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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JAMILA BEHASHTI,

Plaintiff,

v.

MICHAEL J. ASTRUE, COMMISSIONER

OF SOCIAL SECURITY,

Defendant.

___________________________________/

No. C-09-1676 JCS

ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT 

[Docket Nos. 11, 12]

I. INTRODUCTION

Plaintiff Jamila Behashti (“Behashti”) applied for disability insurance benefits and

supplemental security income under Titles II and XVI of the Social Security Act on March 22, 2006. 

The application was denied both initially and on reconsideration. A hearing was then held on

September 4, 2008, with Administrative Law Judge (“ALJ”) Thomas J. Gaye presiding. In a

decision dated September 29, 2008, the ALJ denied the claim, concluding that Behashti was not

disabled because she remains capable of performing her past relevant work as a retail cashier. The

ALJ’s denial became the final decision of the Commissioner when the Appeals Council denied

Behashti’s subsequent request for review on February 2, 2009. Behashti then commenced this

action for judicial review pursuant to 42 U.S.C. § 405(g). Behashti asks the Court to reverse the

Commissioner’s decision and remand the case for further proceedings on the grounds that the denial

was neither supported by substantial evidence, nor was it free of legal error.

Behashti filed a motion for summary judgment (“Behashti’s Motion”) (Docket No. 11), and

the Commissioner filed an opposition to Behashti’s Motion and a cross-motion for summary

judgment (“Commissioner’s Motion”) (Docket No. 12). The parties have consented to the

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jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). Docket No. 6. For the reasons

stated below, the Commissioner’s Motion is GRANTED and Behashti’s Motion is DENIED.

II. BACKGROUND

A. Behashti’s Background

Behashti was born on August 1, 1952. Administrative Record (“AR”) at 33. She was 48

years old as of October 1, 2000, the alleged onset date of her disability. Id. at 96. Behashti

graduated from high school in Afghanistan and moved to the United States in 1981. Id. at 34. 

Behashti has worked at several places of employment since 1981 with her relevant past work

consisting of employment as a cashier at the retail store T.J.Maxx from 1995 to 2000. Id. at 35-36,

41-42, 103-04. 

B. The Administrative Hearing

The ALJ held an administrative hearing on Behashti’s claims for disability insurance benefits

on September 4, 2008. Id. at 26. Both Behashti and a vocational expert (“VE”) appeared and

testified. Id. at 26-44. Attorney Tony Arjo represented Behashti. Id. at 26.

At the hearing, when the ALJ asked Behashti why she could not work any longer, Behashti

stated, “I’m sick and depressed” and “I don’t have anybody here.” Id. at 36. Specifically, Behashti

testified that her back, legs and depression prevent her from working. Id. at 37. However, Behashti

indicated that she takes aspirin and other medications for her health concerns and stated that

“gradually they help” and she “[is] very happy.” Id. at 37, 39. Behashti also testified that in spite of

her back and leg problems, she does not have problems standing and she can walk without pain for

twenty or thirty minutes. Id. at 39, 41. Behashti does not use a cane, but she must be accompanied

by someone when walking, according to her testimony. Id. at 41. As for her depression, Behashti

stated that she feels depressed daily because she does not have “any home to live in,” is far away

from her daughter and is affected by the “revolution in Afghanistan.” Id. at 39-40. Behashti added

that she does not have problems sleeping, but she is “scared of [her] husband” and her husband’s

children tease her. Id. at 40. In response to an inquiry by the ALJ as to whether she is “able to read

English at all,” Behashti stated, “No writing, no reading, but talking.” Id.

The VE also testified at the hearing. Id. at 41-42. The ALJ asked the VE the hypothetical

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question of whether “a person of claimant’s age, education and past work experience at the light

exertional level” who is limited to “simple, repetitive tasks” could return to performing Behashti’s

past relevant work as a retail cashier. Id. at 41. The VE answered affirmatively. Id. Behashti’s

attorney questioned the VE about Behashti’s English language limitations, asking whether illiteracy

and limited spoken English would be a problem with the retail cashier job. Id. at 42. The VE

answered that it would not be a problem and had not been a problem for the five years Behashti

actually performed the work. Id. The VE also testified that as Behashti had previously performed

retail cashier work with those language limitations, she “could survive [as a] cashier in places other

than T. J. Maxx, based on [his] experience.” Id.

