IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

LUCIA C. GAROUTTE, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner, Social Security 

Administration, 

Defendant. 

SARA M. HERR-WALDROUP 

Russell & Hill, PLLC 

1212 N. Washington Street, Suite 122 

Spokane, WA 99201 

(425) 212-9165 

NANCY J. MESEROW 

7540 SW 5lst Avenue 

Portland, OR 97219 

(503) 560-6788 

Attorneys for Plaintiff 

BILLY J. WILLIAMS 

United States Attorney 

JANICE E. HEBERT 

Assistant United States Attorney 

1000 S.W. Third Avenue, Suite 600 

Portland, OR 97204-2902 

(503) 727-1003 

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3:15-cv-00169-BR 

OPINION AND ORDER 

Case 3:15-cv-00169-BR Document 32 Filed 04/11/16 Page 1 of 22
DAVID MORADO 

Regional Chief Counsel 

JORDAN D. GODDARD 

Special Assistant United States Attorney 

Social Security Administration 

701 Fifth Avenue, Suite 2900, M/S 221A 

Seattle, WA 98104 

(206) 615-2733 

Attorneys for Defendant 

BROWN, Judge. 

Plaintiff Lucia C. Garoutte seeks judicial review of a final 

decision of the Commissioner of the Social Security 

Administration (SSA) in which she denied Plaintiff's application 

for Supplemental Security Income (SSI) under Title XVI of the 

Social Security Act. This Court has jurisdiction to review the 

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). 

For the reasons that follow, the Court AFFIRMS the decision 

of the Commissioner and DISMISSES this matter with prejudice. 

ADMINISTRATIVE HISTORY 

Plaintiff filed an application for SSI on July 26, 2011, and 

alleged a disability onset date as of the date of her 

application. Tr. 35, 151. 1 Her application was denied initially 

and on reconsideration. An Administrative Law Judge (ALJ) held a 

hearing on June 12, 2013. Tr. 31. At the hearing Plaintiff and 

1 Citations to the official transcript of record filed by 

the Commissioner on July 21, 2015, are referred to as "Tr."" 

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a vocational expert (VE) testified. Plaintiff was represented by 

an attorney. 

On August 9, 2013, the ALJ issued an opinion in which he 

found Plaintiff is not disabled and, therefore, is not entitled 

to benefits. Tr. 18-26. On December 1, 2014, that decision 

became the final decision of the Commissioner when the Appeals 

Council denied Plaintiff's request for review. Tr. 1-3. See 

Sims v. Apfel, 530 U.S. 103, 106-07 (2000). 

BACKGROUND 

Plaintiff was born on March 19, 1970. Tr. 36, 151. 

Plaintiff was 43 years old at the time of the hearing. Plaintiff 

has an eleventh-grade education, but she did not receive a highschool diploma or equivalency. Tr. 36, 182. Plaintiff has past 

relevant work experience as a mail sorter, fast-food cook, child 

monitor, and electronic assembler. Tr. 25, 62-63. 

Plaintiff alleges disability due to her prosthetic right 

leg, bilateral carpal-tunnel syndrome, lower back pain, 

depression, and obesity. Tr. 181. 

Except when noted, Plaintiff does not challenge the ALJ's 

summary of the medical evidence. After carefully reviewing the 

medical records, this Court adopts the ALJ's summary of the 

medical evidence. See Tr. 25-31. 

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STANDARDS 

The initial burden of proof rests on the claimant to 

establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th 

Cir. 2012). To meet this burden, a claimant must demonstrate her 

inability "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). The ALJ must develop the record when there is 

ambiguous evidence or when the record is inadequate to allow for 

proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d 

453, 459-60 (9th Cir. 2001)). 

The district court must affirm the Commissioner's decision 

if it is based on proper legal standards and the findings are 

supported by substantial evidence in the record as a whole. 42 

u.s.c. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 

682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is 

"relevant evidence that a reasonable mind might accept as 

adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 

(9th Cir. 2009)). It is more than a mere scintilla of evidence, 

but less than a preponderance. Id. (citing Valentine, 574 F.3d 

at 690). 

