Anderson v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

KATHLEEN A.,1

Plaintiff,

Case No. 6:20-cv-00521-YY

v.

OPINION AND ORDER

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge:

Plaintiff Kathleen A. seeks judicial review of the final decision by the Commissioner of

Social Security (“Commissioner”) denying her application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C. §§ 401-433. This court has

jurisdiction to review the Commissioner’s final decision pursuant to 42 U.S.C. §§ 405(g) and

1383(g)(3). For the reasons set forth below, the Commissioner’s decision is AFFIRMED.

Plaintiff originally filed for DIB on March 23, 2017, alleging disability beginning on

March 20, 2017. Tr. 155-56. The Commissioner denied plaintiff’s application for benefits

initially on August 3, 2017, and upon reconsideration on August 23, 2017. Tr. 71, 82. Plaintiff

1 In the interest of privacy, the court uses only plaintiff’s first name and the first initial of her last

name.

requested a hearing before an Administrative Law Judge (“ALJ”), which took place on January

31, 2019. Tr. 26-60. After receiving testimony from plaintiff and a vocational expert (“VE”),

ALJ Steve De Monbreum issued a decision on March 15, 2019, finding plaintiff not disabled

within the meaning of the Act. Tr. 13-20. The Appeals Council denied plaintiff’s request for

review on February 19, 2020, making the ALJ’s decision the final decision of the Commissioner,

subject to review by this Court. Tr. 1-3; 42 U.S.C. § 405(g); 20 C.F.R. § 422.210.

STANDARD OF REVIEW

The reviewing 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. 42 U.S.C. §

405(g); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “‘Substantial evidence is

more than a mere scintilla but, less than a preponderance. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Trevizo v. Berryhill, 871

F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec’y Health & Human Servs., 846 F.2d

573, 576 (9th Cir. 1988)). This court must weigh the evidence that supports and detracts from

the ALJ’s conclusion. Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014). Where the

evidence is susceptible to more than one rational interpretation, the Commissioner’s decision

must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti

v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted). “[T]he court may not

substitute its judgment for that of the Commissioner.” Edlund v. Massanari, 253 F.3d 1152,

1156 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Morgan v.

Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

SEQUENTIAL ANALYSIS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or 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 engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520,

416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett, 180

F.3d at 1098-99). The claimant bears the burden of proof at steps one through four. 20 C.F.R. §

416.1520(a)(4)(2012). Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001) (citing

Tackett, 180 F.3d at 1098). At step five, the burden shifts to the Commissioner to demonstrate

that the claimant is capable of making an adjustment to other work after considering the

claimant’s residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R.

§ 416.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled.

Id. If, however, the Commissioner proves that the claimant can perform other work existing in

significant numbers in the national economy, the claimant is not disabled. Id.; see also

Bustamante, 262 F.3d at 953–54.

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since

her alleged onset date, March 20, 2017. Tr. 15. At step two, the ALJ determined plaintiff had

the following severe impairments: degenerative disc disease, obesity, and dysfunction of joints.

Id.

At step three, the ALJ found plaintiff did not have an impairment or combination of

impairments that met or medically equaled any listings. Tr. 15. The ALJ next determined that

plaintiff had the residual functioning capacity (“RFC”) to perform “light work” as defined in 20

C.F.R. § 404.1567(b), except that she could only occasionally operate foot controls bilaterally.”

Tr. 17.

At step four, the ALJ found plaintiff could perform her past relevant work as a

housekeeper (listed as Cleaner, Housekeeping, DOT 323.687-014). Tr. 19.

Thus, the ALJ concluded plaintiff was not disabled. Id.

DISCUSSION

Plaintiff contends that the ALJ erred by: (1) improperly discounting her testimony; (2)

improperly rejecting lay witness testimony; (3) failing to include appropriate standing and

walking limitations in her RFC; and (4) determining that she is able to perform her past work as

a housekeeper. Pl.’s Br. 3-20.

I. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the

reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”

Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the record, [the court] may not engage

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an

individual’s character,” and requires the ALJ to consider all the evidence in an individual’s

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must

examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id. at *4.

