Roy Maxwell v. Andrew Saul ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY LEE MAXWELL, No. 19-16956
Plaintiff-Appellant, D.C. No. 1:18-cv-00894-GSA
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
Submitted December 11, 2020**
San Francisco, California
Before: BOGGS,*** M. SMITH, and BENNETT, Circuit Judges.
Plaintiff Roy Lee Maxwell appeals the district court’s denial of his appeal of
the Social Security Commissioner’s denial of his application for disability
*
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).
***
The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
insurance benefits. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Maxwell applied for disability insurance benefits in 2014, but the
Commissioner denied his application initially, and upon reconsideration. After a
hearing in which the administrative law judge (ALJ) considered both the
Dictionary of Occupational Titles (DOT) and the testimony of a vocational expert
(VE), the ALJ found that Maxwell was not entitled to benefits because he failed
step five of the disability analysis—even though he was unable to do past relevant
work, the government established that there was work existing in significant
numbers in the national economy that he could perform. See 20 C.F.R. §
404.1560. The ALJ based this step-five finding on the VE’s testimony that a
hypothetical person with the same residual functional capacity (RFC) as Maxwell
could work as a dishwasher, laundry worker, or order picker. The Appeals Council
denied Maxwell’s request for review, and the district court denied Maxwell’s
appeal.
On appeal of the district court’s denial, Maxwell argues that the ALJ erred
by failing to resolve conflicts between the VE’s testimony and information in the
DOT, as required by Social Security Ruling (SSR) 00-4p. 2000 WL 1898704, at
*2. In particular, Maxwell argues that according to the DOT, (1) being a
dishwasher or laundry worker requires exposure to “environmental conditions,”
contrary to the limitation in his RFC that he have “no exposure to hazards, such as
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unprotected heights or moving machinery,” and (2) the job of an order picker
involves occasional climbing, contrary to the limitation in his RFC that he “never
climb ladders, ropes, or scaffolds.”
We review the ALJ’s factual findings for substantial evidence. Biestek v.
Berryhill, 139 S. Ct. 1148, 1153 (2019) (quoting 42 U.S.C. § 405(g)). In general, a
VE’s testimony may be substantial evidence on its own to support a nondisability
finding. See Ford v. Saul, 950 F.3d 1141, 1160 (9th Cir. 2020). Moreover, an ALJ
may rely on VE testimony that conflicts with the DOT so long as there is
“persuasive testimony” to support the deviation. Massachi v. Astrue, 486 F.3d
1149, 1153 (9th Cir. 2007) (citation omitted). Before resolving a conflict between
the VE’s testimony and the DOT, “the ALJ must first determine whether a conflict
exists” at all. Id. And for “a difference between [a VE’s] testimony and the
[DOT’s] listings to be fairly characterized as a conflict, it must be obvious or
apparent. This means that the testimony must be at odds with the [DOT’s] listing
of job requirements that are essential, integral, or expected.” Gutierrez v. Colvin,
844 F.3d 804, 808 (9th Cir. 2016).
Here, there was no “obvious or apparent” conflict between the VE’s
testimony and the DOT, so there was nothing for the ALJ to resolve. First,
environmental conditions are not “hazards” prohibited by Maxwell’s RFC. In fact,
SSR 83-10 separates “environmental conditions” into subcategories, one of which
3
is “hazards.” 1983 WL 31251, at *5. In doing so, the Ruling makes clear that
environmental conditions and hazards are not coextensive. SSR-96-9p also
excludes environmental conditions from its detailed list of occupational hazards,
see 1996 WL 374185, at *9, further suggesting that environmental conditions are
not necessarily hazards. There was thus no conflict between the DOT and the
VE’s testimony that Maxwell could work as a dishwasher or laundry worker, both
of which involve exposure to certain environmental conditions.1
Second, climbing ladders, ropes, or scaffolds is not a requirement for every
job as an order picker. Although the DOT does list “[c]limbing . . . [o]ccasionally”
in the “task element” statement for the order-picker occupation, that statement
explains that an order picker performs “any combination of [the] following
tasks”—not that every order picker must perform every task listed. DOT, 922.687-
058 (Laborer, Stores), 1991 WL 688132. Cf. Gutierrez, 844 F.3d at 808
(accepting VE’s testimony as substantial evidence that plaintiff, who could not
reach overhead, could work as a cashier even though the DOT listed “frequent
reaching” as a requirement for the job, “[g]iven how uncommon it is for most
cashiers to have to reach overhead”). Furthermore, among those order pickers
1
Maxwell’s speculation that environmental conditions such as wetness or humidity
might “constitute a hazard for an individual suffering from episodic dizziness in
the work setting” is not a DOT conflict but a challenge to the ALJ’s RFC
formulation, which Maxwell failed to raise before the district court or in his brief.
Maxwell thus forfeits the issue on appeal. See Ford, 950 F.3d at 1158 n.12.
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whose work does involve occasional climbing, the DOT does not state that the
pickers must climb ladders, ropes, or scaffolds; they may also be climbing stairs or
ramps, for instance, which is not prohibited by Maxwell’s RFC. Cf. Gutierrez, 844
F.3d at 808 (“[N]ot every job that involves reaching requires the ability to reach
overhead.”). Therefore, there was no conflict between the DOT and the VE’s
testimony that Maxwell could work as an order picker, even though the DOT
includes “[c]limbing . . . occasionally” as a possible task.2
Finally, Maxwell argues that the IJ failed to resolve conflicts between the
VE’s testimony and certain vocational resources other than the DOT. This
argument fails as we have specifically held the ALJ does not have an affirmative
obligation to resolve such conflicts. See Shaibi v. Berryhill, 883 F.3d 1102, 1109–
10 (9th Cir. 2017). Further, if a claimant fails to challenge the VE’s testimony
based on those other vocational resources during the administrative hearing, as
here, the claimant forfeits the challenge. Id. at 1110.
AFFIRMED.
2
Even if there were a conflict, the ALJ’s failure to resolve it would be harmless
error, given that the ALJ correctly found Maxwell could perform the dishwasher
and laundry worker occupations. “[T]he court will not reverse an ALJ’s decision
for harmless error, which exists when it is clear from the record that the ALJ’s
error was inconsequential to the ultimate nondisability determination.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation and internal
quotation marks omitted).
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