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The ALJ is responsible for determining credibility, 

resolving conflicts in the medical evidence, and resolving 

ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 

2009). The court must weigh all of the evidence whether it 

supports or detracts from the Commissioner's decision. Ryan v. 

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even 

when the evidence is susceptible to more than one rational 

interpretation, the court must uphold the Commissioner's findings 

if they are supported by inferences reasonably drawn from the 

record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012) 

The court may not substitute its judgment for that of the 

Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 

2006) . 

DISABILITY ANALYSIS 

At Step One the claimant is not disabled if the Commissioner 

determines the claimant is engaged in substantial gainful 

activity. 20 C.F.R. § 416.920(a) (4) (I). See also Keyser v. 

Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011). 

At Step Two the claimant is not disabled if the Commissioner 

determines the claimant does not have any medically severe 

impairments or combination of impairments. 20 C.F.R. 

§ 416.920(a) (4) (ii). See also Keyser, 648 F.3d at 724. 

At Step Three the claimant is disabled if the Commissioner 

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determines the claimant's impairments meet or equal one of the 

listed impairments that the Commissioner acknowledges are so 

severe as to preclude substantial gainful activity. 20 C.F.R. 

§ 416. 920 (a) (4) (iii). See also Keyser, 648 F.3d at 724. The 

criteria for the listed impairments, known as Listings, are 

enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed 

Impairments). 

If the Commissioner proceeds beyond Step Three, she must 

assess the claimant's residual functional capacity (RFC). The 

claimant's RFC is an assessment of the sustained, work-related 

physical and mental activities the claimant can still do on a 

regular and continuing basis despite her limitations. 20 C.F.R. 

§ 416. 920 (e). See also Social Security Ruling (SSR) 96-8p. "A 

'regular and continuing basis' means 8 hours a day, for 5 days a 

week, or an equivalent schedule." SSR 96-8p, at *1. In other 

words, the Social Security Act does not require complete 

incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885 

F.2d597, 603 (9th Cir. 1989)). 

At Step Four the claimant is not disabled if the 

Commissioner determines the claimant retains the RFC to perform 

work she has done in the past. 20 C.F.R. § 416.920(a) (4) (iv). 

See also Keyser, 648 F.3d at 724. 

If the Commissioner reaches Step Five, she must determine 

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whether the claimant is able to do any other work that exists in 

the national economy. 20 C.F.R. § 416.920(a) (4) (v). See also 

Keyser, 648 F.3d at 724-25. Here the burden shifts to the 

Commissioner to show a significant number of jobs exist in the 

national economy that the claimant can perform. Lockwood v. 

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 

The Commissioner may satisfy this burden through the testimony of 

a VE or by reference to the Medical-Vocational Guidelines set 

forth in the regulations at 20 C.F.R. part 404, subpart P, 

appendix 2. If the Commissioner meets this burden, the claimant 

is not disabled. 20 C.F.R. §§ 404.1520(g) (1), 416.920(g) (1). 

ALJ' S FINDINGS 

At Step One the ALJ found Plaintiff has not engaged in 

substantial gainful activity since her July 26, 2011, alleged 

onset date. Tr. 20. 

At Step Two the ALJ found Plaintiff has the severe 

impairments of obesity, "below knee amputation of the right leg 

with prosthesis (since childhood)," and "history of bilateral 

carpal tunnel syndrome status post release." Tr. 20-21. The ALJ 

found Plaintiff's impairments of back pain, migraines, knee pain, 

depression, and DeQuervarin's tenosynovitis of the right wrist to 

be nonsevere. Tr. 20-21. 

At Step Three the ALJ concluded Plaintiff's medically 

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determinable impairments do not meet or medically equal one of 

the listed impairments in 20 C.F.R. part 404, subpart P, appendix 

1. Tr. 21. 

In his assessment of Plaintiff's RFC, the ALJ found 

Plaintiff can perform light work as defined in 20 C.F.R. 