Here, the ALJ recounted plaintiff’s claims and testimony. Tr. 13-19. The ALJ found that

“the claimant’s medically determinable impairments could reasonably be expected to cause the

alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with the medical evidence and

other evidence in the record[.]” Tr. 17. In particular, the ALJ pointed to lack of corroborating

medical evidence and cited plaintiff’s inconsistent and conservative treatment. Tr. 17-18.

A. Objective Medical Evidence

In evaluating a claimant’s subjective symptom testimony, an ALJ may consider whether

it is consistent with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-

(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. A lack of objective medical evidence

may not form the ALJ’s sole basis for discounting a claimant’s testimony. Tammy S. v. Comm’r

Soc. Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018)

(citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). When coupled with other

permissible reasons, inconsistencies between a claimant’s allegations and objective medical

evidence may be used to discount a claimant’s testimony. Tatyana K. v. Berryhill, No. 3:17-cv-

01816-AC, 2019 WL 464965, at *4 (D. Or. Feb. 6, 2019) (citing Batson v. Comm’r Soc. Sec.

Admin., 359 F.3d 1190, 1197-98 (9th Cir. 2004)).

Here, plaintiff stated in her August 2017 Disability Report, “I have to lay down on a

couch or bed for several hours during the day due to back and hip pain.” Tr. 254. She repeated

this assertion in her October 2017 Disability Report, where she stated, “I lay down most of the

day because of my back and hip pain.” Pl.’s Br. 15; Tr. 269. At the hearing, plaintiff testified

that she stopped working in March 2017 “[b]ecause [of] constant back and hip pain, and I have

bursitis in my hips. And the medication the doctor gives me doesn’t do a thing about it.” Tr. 38.

She also testified that she spends about four hours a day lying down in a recliner chair or the

couch “[f]or my back and my hips because they - - I can only stay on them and take it so long.”

Tr. 45, 49-51.

In finding plaintiff’s reports were not consistent with the medical record, the ALJ

observed the “x-ray of the lumbar spine showed no significant spondylosis, no evidence of

vertebral compression fracture, no significant listhesis and the paraspinal soft tissues were

without significant abnormality.” Tr. 17 (citing Tr. 310, 312); see also Tr. 319 (examination

notes stating, “the only positive finding is a mild dextroscoliosis on the thoracic x-ray. Lumbar

spine x-ray was normal.”). The ALJ also observed that Dr. Kauffman’s examination notes

indicated “multiple organic findings[.]” Tr. 18 (citing Tr. 317); see Tr. 316 (noting “some

evidence of poor effort and inconsistencies” and plaintiff’s ability to “sit[] comfortably,” “easily

. . . transfer from the chair to the examining table and back[,]” and her ability to walk and take

her shoes off “without difficulty”). Indeed, Dr. Kauffman found the functional assessment

“somewhat difficult due to the . . . subjective complaints outweighing objective findings.” Tr.

319. As the ALJ discussed, Dr. Kauffman also identified a particular contradiction between

plaintiff being able to “only flex and move her back a small amount,” Tr. 18 (citing Tr. 318),

with her ability to extend her legs from a sitting position, “which would translate to a 90-degree

angle between her trunk and legs.” Id. The ALJ further discussed plaintiff’s three visits with her

treating physician, Dr. Kim, and noted plaintiff’s report of “bilateral back pain that started two

days prior.” Id. Additionally, the ALJ pointed to plaintiff’s contradictory comment to Dr. Kim

that standing improved her symptoms while “lying down in bed and sitting on the couch would

make her symptoms worse.” Id.

As these details demonstrate, the ALJ did not rest his decision on “general assertions that

the claimant’s testimony is not credible.” Pl.’s Br. 15. Instead, the ALJ’s decision identified the

kind of “specific, clear, and convincing reason[s]” reviewing courts require to “ensure that the

claimant’s testimony was not arbitrarily discredited.” Brown-Hunter, 806 F.3d at 489, 492; see

Tatyana K., 2019 WL 464965 at *4 (“When the claimant’s own medical record undercuts her

assertions, the ALJ may rely on that contradiction to discredit the claimant.”) (citations omitted).

The ALJ did not err in discounting claimant’s subjective system testimony based on objective

medical evidence. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While

subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated

by objective medical evidence, the medical evidence is still a relevant factor in determining the

severity of the claimant’s pain and its disabling effects.”).

