th at 1192 (citing Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020)). An attorney’s submission of contesting job numbers is not probative evidence if the attorney lacks expertise in determining the number of jobs existing in the national economy that a claimant can perform. See Wischmann v. Kijakazi, 68 F.4th 498, 506-07 (9th Cir. 2023) (concluding that an attorney’s controverting job numbers were not probative because the attorney had no identified expertise in calculating job figures in the national economy); Kilpatrick, 35 F.4th at 1194 (same). Regarding the exertion and skill level of a given job, the Ninth Circuit has long held that the DOT raises a rebuttable presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). Accordingly, “an ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation.” Id. To that end, Social Security Ruling (“SSR”) 00-4p instructed that: Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency. Neither the DOT nor the VE or VS evidence automatically “trumps” when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information. SSR 00-4p, 2000 WL 1898704, at *2. In applying SSR 00-4p, the Ninth Circuit noted that it went “one step further” than the court’s holding in Johnson, 60 F.3d at 1435, by “explicitly requiring that the ALJ determine whether the expert’s testimony deviates from Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 8 of 19
- 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Dictionary of Occupational Titles and whether there is a reasonable explanation for any deviation.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); see also Kilpatrick v. Kijakazi, 35 F.4th 1187, 1194-95 (9th Cir. 2022) (requiring an ALJ to identify and obtain reasonable explanation for any conflicts between VE testimony and the DOT before relying on the VE testimony); Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015) (“The ALJ’s failure to resolve an apparent inconsistency may leave us with a gap in the record that precludes us from determining whether the ALJ’s decision is supported by substantial evidence.”). Therefore, under SSR 00-4p, “[w]hen there is an apparent conflict between the vocational expert’s testimony and the DOT—for example, expert testimony that a claimant can perform an occupation involving DOT requirements that appear more than the claimant can handle—the ALJ is required to reconcile the inconsistency.” Zavalin, 778 F.3d at 846 (citing Massachi, 486 F.3d at 1153-54). On December 6, 2024, the SSA rescinded and replaced SSR 00-4p with SSR 24-3p. See SSR 24-3p, 2024 WL 4988840; SSR 00-4p, 2000 WL 1898704. The SSA explained that it would “apply [SSR 24-3p] on January 6, 2025,” to “new applications filed on or after the applicable date of the SSR and to claims that are pending on or after the applicable date.” SSR 24-3p, 2024 WL 4988840, at *97159 n.1. Under SSR 24-3p, the SSA “continue[s] to take administrative notice of [the DOT] as a reliable source” but “no longer require[s] our adjudicators to identify and resolve conflicts between occupational information provided by VSs and VEs and information in the DOT.” Id. at *97159, *97160. SSR 24-3p further provides that: [T]he VS or VE may cite to multiple acceptable sources of occupational data that do not precisely correspond to each other. In some instances, it may be necessary for the VS or VE to explain how they accounted for the differences in classification. For example, Federal agencies that collect occupational data now use the SOC system. One difference between the DOT and the SOC system is that the SOC system aggregates occupational data at a higher level. While there are some SOC codes that correspond to a single DOT code, other SOC codes may correspond to a large number of DOT codes. VSs and VEs may rely on occupational sources that use the SOC system. Examples of Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 9 of 19
- 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 these data sets include, but are not limited to, the U.S. Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS), and the Occupational Requirements Survey (ORS). Id. at *97160 (footnote omitted). Additionally, if the VS or VE uses a source that defines exertion, skill, or education level different from SSA regulations, the VS or VE must “acknowledge the difference and explain whether or how they have accounted for the difference.” Id. An ALJ must “determine whether the evidence provided by a VS or VE is adequate to support a decision at step four or five” based upon “the vocational evidence in the case and the record overall.” Id. 2. VE Ripp’s Testimony and the DOT Before issuing the April 15, 2025, decision, the ALJ asked VE Ripp to complete an interrogatory in connection with Plaintiff’s disability claim (R. 3427). The interrogatory asked VE Ripp to: Assume a hypothetical individual who was born on [month and day redacted] 1975, has at least a high school education as defined in 20 CFR 404.1564 and 416.964, and has no past relevant work. Assume further that this individual has the residual