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United States Court of Appeals, Ninth Circuit.

Betsy SMITH-LIPSKA, Plaintiff-Appellant, v. Andrew M. SAUL, Commissioner of Social Security, Defendant-Appellee.

No. 19-15502

Decided: February 25, 2021

Before: WARDLAW and BEA, Circuit Judges, and ROSENTHAL,** District Judge. Jared Walker, Law Office of Jared T. Walker, P.C., Orangevale, CA, for Plaintiff - Appellant Edward Alan Olsen, Esquire, Assistant U.S. Attorney, DOJ-USAO, San Francisco, CA, Shea Lita Bond, Special Assistant U.S. Attorney, Elizabeth Firer, Special Assistant U.S. Attorney, Social Security Administration, Office of the General Counsel, San Francisco, CA, for Defendant - Appellee


Betsy Smith-Lipska, a former grocery store food counter supervisor, appeals the district court's grant of summary judgment for Defendant (the “Commissioner”). The district court upheld the administrative law judge's (“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 ALJ's decision. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003); see also 28 U.S.C. § 1291. A vocational expert's 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-Lipska's 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 Commissioner's determination. Thus, the decision of the district court is AFFIRMED.

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