B. Conservative and Inconsistent Treatment

“A conservative course of treatment is a proper basis on which to reject a claimant’s

testimony of severe impairment.” Tatyana K., 2019 WL 464965 at *4; see also,

Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (an ALJ may properly rely on the fact that only

conservative treatment has been prescribed).

As the ALJ observed, there are “minimal records” in plaintiff’s file and the medical

reports that do exist show treatment plans that consist of conservative measures such as over-the-

counter medications, ice/heat treatments, stretching exercises, and physical therapy. Tr. 14-18;

see Tommasetti, 533 F.3d at 1040 (holding that the ALJ properly considered the plaintiff's use of

“conservative treatment including physical therapy and the use of anti-inflammatory medication,

a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”). Treating physician

Dr. Kim variously prescribed ibuprofen, “home stretching exercises,” amitriptyline, asper cream,

and pool exercises. Tr. 18 (citing Tr. 333, 335, 337). Dr. Kim also recommended that if

plaintiff’s symptoms did not improve within two weeks, she should start physical therapy, which

is another form of conservative treatment. Id. (citing Tr. 333); Tommasetti, 533 F.3d at 1040.

Plaintiff acknowledges that the ALJ described her treatment as “conservative,” but

argues that the pain medications did not improve her symptoms. Pl.’s Br. 16-17; see Tr. 38.

However, the ALJ pointed out that Dr. Kim noted “some improvement in symptoms” after

plaintiff attended five physical therapy sessions. Tr. 18 (citing Tr. 335); see Tr. 341-351

(physical therapy notes that show “[p]atient is making gradual progress toward goals,” and “met”

her short-term pain goal to “decrease pain complaints from 2-8/10 to 1-6/10 for 90% of the

day”). As plaintiff acknowledges, “[a] favorable response to conservative treatment undermines

a claimant’s reports of disabling pain or limitations.” Pl.’s Br. 16 (citing Tommasetti, 533 F.3d

at 1039-40). Thus, the ALJ was entitled to discount plaintiff’s credibility due to her conservative

treatment. See Weikel v. Berryhill, No. 1:16-CV-01336-SKO, 2018 WL 1142194, at *16 (E.D.

Cal. Mar. 2, 2018) (“Based on the above conservative treatment, which the record shows resulted

in a lessening of her symptoms, the ALJ was entitled to discount Plaintiff's credibility.”)

Plaintiff also argues that the ALJ erred in discounting her testimony because the record

“does not show that the claimant consistently sought treatment for her pain.” Tr. 17. Before an

ALJ finds that a claimant’s failure to seek treatment undermines the claimant’s credibility, the

ALJ must first “consider[] possible reasons [a claimant] may not comply with treatment or seek

treatment consistent with the degree of [her] complaints.” Soc. Sec. Ruling 16-3p: Titles II &

XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P (S.S.A. Mar. 16, 2016).

Here, plaintiff stated in her October 2017 Disability Report that she had not scheduled

further appointments with her doctor because “I cannot afford the doctor visit since I have no

income and my husband is retired and living on his income alone.” Tr. 267-9. The ALJ did not

discuss those reasons in his decision. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)

(acknowledging that an “‘unexplained or inadequately explained failure to seek treatment may be

the basis for an adverse credibility ruling,’” but noting that “‘disability benefits may not be

denied because of the claimant’s failure to obtain treatment she cannot obtain for lack of funds’”

(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), and Gamble v. Chater, 68 F.3d 319,

321 (9th Cir. 1995)).

Nevertheless, any error was harmless. Batson, 359 F.3d at 1195–97 (applying harmless

error standard where one of the ALJ’s several reasons supporting an adverse credibility finding

was held invalid). As the Ninth Circuit noted in Carmickle v. Comm’r, Soc. Sec. Admin., 533

F.3d 1155, 1162 (9th Cir. 2008), an ALJ’s error in determining credibility may be deemed

harmless “[s]o long as there remains ‘substantial evidence supporting the ALJ's conclusions on .

. . credibility’ and the error ‘does not negate the validity of the ALJ's ultimate [credibility]

conclusion[.]’” Id. (citing Batson, 359 F.3d at 1197). Here, the ALJ provided “specific, clear,

and convincing reasons” for discounting plaintiff’s subjective symptom testimony based on

inconsistencies with objective medical evidence and conservative treatment and improvement.

