Brenda Diedrich v. Nancy Berryhill , 699 F. App'x 726 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRENDA M. DIEDRICH, No. 14-36070
Plaintiff-Appellant, D.C. No. 6:13-cv-01501-CL
v.
MEMORANDUM *
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted June 5, 2017
Portland, Oregon
Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.
Brenda M. Diedrich appeals the district court’s order affirming the
Commissioner of Social Security’s (the “Commissioner”) denial of Diedrich’s
application for Social Security Disability Insurance (“SSDI”) benefits under Title
II of the Social Security Act. In a separately filed opinion, we reverse in part the
district court’s decision on several grounds. In this memorandum disposition, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
reject several additional challenges to the Administrative Law Judge’s (“ALJ”)
decision, affirming in part on those grounds. We have jurisdiction to decide this
appeal under 28 U.S.C. § 1291.
1. The ALJ did not err by not mentioning the January 2007 Personality
Assessment Inventory (“PAI”) in its decision. ALJs “need not discuss all evidence
presented to [them]. Rather, [they] must explain why significant probative
evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d
1393, 1394–95 (9th Cir. 1984) (internal quotation marks omitted). We conclude
that while the PAI may have been probative, it was not significant. Dr. Leslie
Morey cautioned in his report that the conclusions from the test “should be viewed
as only one source of hypotheses,” that “[n]o decisions should be based solely on
the information contained in this report,” and that the information “should be
integrated with all other sources of information in reaching professional decisions
about [Diedrich].” Dr. Morey also expressed that the report was “intended for use
by qualified professionals only,” and “should not be released [to Diedrich].” These
qualifications show that the purpose of the PAI was to assist with future diagnosis
and treatment, not to give any definitive answers concerning Diedrich’s symptoms
or diagnoses. The ALJ did not err by not mentioning the PAI in its decision.
2. The ALJ also did not err in not considering erosion of Diedrich’s
occupational base. At step five, the Commissioner bears the burden of showing
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that the claimant can perform some work different from the claimant’s past work
that exists in significant numbers in the national economy. Lockwood v. Comm’r
Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). “The Commissioner can
meet this burden in one of two ways: (a) by the testimony of a vocational expert
[“VE”], or (b) by reference to the Medical–Vocational Guidelines.” Id. (internal
quotation marks omitted). Determining whether any additional limitations on the
claimant’s ability to work “erode” the occupational base is a step necessary to
determine, based on the Medical-Vocational Guidelines, the number of jobs the
claimant is able to perform. But here, the ALJ relied on a VE, not the Medical-
Vocational Guidelines, to determine that Diedrich could perform work existing in
significant numbers in the national economy. We conclude that the ALJ was not
required to assess erosion of Diedrich’s occupational base.
3. The ALJ’s step five finding that Diedrich could perform work existing in
significant numbers in the national economy is supported by substantial evidence.
Diedrich contends that the ALJ’s residual functional capacity (“RFC”)
determination and hypothetical to the VE impermissibly left out any mention of
Diedrich’s difficulties persisting with tasks. But both the hypothetical to the VE
and the RFC determination included a restriction that Diedrich could perform only
“simple” tasks. This “simple” tasks limitation incorporated and reflected
Diedrich’s limitations as to persistence. See Stubbs-Danielson v. Astrue, 539 F.3d
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1169, 1174 (9th Cir. 2008).
Diedrich next contends that the ALJ did not permit Diedrich’s counsel to
fully question the VE as to the basis and methodology underlying the VE’s job
numbers testimony, as well as to the VE’s qualifications. But the ALJ allowed
Diedrich’s counsel to ask the VE several questions along these lines, and even after
cutting Diedrich’s counsel off for time reasons, gave Diedrich an opportunity to
submit further briefing on the issue.
Finally, Diedrich contends that the ALJ could not rely on the VE’s job
numbers testimony because the record did not reflect whether the VE gave
testimony based on reliable methods and data. Diedrich argues that the principles
governing the admission of expert testimony in federal court should govern
whether the ALJ may accept the testimony of a VE. See Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 589 (1993). But the Federal Rules of Evidence are
inapplicable in Social Security hearings. Bayliss v. Barnhart, 427 F.3d 1211, 1218
n.4 (9th Cir. 2005). Rather, “[a]n ALJ may take administrative notice of any
reliable job information, including information provided by a VE,” and the “VE’s
recognized expertise provides the necessary foundation for his or her testimony.”
Id. at 1218. As a result, “no additional foundation is required.” Id. We conclude
that the ALJ’s step five finding was supported by substantial evidence.
The Commissioner shall bear all costs on appeal.
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AFFIRMED in part, REVERSED in part, and REMANDED.
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FILED
Diedrich v. Berryhill, Case No. 14-36070
OCT 26 2017
Rawlinson, Circuit Judge, concurring in part and dissenting in part:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the holdings that the Administrative Law Judge (ALJ) did not err
by failing to mention the Personality Assessment Inventory, or by failing to
consider erosion of the occupational base. I also agree that the finding of the ALJ
that the claimant could perform work existing in significant numbers is supported
by substantial evidence. See Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016)
(setting standard).
However, as discussed in my dissent to the separately filed opinion, I do not
agree with the reversal of the district court’s decision on any basis. I would affirm
the district court decision in its entirety.
Because I would affirm the district court decision, I do not join the
assessment of costs against the Commissioner.
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