C. The ALJ’s Five-Step Analysis

Disability insurance benefits are available under the Social Security Act when an eligible

claimant is unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment . . . which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A) (2006); see also 42 U.S.C.

§ 423(a)(1) (2006). A claimant is only found to be disabled if his physical or mental impairments

are of such severity that not only is he unable to do his previous work, he also “cannot, considering

his age, education, and work experience, engage in any other kind of substantial gainful work which

exists in the national economy.” 42 U.S.C. § 4239(d)(2)(A) (2006). The claimant bears the burden

of proof in establishing a disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996), cert.

denied, 519 U.S. 881 (1996). 

The Commissioner utilizes a sequential, five-part evaluation process to determine whether a

claimant is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a). At Step One, the

Commissioner considers whether the claimant is engaged in “substantial gainful activity.” Id. §

404.1520(a)(4)(i). If the claimant is so engaged, the Commissioner finds the claimant not disabled

and ends the evaluation. Id. If the claimant is not so engaged, the Commissioner proceeds to Step

Two. See id.

At Step Two, the Commissioner considers whether the claimant has “a severe medically

determinable physical or mental impairment,” or combination of such impairments, which meets the

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duration requirement in 20 C.F.R. § 404.1509. Id. § 404.1520(a)(4)(ii). An impairment is severe if

it “significantly limits [the claimant’s] physical or mental ability to do basic work activities.” Id. §

404.1520(c). In addition, the physical or mental impairment (or combination of impairments) must

have lasted, or must be expected to last, for a continuous period of 12 months. Id. § 

404.1520(a)(4)(ii); id. § 404.1509 (stating the duration requirement that unless a claimant’s

“impairment is expected to result in death, it must have lasted or must be expected to last for a

continuous period of at least 12 months”). Age, education, and work experience are not considered

at this step. Id. § 404.1520(c). If the claimant does not have such an impairment, the

Commissioner finds the claimant not disabled and ends the evaluation. Id. § 404.1520(a)(4)(ii). If

the claimant has such an impairment, the Commissioner proceeds to Step Three. See id.

At Step Three, the Commissioner considers whether the claimant’s impairment “meets or

equals” one of the Social Security Administration’s compiled listings of impairments that the

Commissioner has established as disabling. Id. § 404.1520(a)(4)(iii). If the claimant’s impairment

meets one of the listed impairments, the Commissioner finds the claimant disabled. Id. If the

claimant’s impairment does not meet one of the listed impairments, the Commissioner proceeds to

Step Four. See id.

At Step Four, the Commissioner considers whether the claimant, in light of his or her

residual functional capacity, can continue to perform work he has performed in the past. Id.

§ 404.1520(a)(4)(iv). Based on the relevant medical evidence and other evidence in the record, the

Commissioner assesses the claimant’s residual functional capacity to determine whether the

claimant can do his past work. Id. § 404.125(e). If the residual functional capacity assessment

determines the claimant can perform his or her past work, the Commissioner will find the claimant

not disabled. Id. § 404.1520(f). If the residual functional capacity assessment determines that the

claimant cannot perform his past work, the Commissioner proceeds to Step Five. See id.

At Step Five, the Commissioner considers the claimant’s residual functional capacity, age,

education, and work experience to determine whether the claimant can “make an adjustment to other

work.” Id. § 404.1520(a)(4)(v). If the claimant can make an adjustment to other work, the

Commissioner finds him not disabled. Id. If the claimant cannot make an adjustment to other work,

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the Commissioner finds him disabled. Id. At Step Five, the burden shifts to the Commissioner to

show (1) that the claimant, in light of his or her impairments, age, education, and work experience,

can adjust to other work in the national economy and (2) that such a job actually exists. See Distasio

v. Shalala, 47 F.3d 348, 349 (9th Cir. 1995).

