Hume v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER. The Court AFFIRMS the Commissioner's decision because it is free of legal error and supported by substantial evidence. IT IS SO ORDERED. Signed on 9/11/2017 by Magistrate Judge Stacie F. Beckerman. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RAYMOND HUME,
Plaintiff,

Case No. 3:16-cv-01766-SB
OPINION AND ORDER

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
BECKERMAN, Magistrate Judge.
Raymond Scott Hume (“Hume”) brings this appeal challenging the Commissioner of
Social Security’s (“Commissioner”) denial of his applications for Social Security disability
insurance benefits and Supplemental Security Income under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear this appeal
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Court affirms
the Commissioner’s decision because it is free of legal error and supported by substantial
evidence.

PAGE 1 – OPINION AND ORDER

BACKGROUND
Hume stands six feet, three inches tall and weighs approximately 275 pounds. He was
born in February 1957, making him fifty-five years old on October 12, 2012, the alleged
disability onset date. Hume completed three years of college, and his past relevant work includes
time as a surveillance system monitor. Hume alleges disability due primarily to anxiety, chronic
pain, and depression.
On February 20, 2012, roughly eight months before Hume stopped working and alleges
the onset of disability, Hume visited the emergency department at Legacy Meridian Park
Medical Center, complaining of weakness, dizziness “with some vertiginous symptoms,” and
intermittent chest pain. (Tr. 360-61.) Hume underwent an “extensive imaging workup,” which
did “not show any acute vascular event.” (Tr. 361.) The attending physician, Dr. Sanjiv Panwala
(“Dr. Panwala”), noted that Hume’s low heart rate “certainly could explain his fatigue and
dizziness,” and discontinued a medication that was likely contributing to Hume’s condition. (Tr.
361.)
On July 10, 2012, Hume presented for an annual visit with Dr. Charles Douville (“Dr.
Douville”) regarding a “known dilated ascending aorta and root.” (Tr. 400.) Dr. Douville noted
that Hume’s ascending aorta was “really unchanged in size over the previous examination,” and
that Hume’s control of his blood pressure was “suboptimal” and had “been a struggle.” (Tr. 401.)
Dr. Douville informed Hume that “he is still best served by continued medical therapy and
observation,” and recommended that Hume undertake an “aggressive weight loss” program. (Tr.
401.)
On November 8, 2012, a magnetic resonance imaging (“MRI”) of Hume’s lumbar spine
revealed no “significant change” when compared with imaging from January 2007, “[m]ild
multilevel disc and facet degenerative changes,” and “[n]o significant central canal or foraminal
PAGE 2 – OPINION AND ORDER

stenosis.” (Tr. 409; see also Tr. 424, noting that the MRI of Hume’s lumbar spine revealed that
he has “facet hypertrophy” and “a mild disc bulge to the right,” but not “anything surprising or
serious”).
On February 22, 2013, Hume visited his primary care physician, Dr. Michael Booker
(“Dr. Booker”), for a follow-up regarding his blood pressure. Hume reported that he wanted “to
be on disability,” did not “want to return to work,” and wanted “to sue his employer.” (Tr. 521.)
He also complained of increased discomfort in his left shoulder, chronic back pain, depression,
and personal and financial stressors. Hume and Dr. Booker, who had routinely encouraged Hume
to engage in exercise and lose weight as a means to control his blood pressure (see Tr. 432, 43536, 564), discussed the fact that if Hume’s blood pressure was “not controlled his life threatening
condition of uncontrolled hypertension, history of stroke, and his aneurysm [are] very
concerning.” (Tr. 522.)
On March 9, 2013, Hume was referred to Dr. Donald Ramsthel (“Dr. Ramsthel”) for a
consultative examination. Hume reported that his “primary perceived disabling issues” were his
lower back pain, aortic aneurysm, anxiety, and depression, that he “can do his” activities of daily
living, and that his level of activity is “sedentary to mild, mostly due to his anxiety and
depression.” (Tr. 477-78.) Based on the results of his examination, Dr. Ramsthel estimated that
Hume can stand or walk “for at least [thirty] minutes at a time before needing to sit down,
translating into about [three to four] hours out of an [eight]-hour day,” can sit two “hours at a
time, translating into [four to six] hours out of an [eight]-hour day,” can lift and carry forty
pounds “infrequently” and twenty pounds frequently, would be somewhat limited in his ability to
handle objects on a “repetitive basis . . . due to his chronic left shoulder pain and instability,” and

PAGE 3 – OPINION AND ORDER

would be limited in his ability to travel due primarily “to his mental issues rather than his
physical issues.” (Tr. 480.)
On March 12, 2013, Dr. Sharon Eder (“Dr. Eder”), a non-examining state agency
physician, completed a physical residual functional capacity assessment. (Tr. 92-94.) Dr. Eder
concluded that Hume could lift and carry twenty pounds occasionally and ten pounds frequently;
stand, sit, or walk up to six hours during an eight-hour workday; push or pull in accordance with
his lifting and carrying restrictions; occasionally stoop and climb ramps, stairs, ladders, ropes,
and scaffolds; and frequently balance, kneel, crouch, and crawl. Dr. Eder also concluded that
Hume does not suffer from any manipulative, visual, communicative, or environmental
limitations.
On March 20, 2013, Dr. Irmgard Friedburg (“Dr. Friedburg”), a non-examining state
agency psychologist, completed a psychiatric review technique assessment. (Tr. 91.) Based on
her review of the record, Dr. Friedburg concluded that the limitations imposed by Hume’s
impairments failed to satisfy listings 12.04 (affective disorders) and 12.06 (anxiety-related
disorders).
On April 10, 2013, an x-ray of Hume’s chest revealed “[n]o active cardiopulmonary
disease.” (Tr. 583.)
On May 14, 2013, an MRI of Hume’s brain revealed “small infarcts” and “no acute
intracranial abnormality.” (Tr. 488.)
On August 28, 2013, Hume returned to Dr. Booker’s office, complaining of back pain,
dizziness, vertigo, and issues with his eyes. (Tr. 511.) In his treatment note, Dr. Booker observed
that the neurology department believed that Hume had a “tendency towards somatizations,”
Hume focuses on his health problems “to an unhealthy extent,” “[n]o singular problem would