Thus, any error did not “negate the validity” of the ALJ’s credibility assessment and therefore

was harmless. See Batson, 359 F. 3d at 1197.

II. Lay Witness Testimony

Plaintiff contends that the ALJ improperly rejected lay witness statements from her

husband, parents, sister, and son. Pl.’s Br. 11. The ALJ considered third-party statements from

plaintiff’s family members, said they cannot be characterized as “disinterested,” and gave their

statements “little weight.” Tr. 19 (citing to Tr. 257, 295, 296, 297, 298).

The ALJ has a duty to consider lay witness testimony. 20 C.F.R. §§ 404.1513(d),

404.1545(a)(3), 416.945(a)(3), 416.913(d); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

Friends and family members in a position to observe a claimant’s symptoms and daily activities

are competent to testify regarding the claimant’s condition. Dodrill, 12 F.3d at 918–19. The

ALJ may reject a third party’s testimony “upon giving a reason germane to that witness.” Crane

v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996). However, “the fact that a lay witness is a family

member cannot be a ground for rejecting his or her testimony.” Regennitter v. Comm’r of Soc.

Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (quoting Smolen v. Chater, 80 F.3d at 1289).

Here, the ALJ questioned the accuracy of the statements from plaintiff’s family members

and found they could not be disinterested “by virtue of the relationship” with plaintiff. Tr. 19.

This reason, without more, constitutes improper grounds for rejecting the lay witness statements.

The ALJ therefore erred in rejecting the lay witness testimony without proper justification. See

Florina P. v. Berryhill, No. 3:18-CV-00256-HZ, 2019 WL 413553, at *10 (D. Or. Feb. 1, 2019)

(finding ALJ erred by rejecting testimony from claimant’s mother based on familial

relationship); see also Taylor R. v. Comm’r of SSA, No. 19-CV-04570-SK, 2020 WL 6820944, at

*10 (N.D. Cal. Sept. 29, 2020) (noting that a family member is “not required to be a disinterested

third-party to have credibility” and finding ALJ erred by rejecting opinions based on a family

relationship to plaintiff).

But again, this court must determine whether the error was harmless. In Molina v.

Astrue, 674 F.3d 1104 (9th Cir. 2012), the Ninth Circuit extensively discussed the harmless error

analysis and reaffirmed the “long-settled rule that [courts] will not set aside the denial of a

disability claim unless ‘the Secretary’s findings are not supported by substantial evidence in the

record as a whole.’” Id. at 1121 (quoting Stone v. Heckler, 761 F2d 530, 531 (9th Cir. 1985))

(emphasis in original). The court found the ALJ erred when she failed to explain her reasons for

disregarding the lay witness testimony. Id. at 1104. To determine whether the error was

harmless, the court first found that the lay witness testimony “described the same limitations” as

the claimant’s own testimony and next determined that the ALJ rejected claimant’s testimony

“based on well-supported, clear and convincing reasons.” Id. at 1122. After noting that “the

ALJ’s reasons for rejecting [claimant’s] testimony apply with equal force to the lay testimony,”

the court held that the ALJ’s decision was supported by substantial evidence and was harmless.

Id.

Here, in a similar vein, the statements from plaintiff’s family members significantly

overlap her reports of pain and functional limitations. For example, her parents, husband, son,

and sister each described plaintiff’s difficulty with sustained periods of sitting, standing,

walking, and lying down. See Tr. 257, 295, 296, 297, 298. They also referred to back and hip

pain plaintiff experiences from sitting, and described her lying down on a recliner or couch. Id.

As discussed above, plaintiff made identical statements, and the ALJ properly discounted her

testimony due to a lack of corroborating evidence in the medical records and conservative

treatment plans. As the court found in Molina, “where the ALJ rejects a witness’s testimony

without providing germane reasons, but has already provided germane reasons for rejecting

similar testimony, we cannot reverse the agency merely because the ALJ did not ‘clearly link his

determination to those reasons.’” 674 F.3d at 1121 (citation omitted). Further, “even when an

agency explains its decision with less than ideal clarity, we must uphold it if the agency’s path

may reasonably be discerned.” Id. (internal quotation marks and citations omitted).

Like Molina, this court finds that the ALJ’s failure to properly consider lay witness

testimony was harmless as it was “inconsequential to the ultimate nondisability determination.”

