Davis v. Commissioner Social Security Administration
OPINION AND ORDER: Based on this Opinion and Order, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is AFFIRMED. Signed on 04/11/2017 by Magistrate Judge Mark D. Clarke. (rsm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Civ. No. 6:15-cv-02429-CL
OPINION & ORDER
ACTING COMMISSIONER OF
MARK D. CLARKE, Magistrate Judge.
Plaintiff Joy Davis ("Plaintiff'), seeks judicial review of the final decision of the
Commissioner of Social Security ("Commissioner") denying disability benefits under Title II of
the Social Security Act. For the reasons set forth below, the decision of the Commissioner is
Plaintiff was born on November 22, 1968, has at least a high school education, and is
able to communicate in English. Tr. 26. She worked as a medical assistant. Id. Plaintiff filed
her initial claim for disability on October 26, 2011, alleging disability due to chronic back pain,
arthritis, and neuropathy beginning on June 13, 2011. Tr. 65. Plaintiff was insured under Title II
of the Social Security Act through December 31, 2016. Tr. 17.
Plaintiff's claim was denied initially and upon reconsideration. Tr. 15. Plaintiff
requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at a video
hearing and testified before ALJ Marilyn S. Mauer on May 7, 2014. Id. On July 25, 2014, the
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ALJ determined that Plaintiff was not disabled. Tr. 28. On October 26, 2015, the Appeals
Council denied Plaintiffs subsequent request for review, making the ALJ's decision the final
decision of the Commissioner of Social Security. Tr. 1. This appeal followed.
A claimant is 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)(l)(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, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following
series of questions:
Is the claimant performing "substantial gainful activity?" 20 C.F .R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F .R.
§§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant's impairment "severe" under the Commissioner's
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). An
impairment is "severe" if it significantly limits the claimant's physical or
mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c);
416.920( c). This impairment must have lasted or must be expected to last
for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509;
416.909. If the claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant
has a severe impairment, the analysis proceeds to step three.
Does the claimant's severe impairment "meet or equal" one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis proceeds beyond step three. At that
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point, the ALJ must evaluate medical and other relevant evidence to assess
and determine the claimant's "residual functional capacity" ("RFC"). This
is an assessment of work-related activities that the claimant may still
perform on a regular and continuing basis, despite any limitations imposed
by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c);
416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC,
the analysis proceeds to step four.
Can the claimant perform his or her "past relevant work" with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
Considering the claimant's RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404 .15 60(c); 416. 960( c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953. The
Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the
Commissioner must show that 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); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national
economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant
is able to perform other work existing in significant numbers in the national economy, the
claimant is not disabled. Bustamante, 262 F.3d at 953-54.
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THE ALJ'S FINDINGS
The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had
not performed substantial gainful activity since the original alleged onset date of June 13, 2011.
Tr. 17. At step two, the ALJ found Plaintiff had the following severe impairments: chronic pain
status post cervical fusion times two and lumbar micorodisectomy; obesity; cervical radicular
pain intp the arms, right greater than left; and osteoarthritis of the right hip. Id. At step three, the
ALJ found Plaintiffs impairments did not meet or equal a listed impairment. Tr. 19.
The ALJ then assessed Plaintiffs RFC and determined that Plaintiff could perform light
exertion work with lifting and carrying of twenty pounds occasionally and ten pounds frequently.
Tr. 20. Plaintiff can stand, walk, and sit for six hours of an eight-hour workday for a combined
total of eight hours of activity, but will require the option to change from seated to standing
position every twenty minutes while still performing essential tasks. Id.
Plaintiff can never
climb ladders, ropes, or scaffolds. Id. She can never be exposed to hazards such as unprotected
heights and large moving equipment. Id. She can occasionally climb ramps or stairs. Id. She
can occasionally stoop, crouch, kneel, and crawl. Id. She can never reach overhead. Id. She
can perform frequent handling, fingering, and feeling with the right upper extremity.