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qualify for disability,” there was “no reason [Hume] could not try to work as he does have
employment options where he did work,” and Hume “should try going back to work to help keep
him occupied.” (Tr. 513.)
In a vestibular lab report dated September 11, 2013, Dr. Jeffrey Brown (“Dr. Brown”)
noted that his examination revealed that Hume was at “a very high risk of falls and injury” due to
balance issues and thus should avoid “uneven ground or moving surfaces.” (Tr. 1286.) He also
recommended that Hume undergo“[b]alance therapy and, perhaps, [use an] assistive device[.]”
(Tr. 1286.)
On October 31, 2013, Dr. Martin Kehrli (“Dr. Kehrli”), a non-examining state agency
physician, issued a physical residual functional capacity assessment, wherein he agreed with Dr.
Eder’s conclusion that Hume can lift and carry twenty pounds occasionally and ten pounds
frequently; stand, sit, or walk up to six hours during an eight-hour workday; push or pull in
accordance with his lifting and carrying restrictions; occasionally stoop and climb ramps, stairs,
ladders, ropes, and scaffolds; and frequently balance, kneel, crouch, and crawl. (Tr. 124-25.) Dr.
Kehrli also agreed with Dr. Eder’s conclusion that Hume does not suffer from manipulative,
visual, or communicative limitations, but disagreed with Dr. Eder’s conclusion that Hume does
not suffer from environmental limitations, such as the need to avoid concentrated exposure to
noise and hazards.
On November 21, 2013, Hume was referred to Dr. Daniel Scharf (“Dr. Scharf”) for a
psychodiagnostic examination. (Tr. 584-88.) During the examination, Hume “primarily focused
on his physical difficulties of reported back and neck pain as his main barriers to working,” but
also reported “consistent low-level depression and very mild anxiety which were not evident on
examination.” (Tr. 584, 586.) Based on his examination, Dr. Scharf’s diagnostic impressions

PAGE 5 – OPINION AND ORDER

were that Hume suffers from a “moderate” depressive disorder and a “mild” anxiety disorder,
exhibited “no objective signs of cognitive problems,” “was able to understand and remember
instructions and sustain concentration and attention,” “would have difficulties with persistence in
his attention after [one to two] hours,” and “was able to engage in appropriate social interaction.”
(Tr. 586.)
On December 2, 2013, Dr. Dorothy Anderson (“Dr. Anderson”), a non-examining state
agency psychologist, issued a psychiatric review technique assessment, agreeing with Dr.
Friedburg’s conclusion that Hume’s mental impairments failed to satisfy listings 12.04 and
12.06, and noting that Hume’s impairments also failed to satisfy listing 12.07 (somatoform
disorders). (Tr. 122.)
On August 7, 2014, an MRI of Hume’s cervical spine revealed “[m]ultilvel degenerative
disc disease, “[l]eft foraminal stenosis at C6-7,” and a “focal area of abnormal enhancement” that
“could represent a spondylo-diskitis, focal osteomyelitis or possible neoplastic process.” (Tr.
803-04.)
On September 11, 2014, an MRI of Hume’s left shoulder revealed “[m]oderate
osteoarthritic changes . . . of the glenohumeral and acromioclavicular joints” and “[m]ild
tearing . . . of the supraspinatus and infraspinatus tendons at their insertion sites on the humeral
head[.]” (Tr. 949.)
On October 10, 2014, Hume underwent an electrodiagnostic evaluation that showed
“evidence of a sensory-motor ulnar neuropathy at the left elbow” that was “not clearly
symptomatic” and did not require surgery. (Tr. 795.) Hume also underwent an electromyography
that did “not identify cervical motor radiculopathy” or “exclude a sensory-only radiculopathy.”
(Tr. 795.)

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On October 19, 2014, Hume had computed tomography (“CT”) scans taken of his chest,
abdomen, and pelvis, which revealed “[n]o aortic aneurysm or dissection,” and an enlarged heart
“with pulmonary findings suggesting venous congestion and possibly early [congestive heart
failure].” (Tr. 833.) It was later determined that Hume “does not have a diagnosis of congestive
heart failure.” (Tr. 970.)
On November 19, 2014, Hume presented for a follow-up visit with Dr. Booker regarding
his back pain. Hume reported that his back pain was “worse” and that he was “having a very
hard time walking.” (Tr. 965.) Dr. Booker noted that Hume believed there was a “surgical
solution but surgery didn’t have a clear opinion about [Hume] being a surgical candidate given
his MRI lumbar results.” (Tr. 965.) Dr. Booker added that he did not “feel [Hume] is a surgical
candidate for his lumbar degenerative changes,” and it was “[m]ore important to get his blood
pressure down.” (Tr. 967.)
In a treatment note dated January 28, 2015, Dr. Booker noted that Hume complained of
“ongoing neck pain” and “numerous lipomas he would like to see surgery about again,” and that
Dr. Booker did not “think he needs surgery for the lipoma in question” or that Hume “has a
surgical issue with his neck for any symptoms but [would] follow up with neurosurgery.” (Tr.
958-60.)
On February 6, 2015, an MRI of Hume’s cervical spine revealed a “[s]table lesion
involving the upper endplate of C7 to the left of midline with extension into the adjacent C6-7
discs.” (Tr. 807.) Dr. Steve Urman (“Dr. Urman”) “doubt[ed]” that Hume’s lesion “represents a
focus of infection but rather is more typical of a vascular lesion or atypical hemangioma.” (Tr.
807.)

PAGE 7 – OPINION AND ORDER

On March 9, 2015, Hume was referred to a neurosurgeon, Dr. Claudia Martin (“Dr.
Martin”). Dr. Martin “[r]eassured” Hume that his recent “cervical MRI finding [was] benign.”
(Tr. 1290.) During a follow-up visit, Hume exhibited full motor power “in all lower extremity
muscle groups,” Dr. Martin noted that Hume “does not need any lumbar surgery,” Dr. Martin
“[d]iscussed conservative treatment for back pain” with Hume, and Dr. Martin added that she did
“not understand what was [purportedly] recommended to [Hume] by an outside neurosurgeon.”
(Tr. 1289.)
In a treatment note dated June 17, 2015, Dr. Booker noted that Hume complained of pain
in his right foot, that Vicodin “helps with [Hume’s] low back pain,” that Hume reported that
seeing a therapist had “been helpful,” that Hume’s “plantar fasciitis symptoms [were]
improving” as the result of “home exercises and stretching,” that “[i]n the long run weight loss
would be helpful,” and that Hume’s plantar fasciitis was “improving as expected.” (Tr. 12991300.)
On June 25, 2015, Hume’s psychologist, Dr. James Born (“Dr. Born”), completed a
medical source statement at the request of Hume’s counsel. (Tr. 1106-10.) Dr. Born stated, inter
alia, that he has treated Hume on a weekly to bi-weekly basis since January 2015, and that Hume
suffers from severe depression and anxiety; extreme impairment in his ability to maintain
concentration, persistence, or pace; and marked impairment in social functioning, his activities of
daily living, and his ability to “maintain attention and concentration for extended periods,”
“perform activities within a schedule, maintain regular attendance and be punctual within
customary tolerances,” “sustain an ordinary routine without special supervision,” “work in
coordination with or proximity to others without being distracted by them,” “complete a normal
workday and workweek without interruptions from psychologically based symptoms and to

