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SMITH LIPSKA v. SAUL (2021)

United States Court of Appeals, Ninth Circuit.2021-02-25No. No. 19-15502

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Opinion

MEMORANDUM ***

Betsy Smith-Lipska, a former grocery store food counter supervisor, appeals the district courts grant of summary judgment for Defendant (the “Commissioner”). The district court upheld the administrative law judges (“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 ALJs decision. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003); see also 28 U.S.C. § 1291. A vocational experts testimony may constitute substantial evidence. Biestek v. Berryhill, ––– U.S. ––––, 139 S. Ct. 1148, 1155, 203 L.Ed.2d 504 (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-Lipskas ordering, scheduling, and customer service skills are transferable to the jobs of 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 Commissioners determination. Thus, the decision of the district court is AFFIRMED.