D. The ALJ’s Findings of Fact

In this case, the ALJ found at Step One of the evaluation process that Behashti had not

engaged in any substantial gainful activity since the alleged disability onset date of October 1, 2000. 

AR at 12.

At Step Two, the ALJ found that the medical evidence establishes that Behashti “has the . . .

severe impairments [of] low back pain and depression.” Id. 

At Step Three, the ALJ found that Behashti does not have an “impairment or combination of

impairments that meets or medically equals one of the . . . impairments” listed in the pertinent CFR

section. Id. at 13. 

At Step Four, the ALJ found that, “[a]fter careful consideration of the entire record,”

Behashti “has the residual functional capacity to perform light work” as defined in the pertinent CFR

sections. Id. at 14. The ALJ also determined that while Behashti possesses “moderate limitations”

in terms of “the ability to understand, remember and carry out detailed tasks,” Behashti retains the

“ability to sustain simple and repetitive tasks.” Id.

In reaching this finding, the ALJ “considered all symptoms and the extent to which the[]

symptoms can reasonably be accepted as consistent with the objective medical evidence and other

evidence.” Id. The ALJ “also considered opinion evidence,” according “significant weight” to

opinions by the consulting internist and psychiatrist “because they actually examined” Behashti. Id.

at 14-15. Upon review of this evidence, the ALJ found that Behashti’s “medically determinable

impairments could reasonably be expected to produced the alleged symptoms.” Id. at 15. However,

the ALJ concluded that Behashti’s “symptoms are not credible to the extent that they are

inconsistent with the residual functional capacity assessment.” Id. The ALJ explained that the

“weight of the objective evidence does not support [Behashti’s] claims of disabling limitations to the

degree alleged.” Id.

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Specifically, the ALJ noted that the medical evidence (1) failed to show “abnormalities of

gait[,] restriction in back motion or significant neurological deficits” and (2) indicated merely mild

“limitation of motion” and “degenerative changes” in the lumbar spine. Id. The ALJ pointed to

Behashti’s admission that over-the-counter aspirin helps to “gradually” relieve the pain. Id.

The ALJ noted that the psychiatric records indicated that Behashti “enjoys watching TV, talks to

some people, walks around her place and will do some cooking and household chores.” Id.

Behashti also “told her treating doctor that the depression was not too bad,” the ALJ noted. Id.

Based on this analysis, the ALJ concluded the following: Behashti is “capable of performing

past relevant work as a cashier,” because such work “does not require the performance of work

related activities precluded by” Behashti’s residual functional capacity. Id. The ALJ found that,

factoring in Behashti’s residual functional capacity and the “physical and mental demands of th[e]

work,” Behashti is able to perform the “actual functional demands and job duties” of a cashier. Id. 

The ALJ expressly deemed the VE’s testimony “consistent with the information contained in the

[DOT].” Id. Ultimately, the ALJ concluded that Behashti “has not been under a disability, as

defined in the Social Security Act,” from the onset date of October 1, 2000 to the September 29,

2008 date of the ALJ’s decision. Id.

E. Contentions of the Parties

Behashti argues that the ALJ erred in relying on the VE’s testimony that Behashti could still

perform the work of a retail cashier, despite her limitations with English. Behashti’s Motion at 5. 

This testimony is inconsistent with the description of the job of cashier in the Dictionary of

Occupational Titles’ (“DOT”), Behashti claims. Id. Specifically, Behashti contends that the DOT

indicates that the job of cashier requires an English language development level sufficient to read

simple works, write compound sentences, and speak clearly and distinctly with some measure of

sophistication. Id. at 5-6. Behashti claims that this requirement “clearly contradicts the VE’s

testimony that a person illiterate in English and with limited spoken English could perform the work

of a cashier.” Id. at 6. Behashti also points out that the ALJ found that Behashti’s medical condition

moderately limits her ability to carry out detailed tasks, and Behashti contends that

“[c]ommunicating with customers in a non-native language would be considered a detailed task.” 

