IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOY DAVIS, 

Plaintiff, 

v. 

CAROLYNW. COLVIN, 

ACTING COMMISSIONER OF 

SOCIAL SECURITY, 

Defendant. 

MARK D. CLARKE, Magistrate Judge. 

Civ. No. 6:15-cv-02429-CL 

OPINION & ORDER 

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 

AFFIRMED. 

BACKGROUND 

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 

Page 1 - ORDER 
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. 

DISABILITY ANALYSIS 

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: 

1. 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. 

2. 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. 

3. 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. 

4. 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. 

5. 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. 

Page 3 - ORDER 
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. Id. 

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 

instructions. Id. 

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. 

Page 4 - ORDER 
STANDARD OF REVIEW 

The district court must affirm the Commissioner's decision if the decision is based on 

proper legal standards and the legal finding~ 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). 

DISCUSSION 

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. 

Page 5 - ORDER 
I. 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 

Page 6 - ORDER 
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. This is 

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 

therefore harmless. 

Page 7 - ORDER 
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." 

Tr. 651. 

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 

Page 8 - ORDER 
"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. 

II. 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 

Plaintiffs RFC. 

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 

1052. 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 

Page 9 - ORDER 
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. 

III. 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. 

1 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 

Page 10-0RDER 
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). 

Page 11 - ORDER 
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, F. 

App'x_, No. 14-17194, 2017 WL 24621, at * 1 (9th 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. Tr. 547-48. 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 

Page 12 - ORDER 
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. 

IV. 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 

positions. 

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 

determination. Id. 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 

2 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." Tr. 20. 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 

Page 14-0RDER 
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 

Page 15 - ORDER 
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. 

CONCLUSION 

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 ____ I/ __,,, 

United States Magistrate Judge 

Page 16- ORDER