§ 416.967(b) and, specifically, that Plaintiff can lift 25 pounds 

occasionally and 10 pounds frequently; can stand and walk for 

four hours in an eight-hour work day; can occasionally climb 

stairs and ramps, but cannot climb ropes or scaffolds; can 

occasionally balance, stoop, kneel, crouch, and crawl; can 

perform "occasional forceful gripping or grasping with the 

hands"; and can "perform frequent bilateral fingering and fine 

manipulations." Tr. 21-24. 

At Step Four the ALJ concluded Plaintiff is capable of 

performing her past relevant work as an electronic assembler and 

as a cashier. Tr. 25. 

The ALJ also made an alternative Step Five finding that 

Plaintiff is capable of performing other jobs existing in the 

national economy as a rental clerk, office helper, and electronic 

worker. Tr. 25-26. Accordingly, the ALJ found Plaintiff is not 

disabled. 

DISCUSSION 

Plaintiff contends the ALJ erred when he (1) concluded 

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Plaintiff's depression and De Quervain's tenosynovitis were not 

severe impairments at Step Two; (2) discredited Plaintiff's 

testimony without providing legally sufficient reasons for doing 

so; (3) discredited the opinion of Plaintiff's treating 

physician, Camille Pajarillo, M.D., without providing legally 

sufficient reasons for doing so; and (4) concluded Plaintiff is 

capable of performing past relevant work as well as other work 

available in the local and national economies based on VE 

testimony that conflicted with the Dictionary of Occupational 

Titles (DOT). 

I. Step Two 

At Step Two the claimant is not disabled if the Commissioner 

determines the claimant does not have any medically severe 

impairment or combination of impairments that are expected to 

last for a continuous period of at least 12 months. Stout v. 

Comm'r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See 

also 20 C.F.R. § 416.920(a) (4) (ii); Keyser, 648 F.3d at 724. A 

severe impairment "significantly limits" a claimant's "physical 

or mental ability to do basic work activities." 20 C.F.R. 

§ 416.92l(a), (b). Such abilities and aptitudes include walking, 

standing, sitting, lifting, pushing, pulling, reaching, carrying, 

handling, seeing, hearing, and speaking; understanding, carrying 

out, and remembering simple instructions; using judgment; 

responding appropriately to supervisors, co-workers, and usual 

9 - OPINION AND ORDER 

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work situations; and dealing with changes in a routine work 

setting. Id. 

The Step Two threshold is low: 

[A]n impairment can be considered as not severe only if 

it is a slight abnormality which has such a minimal 

effect on the individual that it would not be expected 

to interfere with the individual's ability to work 

[T]he severity regulation is to do no more 

than allow the Secretary to deny benefits summarily to 

those applicants with impairments of a minimal nature 

which could never prevent a person from working. 

SSR 85-28, at *2 (Nov. 30, 1984) (internal quotations omitted) 

When the Commissioner proceeds beyond Step Two, the 

Commissioner's failure to include any medical condition at Step 

Two is harmless if the ALJ considered that condition when 

formulating the RFC and when reaching the disability 

determination at Step Four or Five. See Lewis v. Astrue, 498 

F.3d 909, 911 (9th Cir. 2007). 

The ALJ concluded Plaintiff's alleged depression was 

nonsevere because Plaintiff declined antidepressant medication, 

the medical evidence did not reflect Plaintiff's depression 

caused more than mild limitations, and the record indicated 

Plaintiff's "mood issues" were related to social factors and 

environmental stress. Tr. 21. The ALJ also found Plaintiff's De 

Quervain's tenosynovitis was not a severe impairment because the 

record did not reflect it was expected to last for a period of at 

least 12 months and it "appeared to resolve with a steroid 

injection." Tr. 21. After a thorough review of the record, the 

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Court concludes the ALJ's findings were supported by substantial 

evidence. 

There is little evidence in the record concerning 

Plaintiff's depression. In fact, Plaintiff's medical records 

indicated that she either did not suffer from depression or her 

depression was under control. Tr. 267, 342, 351. Moreover, the 

administrative record does not reflect she was treated for 

depression. 