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perform at a consistent pace without an unreasonable number and length of rest periods,” and
“maintain socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness.” (Tr. 1109.) Dr. Born added that Hume would miss sixteen hours or more per month
“from even a simple, routine job because of his impairments, symptoms, medications, and their
side effects,” and that Hume “wants to be able to work but his limitations are too challenging.”
(Tr. 1110.)
On July 1, 2015, Hume appeared and testified at a hearing before an Administrative Law
Judge (“ALJ”). (Tr. 39-84.) Hume testified that he attempted to work after suffering a stroke and
heart attack; he last worked in October 2012; and during “the last couple of years,” his securityrelated position was more of a “desk job” that involved monitoring surveillance equipment,
operating a computer and telephone, and monitoring those who accessed the facility using
“security badges and clearances.” (Tr. 43, 76, 324.) Hume cited several barriers that prevent him
from returning to work, including stress intolerance, “back issues,” “vertigo and dizziness,”
“balance problems” that resulted in “falling down a lot,” mental anguish stemming from his
brother’s suicide in 2006, nightmares, and “seeing dark figures” and “a lot of doors rattling”
while at work. (Tr. 44.) Hume added that he suffers from depression, anxiety, insomnia, arthritis
in his shoulders, headaches, urinary incontinence, chronic pain in his neck, head, lower back, left
hip, and shoulders, nerve damage in his elbows and right leg, numbness in his right foot, plantar
fasciitis, and poor vision. In terms of his functional capacity, Hume estimated that he could “only
walk two to ten minutes, stand only for five to [ten] minutes, and sit for about [thirty] minutes.”
(Tr. 59.)
The ALJ posed a series of hypothetical questions to a Vocational Expert who testified at
Hume’s hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Hume’s

PAGE 9 – OPINION AND ORDER

age, education, and work experience could perform light work that involved: (1) lifting and
carrying twenty pounds occasionally and ten pounds frequently, (2) sitting, standing, and
walking up to six hours in an eight-hour workday, (3) pushing and pulling in accordance with his
lifting and carrying restrictions, (4) occasionally stooping and climbing ramps, stairs, ladders,
and scaffolds, (5) frequently balancing, kneeling, crouching, and crawling, (6) moderate noise
levels; (7) making simple work-related decisions, (8) simple, routine, repetitive tasks, (9) no
exposure to unprotected heights or operating heavy machinery, (10) never “operating a motor
vehicle as part of the day-to-day job,” and (11) occasional interaction with co-workers and the
public. (Tr. 72.) The VE testified that the hypothetical worker could perform Hume’s desk job as
a “surveillance system monitor,” but the worker could not perform Hume’s past work as a
“loader/unloader” or “security guard” (i.e., the patrolling-related security work performed by
Hume before there were “cutbacks” and his position turned into more of a “desk job”). (Tr. 43,
72, 76.) The VE also testified that the worker could be employed as an office helper and photo
copy machine operator.
Second, the ALJ asked the VE to assume that the hypothetical worker described above
was “limited to occasional reaching overhead with the left upper extremity.” (Tr. 73.) The VE
testified that he did not “believe that . . . would necessarily preclude the occupations identified.”
(Tr. 73.) Responding to the ALJ’s third hypothetical, the VE confirmed that a worker could not
sustain gainful employment if he needed to recline or lie down on an occasional basis during the
workday.
Fourth and finally, the ALJ asked the VE to assume that the hypothetical worker did not
need to be limited to simple, routine, repetitive tasks, or to occasional interaction with coworkers and the general public. The VE testified that the hypothetical worker described could

PAGE 10 – OPINION AND ORDER

perform Hume’s past work as a security guard and surveillance system monitor. Responding to
follow-up questions posed by Hume’s counsel, the VE confirmed that, based on the job
description set forth in the Dictionary of Occupational Titles (“DOT”) and the VE’s own work
“experience,” the surveillance system monitor job “does not entail more than occasional” social
interaction. (Tr. 82-83.)
In a medical condition certification dated September 30, 2015, Dr. Douville stated that
“[Hume] has a thoracic (ascending) aortic aneurysm which is being followed for evidence of
enlargement,” that Hume’s aorta “is currently 4.7 [centimeters] on his last CT scan,” and that
“[w]hen [the aorta] reaches 5-5.5 [centimeters] in size, it will require open cardiac surgery[.]”
(Tr. 1293.)
On October 12, 2015, Hume visited Dr. Booker’s office, complaining of foot and thigh
pain, and “wonder[ing]” whether he might suffer from fibromyalgia. (Tr. 1278.) Dr. Booker
noted that an x-ray showed “arthritic changes” at the distal interphalangeal joint of Hume’s toe,
that Hume wanted to see a specialist regarding his toe, but Dr. Booker did not believe that it
“look[ed] severe enough on the x-ray to consider fusion,” that Dr. Booker did not “think [Hume]
has fibromyalgia,” and that Hume’s depression “amplifies everything,” including his “physical
problems.” (Tr. 1280.)
In a written decision issued on September 1, 2015, the ALJ applied the five-step process
set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Hume was not
disabled. See infra. The Social Security Administration Appeals Council denied Hume’s petition
for review, making the ALJ’s decision the Commissioner’s final decision. Hume timely appealed
to federal district court.

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THE FIVE-STEP SEQUENTIAL ANALYSIS
I.

LEGAL STANDARD
A claimant is considered disabled if he or she 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as
follows:
(1) Is the claimant presently working in a substantially gainful
activity? (2) Is the claimant’s impairment severe? (3) Does the
impairment meet or equal [one of the listed impairments]? (4) Is
the claimant able to perform any work that he or she has done in
the past? and (5) Are there significant numbers of jobs in the
national economy that the claimant can perform?
Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the
burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S.
137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the
Commissioner must show the claimant can perform other work that exists in significant numbers
in the national economy, “taking into consideration the claimant’s residual functional capacity,
age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If
the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at
954 (citations omitted).

PAGE 12 – OPINION AND ORDER

II.

