Betsy Smith-Lipska v. Andrew Saul ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 25 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
BETSY SMITH-LIPSKA, No. 19-15502
Plaintiff-Appellant, D.C. No. 2:17-cv-02205-AC
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, Magistrate Judge, Presiding
Submitted February 8, 2021**
San Francisco, California
Before: WARDLAW and BEA, Circuit Judges, and ROSENTHAL,***
District Judge.
*
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 Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
Betsy Smith-Lipska, a former grocery store food counter supervisor, appeals
the district court’s grant of summary judgment for Defendant (the
“Commissioner”). The district court upheld the administrative law judge’s
(“ALJ”) decision that Smith-Lipska is not disabled, and is therefore ineligible for
disability insurance benefits (“DIB”) and supplemental security income (“SSI”).
We review de novo the decision of the district court that substantial evidence
supported the ALJ’s decision. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1011 (9th Cir. 2003); see also 28 U.S.C. § 1291. A vocational expert’s testimony
may constitute substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148, 1155
(2019). We affirm.
A disabled person is eligible for DIB and SSI. 42 U.S.C. §§ 423(a)(1)(E)
(DIB) and 1381a (SSI). A person is not disabled if she can do other work. 20
C.F.R. §§ 404.1520(a)(4)(v), (g) and 416.920(a)(4)(v), (g). That work must
“exist[] in significant numbers in the national economy.” Hill v. Astrue, 698 F.3d
1153, 1161 (9th Cir. 2012).
Here, the ALJ determined that Smith-Lipska was capable of performing
other work with “very little, if any, vocational adjustment.” See 20 C.F.R. Pt. 404,
Subpt. P, App. 2, § 201.00(f). Specifically, the ALJ stated that Smith-Lipska’s
ordering, scheduling, and customer service skills are transferable to the jobs of
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order clerk, customer complaint clerk, and scheduler, for which 88,000, 826,000,
and 233,000 positions are available nationwide, respectively. The vocational
expert provided unchallenged testimony to these facts. Accordingly, the district
court correctly granted summary judgment on the ground that substantial evidence
supported the Commissioner’s determination. Thus, the decision of the district
court is AFFIRMED.
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