Opinion
21-56034
10-20-2022
FRANCES JENSON, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee.
NOT FOR PUBLICATION
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court for the Central District of California No. 5:20-cv-01020-VEB Victor E. Bianchini, Magistrate Judge, Presiding
Before: HIGGINSON, CHRISTEN, and BUMATAY, Circuit Judges.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
MEMORANDUM
Frances Jenson appeals from the district court's order affirming the Commissioner of Social Security's denial of disability insurance benefits. "We review the district court's order affirming the [Administrative Law Judge]'s denial of social security benefits de novo and will disturb the denial of benefits only if the decision contains legal error or is not supported by substantial evidence." Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (simplified). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Jenson argues that the Administrative Law Judge ("ALJ") erred by failing to address "evidence" submitted in her pre-hearing brief. In that brief, Jenson's counsel argued that her past relevant work should be classified as "Department Manager" and attached the Dictionary of Occupational Titles ("DOT") definition of "Department Manager" as an exhibit. The claimant is the primary source of evidence about prior job functions, SSR 82-62, 1982 WL 31386, at *3 (Jan. 1, 1982), and the ALJ considered Jenson's testimony concerning her job functions. But Jenson's pre-hearing brief is not evidence, United States v. Hudson, 432 F.2d 413, 414 (9th Cir. 1970), and an ALJ "is not required to discuss evidence that is neither significant nor probative." Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Jenson neither questioned the vocational expert ("VE") about her proffered exhibit nor explained why that exhibit was significant or probative as to her argument that "Department Manager" was the correct classification. Thus, the ALJ did not err by failing to address Jenson's submission.
2. Jenson also argues that the ALJ failed to resolve the conflict between the DOT's and the VE's classification of her past relevant work. The Commissioner argues that Jenson forfeited this claim by failing to raise it before the district court and at her administrative hearing. But Jenson has consistently claimed, before the ALJ and the district court, that the Commissioner failed to properly characterize her past work. This encompasses her argument on appeal and thus she did not forfeit it.
Jenson argues the Commissioner violated our precedent that requires an ALJ to address obvious conflicts between VE opinion that a claimant can safely work a particular occupation and the DOT's requirements for the occupation. See, e.g., Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016); Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). But Jenson's challenge is to the ALJ's decision to credit the VE's classification of her relevant work as "Stock Supervisor" over Jenson's preferred classification as "Department Manager."
The VE's testimony provides substantial evidence for the ALJ's decision to categorize Jenson as a "Stock Supervisor" and no obvious conflict arose from the VE testimony that Jenson could perform as a Stock Supervisor as that occupation is typically performed. See Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 2022) (quoting Biestek v. Berryhill, 139 S.Ct. 1148, 1155 (2019)). The VE opined that, based on Jenson's testimony, she performed as a "Stock Supervisor" at a "medium level," but that it is typically performed at a light exertional level. The VE then opined that Jenson could perform as a "Stock Supervisor" as defined in the DOT. The ALJ was entitled to rely on the VE's experience to account for a particular job's requirements. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). Nothing in this record requires us to reverse the ALJ's decision.
AFFIRMED.
The Honorable Stephen A. Higginson, United States Circuit Judge for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.