THE ALJ’S DECISION
The ALJ first determined that Hume had not engaged in substantial gainful activity since

October 12, 2012, the alleged disability onset date. At the second step, the ALJ found that Hume
had the severe impairments of “degenerative disc disease of the lumbar and cervical spine;
obesity; aortic aneurism; hypertension; coronary artery disease; history of cerebrovascular
accident; degenerative joint disease of the left shoulder; depressive disorder; anxiety disorder;
and somatization.” (Tr. 18.) At the third step of the process, the ALJ determined that Hume did
not have an impairment or combination of impairments that met or equaled one of the Listed
Impairments.
The ALJ next assessed Hume’s residual functional capacity (“RFC”) and found that he
could perform light exertion work that involves (1) lifting and carrying up to twenty pounds
occasionally and ten pounds frequently; (2) sitting, standing, and walking up to six hours in an
eight-hour workday; (3) pushing and pulling in accordance with Hume’s lifting and carrying
restrictions; (4) occasionally interacting with co-workers and the public, reaching overhead,
reaching with the left upper extremity, stooping, and climbing ramps, stairs, ladders, ropes, and
scaffolds; (5) frequently balancing, kneeling, crouching, and crawling; (6) never working
“around unprotected heights,” never operating heavy machinery, and never operating “a motor
vehicle,” (7) avoiding “even moderate exposure to noise,” (8) “simple tasks, routine and
repetitive tasks, and . . . simple work-related decisions.” (Tr. 22.) At step four, the ALJ
concluded that Hume is capable of performing his past relevant work as a surveillance system
monitor. Accordingly, the ALJ found that Hume was not disabled within the meaning of the
Social Security Act.

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STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r Soc.
Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of
evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire
record, weighing the evidence that both supports and detracts from the Commissioner’s
conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the
ALJ’s decision must be upheld; the district court may not substitute its judgment for the
judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
DISCUSSION
In this appeal, Hume argues that the ALJ erred by: (1) failing to provide legally sufficient
reasons for discounting the opinion of his treating psychologist, Dr. Born; (2) concluding that
Hume is capable of performing his past relevant work as a surveillance system monitor; and (3)
failing to reconcile the “apparent conflict” between the VE’s testimony and the DOT. (Pl.’s
Opening Br. at 4.) As explained below, the Court finds that the ALJ’s decision is free of legal
error and supported by substantial evidence. Accordingly, the Court affirms the Commissioner’s
decision.
PAGE 14 – OPINION AND ORDER

I.

MEDICAL OPINION EVIDENCE
A.

Applicable Law

“There are three types of medical opinions in social security cases: those from treating
physicians, examining physicians, and non-examining physicians.” Valentine v. Comm’r Soc.
Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1995)). In the event “a treating or examining physician’s opinion is contradicted by another
doctor, the ‘[ALJ] must determine credibility and resolve the conflict.’” Id. (quoting Thomas v.
Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002)). “An ALJ may only reject a treating physician’s
contradicted opinions by providing specific and legitimate reasons that are supported by
substantial evidence.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014) (citation and
quotation marks omitted).
“An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient:
“The ALJ must do more than state conclusions. He must set forth his own interpretations and
explain why they, rather than the doctors’, are correct.” Id. “[A]n ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion.” Id. at 1012-13
(citation omitted).
///
///
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B.

Application of Law to Fact

Hume argues the ALJ failed to provide legally sufficient reasons for discounting Dr.
Born’s medical source statement dated June 25, 2015. (Pl.’s Opening Br. at 5-7.) The Court
disagrees.
Dr. Born’s medical source statement conflicts with the opinions of the state agency
medical consultants, none of whom opined, for example, that Hume suffers from marked
limitations in social functioning or extreme limitations in his ability to maintain concentration,
persistence, or pace. (Compare Tr. 91, and Tr. 122, with Tr. 1108.) Therefore, the ALJ needed to
provide specific and legitimate reasons for discrediting Dr. Born’s opinion. See Batson v.
Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“[I]n the case of a conflict
‘the ALJ must give specific, legitimate reasons for disregarding the opinion of the treating
physician.’”); Killan v. Barnhart, 226 F. App’x 666, 668 (9th Cir. 2007) (“Killian’s contention
that the ALJ erred when he discounted her treating physician’s opinion is flawed because the
treating physician’s opinion conflicted with that of a nonexamining physician, and the ALJ
supported his decision with specific and legitimate reasons.”). The Court concludes that the ALJ
did so here.
First, the ALJ discounted Dr. Born’s opinion because it was inconsistent with the opinion
of Hume’s primary care physician. This is a specific and legitimate reason for discounting a
doctor’s opinion. See Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600-03 (9th Cir. 1999)
(holding that the ALJ provided specific and legitimate reasons for rejecting a treating doctor’s
opinion, and noting that “[i]nconsistency between [the treating doctor’s] and [examining
doctor’s] conclusions provided the ALJ additional justification for rejecting [the treating
doctor’s] opinion”); see also Perry v. Colvin, No. 15-1356, 2016 WL 3570774, at *4 (W.D.
Wash. July 1, 2016) (“[I]nconsistency between medical opinions is a specific and legitimate
PAGE 16 – OPINION AND ORDER

reason to give less than full weight to a treating physician’s opinion.”). For example, the ALJ
assigned “little weight” to Dr. Born’s opinion, noting, among other things, that the record
evidence did not support Dr. Born’s opinion that Hume suffers from any marked mental health
limitations. (Tr. 27.) The ALJ then proceeded to assign “significant weight” to the opinion of
Hume’s long-time treating physician, Dr. Booker, who is “familiar with all of” Hume’s medical
conditions and “felt there was no reason [Hume] could not try to work despite his symptoms.”
(Tr. 27-28.) Substantial evidence supports the ALJ’s conclusion that Dr. Born’s opinion is
inconsistent with Dr. Booker’s opinion. (Compare Tr. 511-13, noting that Dr. Booker had treated
Hume’s mental and physical impairments, that Dr. Booker did not believe that any “singular
problem would qualify [Hume] for disability,” that Dr. Booker felt “[t]here is no reason [Hume]
could not try to work as he does have employment options where he did work,” and that Dr.
Booker thought Hume “should try going back to work to help keep him occupied,” with Tr. 58488, opining that Hume suffers from mental limitations that would preclude gainful employment,
and Pl.’s Opening Br. at 6-7, noting that the “ALJ held that Dr. Born’s findings were inconsistent
with the opinions of other doctors,” and that Dr. Born’s opinion supports a finding of disability).
Accordingly, this inconsistency constitutes a specific and legitimate reason for discounting Dr.
Born’s opinion.1