Plaintiff should avoid concentrated exposure to cold temperatures. Id. Due to the impact of her
pain and pain medications, Plaintiff can understand, remember, and carry out only simple
At step four, the ALJ determined that Plaintiff was unable to perform her past relevant
work. Tr. 26. At step five, the ALJ found that Plaintiff had the RFC to perform work as a
counter clerk, information travel clerk, and protective clothing issuer. Tr. 27. Accordingly, the
ALJ found Plaintiff not disabled. Tr. 28.
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STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal
are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial
evidence "means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal
quotations omitted). In reviewing the Commissioner's alleged errors, this court must weigh
"both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez
v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are
insignificant ifthe Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005).
When the evidence before the ALJ is subject to more than one rational interpretation, we
must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shala/a, 53
F.3d 1035, 1039-40 (9th Cir. 1995)). A reviewing court, however, cannot affirm the
Commissioner's decision on a ground that the agency did not invoke in making its decision.
Stout v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's
decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that
an error is harmful normally falls upon the party attacking the agency's determination." Shinseki
v. Sanders, 556 U.S. 396, 409 (2009).
Plaintiff argues the ALJ erred by: 1) improperly rejecting medical opinion evidence; 2)
improperly assessing Plaintiffs severe impairments at step two; 3) improperly rejecting
Plaintiffs subjective symptom testimony; and 4) making an incorrect finding at step five.
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Medical Opinion Evidence
Plaintiff asserts that the ALJ improperly rejected the opinions of Dr. Michael Henderson,
D.O., an examining physician, and Dr. Rose Kenny, M.D., Plaintiffs former treating physician.
The opinion of a treating physician is generally accorded greater weight than the opinion
of an examining physician and the opinion of an examining physician is accorded greater weight
than the opinion of a reviewing physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
2014). To reject the uncontradicted opinion of a treating physician, the ALJ must provide "clear
and convincing reasons supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211,
1216 (9th Cir. 2005). Sufficient reasons for rejecting an examining physician's opinions may
include the physician's reliance on a claimant's discredited subjective complaints, inconsistency
with the medical records, inconsistency with a claimant's testimony, and inconsistency with a
claimant's daily activities. Tommasetti v. Astrue, 533 .F.3d 1035, 1040 (9th Cir. 2008).
When a treating or examining physician's opinion conflicts with other evidence in the
record, an ALJ may only reject the opinion for specific, legitimate reasons supported by
substantial evidence. Lester v. Chater, 81F.3d821, 830 (9th Cir. 1995).
A. Dr. Henderson
As previously noted, the ALJ found that Plaintiff could stand, sit, and walk "each six
hours of an eight-hour workday for a combined total of eight hours of activity." Tr. 20. Dr.
Henderson examined Plaintiff in January 2014. Tr. 547. In his narrative report, Dr. Henderson
opined that Plaintiff should be limited to sitting for 90 minutes at a time, but eight hours per day
with normal breaks. Tr. 550. Dr. Henderson stated that Plaintiff could stand or walk for one
hour at a time and six hours per day in combination. Id. On the check form that accompanied
the report, Dr. Henderson similarly reported that Plaintiff could sit for 90 minutes at a time and
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stand or walk for one hour at a time. Tr. 553. He reported that Plaintiff could sit for eight hours
and stand or walk for three hours each during an eight-hour workday. Id. The ALJ gave Dr.
Henderson's opinion "full weight," but assessed greater lifting, carrying, postural, manipulative,
and environmental restrictions than Dr. Henderson found. Tr. 25-26.
Plaintiff asserts that the ALJ erred by giving full weight to Dr. Henderson's opinion, but
then concluding that Plaintiff could stand and walk for six hours each, rather than the three hours
each identified in Dr. Henderson's report. The Commissioner asserts that the Court may infer
that the ALJ considered the narrative report to be controlling "[i]n light of the differences
between the narrative and the checkbox." Def. Brief. at 6. As Plaintiff points out, however,
there is no meaningful difference between the two reports: the narrative states that Plaintiff could
stand or walk for six hours "in combination," while the checkboxes report that she could stand or
walk for three hours each. Tr. 550, 553.