In addition, there is not any evidence in the record that 

Plaintiff's De Quervain's tenosynovitis can be expected to last 

more than 12 months. The only medical record regarding 

Plaintiff's De Quervain's tenosynovitis indicated on May 13, 

2013, Plaintiff underwent a steroid injection to treat that 

condition and was instructed to follow up with Samuel 

Bartholomew, M.D., if symptoms persisted. Tr. 346. There is not 

any medical evidence in the record that Plaintiff followed up 

with Dr. Bartholomew or that Plaintiff continued to experience 

any symptoms of De Quervain's tenosynovitis. 

Accordingly, on this record the Court concludes the ALJ did 

not err when he concluded Plaintiff's depression and De 

Quervarin's tenosynovitis were nonsevere conditions at Step Two. 

II. Plaintiff's Testimony 

In Cotton v. Bowen the Ninth Circuit established two 

requirements for a claimant to present credible symptom 

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testimony: The claimant must produce objective medical evidence 

of an impairment or impairments, and she must show the impairment 

or combination of impairments could reasonably be expected to 

produce some degree of symptom. Cotton, 799 F.2d 1403, 1407 (9th 

Cir. 1986). See also Spelatz v. Astrue, 321 F. App'x 689, 692 

(9th Cir. 2009). The claimant, however, need not produce 

objective medical evidence of the actual symptoms or their 

severity. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 

See also Delgado v. Commissioner of Social Sec. Admin., 500 F. 

App'x 570, 570 (9th Cir. 2012). 

If the claimant satisfies the above test and there is not 

any affirmative evidence of malingering, the ALJ can reject the 

claimant's pain testimony only if he provides clear and 

convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742, 

750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834 

(9th Cir. 1995)). General assertions that the claimant's 

testimony is not credible are insufficient. Id. The ALJ must 

identify "what testimony is not credible and what evidence 

undermines the claimant's complaints." Id. (quoting Lester, 81 

F.3d at 834). 

At the June 12, 2013, hearing, Plaintiff testified she 

cannot stand for more than 15-20 minutes at a time without severe 

back pain and cannot walk for more than "a couple blocks" at a 

time without leg pain. Tr. 43. Plaintiff stated surgeries have 

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"brought the feeling back in [her] hand," but that she still has 

wrist pain and difficulty with grasping and opening jars. 

Tr. 45-46. Moreover, Plaintiff testified she recently suffered a 

fractured thumb and that she had dropped items "a couple times" 

as a result of that injury. Tr. 46. Plaintiff testified she 

experiences migraines four times per month that typically last 

"two or three days," but they can linger for up to a week. 

Tr. 48. Plaintiff noted, however, that the headaches were 

secondary to her neck pain and could be prevented if she takes a 

muscle relaxer before the headache begins. Tr. 49. 

Plaintiff testified she suffers from depression and had "for 

years," but that she has declined medication to treat that 

condition because friends and family members have had bad 

experiences with such medication. Tr. 50, 60. Plaintiff stated 

she experiences fatigue, loss of appetite, inability to 

concentrate, and difficulty getting out of bed as a result of her 

depression. Tr. 51. Plaintiff testified, however, that her 

mother-in-law is responsible for the times that she suffers the 

worst symptoms of depression. Tr. 59. 

In her Adult Function Report dated January 14, 2012, 

Plaintiff reported her depression had been worsening and caused 

her to experience sleep disturbances and to have difficulty 

getting out of bed. Tr. 204. Plaintiff stated she cannot lift 

more than 20 pounds, walk more than two blocks, or stand more 

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than 15-20 minutes. Tr. 204-05. Plaintiff stated she prepares 

simple meals that do not require more than 15-20 minutes of 

standing, helps care for her grandchildren, and cleans one or two 

loads of laundry per week. Tr. 206-08. Plaintiff reported her 

conditions affect her ability to lift, squat, bend, stand, walk, 

kneel, climb stairs, complete tasks, use her hands, and get along 

with others. Tr. 210. Plaintiff stated, however, that she does 

not have any difficulty following instructions, can pay attention 

for "however long it takes," and has "no problem" handling workrelated stress. Tr. 211. 