Id. at 1122.

III. The RFC’s Walking and Standing Limitations

Plaintiff next argues that the ALJ erred at step three of the sequential evaluation process

because he failed to include in the RFC the “uncontradicted standing/walking” limitations

assessed by examining physician, Dr. Kauffman, and by state agency physicians, Drs. Davey and

Davenport.

On July 19, 2017, plaintiff attended a consultative examination conducted by Dr.

Kauffman. Tr. 18. Dr. Kauffman determined plaintiff’s maximum standing capacity to be “up

to six hours.” Tr. 319. Further, Dr. Kauffman found that plaintiff could lift, carry, push, and pull

20 pounds occasionally and 10 pounds frequently, and he limited plaintiff to no more than

frequent climbing, balancing, stooping, kneeling, crouching, and crawling. Tr. 18. The ALJ

considered Dr. Kauffman’s opinion, found it “consistent with the objective evidence in the file

that does not show any ‘significant’ problems with the claimant’s back,” and gave it “some

weight[.]” Tr. 18.

State agency consultants Drs. Davey and Davenport reviewed plaintiff’s file at the initial

and reconsideration level, and both determined, like Dr. Kauffman, that plaintiff has a standing

limitation of “about 6 hours in an 8-hour day.” Tr. 68, 79. Drs. Davey and Davenport, however,

assessed plaintiff’s other exertional limitations less restrictively than Dr. Kauffman, and found

that plaintiff could lift, carry, push, and pull 50 pounds occasionally and 25 pounds frequently.

Id. The ALJ gave “some weight” to the opinions of Drs. Davey and Davenport but found the

evidence supports a more restrictive RFC than the “Medium RFC” level that was identified by

each physician. Tr. 17. Thereafter, the ALJ determined that plaintiff had the RFC to “perform

light work as defined in 20 C.F.R. § 404.1567(b),” except that she could only occasionally

operate foot controls bilaterally. Tr. 16.

While it is true that the RFC made no explicit reference to plaintiff’s standing and

walking limitations, Social Security Regulation (“SSR”) 83-102 makes it clear that the “full

range of light work requires standing or walking, off and on, for a total of approximately 6 hours

of an 8-hour workday.” See 1983 WL 31251, at *6. Indeed, as recently noted in Guillermina R.

v. Saul, courts relying on SSR 83-10 “have found that an ALJ’s reference to ‘light work’ . . . is

widely understood to encompass the limitation to stand/walk for six hours in an eight-hour day.”

No. 5:19-cv-02315-AFM, 2020 WL 5440341 (C.D. Cal, Sept. 10, 2020); see also Goodman,

2017 WL 4265685, at *7 (rejecting the argument that RFC was deficient because it failed to

2 “Though Social Security Rulings do not have the force of law, they ‘constitute Social Security

Administration interpretations of the statutes it administers and of its own regulations.’” Revels

v. Berryhill, 874 F.3d 648, n.2 (9th Cir. 2017) (citing Quang Van Han v. Bowen, 882 F.2d 1453,

1457 (9th Cir. 1989), and concluding, “[t]herefore, ‘we defer to Social Security Rulings unless

they are plainly erroneous or inconsistent with the [Social Security] Act or regulations’”)

include a standing restriction of six out of eight hours, finding “such a restriction is part and

parcel of the definition of ‘light work’”), aff’d, 741 F. App’x 530 (9th Cir. 2018).

Thus, as the court found in Guillermina R., “by limiting plaintiff to light work, the ALJ

fairly incorporated the limitation to walking/standing for a total of six hours in an eight-hour

workday.” 2020 WL 5440341 at *3.

IV. Classification of Plaintiff’s Past Work

Plaintiff also argues that when the ALJ found in step four that she could perform her past

work as cleaner, housekeeper, DOT 323.687-014, he erroneously classified her past work as a

housekeeper according to the “least demanding function” rather than how it is “generally

performed.” Pl.’s Br. 8. According to plaintiff, had the ALJ properly classified housekeeping

work as generally requiring eight hours of standing or walking, he could not have found her

capable of performing her past work as a housekeeper in step four given the six-hour

standing/walking limitation assessed by the three physicians. Pl.’s Br. 8-10.

