Humphries v. Commissioner of Social Security Administration

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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).
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(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;
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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
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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
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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
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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—
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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
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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
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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
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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
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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
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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.
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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.
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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:
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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).
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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
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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
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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
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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.
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