The ALJ discredited Plaintiff's testimony because her 

activities of daily living were inconsistent with her reported 

symptoms, Plaintiff's allegations were inconsistent with the 

medical record, and Plaintiff's poor work history predating the 

alleged onset date of disability suggested her difficulty 

maintaining employment was not related to her medical 

impairments. Tr. 22-23. 

After a thorough review of the record, the Court concludes 

the ALJ provided clear and convincing reasons for rejecting 

Plaintiff's testimony. As the ALJ noted when he found 

Plaintiff's activities of daily living were inconsistent with her 

reported symptoms, Plaintiff's statements in January 2012 and 

June 2013 that she could only walk for two blocks were 

contradicted by her March 2012 report to Dr. Pajarillo that she 

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walks one-half mile every day. Tr. 332. Moreover, as noted, 

contrary to Plaintiff's testimony that she has longstanding 

depression, her medical records most often indicate Plaintiff did 

not suffer from any depression or that her depression was under 

control. Tr. 267, 342, 351. The ALJ also correctly found 

Plaintiff has not maintained consistent employment in the past 

and that she left such employment for reasons unrelated to 

disability. Tr. 36-40. 

Accordingly, on this record the Court concludes the ALJ did 

not err when he discredited Plaintiff's testimony because he 

provided legally sufficient reasons for doing so. 

III. Dr. Pajarillo's Opinion 

An ALJ may reject a treating physician's opinion when it is 

inconsistent with the opinions of other treating or examining 

physicians if the ALJ makes findings setting forth specific, 

legitimate reasons for doing so that are supported by substantial 

evidence in the record. Taylor v. Comm'r of Soc. Sec. Admin., 

659 F.3d 1228, 1232 (9th Cir. 2011). When the medical opinion of 

a treating physician is uncontroverted, however, the ALJ must 

give "clear and convincing reasons" for rejecting it. Turner v. 

Comm'r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (quoting 

Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). The 

opinion of a treating physician is "given greater weight than the 

opinions of other physicians." Kelly v. Astrue, No. 10-36147, 

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2012 WL 767306, at *l (9th Cir. 2012) (quoting Smolen v. Chater, 

80 F.3d 1273, 1285 (9th Cir. 1996)). 

A nonexamining physician is one who neither examines nor 

treats the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 

Cir. 1995). See also Garrison v. Colvin, No. 12-CV-15103, 2014 

WL 3397218, at *13 (9th Cir. 2014). "The opinion of a 

nonexamining physician cannot by itself constitute substantial 

evidence that justifies the rejection of the opinion of either an 

examining physician or a treating physician." Taylor, 659 F.3d 

at 1233 (quoting Lester, 81 F.3d at 831). When a nonexamining 

physician's opinion contradicts an examining physician's opinion 

and the ALJ gives greater weight to the nonexamining physician's 

opinion, the ALJ must articulate her reasons for doing so with 

specific and legitimate reasons supported by substantial 

evidence. See, e.g., Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 

1198 (9th Cir. 2008). A nonexamining physician's opinion can 

constitute substantial evidence if it is supported by other 

evidence in the record. Morgan v. Comm'r of Soc. Sec. Admin., 

169 F.3d 595, 600 (9th Cir. 1999). See also Simpson v. Astrue, 

No. 10-cv-06399-BR, 2012 WL 1340113, at *5 (D. Or. Apr. 18, 

2012). 

When a physician's opinion is inconsistent with her own 

treatment notes, the ALJ may properly discount that opinion. 

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ 

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also may discount a medical opinion that is inconsistent with 

other substantial evidence, Batson v. Comm'r, 359 F.3d 1190, 1195 

(9th Cir. 2004), and may reject a physician's opinion regarding a 

claimant's level of impairment if it is unreasonable in light of 

other evidence in the record. Bayliss, 427 F.3d at 1217. See 

also Morgan, 169 F.3d at 601. 