Plaintiff cites no caselaw to demonstrate that housekeeping work generally requires all-

day standing, and instead relies on this brief exchange at her hearing between plaintiff’s counsel

and the VE:

[Counsel]: “[W]ith regard to the housekeeping job, would an individual be

allowed to sit for two of eight hours in that job?”

[VE]: “No. That’s not noted in the DOT . . . they’re on their feet the entire eight

hours.”

Tr. 38. Plaintiff also points to the DOT description below for “Cleaner, Housekeeping – DOT

323.687-014” and argues that the definition itself shows such workers must be constantly

standing or walking to complete all required tasks:

Cleans rooms and halls in commercial establishments, such as hotels, restaurants,

clubs, beauty parlors, and dormitories, performing any combination of following

duties: Sorts, counts, folds, marks, or carries linens. Makes beds. Replenishes

supplies, such as drinking glasses and writing supplies. Checks wraps and renders

personal assistance to patrons. Moves furniture, hangs drapes, and rolls carpets.

Performs other duties as described under CLEANER (any industry) I Master

Title. May be designated according to type of establishment cleaned as Beauty

Parlor Cleaner (personal ser.); Motel Cleaner (hotel & rest.); or according to area

cleaned as Sleeping Room Cleaner (hotel & rest.).

Pl.’s Br. 9. According to plaintiff, “[i]t is obvious and apparent from common experience that all

the various housekeeping described by the DOT above involve standing or walking.” Id.

Plaintiff, however, overlooks DOT 323.687-014’s classification of housekeeper as “light

work,” as well as pertinent regulations that define “light work” as requiring “approximately 6

hours of an 8-hour workday.” See SSR 83-10 at *6; see also, Goodman, 2017 WL 4265685 at

*8 (citing SSR 83-10 and rejecting the “incorrect” argument that an RFC for ‘light work’ “fails

to acknowledge a restriction to standing or walking for 6 hours in an 8-hour workday.”); Davis v.

Colvin, Case No. 6:15-cv-0044-SI, 2016 WL 424992, at *9 (D. Or. Feb. 3, 2016) (finding that

the plaintiff, who was “limited to walking or standing six hours in an eight-hour workday,” could

perform the “light work” of “an office cleaner”); Bailey v. Astrue, No. EDCV 09–1452–OP,

2010 WL 1233459, at *6 (C.D. Cal. Mar. 22, 2010) (stating that “[t]he jobs available at the light

level of work do not conflict with” a six-hour “standing/walking limitation”); see also Holman v.

Shalala, 42 F.3d 1400, at *2 (9th Cir. 1994) (“Light work requires six hours of standing or

walking[.]”).

Notably, the VE cited no authority for the assertion that a housekeeper must stand all day.

See Goodman v. Berryhill, 741 Fed. App’x. 530, 531 (9th Cir. 2018) (finding the ALJ reasonably

rejected VE testimony regarding the amount of standing/walking in a given job where the

testimony contradicted the DOT definition of “light work” and where the VE “provided no

support for his conclusion[.]”). Further, albeit rather confusingly, the VE also testified that a

“hypothetical individual with the same age, education, past work experience as the claimant”

who has the RFC to perform a range of “light exertional work activity” could perform the

housekeeping job as defined in DOT 323.687-014. Tr. 39. Thereafter, the ALJ found that

plaintiff had the RFC to perform “light work” as defined in 20 C.F.R. § 404.1567(b) and

determined that plaintiff could perform her past relevant work as a housekeeper. Tr. 17.

Because there is no dispute between plaintiff’s standing/walking limitations as established by

medical evidence and the definition of “light work” under the DOT, it is reasonable to infer that

the ALJ properly rejected VE testimony that was inconsistent with the DOT. See Mitzi D. v.

Saul, No. SA CV 18-01065-DFM, 2019 WL 8112507, at *2 (C.D. Cal. Dec. 13, 2019) (“Given

that SSR 83-10 has been in play for over thirty years, there is no reason to think the VE

understood light work to encompass anything other than approximately six hours of standing or

walking.”) (citations omitted). Thus, this court finds that the ALJ properly classified plaintiff’s

past work as a housekeeper as “light duty.”

ORDER

The Commissioner’s Decision is AFFIRMED.

IT IS SO ORDERED.

DATED June 7, 2021.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge