Brenda Diedrich v. Nancy Berryhill
699 F. App'x 726
| 9th Cir. | 2017Background
- Brenda M. Diedrich appealed the district court’s affirmation of the Commissioner’s denial of SSDI benefits; Ninth Circuit has jurisdiction under 28 U.S.C. § 1291.
- ALJ denied benefits; administrative record included a January 2007 Personality Assessment Inventory (PAI) prepared by Dr. Leslie Morey with cautionary qualifications about its use.
- At step five the ALJ relied on a vocational expert (VE) rather than the Medical-Vocational Guidelines to find Diedrich could perform work existing in significant numbers.
- The ALJ’s RFC limited Diedrich to simple tasks; ALJ and VE testimony addressed work persistence and task limitations.
- Diedrich challenged (1) the ALJ’s failure to discuss the PAI, (2) failure to consider erosion of occupational base, (3) adequacy of the RFC/hypothetical regarding persistence, and (4) reliability/basis of the VE’s job-numbers testimony.
- The panel affirmed in part, reversed in part and remanded on other grounds in a separately filed opinion; this memorandum affirms additional ALJ rulings and assesses costs against the Commissioner (concurrence disagreed on costs and would affirm entirely).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ALJ’s failure to mention January 2007 PAI | PAI was probative evidence and should have been discussed | PAI was not significant; it was expressly qualified as only one source and not definitive | No error; ALJ need only discuss significant probative evidence and PAI was not significant |
| Failure to consider erosion of occupational base | ALJ should assess whether additional limits erode occupational base under the Guidelines | ALJ relied on VE testimony, so an erosion analysis under the Guidelines was not required | No error; VE-based step five finding obviated need for Guidelines erosion analysis |
| RFC/hypothetical omitted persistence limitations | RFC/hypothetical failed to capture Diedrich’s difficulties persisting with tasks | RFC and hypothetical limited claimant to "simple" tasks, which encompassed persistence limits | No error; "simple tasks" limitation adequately incorporated persistence restrictions |
| Reliance on VE job-number testimony without Daubert-type foundation | VE testimony lacked demonstrated reliable methods/data; should be subject to Daubert analysis | Federal Rules/Daubert inapplicable; ALJ may take administrative notice of reliable job info and rely on VE expertise | No error; VE testimony may be relied on without additional Daubert-style foundation; substantial evidence supports step five |
Key Cases Cited
- Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984) (ALJs need not discuss all evidence—must explain rejection of significant probative evidence)
- Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068 (9th Cir. 2010) (Commissioner may meet step five burden via VE or Medical‑Vocational Guidelines)
- Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) (limiting to simple tasks can account for certain concentration/persistence limitations)
- Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (U.S. 1993) (standard for admissibility of expert testimony in federal court)
- Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir. 2005) (Federal Rules of Evidence do not govern Social Security hearings; ALJ may rely on VE expertise and take administrative notice of job information)
- Attmore v. Colvin, 827 F.3d 872 (9th Cir. 2016) (standard for assessing whether ALJ’s findings are supported by substantial evidence)