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Id. at 5. Therefore, Behashti argues that Social Security Ruling (“SSR”) 00-4p required the ALJ to

“obtain a reasonable explanation for the apparent conflict.” Id. at 6. The ALJ failed to do so. Id. 

Moreover, Behashti claims that the absence of an explanation is material because Behashti’s alleged

inability to perform the work of a cashier would require that the case proceed to the fifth step in the

sequential evaluation. Id. At such a stage, Behashti argues, her vocational profile (including age,

allegedly poor English skills and purportedly limited residual functional capacity) would support a

disability finding. Id. Behashti contends that the ALJ committed legal error by failing to comply

with SSR 00-4p, and asks the Court to reverse the Commissioner’s decision. Id.

The Commissioner responds that substantial evidence supports the ALJ’s decision and that

the ALJ applied proper legal standards such that the ALJ’s decision is free of reversible error. 

Commissioner’s Motion at 2. The ALJ properly found that Behashti remained capable of

performing past relevant work as a retail cashier as actually performed and Behashti did not

establish an inability to engage in the past relevant work at issue. Id. The Commissioner points out

that the burden of proof in the Step Four determination of whether Behashti can perform past

relevant work lies with Behashti as the claimant. Id. at 2-3. Accordingly, the ALJ need not rely on

VE testimony to arrive a Step Four decision. Id. Moreover, assessment of English literacy is not a

requisite aspect of evaluating a claimant’s ability to perform past relevant work. Id. at 3. As such,

the Commissioner argues that the ALJ correctly based the past work determination on a medical

assessment of Behashti’s residual functional capacity and on consideration of the physical and

mental demands of Behashti’s past work. Id. Although the ALJ cited the VE’s testimony as

supportive of the ALJ’s finding and consistent with the DOT, the Commissioner contends that the

ALJ’s decision did not – nor did it need to – take into account the VE’s testimony or any language

or vocational considerations. Id. Therefore, the Commissioner argues that the proffered

inconsistencies between the VE’s testimony and the DOT regarding the pertinent English language

requirements for retail cashier work are not relevant. Id.

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III. ANALYSIS 

A. Legal Standard 

When reviewing the Commissioner’s decision, the Court takes as conclusive any findings of 

the Commissioner that are free from legal error and “supported by substantial evidence.” 42 U.S.C.

§ 405(g). Substantial evidence is “such evidence as a reasonable mind accepts as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)) (internal quotation marks omitted). “Substantial evidence

means more than a mere scintilla, but less than a preponderance.” Desrosiers v. Sec’y of Health &

Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotation marks omitted). 

Even if the Commissioner’s findings are supported by substantial evidence, they should be set aside

“if proper legal standards were not applied when using the evidence to reach a decision.” Benitez v.

Califano, 573 F.2d 653, 655 (9th Cir. 1978) (citation and internal quotation marks omitted). In

reviewing the record, the Court must consider both “the evidence that supports and . . . detracts from

the Commissioner’s conclusion.” Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

SSR 00-4p regulates how an ALJ may use occupational evidence in a disability

determination. See SSR 00-4p at *2-4. Under the rule, when a VE testifies “about the requirements

of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible

conflict between” the VE’s testimony and the “information provided in the [DOT].” Id. at *4. SSR

00-4p specifically provides that the adjudicator “will ask” the VE “if the evidence he or she has

provided” is consistent with the DOT and “obtain a reasonable explanation for [any] apparent

conflict.” Id. The Ninth Circuit has explained that “[t]he procedural requirements of SSR 00-4p

ensure that the record is clear as to why an ALJ relied on a [VE’s] testimony, particularly in cases

where the expert’s testimony conflicts with the [DOT].” Massachi v. Astrue, 486 F.3d 1149, 1153

(9th Cir. 2007). While testimony by a VE “generally should be consistent” with the DOT, the rule

expressly states that neither evidentiary source “automatically ‘trumps’ when there is a conflict.” 