1

The Court notes that Dr. Booker has treated Hume’s mental impairments since at least
August 2010, and that Dr. Born served as Hume’s counselor for approximately six months before
issuing his opinion. (See Tr. 565, listing depression and anxiety among Hume’s past medical
problems in a treatment note dated August 27, 2010, Tr. 1106, 1110, noting that Dr. Born issued
his opinion on June 25, 2015 and had been treating Hume or a weekly to bi-weekly basis since
January 15, 2015). Before discounting Dr. Born’s opinion evidence, the ALJ noted that Dr. Born
had only treated “the claimant for about six months.” (Tr. 27.) In assigning significant weight to
Dr. Booker’s opinion, the ALJ observed that Dr. Booker was Hume’s “longtime treating
physician and he is familiar with all of the [Hume’s conditions.” (Tr. 28.) “The length of a
treating relationship is a specific and legitimate reason to reject a treating [doctor] and give the
PAGE 17 – OPINION AND ORDER

Second, the ALJ discounted Dr. Born’s opinion on the ground that it was inconsistent
with Hume’s testimony. (See Tr. 27, citing Hume’s inconsistent testimony regarding his social
functioning as grounds for discounting the opinion of Dr. Born, who opined that Hume suffers
from marked limitations in social functioning). This is a specific and legitimate reason for
discounting a doctor’s opinion. See Arthurs v. Colvin, 644 F. App’x 749, 749-50 (9th Cir. 2016)
(holding that the ALJ provided specific and legitimate reasons for discounting a treating doctor’s
opinions, and noting that the doctor’s opinions were inconsistent with the claimant’s testimony);
Stanley v. Astrue, No. 09-1743, 2010 WL 4942818, at *6 (E.D. Cal. Nov. 30, 2010) (noting that
a claimant’s inconsistent testimony is a specific and legitimate reason for rejecting a doctor’s
opinion (citing Andrews, 53 F.3d at 1043)). Substantial evidence supports the ALJ’s finding that
Hume’s testimony is inconsistent with Dr. Born’s opinion. (Compare Tr. 1108, opining that
Hume suffers from “[m]arked” limitations in social functioning, “[m]arked” impairment in his
activities of daily living, and “[e]xtreme” impairment in maintaining concentration, persistence,
or pace, with Tr. 42, 58, 585-86, 1022, 1066, stating that Hume reported that he lives with a
friend who helps him pay his bills, became engaged during the period of disability, gets
“together with friends approximately once a month,” has friends who “will come over” to his
house, was able to go to the “movies or out to eat” every other week in late 2012 with his thengirlfriend, and was able to “engage in appropriate social interaction” throughout a consultative
examination, and Tr. 478, 584-86, stating that Hume reported that he “can do his [activities of
daily living],” he experiences only “periodic difficulties with” his activities of daily living, he
“vacuums small sections of his home once every [two] days,” he “does dishes regularly and does
his laundry once every [two] weeks,” he “periodically cooks and prepares his own meals,” he
[doctor’s] opinion less weight.” Carrigan v. Colvin, No. 13–458, 2014 WL 1757208, at *8 (E.D.
Cal. Apr. 30, 2014).
PAGE 18 – OPINION AND ORDER

“shops for groceries once every [ten] days or so,” he drives, he “is able to manage his money,”
he is able to maintain the concentration necessary to “spend a lot of time during the day filling
out paperwork,” and his “back and neck pain,” not mental health-related impairments, were his
“main barrier to working”).2
Third, the ALJ discounted Dr. Born’s opinion because it was contradicted by the
objective medical evidence, which is a specific and legitimate reason for discounting a doctor’s
opinion. See Ruckdashel v. Colvin, 672 F. App’x 745, 745-46 (9th Cir. 2017) (holding that the
ALJ provided specific and legitimate reasons for rejecting a treating physician’s opinion by
stating, among other things, that the physician’s opinion was “contradicted by the objective
medical evidence”). For example, the ALJ observed that Dr. Born opined that Hume’s mental
impairments prevent him from working, which the ALJ determined was “inconsistent with
[Hume’s] normal findings on mental status exam[ination] with other doctors.” (Tr. 27.)
Substantial evidence supports the ALJ’s finding that Dr. Born’s opinion was contradicted by
objective medical evidence. (Compare Tr. 1107-10, opining that Hume suffers from severe
anxiety, depressive symptoms, and cognitive impairments that prevent him from working, with
Tr. 480, observing that Hume’s mental status examination “was entirely normal except for
memory recall, which is [two] out of [three],” Tr. 586, noting that Hume’s “attention and
concentration were generally intact on [mental status examination tasks],” “[t]here were no
objective signs of cognitive problems” when Hume was examined by a clinical psychologist,
Hume’s reported level of anxiety “was inconsistent with his presentation at the outset of the
2

The ALJ’s decision did not explicitly rely on all of these inconsistencies, but it is
nevertheless appropriate for the Court to consider additional support for a ground on which the
ALJ relied. See Fenton v. Colvin, No. 6:14-00350-SI, 2015 WL 3464072, at *1 (D. Or. June 1,
2015) (“The Court is not permitted to affirm the Commissioner on a ground upon which the
Commissioner did not rely, but the Court is permitted to consider additional support for a ground
on which the ALJ relied.”).
PAGE 19 – OPINION AND ORDER

examination,” and Hume “was able to understand and remember instructions and sustain
concentration and attention” during the examination, Tr. 1261, “Mental status: Alert and
oriented. Good memory and attention,” and Def.’s Br. at 6, noting that “Dr. Born’s treatment
notes do not indicate that he ever performed a mental status examination to objectively test
[Hume’s] abilities”).
For these reasons, the Court concludes that the ALJ’s rejection of Dr. Born’s opinion
evidence was supported by substantial evidence and, therefore, should not be disturbed on
appeal.
II.

STEP FOUR—PAST RELEVANT WORK
Hume next argues that the ALJ’s step four finding (past relevant work) was erroneous

and not supported by substantial evidence in the record. The Court is not persuaded by Hume’s
argument.
A.

