United States District Court, W.D. Washington, Tacoma
GAYLE E. MONTEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S DECISION TO
W. Christel United States Magistrate Judge
Gayle E. Montez filed this action, pursuant to 42 U.S.C.
§ 405(g), for judicial review of Defendant's denial
of her applications for supplemental security income
(“SSI”) and disability insurance benefits
(“DIB”). Pursuant to 28 U.S.C. § 636(c),
Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the
parties have consented to have this matter heard by the
undersigned Magistrate Judge. See Dkt. 5.
considering the record, the Court concludes the
Administrative Law Judge (“ALJ”) properly
assessed whether Plaintiff could perform past relevant work,
the residual functional capacity (“RFC”)
determination, and Plaintiff's credibility. As the
ALJ's decision finding that Plaintiff not disabled is
supported by substantial evidence, the Commissioner's
decision is affirmed pursuant to sentence four of 42 U.S.C.
AND PROCEDURAL HISTORY
December 6, 2013, Plaintiff filed applications for SSI and
DIB, alleging disability as of December 31, 2012.
See Dkt. 10, Administrative Record
(“AR”) 213-219, 220-27, 343. The applications
were denied upon initial administrative review and on
reconsideration. See Id. A hearing was held before
ALJ Kelly Wilson on August 5, 2015. See AR 39-84. In
a decision dated February 1, 2016, the ALJ determined
Plaintiff to be not disabled. See AR 14-38.
Plaintiff's request for review of the ALJ's decision
was denied by the Appeals Council, making the ALJ's
decision the final decision of the Commissioner. See
AR 1-6; 20 C.F.R. § 404.981, § 416.1481.
Opening Brief, Plaintiff maintains the ALJ failed to properly
assess (1) whether Plaintiff could perform past relevant
work, (2) Plaintiff's RFC, and (3) Plaintiff's
subjective symptom testimony. Dkt. 12 at 1-2. Plaintiff asks
the Court to remand for award of benefits.
to 42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits if the
ALJ's findings are based on legal error or not supported
by substantial evidence in the record as a whole. Bayliss
v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)
(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th
Whether the ALJ Properly Determined Plaintiff Could Perform
Past Relevant Work.
argues the ALJ erred at step four in determining Plaintiff
could perform her past relevant work as a dental assistant
and deli cutter-slicer. Dkt. 12 at 5-7. Plaintiff contends
the vocational expert's (“VE”) testimony
indicating Plaintiff could perform the deli cutter-slicer job
was inconsistent with the Dictionary of Occupational Titles
(“DOT”), and the VE failed to justify the
inconsistency. Id. Defendant concedes error in
finding Plaintiff capable of her job as a dental assistant,
but argues the error is harmless because Plaintiff could do
other past relevant work as a deli cutter-slicer, which is
supported by substantial evidence. Dkt. 13 at 3.
disability determination “cannot be made on the basis
of medical factors alone at step three of the evaluation
process, ” the ALJ must identify the claimant's
“functional limitations and restrictions” and
assess his or her “remaining capacities for
work-related activities.” SSR 96-8p, 1996 WL 374184 *2.
A claimant's RFC assessment is used at Step Four to
determine whether he or she can do his or her past relevant
work, and at Step Five to determine whether he or she can do
other work. Id. The RFC is the maximum amount of
work the claimant is able to perform based on all of the
relevant evidence in the record. Id.
has the affirmative responsibility to ask the VE about
possible conflicts between her testimony and information in
the DOT and its companion publication, the Selected
Characteristics of Occupations (“SCO”).
See Social Security Ruling (“SSR”)
00-4p, 2000 WL 1898704. Before relying on evidence obtained
from a VE to support a finding of not disabled, the ALJ is
required to elicit a reasonable explanation for any
discrepancy with the DOT. See Id. at *1. The ALJ
also must explain in her decision how the discrepancy or
conflict was resolved. See Id. at *4. To be
characterized as a discrepancy, however, the conflict must be
obvious or apparent, meaning that the VE's testimony must
be at odds with the DOT's listing of duties that are
essential, integral, or expected for performing that job.
See Gutierrez v. Colvin, 844 F.3d 804, 808 (9th Cir.
in assessing Plaintiff's RFC, the ALJ determined
[L]imited to frequent reaching, handling, and fingering with
the bilateral upper extremities. The claimant needs to avoid
concentrated exposure to hazards in the workplace such as
dangerous moving machinery or unprotected heights. She can
perform simple and detailed tasks but would have difficulty
performing more complex tasks consistently due to her
AR 24. The ALJ then at step four found Plaintiff could
perform her past relevant work as a deli cutter-slicer (DOT
§ 316.684-014) and dental assistant (DOT §
079.361-018), and therefore, is not disabled. AR 31.
testified the performance of the dental assistant job would
be precluded by the limitation of difficulty performing
complex tasks consistently. AR 79. The VE further testified
her testimony was consistent with DOT. AR 83. Based on the
VE's testimony, the ALJ concluded Plaintiff retained the
ability to perform past relevant work as a dental assistant
and deli cutter-slicer. AR 31. As noted above, Defendant
concedes error in finding Plaintiff capable of performing her
job as a dental assistant. Thus, the Court considers whether
the error is harmless.
describes the duties of a deli cutter-slicer as follows:
Cuts delicatessen meats and cheeses, using slicing machine,
knives, or other cutters: Places meat or cheese on cutting
board and cuts slices to designated thickness, using knives
or other hand cutters. Positions and clamps meat or cheese on
carriage of slicing machine. Adjusts knob to set machine for
desired thickness. Presses button to start motor that moves
carriage past rotary blade that slices meats and cheeses.
Stacks cut pieces on tray or platter, separating portions
with paper. May weigh and wrap sliced foods and affix sticker
showing price and weight.
DOT § 316.684.014.
explains the physical and environmental demands of each job
listed in the DOT, including whether a job involves proximity
to moving mechanical parts. See SCO, App. D.
(Proximity to moving mechanical parts is defined as:
“[e]xposure to possible bodily injury from moving
mechanical parts of equipment, tools, or machinery.”).
The SCO entry for deli cutter-slicer shows exposure ...