functional capacity (RFC) to lift and carry 10 pounds occasionally and frequently, sit for six hours out of an eight-hour day, and stand and/or walk four hours out of an eight-hour day. Additionally, this person can: occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally balance, stoop, crouch; never kneel or crawl; occasionally reach overhead; and frequently push and pull with upper extremities. The hypothetical person must avoid even moderate exposure to hazards, like dangerous moving machinery and unprotected heights. (R. 3428-29). The interrogatory further asked VE Ripp whether such a hypothetical individual could perform any jobs that exist in the national economy (R. 3429). VE Ripp affirmed that such jobs exist and specified three: Telephone Solicitor, Survey Worker, and Fund Raiser II (Id.). VE Ripp described the jobs as follows: Telephone Solicitor: DOT 299.357-014; Sedentary; SVP3; however, it is my experience that approximately 25% of these occupations do not require any prior experience and they can be learned by a demonstration or within 30 days. Those jobs would be at an SVP level of 2 or less and there are 12,515 Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 10 of 19
- 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 National Full-time jobs based on this information. Additionally, these jobs do not require more than occasional reaching. Survey Worker: DOT 205.367-054; SVP 2; Light; however, according to ORS 86.3% of these jobs are now performed at the sedentary level. Additionally, it is my professional opinion, based on my education, training and experience that these individuals are not required to reach overhead on more than an occasional basis, despite the fact that the DOT indicates they are required to perform frequent reaching. National full-time jobs = 10,047 Fundraiser II: SVP 2; Light; however, ORS indicates that 67.4 of these positions are no[w] performed at the sedentary level. It is also my professional opinion that these jobs do not require the ability to reach overhead on more than occasional basis, despite the fact that the DOT indicates this job requires frequent reaching. The National full-time jobs = 31,353 (Id.). VE Ripp explained that she used her “professional education, training and experience” and “the DOT, SCO, SOC, BLS, Census info and ORS, as well as Skill Tran’s Job Browser Pro” to determine that a hypothetical individual with Plaintiff’s RFC could perform the identified jobs (R. 3431). Regarding how she estimated the number of national full-time jobs, VE Ripp explained: I used Skill Tran’s Job Browser Pro to identify the percentage of full-time jobs. For the Telephone Solicitor, I conducted online research and learned that 25% of these positions do not require any type of prior experience. I took the original number of jobs based on the DOT estimate and multiplied it by 25%. For the other 2 jobs, I used JBP to obtain the full-time # of jobs and I used ORS to determine the percentages of these jobs that are now considered sedentary. I first obtained the number of full-time jobs and then multiplied them by the percentages of sedentary jobs. Then I determined what percentage of the SOC was specific to that DOT and multiplied it by that number again. (Id.). VE Ripp also stated that the sources she used “describe sedentary positions in the same manner as agency regulations” and used her “education, training and experience to determine overhead reach, SVP, the difference in climbing ladders, ropes and scaffolds versus climbing ramps and stairs” (Id.). The DOT characterizes the jobs identified by VE Ripp as follows: “Telephone Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 11 of 19
- 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Solicitor” as sedentary and SVP 3;2 “Survey Worker” as light exertion and SVP 2; and “Fund Raiser II” as light exertion and SVP 2. DOT §§ 299.357-014, DOT 205.367-054, DOT 293.357-014. 3. ALJ Walls’ Findings The ALJ found that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy (R. 3249). In doing so, the ALJ considered Plaintiff’s RFC, age, education, and work experience in conjunction with the Medical–Vocational Guidelines as well as the interrogatory responses of VE Ripp (R. 3248-49). The ALJ first considered whether Plaintiff’s functional limitations were accurately and completely described by the Guidelines (R. 3248). The ALJ determined that “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 Medical–Vocational Rule 201.27” (Id.). However, because Plaintiff’s ability to perform all or substantially all of the requirements of this level of work was impeded by additional limitations, the ALJ went on to consider VE testimony (R. 3248-49). After considering VE Ripp’s responses to the interrogatories, the ALJ found that the responses “comport with the requirements of SSR 24-3p” (R. 3249). Specifically, the ALJ found that VE Ripp identified the data sources used and provided the general approach to estimating job numbers (Id.). The ALJ also found that VE Ripp relied on her education, training, and experience in filling gaps in the DOT and differences between types of climbing (Id.). Accordingly, the ALJ determined that a “not disabled” finding was appropriate at step five of the sequential evaluation (Id.). 4. Discussion As a preliminary matter, SSR 24-3p applies to the April 15, 2025, decision (R. 3231- 2 Unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9. SSR 24-3p, 2024 WL 4988840, at *97160; see also DOT Appendix C § II. Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 12 of 19
