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Montez v. Berryhill

United States District Court, W.D. Washington, Tacoma

January 10, 2018

GAYLE E. MONTEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING THE COMMISSIONER'S DECISION TO DENY BENEFITS

          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         After 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. § 405(g).

         FACTUAL AND PROCEDURAL HISTORY

         On 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.

         In the 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.

         STANDARD OF REVIEW

         Pursuant 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 Cir. 1999)).

         DISCUSSION

         I. Whether the ALJ Properly Determined Plaintiff Could Perform Past Relevant Work.

         Plaintiff 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.

         If a 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.

         The ALJ 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. 2016).

         Here, in assessing Plaintiff's RFC, the ALJ determined Plaintiff is:

[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 depressive symptoms.

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.

         The VE 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.

         The DOT 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.

         The SCO 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 ...


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