Applicable Law

At step four of the sequential evaluation process, “a claimant has the burden to prove that
he cannot perform his past relevant work ‘either as actually performed or as generally performed
in the national economy.’” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v.
Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). In evaluating a claimant’s ability to perform his
past work, ALJs can use the “actually performed test” or the “generally performed test.” Id.
(citation omitted).
Social Security Ruling (“SSR”) 82-61 explains how the “actually performed test” should
be applied: “Under this test, where the evidence shows that a claimant retains the RFC to
perform the functional demands and job duties of a particular past relevant job as he or she
actually performed it, the claimant should be found to be ‘not disabled.’” SSR 82-61, 1982 WL
31387, at *2 (1982). “Regardless of which test is applied at step [four], the ALJ may not classify
PAGE 20 – OPINION AND ORDER

a past occupation ‘according to the least demanding function.’” Stacy, 825 F.3d at 569 (citation
omitted). In other words, an ALJ may not classify a past occupation “based on [a task] the
claimant did less than half the time, and . . . [then] equat[e] that one task with a full time [past]
job.” Id.
B.

Application of Law to Fact

In this case, the ALJ concluded that Hume is capable of performing his past relevant
work as a surveillance system monitor under both the “actually performed test” and “generally
performed test.” (Tr. 29.) The Commissioner concedes that the ALJ erred in concluding that
Hume could perform his past work as a security system monitor under “generally performed
test.” (Def.’s Br. at 11.) The pertinent inquiry, then, is whether the ALJ erred in concluding that
Hume is capable of performing his past work as a security system monitor under the “actually
performed test.” (See Def.’s Br. at 11, arguing that “[t]he ALJ’s finding that Plaintiff could still
perform his job as a security system monitor as he actually performed it during the final yearand-a-half is dispositive of Plaintiff’s claim for disability benefits,” Pl.’s Reply at 4-6, addressing
only the “actually performed test” after noting that the Commissioner’s previously-described
concession).
The SSRs “provide that the ALJ may draw on two sources of information to define the
claimant’s past relevant work as actually performed: (1) the claimant’s own testimony, and (2) a
properly completed vocational report.” Lewis, 281 F.3d at 1083. Here, Hume’s “past relevant
work as actually performed” was defined based on his own testimony.3 During the administrative
3

Hume claims that the ALJ did not rely on Hume’s testimony in defining his past
relevant work. In support of this argument, Hume notes that, in the portion of his written
decision addressing Hume’s ability to perform his past work, the ALJ referred only to the VE’s
testimony that “a person with the claimant’s [RFC] of light work and the same nonexertional
limitations would be able to perform the above past work.” (Tr. 29.) As discussed below, the
hearing transcript makes clear that the ALJ and VE relied extensively on Hume’s testimony in
PAGE 21 – OPINION AND ORDER

hearing, the ALJ asked Hume to describe his past relevant work, which Hume referred to as
“high tech security.” (Tr. 42.) Hume testified that “when [he] first started” the job, it involved (1)
dealing with various people who sought access to the facilities Hume monitored, such as
vendors, electricians, and painters, (2) “a lot of computer work, surveillance, camera, monitors,”
(3) “some patrols in all three building and parking lot,” and (4) setting up barricades and
furniture for events. (Tr-42-43, 77, 79.) Hume later testified that he “ended up working at the
desk most of the time” during the “last couple of years” of his employment because his employer
“had some cutbacks.” (Tr. 43, 76, 79.) The ALJ asked Hume to clarify the nature of his duties
once he was “moved to the more desk job,” and Hume testified that the job “basically” consisted
of “looking at monitors” and seeing who was accessing the facilities with badges and clearances,
operating a computer, telephone, and security gate, and examining vehicle contents. (Tr. 43, 76.)
Hume also testified that he no longer had to perform patrols or set up for events during the “last
couple of years.” (See Tr. 76, 79-80, “Q. And did you also have to perform patrols? A. Not the
last couple years . . . . Q. Mr. Hume, during your last year and a half [or so], when again you
were sitting down, looking at monitors, letting people in and out, were you setting up barricades
at that point in time? A. Not so much the last couple of years, because of the job cuts . . . . So in
other words no, I didn’t do too much of the barricading, [carrying] boxes, and chairs, and tables
concluding that he could perform his past work. Further, ALJs are entitled to consult a VE in
assessing whether a claimant can perform past work. See 20 C.F.R. § 416.960(b)(2) (“We may
use the services of [VEs] . . . to obtain evidence we need to help us determine whether you can
do your past relevant work, given your residual functional capacity. A [VE] . . . may offer
relevant evidence within his or her expertise or knowledge concerning the physical and mental
demands of a claimant’s past relevant work, either as the claimant actually performed it or as
generally performed in the national economy. Such evidence may be helpful in supplementing or
evaluating the accuracy of the claimant’s description of his past work. In addition, a vocational
expert . . . may offer expert opinion testimony in response to a hypothetical question about
whether a person with the physical and mental limitations imposed by the claimant’s medical
impairment(s) can meet the demands of the claimant’s previous work, either as the claimant
actually performed it or as generally performed in the national economy.”).
PAGE 22 – OPINION AND ORDER

and stuff [for events]. I was mostly working [with] . . . the computer and . . . monitors, . . . the
phone, [and monitoring] the door access people [use] coming and going.”).
The VE testified that Hume’s “security work may be best categorized in two areas”: (1)
“security guard,” which the VE referred to as light, semi-skilled work; and (2) “surveillance
system monitor,” which the VE referred to as sedentary, unskilled work. (Tr. 71.) Hume’s
attorney later claimed that Hume was disabled because his security work was actually a
“composite job,”4 and asked whether the VE had testified that Hume’s security work was “a
composite of security guard and surveillance system monitor, or [whether they were] two
different jobs performed at different times” for the same employer. (Tr. 74-75.) The VE testified
that he believed the security guard and surveillance system monitor jobs “were performed at
different periods of time” based on the VE’s “understanding of [Hume’s hearing] testimony.”
(Tr. 75.)
Later on during the hearing, Hume’s attorney asked the VE once again whether Hume’s
security work was a composite job. (Tr. 79.) The VE testified that he could not “completely tell”
because Hume testified that his security work “was mostly the monitors and the phone, and the
access control” during “the last couple of years,” but “there was also discussion . . . about other
issues of [setting up] barricades and things [for events].” (Tr. 79.) Thus, the VE testified that he
“was unable to tell if all [of] those activities merged into one job at the same time, or if they were
separate jobs [at] different times.” (Tr. 79.) Immediately thereafter, however, the ALJ asked
Hume to clarify whether he continued to set up for events after the cutbacks, and Hume stated
that he did not. (See Tr. 79-80, “Q. Mr. Hume, during your last year and a half [or so], when
4