- 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 50), because the matter was pending decision by the ALJ on January 6, 2025. See SSR 24- 3p, 2024 WL 4988840, at *97159 n.1 (“[The SSA] will use this SSR on and after its applicable date in any case in which we make a determination or decision.”). Indeed, Plaintiff acknowledges that “SSR 00-4p was rescinded on January 6, 2025,” and that “SSR 00-4p was replaced by SSR 24-3p” (Doc. 12 at 8, 9). However, Plaintiff insists that despite the recission and replacement of SSR 00-4p with SSR 24-3p, the ALJ must still take administrative notice of the DOT meaning that the ALJ must accept the DOT’s exertion and skill classifications as true without additional evidence or legal argument (Doc. 12 at 10-12). Plaintiff’s assertion is wrong. On the contrary, binding Ninth Circuit case law that predates SSR 00-4p instructs not that the analysis ends with the DOT, but rather that the DOT raises a rebuttable presumption as to job classification. Johnson, 60 F.3d at 1435. Accordingly, an ALJ may rely upon contradictory VE testimony if the record contains persuasive evidence to support the deviation. Id. Here, the administrative record contains substantial evidence to support a deviation from the DOT. VE Ripp explained that she used her “professional education, training and experience” and “the DOT, SCO, SOC, BLS, Census info and ORS, as well as Skill Tran’s Job Browser Pro” to determine that a hypothetical individual with Plaintiff’s RFC could perform the identified jobs (R. 3431). She further explained how she calculated the number of jobs available in each DOT category at Plaintiff’s RFC by determining the percentage of the jobs available at a sedentary level and with no prior experience (Id.). In making such determination VE Ripp relied upon her education, training, and experience as well as the ORS (Id.). VE Ripp further explained that the sources she used “describe sedentary positions in the same manner as agency regulations” and used her “education, training and experience to determine overhead reach, SVP, the difference in climbing ladders, ropes and scaffolds versus climbing ramps and stairs” (Id.). Thus, substantial evidence supports a deviation from the DOT and the ALJ did not err in finding that VE Ripp’s responses complied with the requirements of SSR 24-3p. Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 13 of 19
- 14 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff also argues that the ALJ erred by failing to follow the Appeals Council’s remand order (Doc. 12 at 11-12). Specifically, Plaintiff asserts that the remand order “explicitly ordered the ALJ to ensure that the VE testimony in this case did not conflict with the DOT” (Id. at 11). The Commissioner challenges Plaintiff’s characterization of the remand order and insists that the ALJ properly applied SSR 24-3p instead of SSR 00-4p (Doc. 14 at 9). The Court agrees with the Commissioner. Here, the Appeals Council’s remand order instructed the ALJ to comply with SSR 00-4p by “identify[ing] and resolv[ing] any conflicts” between VE testimony and the DOT before relying on the VE testimony (R. 3302). When the Appeals Council remands a matter to an ALJ, “[t]he administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). However, as acknowledged by both Plaintiff and the Commissioner (Doc. 12 at 8, 9; Doc. 14 at 5), SSR 00-4p was rescinded and replaced by SSR 24-3p with an application date of January 6, 2025. SSR 24-3p, 2024 WL 4988840, at *97159 n.1. Moreover, SSR 24-3p explicitly states that the SSA is “rescinding SSR 00-04p and will no longer require our adjudicators to identify and resolve conflicts between occupational information provided by VSs and VEs and information in the DOT.”3 Id. at *97159. Accordingly, after January 6, 2025, the application date of SSR 24-3p, ALJs were bound to apply SSR 24-3p, not SSR 00-04p. See Quang Van Han, 882 F.2d at 1457 n.6 (citing Paulson, 836 F.2d at 1252 n.2); see also Heckler, 465 U.S. at 873 n.3. The ALJ did not err by applying SSR 00-04p’s replacement, SSR 24-3p.4 3 SSRs “are binding on all components of the Social Security Administration” and “represent precedent[ial] final opinions and orders and statements of policy and interpretations” of the SSA. 20 C.F.R. § 402.35(b)(1); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (noting that an SSR “may be superseded, modified, or revoked by later legislation, regulations, court decisions or rulings”). Although SSRs do not carry the force of law, “[t]hey are binding on ALJs.” Quang Van Han v. Bowen, 882 F.2d 1453, 1457 n.6 (9th Cir. 1989) (citing Paulson v. Bowen, 836 F.2d 1249, 1252 n. 2 (9th Cir.1988)); see also Heckler, 465 U.S. at 873 n.3. 4 Further, the Court agrees with the Commissioner that: Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 14 of 19