SSR 00-4p at *2. In Massachi, the Ninth Circuit held that SSR 00-4p mandates that an ALJ cannot

rely on VE testimony without inquiry into and explanation of any potential conflicts with the DOT. 

486 F.3d at 1152. Under Massachi, when a VE provides occupational testimony at a hearing, an

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ALJ is required to (1) “explicitly ask the VE if his testimony is consistent with occupational

information found in the DOT” and (2) “ask the VE if there is a reasonable explanation for the VE’s

deviation,” if any conflict exists. Valenzuela v. Astrue, No. C 08-04001 WHA, 2009 Wl 1537876, at

*3 (N.D. Cal. June 2, 2009). “If the ALJ [does] not make this inquiry, he fail[s] in his affirmative

responsibility to ‘ensure that the record is clear as to why an ALJ relied on a [VE’s] testimony.’” Id.

(quoting Massachi, 486 F.3d at 1152). However, such a failure of inquiry is not by itself cause to

reverse the ALJ’s decision. The ALJ’s “procedural error” is “harmless” if no conflict existed or if

the VE “provide[s] sufficient support for [the ALJ’s] conclusion so as to justify any potential

conflicts.” Massachi, 486 F.3d at 1154 n.19; see, e.g., Sebben v. Astrue, No. 1:08cv01768 GSA,

2010 WL 347978, at *21 (E.D. Cal. Jan. 29, 2010) (finding the ALJ’s procedural error harmless

based on the sufficiency of the VE’s testimony); Vierra v. Astrue, No. C 06–7785 PVT, 2008 WL

4449575, at *8 (N.D. Cal. Sept. 30, 2008) (same).

B. Application

As a preliminary matter, it is not clear whether application of SSR 00-4p and Massachi is

appropriate here. SSR 00-4p and Massachi both concern consistency between VE testimony

regarding whether a claimant could perform other jobs in the national economy and the standards set

forth for those jobs in the DOT. See SSR 00-4p at *2-4; Massachi, 486 F.3d at 1152-54. Such

occupational evidence arises when considering whether a claimant is capable of adjusting to other

work in the national economy and the ability of such work (Step Five), not when considering

whether a claimant can continue to perform his or her past relevant work (Step Four). See Massachi,

486 F.3d at 1153-54 (reaching its conclusion regarding consistency between VE testimony and the

job standards of the DOT in the Step-Five context of whether the claimant “could perform other

work,” not in the Step-Four context of whether the claimant could continue to perform his past

relevant work); SSR 00-4p at *2 (noting that the Commissioner principally relies on the job

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 Similarly, courts in this Circuit apply SSR 00-4p and Massachi in the Step-Five context of

evaluating the consistency between VE testimony about the other jobs a claimant could perform and the

DOT’s standards for those jobs. See, e.g., Marshall v. Astrue, No. 08cv1735-L(WMc), 2010 WL

841252, at *5-6 (S.D. Cal. March 10, 2010); Sample v. Astrue, No. C 07-04814 JSW, 2009 WL 839298,

at *5-7 (N.D. Cal. March 30, 2009); Macapagal v. Astrue, No. C07-03706 HRL, 2008 WL 4449580,

at *4-5 (N.D. Cal. Sept. 29, 2008); Hernandez v. Astrue, No. 2:07-CV-00828-PHX-GMS, 2008 WL

4174889, at *2-4 (D. Ariz. Sept. 5, 2008).

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standards of the DOT “for information about the requirements of work in the national economy,”

which is part of the Step-Five calculus).1

 

Here, the VE testimony at issue related to Behashti’s linguistic fitness for performing her

past relevant work as a retail cashier. See AR at 42. In response to questioning by Behashti’s

attorney, the VE testified that Behashti’s illiteracy and limited spoken English would not be a

problem and had not been a problem for the five years Behashti actually performed the work. Id.