“A composite job has ‘significant elements of two or more occupations, and as such,
ha[s] no counterpart in the DOT.’” Driskill v. Colvin, No. 13-1928, 2014 WL 3734309, at *7
(W.D. Wash. July 28, 2014) (citation omitted).
PAGE 23 – OPINION AND ORDER

again you were sitting down, looking at monitors, letting people in and out, were you setting up
barricades at that point in time? A. Not so much the last couple of years, because of the job
cuts . . . . So in other words no, I didn’t do too much of the barricading, [carrying] boxes, and
[setting up] chairs, and tables and stuff [for events] . . . . I was mostly working everything, you
know: the computer and . . . monitors, . . . the phone, [and monitoring] the door access people
[use] coming and going.”).
Hume now argues that the ALJ erred in finding that he was capable of performing his
past work as a surveillance systems monitor, because “the question of whether his prior
[security] work was actually performed as part of a composite job was never resolved.” (Pl.’s
Opening Br. at 9.) Hume also argues that if his security work was a composite job, the ALJ’s
finding that he was “capable of past relevant work was improperly based on the least demanding
aspects of said work.” (Pl.’s Opening Br. at 10.) The Court disagrees.
In Minton v. Colvin, No. 12-5303–PSG, 2013 WL 5496192, at *1 (N.D. Cal. Oct. 3,
2013), the claimant had worked as a massage therapist and manager “in the same health club.”
The message therapist job had “medium strength requirements” and the manager job required
“only sedentary activity.” Id. The ALJ found that the claimant could perform her past work as a
manager. Id. The claimant appealed, arguing that the ALJ “improperly classified” her work at the
health club “by referring only to the least strenuous portion of the job [i.e., the sedentary
managerial duties, not the medium strength duties of a massage therapist], thereby running
afoul” of precedential case law holding that “if a job encompasses more than one DOT code, it is
error for the ALJ to classify it according to the least demanding function.” Id. at *3 (citation,
quotation marks, and brackets omitted). The Minton court rejected that argument, noting that: (1)
although the claimant performed the “jobs at the same location, each constitutes its own separate

PAGE 24 – OPINION AND ORDER

occupation under the DOT, and the [VE] treated them as such,” (2) the case was comparable to
De Rivera v. Astrue, No. 10–2417, 2010 WL 4916241, at *4-5 (C.D. Cal. Nov. 22, 2010), where
a VE testified that two past jobs (housekeeper in hotels and homes, which involve light and
medium work, respectively) “were entirely separate occupations, not just separate tasks in one,”
and thus (3) the ALJ did not commit reversible error in finding that the claimant could be
employed as a health club manager, even though a massage therapist “lie[d] outside her RFC.”
Minton, 2013 WL 5496192, at *3.
Similarly, in this case, the VE expressly considered two separate occupations in Hume’s
work history: a security guard and a security surveillance monitor. Although Hume performed
these jobs at the same location and for the same employer, Hume’s testimony clearly established
that his employer’s cutbacks effectively resulted in him working separate jobs (i.e., because the
position turned into a “desk job” as a result of the alteration in Hume’s duties), not just separate
tasks in one job. That is why the VE treated Hume’s work as separate jobs. (See Tr. 75,
confirming that the VE’s testimony concerned “two different sorts of jobs performed at two
different times” based on his understanding of Hume’s hearing testimony). The VE later
expressed uncertainty about whether Hume’s security work was a composite job, but the ALJ
eliminated any uncertainty by having Hume confirm that he no longer patrolled buildings or set
up for events post-cutbacks. In light of the foregoing, the Court concludes that the ALJ did not
commit reversible error in finding that Hume could perform his past relevant work as a
surveillance system monitor, even though his past work as a security guard may lie outside his
RFC. See also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (holding that a claimant’s
testimony about his past relevant work as actually performed was “highly probative”); Driskill,
2014 WL 3734309, at *8 (noting that a claimant bears the burden of showing that his past

PAGE 25 – OPINION AND ORDER

relevant work involved “‘significant elements of two or more occupations’ and was therefore a
composite job”).
III.

THE DOT AND VE’S TESTIMONY
Hume also argues that the ALJ failed to reconcile an apparent conflict between the DOT

and the VE’s testimony. (Pl.’s Opening Br. at 10.) Specifically, Hume notes that the ALJ found
that Hume retains the RFC to perform simple, routine, and repetitive tasks, and make simple
work-related decisions; however, the Ninth Circuit has held that there is an apparent conflict
between a limitation to “simple, routine, or repetitive tasks” and the DOT’s description of the
surveillance system monitor occupation, which typically requires the ability to perform “Level 3
Reasoning.” See Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015) (holding that that “there is
an apparent conflict between the residual functional capacity to perform simple, repetitive tasks,
and the demands of Level 3 Reasoning,” and noting that Level 3 Reasoning involves applying
“commonsense understanding to carry out detailed but uninvolved written or oral instruction”
and dealing “with problems involving a few concrete variables in or from standardized
situations”).
In Wolcott v. Colvin, No. 15-1796, 2016 WL 3549603, at *5 (E.D. Cal. June 30, 2016), as
here, the claimant argued that the ALJ’s step four finding was erroneous because there was an
apparent conflict between the RFC to perform “simple one-two step tasks” and the DOT’s
description of the cashier occupation, which typically requires the ability to perform Level 3
Reasoning. Id. The Wolcott court rejected the claimant’s reliance on Zavalin and found that any
error was harmless because the ALJ determined that the claimant could perform her past work as
it was actually performed:
Here, the ALJ evaluated whether plaintiff could perform
her past work as a cashier as she had actually performed it and as it
was generally performed in the national economy. Even assuming,
PAGE 26 – OPINION AND ORDER