- 15 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finally, Plaintiff argues that VE Ripp’s testimony was unreliable (Doc. 12 at 12-18; see also Doc. 15). Plaintiff begins by explaining the differences between the DOT and SOC data sets that VE Ripp used in her analysis (Doc. 12 at 12-15). Specifically, Plaintiff notes that the SOC groups similar occupations together, containing from one to hundreds of individual DOT occupations (Id. at 14). Plaintiff then disputes the percentages that VE Ripp arrived at when she determined how many jobs were available at a sedentary level (Id. at 15-18). With respect to the occupation of Survey Worker (DOT 205.367-054), Plaintiff explains that VE Ripp’s cited statistic that 86.3% of jobs are performed at a sedentary level comes from 2018 data on SOC group 43-4111 (Id. at 15). Because SOC group 43-4111 encompasses four sedentary exertion occupations and three light exertion occupations, Plaintiff argues that “[i]t stands to reason that the 86.3% of these occupations that were performed at sedentary in 2018 would be skewed toward the occupations rated at sedentary—not the ones rated at light exertion” (Id. at 16). Thus, Plaintiff insists that VE Ripp’s testimony regarding 86.3% of Survey Worker jobs being performed at a sedentary level was “grossly inaccurate” (Id.). Similarly, Plaintiff contests the accuracy of VE Ripp’s testimony that 67.4% of Fund Raiser II (DOT 293.357-014) jobs are performed at a sedentary level (Id. at 16-18). Because the 67.4% statistic comes from ORS group 41- 3091 which encompasses one unskilled occupation and thirty-two skilled or semiskilled occupations, Plaintiff reasons that the “sedentary jobs are going to be heavily skewed towards the 32 skilled or semiskilled occupations in this SOC/OEWS group, not the sole unskilled occupation” (Id. at 17). Thus, Plaintiff insists that the ALJ erred by relying on unreliable testimony (Id. at 18). even if the ALJ was required to apply SSR 00-4p, pointing to the vocational expert’s testimony about her education, training, and experience, as well as the vocational expert’s explanation about her data sources, would have resolved any conflict between that testimony and the DOT. See SSR 00-4p, 2000 WL 1898704, at *2; Mickelson-Wurm v. Comm’r of Soc. Sec. Admin., 285 F. App’x 482, 486 (9th Cir. 2008) (unpublished) (ALJ appropriately relied on VE’s experience to explain contradiction between VE testimony and DOT). (Doc. 14 at 9). Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 15 of 19
- 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Claimant’s challenge on appeal regarding the number of jobs available in the national economy does not warrant remand. First, the hypothetical posed to VE Ripp included all of Plaintiff’s functional limitations (compare R. 3240, with R. 3428-29). See Thomas, 278 F.3d at 956. Additionally, as discussed above, a claimant’s attorney possessing no expertise in determining the number of jobs existing in the national economy cannot provide probative evidence on the matter. See Wischmann, 68 F.4th at 506-07; Kilpatrick, 35 F.4th at 1194. Here, Plaintiff’s attorney, Mr. Metsker, has no identified expertise in calculating national job figures but still opines that VE Ripp’s testimony is unreliable based on his own analysis of the DOT and SOC data sets. As to the vocational expert’s qualifications, VE Ripp has a Masters of Science in Vocational Rehabilitation and has been a Certified Rehabilitation Counselor and a Certified Vocational Evaluator for about thirty years (R. 3426). VE Ripp also has over 25 years of experience of vocational evaluation, over 15 years of experience and knowledge of transferable skills analysis and labor market surveys, and familiarity with occupational data sources such as the DOT and SOC (Id.). Based upon her education, training, and experience as well as DOT and ORS data, VE Ripp ultimately testified that there were tens of thousands of jobs available in the national economy that a hypothetical individual with Plaintiff’s RFC could perform (R. 3429). Accordingly, substantial evidence supports the ALJ’s finding at step five. See Kilpatrick, 35 F.4th at 1192 The Court can discern no error in the ALJ’s finding that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy. B. Opinion of Vocational Expert Susan Green Plaintiff argues that the testimony of vocational expert Susan Green (“VE Green”) was unreliable and that the Commissioner encourages and trains vocational experts to provide inaccurate testimony and inflate job number estimates (Doc. 12 at 18-24). Plaintiff first outlines VE Green’s testimony at the January 11, 2022, hearing before ALJ Mucerino (Id. at 18-19). At the hearing, VE Green opined that an individual with Plaintiff’s RFC Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 16 of 19