The Commissioner asserts that any error was harmless. An ALJ' s error is harmless
where it is "inconsequential to the ultimate nondisability determination." Molina v. Astrue, 674
F.3d 1104, 1115 (9th Cir. 2012) (internal quotation marks and citations omitted). The court must
"look at the record as a whole to determine whether the error alters the outcome of the case." Id.
In this case, the VE hypothetical stated that Plaintiff could "sit, stand, and walk for six hours in
an eight-hour day but requires the option to alternate positions between sitting and standing
every 20 minutes and also requires the usual breaks at two-hour intervals." Tr. 58.
consistent with Dr. Henderson's report that Plaintiff could stand or walk for six hours in
combination. Any error in assessing or incorporating Dr. Henderson's report into the RFC was
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B. Dr. Kenny
Dr. Kenny was Plaintiff's treating physician from 2003 until 2011. Tr. 517. Plaintiff
stopped seeing Dr. Kenny for two years before returning to her in 2014 for a "second opinion"
on Plaintiff's disability claim after an examining physician recommended that Plaintiff go back
to work. Tr. 50, 615. Dr. Kenny opined that Plaintiff could occasionally lift or carry up to 20
pounds. Tr. 615. Dr. Kenny stated that Plaintiff could never sit, stand, walk, drive, bend, crawl,
climb, or reach and could only occasionally squat. Id. Dr. Kenny concluded that Plaintiff was
"permanently disabled." Id. Plaintiff's representative submitted interrogatories to Dr. Kenny in
May 2014, in which Dr. Kenny diagnosed Plaintiff with peripheral neuropathy, degeneration of
her cervical disc, and osteoarthritis. Tr. 650-51. Dr. Kenny opined that Plaintiff could not sit for
more than thirty minutes before needing to lie down and she "cannot work and needs disability."
The ALJ gave little weight to Dr. Kenny's opinion, noting the lack of support for her
findings in the clinical record, poor documentation, conflict with other medical sources, and her
apparent reliance on Plaintiff's self-report. Tr. 24-25. The ALJ noted that Dr. Kenny "identified
several impairments for which she did not conduct workup and which no other acceptable
medical source has endorsed." Tr. 25.
An ALJ "need not accept the opinion of any physician, including a treating physician, if
that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Dr. Kenny diagnosed chronic fatigue syndrome
based on Plaintiff lying down for sixteen hours per day and still being tired. Tr. 615. Dr. Kenny
diagnosed anxiety disorder, depression, and suicidal ideation based on Plaintiff's "current
medical situation," and vague suicidal ideation, but noted that Plaintiff's mood and affect were
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"appropriate." Tr. 615, 617. Dr. Kenny opined that Plaintiff could "never" stand, walk, sit, or
drive, but observed normal gait, balance, and motor skills. Tr. 615, 617. Dr. Kenny's opinion
was brief, conclusory, and unsupported and the ALJ properly assigned little weight to it.
Plaintiff also contends that the ALJ erred in formulating her RFC based on alleged errors
in weighing the medical opinion evidence. As the Court has concluded that the ALJ properly
assessed the medical opinion evidence, it is not necessary to separately address Plaintiffs
argument as to the RFC.
Step Two Analysis
Plaintiff contends that the ALJ erred by declining to find that peripheral neuropathy was a
severe impairment at step two of the analysis, which subsequently led to errors in formulating
At step two, a claimant is not disabled if the Commissioner determines the claimant does
not have any medically severe impairments or combination of impairments. Stout, 454 F.3d at
An impairment "must result from anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic
techniques." 20 C.F.R. § 404.1521. The Commissioner "will not use [a claimant's] statement of
symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment." Id.
In this case, the ALJ noted that Dr. Kenny '"diagnosed' [Plaintiff] with several physical
impairments the medical records do not support," including chronic fatigue, peripheral
neuropathy, and thoracic outlet syndrome. Tr. 18. The ALJ declined to include peripheral
neuropathy as a medically determinable impairment because "Dr. Kenny failed to provide
workup for any of these conditions consistent with what is required to be considered by the
Social Security Administration and there is electrodiagnostic testing without findings consistent
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with peripheral neuropathy." Id.