On May 15, 2013, Dr. Pajarillo, Plaintiff's treating 

physician, completed a "Physical Residual Functional Capacity 

Questionnaire" in which she stated Plaintiff had been diagnosed 

with "[b]elow the knee amputation," depression, migraine 

headaches, obesity, and right thumb pain. Tr. 347. 

Dr. Pajarillo stated Plaintiff's symptoms include knee, hip, and 

lower-back pain; depression; fatigue; headaches; right thumb 

pain; and weak grip. Tr. 347. Dr. Pajarillo stated she was 

"unable to answer" whether Plaintiff was a malingerer and that 

emotional factors "possibly" contributed to the severity of 

Plaintiff's physical symptoms and limitations. Tr. 347. 

Dr. Pajarillo indicated Plaintiff was "[i]ncapable of even 'low 

stress' jobs" due to depression, could only walk two blocks at a 

time, could only stand 15-20 minutes at a time, and could sit for 

at least six hours and stand for less than two hours in an eighthour workday. Tr. 348. Dr. Pajarillo reported Plaintiff 

"currently" has limitations with reaching, handling, and 

fingering. Tr. 350. 

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The ALJ gave only "some weight" to Dr. Pajarillo's opinion 

because the ALJ concluded Dr. Pajarillo's opinion was 

inconsistent with the medical record and relied on Plaintiff's 

subjective complaints. Tr. 24. Because Dr. Pajarillo's opinion 

was contradicted by the opinions of nonexamining physicians 

Richard Alley, M.D., and Neal Berner, M.D., the ALJ was required 

to provide specific and legitimate reasons for discrediting 

Dr. Pajarillo's opinion. See Ryan, 528 F.3d at 1198. 

The ALJ correctly concluded Dr. Pajarillo's opinion was 

inconsistent with the medical record, including Dr. Pajarillo's 

own treatment notes. Contrary to Dr. Pajarillo's May 15, 2013, 

opinion that Plaintiff could not perform low-stress jobs due to 

depression, Dr. Pajarillo noted on May 8, 2013, (only one week 

earlier) that Plaintiff's depression was "controlled." Tr. 351. 

On September 11, 2012, Dr. Pajarillo noted Plaintiff had "no 

depression[,] unusual stress[,] or anxiety." Tr. 342. 

Similarly, contrary to Dr. Pajarillo's opinion that Plaintiff 

could walk no more than two blocks, Dr. Pajarillo noted on March 

21, 2012, that Plaintiff walked one-half mile every day without 

any indication in the record that Plaintiff's walking ability 

deteriorated between March 2012 and May 2013. Tr. 332. 

Moreover, the ALJ reasonably found Dr. Pajarillo's opinion was 

based on Plaintiff's discredited subjective testimony in that it 

was similar to Plaintiff's testimony but inconsistent with 

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previous medical findings. 

Accordingly, on this record the Court concludes the ALJ did 

not err when he discredited Dr. Pajarillo's opinion because he 

provided legally sufficient reasons for doing so. 

IV. Steps Four and Five 

As noted, Plaintiff contends the ALJ erroneously relied on 

the VE's testimony in making his Step Four and Step Five findings 

because the VE's testimony deviated from the DOT. 

When a VE's testimony deviates from the DOT, "the ALJ must 

first determine whether a conflict exists" and then "determine 

whether the vocational expert's explanation for the conflict is 

reasonable and whether a basis exists for relying on the expert" 

rather than the DOT. Massachi v. Astrue, 486 F.3d 1149, 1153 

(9th Cir. 2007). Reasonable explanations for conflicts between 

the DOT and VE testimony include the reality that "[e]ach 

occupation [in the DOT] represents numerous jobs," VEs may have 

additional information about particular job requirements from 

other publications or from the VE's professional experience, and 

"[t]he DOT lists maximum requirements of occupations as generally 

performed, not the range of requirements of a particular job as 

it is performed in specific settings." SSR 00-49, 200 WL 

1898704, at *2-*3 (Dec. 4, 2000) (emphasis added). 

Massachi, 486 F.3d at 113 n.17. 