- 17 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 could perform the occupations of Document Preparer/Microfilming (DOT 249.587-018), Final Assembler (DOT 713.687-018), and Polisher/Eyeglass Frames (DOT 713.684-038) (Doc. 12 at 19; see also R. 58-59). Plaintiff takes issue with each occupation arguing that there are far fewer jobs in the microfilming industry than the 500,000 jobs VE Green testified to and many of the jobs cited by VE Green require heavy exertion or a high level of skill (Doc. 12 at 18-23). Plaintiff reasons that VE Green’s testimony relied on a very “flawed method for estimating job numbers” and insists that the SSA has “published training materials that encourage VEs to use this preposterous method of job number estimation” (Id. at 23). However, Plaintiff attaches no such training materials in support of his argument and declines to complete his argument because “[t]he Court’s page limit requirements prohibit an extensive examination of this issue” (Id.). The Commissioner responds that Plaintiff presents no evidence to support position and cites vocational expert testimony that played no part in the decision before the Court (Doc. 14 at 11). The Commissioner also contests the “lay analysis” performed by Plaintiff’s attorney regarding vocational expert job number calculations (Id.). In reply, Plaintiff argues that the Commissioner has a pattern and practice of misrepresenting occupational data and attaches a Washington Post article in support of Plaintiff’s conclusion that SOC data from the ORS is poorly suited for disability adjudication (Doc. 15; see also Doc. 15-1). To the extent that Plaintiff argues that this matter should be remanded because the ALJ erred by relying on VE Green’s testimony, the Court disagrees. First, the April 15, 2025, decision by ALJ Walls is the final decision before this Court on appeal (R. at 3228- 50) which became final after the Appeals Council did not initiate review. See 20 C.F.R. § 404.984. In the April 15, 2025, decision, the ALJ did not rely on VE Green’s testimony but rather relied upon VE Ripp’s testimony in finding that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy (R. 3248-49). See supra section III(A). Moreover, the May 27, 2022, decision by ALJ Mucerino that relied on VE Green’s testimony in finding Plaintiff “not disabled” (R. at 14-29; see R. at 28) was ultimately vacated by the Appeals Council and remanded to Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 17 of 19
- 18 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALJ Walls for a new decision (R. 3298-3303). See 20 C.F.R. § 404.984(a) (“[T]he decision of the administrative law judge or administrative appeals judge will become the final decision of the Commissioner after remand . . . .”). Therefore, the testimony of VE Green cannot be a basis for remand because the final decision on review before this Court does not rely on such testimony. Finally, to the extent that Plaintiff alleges that the Commissioner trains and encourages VEs to provide inaccurate testimony and inflate job numbers, Plaintiff provides no evidence in support of such allegation and declines to complete his argument due to page limitations. Instead, Plaintiff directs the Court to the opening brief in Plaintiff’s first appeal where Plaintiff’s attorney contested the job numbers found in an SSA training manual based upon his own research into DOT and SOC data (Doc. 12 at 23). See Plaintiff’s Opening Brief at 12-16, Humphries v. Comm’r of Soc. Sec., No. 2:23-cv-01104- JJT-MTM (Doc. 17). However, as discussed above, Plaintiff’s attorney, Mr. Metsker, cannot provide probative evidence on the matter because he has no identified expertise in calculating national job figures. See Wischmann, 68 F.4th at 506-07; Kilpatrick, 35 F.4th at 1194. Furthermore, the Court will not consider the article attached to Plaintiff’s Reply Brief, which Plaintiff admits “does not identify the ORS by name” (Doc. 15 at 4). See 42 U.S.C. § 405(g) (“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security[.]” (emphasis added)). The Court can discern no error with respect to VE Green’s testimony discussed in the vacated May 27, 2022, decision of ALJ Mucerino. IV. CONCLUSION Substantial evidence supports ALJ Walls’ finding that Plaintiff was capable of making a successful adjustment to other work that existed in significant numbers in the national economy and the ALJ did not err in finding Plaintiff not disabled. Accordingly, IT IS RECOMMENDED that the April 15, 2025, decision of the ALJ Kelly Walls Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 18 of 19
- 19 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be affirmed. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court’s judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. In addition, LRCiv 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” Dated this 12th day of December, 2025. Case 2:25-cv-02507-SPL Document 16 Filed 12/12/25 Page 19 of 19
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