As previously discussed, the ALJ properly assigned little
weight to Dr. Kenny's opinion, based on its brevity and lack of supporting clinical findings.
Laboratory results showed "no NCS evidence of a median or ulnar neuropathy on the right." Tr.
507. Reviewing physicians Dr. Ward Dickey and Dr. Neal Bemer both noted that Plaintiff
claimed neuropathy, but concluded that Plaintiff had disorders of the back, muscle, ligament, and
fascia. Tr. 65-81.
The ALJ appropriately excluded peripheral neuropathy at step two.
Subjective Symptom Testimony
Plaintiff asserts that the ALJ erred by rejecting her subjective symptom testimony. To
determine whether a claimant's testimony is credible, an ALJ must perform a two-stage analysis.
20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce
objective medical evidence of an underlying impairment that could reasonably be expected to
produce the symptoms alleged. Molina, 674 F.3d at 1112. At the second stage of the credibility
analysis, absent evidence of malingering, the ALJ must provide clear and convincing reasons for
discrediting the claimant's testimony regarding the severity of symptoms. Carmickle v. Comm 'r,
533 F.3d 1155, 1160 (9th Cir. 2008).
The ALJ must make findings that are sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim, 763 F.3d at
1163. Factors the ALJ must consider when making a credibility determination include the
objective medical evidence, the claimant's treatment history, the claimant's daily activities,
inconsistencies in testimony, effectiveness or adverse side effects of any pain medications, and
relevant character evidence. 1 Id.
The Court notes that the Social Security Administration recently "eliminate[ed] the use of the term 'credibility'
from [its] sub-regulatory policy" to "clarify that subjective symptom evaluation is not an examination of an
An ALJ may use "ordinary techniques of credibility evaluation" in assessing a claimant's
credibility, such as prior inconsistent statements concerning the symptoms, testimony that
appears less than candid, or a claimant's daily activities. Tommasetti, 533 F.3d at 1039. A
claimant's daily activities may undermine her allegations if the claimant spends a substantial part
of her day engaged in activities that are transferrable to a work setting or if the activities
contradict her testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
In this case, the ALJ found that Plaintiffs medically determinable impairments could
reasonably be expected to cause some symptoms, but found Plaintiffs testimony about the
intensity, persistence, and limiting effects of her symptoms to be not entirely credible. Tr. 21.
The ALJ found several inconsistencies in Plaintiffs description of her symptoms. In her
function report, Plaintiff stated that she could walk and pay attention for "as long as needed." Tr.
252. As the ALJ noted, this was not consistent with Plaintiffs testimony at the hearing, where
she testified that she could not walk for more than thirty minutes and described difficulty with
concentration. Tr. 21, 41, 45-46.
Plaintiff reported difficulty sleeping due to swelling in her arms. Tr. 41-42. Plaintiff
reported that her left hand swelled on a daily or weekly basis and that her right hand was worse.
Tr. 46-47. Plaintiff testified that the condition has persisted for between a year and half and two
years. Tr. 47. As the ALJ noted, Plaintiffs claims were unsupported or contradicted by the
medical evidence. Tr. 22. An examination in March 2013 noted no edema of the extermities.
Tr. 525. Also in March 2013, Plaintiff herself described the swelling issue as "infrequent." Tr.
286. In January 2014, Dr. Henderson's examination found no swelling of the hands. Tr. 549.
individual's character." SSR 16-3p; Titles II and XVI: Evaluation of Symptoms in Disability Claims, 81 Fed. Reg.
14167 (Mar. 16, 2016) (superseding SSR 96-7p). Plaintiff acknowledges that this ruling post-dates the ALJ's
opinion. The changes to the agency's practice articulated in SSR 16-3p could not apply to the ALJ decision in this
case because 42 U.S.C. § 405(g) does not contain any express authorization from Congress allowing the
Commissioner to engage in retroactive rulemaking. Bowen v. Georgetown Hosp., 488 U.S. 204, 214-15, n.3 (1988);
Garner v. Colvin, 626 F. App'x 699, 701 (9th Cir. 2015).