(Behashti’s attorney asking, “With the cashier job, would the illiteracy and the . . . limited spoken

English be a problem?” and the VE responding, “No, and it hasn’t been for five years.”). This

testimony did not concern whether Behashti could adjust to performing another type of work in the

national economy or the standards for that work. See 20 C.F.R. § 404.1520(a)(4)(v). The Ninth

Circuit has held that such considerations are not appropriate at Step Four. See Korenica v. Astrue,

346 Fed. Appx. 141, 143 (9th Cir. 2009) (holding that “it is not appropriate to consider whether the

claimant’s previous work exists in the national economy” at Step Four). Therefore, it is unclear how

the job standards set forth in the DOT could be relevant to the VE’s testimony at issue here or could

raise a question of evidentiary consistency at Step Four.

As a corollary, it is unclear whether the ALJ even considered – or, for that matter, should

have considered – Behashti’s English language capacity at Step Four, given that it is independent of

the bases for her claimed disability and not necessarily relevant to the Step-Four consideration of her

ability to perform past relevant work. See Pinto v. Massanari, 249 F.3d 840, 846 n.5 (9th Cir. 2001)

(noting the contradictory authorities on point and not reaching the question of whether consideration

of language skills ought to factor into Step Four). The ALJ based his decision that Behashti is not

disabled on a determination that Behashti is capable of performing her past relevant work as a retail

cashier as such work “does not require the performance of work-related activities precluded by

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 The only mention of language in the decision is the factual statement that Behashti testified at

the hearing that she “understands a little English, but cannot read or write in English.” AR at 14.

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[Behashti’s] residual functional capacity.” AR at 15. While the VE testified that Behashti’s

illiteracy and limited spoken English had not prevented her from actually performing the work for

the approximately five years she actually worked as a retailer cashier, nowhere does the ALJ’s

decision mention this particular testimony or discuss Behashti’s linguistic qualifications for past

relevant work.2

 See id. at 12-16.

Even if SSR 00-4p and Massachi apply here, the Court finds that any procedural error

committed by the ALJ was harmless. Here, the ALJ concluded his decision with the statement that

“[p]ursuant to SSR 00-4p, the [VE’s] testimony [was] consistent with the information contained in

the [DOT].” AR at 15. This statement notwithstanding, the ALJ failed to ask the VE whether his

testimony regarding Behashti’s English language capacity for continuing to perform past relevant

work was consistent with the DOT’s description of the language requirements for that work (and, if

so, whether the VE could reasonably explain the conflict). Even assuming that the ALJ’s failure to

inquire constituted procedural error, the Court finds that it was harmless. See Massachi, 486 F.3d at

1152. An ALJ’s procedural error is harmless under Massachi if (1) there was no conflict or (2) the

VE sufficiently supported his conclusion “so as to justify any potential conflicts.” See id. at 1152-54

& 1154 n.19. As noted above, the VE testified that Behashti’s English language limitations would

not preclude her from continuing to performing her past relevant work as a retail cashier and that

those limitations had not prevented her from performing such work in the past. See AR at 42. 

While the DOT describes retail cashier work as requiring more sophisticated English language

abilities than Behashti’s illiteracy and limited spoken English, the VE based his testimony that

Behashti could continue to perform retail cashier work on the plain fact that, even with those

linguistic limitations, Behashti had already performed such work for approximately five years. See

id. (Behashti’s attorney asking, “You’re assuming because [Behashti performed the retail cashier

work] before with her English that she could do it now?” and the VE responding, “I’m also saying

that . . . she could survive the cashier [work] in places other than T. J. Maxx, based on my

experience.”). Therefore, even if SSR 00-4p and Massachi apply here, the VE’s testimony

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sufficiently supports the ALJ’s conclusion that Behashti could continue to perform retail cashier

work so as to justify any potential conflicts with the DOT. Any error was therefore harmless. See

Massachi, 486 F.3d at 1154 n.19.

IV. CONCLUSION

For the reasons stated above, the Court finds that the ALJ’s decision is supported by

substantial evidence in the record as a whole and is based on proper legal standards. The

Commissioner’s Motion is GRANTED; Behashti’s Motion is DENIED. 

IT IS SO ORDERED.

Dated: May 19, 2010

___________________________ JOSEPH C. SPERO

United States Magistrate Judge

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