without deciding, that the ALJ erred by determining that plaintiff
could perform her past work as a cashier as it was performed in the
national economy, such an error was harmless in light of the ALJ’s
alternative determination that plaintiff could still perform such
work as she actually had performed it. When determining that a
claimant can perform his or her prior work as it was actually
performed, an ALJ is not required to consult the DOT because that
source addresses an occupation as it is generally performed, not as
it is specifically performed by the claimant . . . .
The existence of an apparent conflict between a VE’s
testimony that the claimant can perform his or her prior occupation
and that occupation’s DOT listing may be irrelevant to the issue of
whether the claimant can still perform work as he or she actually
performed it because the DOT’s requirements may not match what
the claimant actually did while working in that position.
Accordingly, the fact that the Ninth Circuit Court of Appeals has
found an apparent conflict between an ability to perform only
simple one-two step tasks and occupations requiring Level 3
Reasoning does not necessarily mean that the ALJ here erred in
relying on the VE’s testimony to determine that plaintiff could
perform her prior work as a cashier as she actually performed it.
An ALJ may consult a VE to aid in making a step four
determination and use a VE’s testimony as evidence of whether the
claimant can perform his or her past work. Therefore, the ALJ’s
use of such evidence in support of his step four determination was
proper.
Moreover, in addition to relying on the VE’s testimony, the
ALJ also took into consideration plaintiff’s own [testimony]
regarding how she performed her past work as a cashier. A review
of plaintiff’s own [testimony] of her past work as a cashier
provides substantial support for the VE’s testimony and the ALJ’s
determination that plaintiff could perform such work given her
RFC limitation to simple one-two step tasks. In short, the ALJ
relied on substantial evidence in the record in rendering his step
four determination that plaintiff could perform her past work as a
cashier as she actually had performed that occupation. Thus,
plaintiff’s argument that the ALJ erred at step four is without
merit.
Id. at *6 (citations and footnotes omitted); see also Whitney v. Berryhill, No. 16-00030, 2017 WL
1356034, at *4 (E.D. Cal. Feb. 24, 2017) (“In this case, the ALJ found, based on the testimony of
a vocational expert, that Plaintiff could perform her past relevant work as it was actually

PAGE 27 – OPINION AND ORDER

performed. [The ALJ] was thus not required to examine the DOT to decide whether Plaintiff was
capable of performing her past relevant work as it was generally performed. Consequently, any
deviation from the prescribed requirements in the DOT was not error.”) (internal citations
omitted).
Consistent with Wolcott and Whitney, this Court rejects Hume’s argument that the ALJ
committed a harmful error at step four. In applying the actually performed test, the ALJ was “not
required to consult the DOT because that source addresses an occupation as it is generally
performed, not as it is specifically performed by the claimant.” Wolcott, 2016 WL 3549603, at
*6. Instead, the ALJ was entitled to rely, as he did, on Hume’s and the VE’s hearing testimony in
determining whether Hume could perform his past work under the actually performed test.
Accordingly, the Court concludes that the ALJ relied on substantial evidence in rendering his
step four determination, and that any failure to reconcile a conflict with the DOT amounted to
harmless error. See also Pruitt v. Comm’r Soc. Sec., 612 F. App’x 891, 894 (9th Cir. 2015)
(“And, contrary to Pruitt’s contention, it is irrelevant that the Dictionary of Occupational Titles
states that receptionists must frequently reach but the ALJ found that Pruitt could only
occasionally reach. The ALJ was evaluating whether Pruitt could perform her work as she
actually performed it—with only occasional reaching—and not as it is generally performed.”);
Iqbal v. Comm’r Soc. Sec., No. 16-00722, 2017 WL 3475492, at *5 (N.D.N.Y. Aug. 11, 2017)
(“As the D.O.T. only speaks to how jobs are generally performed in the national economy, an
inconsistency with the D.O.T. between how jobs are generally performed and how a claimant
performed them in the past is not determinative if substantial evidence supports a finding that the
plaintiff remained able to perform her past relevant work as it was actually performed.”) (citation
omitted).

PAGE 28 – OPINION AND ORDER

IV.

REMAINING ARGUMENTS
Typically, arguments “raised for the first time in a reply brief are waived.” Thacker v.

Comm’r Soc. Sec., No. 11–00613, 2012 WL 1978701, at *11 (E.D. Cal. June 1, 2012); see also
Zango, Inc. v. Kaspersky Lab, Inc., 588 F.3d 1169, 1177 n.8 (9th Cir. 2009) (noting that
“arguments not raised by a party in an opening brief are waived”); Singh v. Ashcroft, 361 F.3d
1152, 1157 n.3 (9th Cir. 2004) (“Issues not raised in an appellant’s opening brief are typically
deemed waived.”); Jones v. Astrue, No. 09-01504, 2010 WL 5111457, at *7 (E.D. Cal. Dec. 9,
2010) (“Because Plaintiff raises this issue for the first time in his reply, he has waived the
issue.”).
In his reply, Hume argues for the first time that the ALJ erred at step four by failing to
make the requisite factual findings to support the conclusion that Hume can perform his past
work. See generally Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (“Although the
burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite
factual findings to support his conclusion.”); see also Pl.’s Reply Br. at 4-6, citing Pinto for the
first time, arguing that “the ALJ made no findings whatsoever as to how Plaintiff actually
performed his past work,” and claiming the ALJ’s “error was contrary to the requirements of
Pinto”).
The Court concludes that (1) Hume waived the above challenge to the ALJ’s step-four
determination by raising it for the first time in his reply, and (2) even if he had not done so,
persuasive authority supports the conclusion that the ALJ did not commit reversible error in
finding that Hume could perform his past work. See Kazantseva v. Astrue, No. 08-206, 2008 WL
4766823, at *7 (W.D. Wash. Oct. 27, 2008) (rejecting the claimant’s argument that “the ALJ did
not make sufficient factual findings regarding her past work and her ability to perform it,” noting
that the VE’s testimony relied on the claimant’s “description of the past work,” and holding that
PAGE 29 – OPINION AND ORDER

“the ALJ appropriately used a [VE] to determine the type of work [the claimant] performed, and
whether she could now perform this past work based on her RFC and limitations he determined
applicable”); Flora v. Berryhill, No. 16-00252, 2017 WL 2791054, at *10 (M.D. Pa. May 1,
2017) (rejecting the claimant’s argument that the ALJ failed to make the requisite factual
findings at step four, and noting that the ALJ made a finding of fact as to the claimant’s RFC,
found that the claimant was capable of performing her past work because it did not require the
performance of work-related activities precluded by her RFC, and cited favorably to the VE’s
testimony in the relevant portion of his decision, which the court “construed as findings of fact
regarding the demands of [the claimant’s] past relevant work, and [the claimant’s] ability to
engage in such work”); Tr. 22, 29 (making a finding of fact as to Hume’s RFC, citing favorably
to the testimony elicited from the VE, which was preceded and informed by Hume’s hearing
testimony, and finding that Hume could perform the “physical and mental demands” of his past
work based on a comparison with his RFC and the VE’s testimony “that a person with the
claimant’s [RFC] of light work and the same nonexertional limitations would be able to perform”
such work).
CONCLUSION
For the reasons stated, the Court AFFIRMS the Commissioner’s decision because it is
free of legal error and supported by substantial evidence.
IT IS SO ORDERED.
DATED this 11th day of September, 2017.

STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 30 – OPINION AND ORDER