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Plaintiff testified that she didn't sleep well at night, was sleepy "most of the day," and
was frequently awake at 1:00 a.m. Tr. 41. Plaintiff later testified that despite not sleeping at
night she was most alert in the mornings. Tr. 43.
An ALJ is also permitted to consider instances where the claimant failed to give
maximum effort during examinations.
Thomas, 278 F.3d at 959; Conner v. Colvin,
App'x_, No. 14-17194, 2017 WL 24621, at
Cir. Jan. 3, 2017). In this case, when
Plaintiff was examined by Dr. Henderson, he found the exam "unreliable," and that she gave less
than her full effort during strength examinations.
Dr. Henderson noted that
Plaintiff's "[ s]ubjective complaints of pain seem out of proportion to the objective findings." Tr.
550. The ALJ tied these inconsistencies directly into her credibility determination. Tr. 22, 25.
The ALJ also noted inconsistencies between Plaintiff's claimed limitations and her
activities of daily living. Although a claimant need not vegetate in a dark room in order to
qualify for benefits, the ALJ may still consider activities of daily living in making a disability
determination. Molina, 674 F.3d at 1112-13. Even when a claimant's activities "suggest some
difficulty functioning, they may be grounds for discrediting the claimant's testimony to the
extent that they contradict claims of a totally debilitating impairment." Id at 1113. In this case,
the ALJ noted that Plaintiff reported being able to do household chores, go shopping, and engage
in physical exercise. Tr. 21-22. The ALJ reasonably concluded that such activities were not
consistent with Plaintiff's claim that she must spend most of the day reclining. Tr. 22.
Although Plaintiff puts forth an alternative interpretation of the record, the
Commissioner's interpretation is rational and the Court may not substitute its judgment for that
of the Commissioner. Batson, 359 F.3d at 1193. The ALJ gave sufficiently specific, clear, and
convincing reasons for finding that Plaintiff's testimony was not fully credible. Accordingly, it
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is not necessary for the Court to address Plaintiff's related claim that the ALJ erred m
formulating the RFC based on an improper credibility finding.
Step Five Findings
At step five, the Vocational Expert ("VE") identified three occupations that Plaintiff
might be able to perform based on the ALJ's hypothetical: counter clerk, information travel
clerk, and protective clothing issuer. Tr. 27. Plaintiff asserts that the ALJ erred as to all three
A. Reasoning Level
"When there is an apparent conflict between the vocational expert's testimony and the
DOT ["Dictionary of Occupational Titles"]-for example, expert testimony that a claimaint can
perform an occupation involving DOT requirements that appear more than the claimant can
handle-the ALJ is required to reconcile the inconsistency." Zavalin v. Colvin, 778 F.3d 842,
846 (9th Cir. 2015). The ALJ must ask the expert to explain the conflict and then determine if
the explanation is reasonable before relying on the VE's testimony to reach a disability
An ALJ's failure to resolve an apparent inconsistency may preclude a
reviewing court from determining if the ALJ's opinion is supported by substantial evidence. Id.
Occupations described by the DOT include a reasoning level ranging from 1, which
requires the least reasoning, to 6, which requires the most. Zavalin, 778 F.3d at 846. In Zavalin,
the Ninth Circuit held that a claimant who was. limited to "simple, repetitive tasks" was not able
to meet the requirements of an occupation that required Level 3 Reasoning. 2 Id. at 846-47. The
court held that the plaintiff's limitation was more consistent with Level 2 Reasoning, which
requires that the individual be able to "[a]pply commonsense understanding to carry out detailed
Level 3 Reasoning requires the person to: "Apply commonsense understanding to carry out instructions furnished
in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from
standardized situations." Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015).
Page 13 - ORDER
but uninvolved written or oral instructions," and "( d]eal with problems involving a few concrete
variables in or from standardized solutions." Id. at 847.