See also 

In particular, Plaintiff contends the VE deviated from the 

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DOT when the VE testified Plaintiff could perform her past 

relevant work as a cashier even though that occupation requires 

"constant" handling and fingering which conflicts with the ALJ's 

assessment of Plaintiff's RFC to only perform "frequent" handling 

and fingering. In addition, the VE testified Plaintiff could 

perform jobs at the light-work exertion level even though the ALJ 

determined Plaintiff was only capable of walking and standing 

four hours per day. 

As to the VE's testimony that Plaintiff could perform her 

past relevant work as a cashier, Plaintiff contends the ALJ's 

limitation of Plaintiff to frequent handling and fine 

manipulations ruled out the cashier occupation because the DOT 

specifies that an individual must be able to engage in handling 

on a constant basis to perform the tasks required by that job. 

See DOT § 211.462-014. Plaintiff is correct. The VE did not 

explain this inconsistency between his testimony and the DOT. 

Accordingly, Plaintiff is correct that the ALJ erred when he 

relied on the VE's testimony to conclude that Plaintiff is not 

disabled at Step Four based on the finding that Plaintiff could 

work as a cashier. 

The ALJ, nonetheless, also concluded based on the VE's 

testimony that Plaintiff could perform her past relevant work as 

an electronics assembler and, alternatively, could perform other 

work in the national economy including work as a rental clerk, 

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office helper, and electronic worker. Tr. 25-26. Each of these 

jobs is categorized in the light-exertion category. Tr. 25-26. 

Plaintiff contends the ALJ erroneously relied on the VE's 

testimony that Plaintiff could perform these jobs because work at 

the light-exertion level requires the claimant to stand or to 

walk for six hours in an eight-hour workday. As noted, the ALJ 

limited Plaintiff to standing or walking for four hours in an 

eight-hour workday. Plaintiff, however, is incorrect that the 

classification of an occupation in the light-exertion category 

necessarily implicates six hours of standing or walking in an 

eight-hour workday. The DOT considers three factors when 

qualifying an occupation as "light work": 

(1) when it requires walking or standing to a 

significant degree; or (2) when it requires sitting 

most of the time but entails pushing and/or pulling of 

arm or leg controls; and/or (3) when the job requires 

working at a production rate pace entailing the 

constant pushing and/or pulling of materials even 

though the weight of those materials is negligible. 

Applegate v. Colvin, No. 3:13-cv-02295-KI (D. Or. June 4, 

2015) (quoting DOT § 001.061-010). Accordingly, the VE's 

testimony that Plaintiff could perform jobs classified as "light 

work" within the DOT was not necessarily inconsistent with the 

ALJ's finding that Plaintiff could not stand or walk for more 

than four hours in an eight-hour workday. Thus, because the VE's 

testimony did not deviate from the DOT, the ALJ did not err at 

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Case 3:15-cv-00169-BR Document 32 Filed 04/11/16 Page 21 of 22
Step Four or in his alternative Step Five finding. 2 

On this record, therefore, the Court concludes the ALJ did 

not err when he relied on the VE's testimony to support the ALJ's 

Step Four and alternative Step Five findings. 

CONCLUSION 

For these reasons, the Court AFFIRMS the decision of the 

Commissioner and DISMISSES this matter with prejudice. 

IT IS SO ORDERED. 

DATED this 11th day of April, 2016. 

ANNA J. BROWN 

United States District Judge 

2 In any event, the VE also testified Plaintiff could 

perform other work in the national economy that is classified 

within the sedentary-exertion category, including jobs as a 

"call-out operator," addresser, and sorter. Tr. 68. Any error 

in relying on the VE's testimony that Plaintiff could perform 

occupations classified within the light-exertion category, 

therefore, is harmless because the availability of sedentary work 

consistent with the ALJ's assessment of Plaintiff's RFC would 

render the ALJ's reliance on the VE's testimony regarding light 

work "'inconsequential to the nondisability determination.'" See 

Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 

Cir. 2014) (quoting Molina v. Astrue, 674 F.3d 1104, 1115 (9th 

Cir. 2012)). 

22 - OPINION AND ORDER 

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