In this case, Plaintiffs RFC indicates that she can "understand, remember, and carry out
only simple instructions."
This limitation was included in the ALJ's hypothetical
question to the VE. Tr. 59. One of the positions identified by the VE was Information/Travel
Clerk, DOT 237.367-018., available at 1991 WL 672187. Tr. 27. As described by the DOT,
Information/Travel Clerk requires Level 4 Reasoning, which the Commissioner concedes is
inconsistent with Plaintiffs RFC.
Counter Clerk, DOT 249.366-010, available at 1991 WL 672323, and Protective
Clothing Issuer, DOT 222.687-046, available at 1991 WL 672139, both require Level 2
Reasoning. Plaintiff asserts, however, that the Level 2 Reasoning requirement of being able to
carry out "detailed but uninvolved written or oral instructions" is inconsistent with an RFC
limiting Plaintiff to "only simple instructions."
Courts within this district have held that an RFC limiting a claimant to "simple, routine
instructions," or "simple, short instructions" is not inconsistent with Level 2 Reasoning, noting
that "detailed but uninvolved" necessarily excludes complex instructions. See Barnes v. Colvin,
No. 6:14-cv-01906-HZ, 2015 WL 8160669, at *4-5 (D. Or. Dec. 7, 2015) (collecting cases). The
Court finds the reasoning put forth in Barnes persuasive. There is no conflict between an RFC
requiring "only simple instructions" and occupations requiring Level 2 Reasoning.
B. Counter Clerk
At the hearing, the VE identified Counter Clerk as a potential occupation and gave a
DOT number of 259.366-010. Tr. 59. The ALJ used the same DOT number in her ruling. Tr.
27. As the parties have pointed out, this is not the correct DOT number. Rather, Counter Clerk
is found at DOT 249.366-010. Plaintiff contends that this error justifies remand because it is not
clear which "counter clerk" the ALJ and VE were referencing.
The description of the Counter Clerk position described at DOT 249.366-010 matches the
position described by the VE in terms of the strength level and the SVP. DOT 249.366-010,
available at 1991 WL 672323, Tr. 59. The difference between DOT 249.366-010 and the DOT
number given by the VE was a single digit. This was a typographical error or slip of the tongue
and "inconsequential to the ultimate nondisability determination." Molina, 674 F.3d at 1115
(internal quotation marks and citation omitted).
C. Protective Clothing Issuer
The VE also identified Protective Clothing Issuer, DOT 222.687-046, available at 1991
WL 672139, as a potential occupation. As described in the DOT, Protective Clothing Issuer
requires frequent climbing, stooping, crouching, and crawling.
This is inconsistent with
Plaintiffs RFC, which limited Plaintiff to only occasional stooping, crouching, crawling, and
climbing stairs or ramps. Tr. 20. The VE testified that the occupation has a sit/stand option, but
did not address the apparent conflict between the description in the DOT and the hypothetical
limitations. Tr. 60.
The Commissioner contends that any error that resulted from the inclusion of Protective
Clothing Issuer or Information/Travel Clerk was harmless because even if those jobs are
eliminated there are enough Counter Clerk jobs in both in Oregon and in the national economy to
constitute "significant numbers" and satisfy the Commissioner's burden at step five. The Ninth
Circuit has determined that a job exists in "significant numbers" when there are 2,500 in the
claimant's state and 25,000 nationally. Gutierrez v. Comm 'r, 740 F.3d 519, 527-29 (9th Cir.
2014); see also Martinez, 807 F.2d at 775 (a job exists in significant numbers if there are
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between 3,750 and 4,250 such jobs). In this case, the VE testified that there 83,400 counter clerk
positions in the national economy. Tr. 59. Accordingly, any error from including the Protective
Clothing Issuer and Information/Clerk positions was harmless because the ALJ identified a job
that exists in significant numbers.
Based on the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), the decision
of the Commissioner is AFFIRMED.
It is so ORDERD and DATED this
United States Magistrate Judge
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