Weakland v. Saul
MEMORANDUM DECISION AND ORDER - Based on the foregoing, Petitioners Petition for Review and the accompanying Motion for Summary Judgment (Dkts. 1 & 20 ) are DENIED, and the decision of the Commissioner is AFFIRMED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No. 2:19-cv-00436-REB
MEMORANDUM DECISION AND
ANDREW SAUL, Commissioner of Social
(Dkt. 1 & 20)
Pending is Petitioner Jeremy W.’s Petition for Review (Dkt. 1), and an accompanying
Motion for Summary Judgment (Dkt. 20) appealing the Social Security Administration’s final
decision finding him not disabled and denying his claim for disability insurance benefits. See
Pet. for Review (Dkt. 1). This action is brought pursuant to 42 U.S.C. § 405(g). Having
carefully considered the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On May 10, 2016, Petitioner protectively filed an application for child’s insurance
benefits based on disability, as well as an application for supplemental security income (“SSI”).
(AR 13.) In both these claims, Petitioner alleged disability beginning on December 20, 2013.
(Id.) His claims were denied initially on August 4, 2016 and upon reconsideration on February
22, 2017. (Id.) Petitioner timely filed a written request for hearing before an Administrative Law
MEMORANDUM DECISION AND ORDER - 1
Judge (“ALJ”) on April 3, 2017. (Id.) Petitioner testified at a video hearing held on November 6,
2018 in Pocatello Idaho. in Boise, Idaho. (Id.) ALJ David Willis presided at the hearing and an
impartial vocational expert Kent Granat also appeared and testified at the hearing. (Id.)
On January 14, 2019 ALJ Willis issued a decision denying Petitioner’s claim, finding that
Petitioner was not disabled within the meaning of the Social Security Act. (AR 25.) Petitioner
timely requested review from the Appeals Council January 25, 2019. (AR 5). On September 27,
2019, the Appeals Council denied Petitioner’s Request for Review, making the ALJ decision the
final decision of the Commissioner of Social Security. (AR 1-3).
Having exhausted his administrative remedies, Petitioner filed this case, raising several
points of error. First, he argues that the ALJ erred in electing to give little weight to the opinions
of examining psychologist Dr. Nels Sather, who saw Petitioner twice and determined that he had
“marked” limitations in two critical areas of mental functioning under Listing 12.11, which deals
with certain neurodevelopmental disorders. Second, Petitioner argues that Dr. Sather’s opinions
and IQ scores showing that he was at least two standard deviations below the mean in certain
areas of intellectual functioning establishes that he meets the requirements of Listing 12.11.
Third, Petitioner argues that the ALJ failed to meet his burden at step five to establish that there
are jobs in the national economy that he would be capable of performing. Fourth and finally,
Petitioner contends that his own testimony regarding his functional limitations should be credited
as true, and the Court should enter an order that he is disabled rather than remanding the case to
the ALJ for further proceedings.
II. STANDARD OF REVIEW
MEMORANDUM DECISION AND ORDER - 2
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th
Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the
ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Ludwig v.
Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less
than a preponderance (Trevizo, 871 F.3d at 674), and “does not mean a large or considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the Court reviews the record as a whole to decide
whether it contains evidence that would allow a person of a reasonable mind to accept the
conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
The decision must be based on proper legal standards and will be reversed for legal error.
Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Treichler, 775 F.3d at 1098. Considerable
MEMORANDUM DECISION AND ORDER - 3
weight is given to the ALJ’s construction of the Social Security Act. See Vernoff v. Astrue, 568
F.3d 1102, 1105 (9th Cir. 2009). However, this Court “will not rubber-stamp an administrative
decision that is inconsistent with the statutory mandate or that frustrates the congressional
purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a
sequential process in determining whether a person is disabled in general (20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (20 C.F.R. §§ 404.1594, 416.994) – within the
meaning of the Social Security Act.
The first step asks whether the claimant is engaged in substantial gainful activity
(“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is work activity that is both
substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant is engaged in SGA,
disability benefits are denied regardless of his or her medical condition, age, education, and work
experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the
analysis proceeds to the second step. Here, the ALJ found that Petitioner did not engage in
substantial gainful activity since December 20, 2013, the alleged onset date of his disability. (AR
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The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” if it
does not significantly limit the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1522, 416.922. If the claimant does not have a severe medically determinable
impairment or combination of impairments, disability benefits are denied. 20 C.F.R.
§§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe
impairments: congenital heart disease, curvature of the spine, borderline intellectual functioning,
and a learning disorder. AR 15.
The third step calls on the ALJ to determine the medical severity of any impairments; that
is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R. Part
404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer
is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal a listed impairment, the claim cannot be resolved at step three and the evaluation proceeds
to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ found that Petitioner did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments. AR 15-17.
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In the fourth step of the evaluation process, the ALJ decides whether the claimant’s
residual functional capacity (“RFC”) is sufficient for the claimant to perform past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is his or her ability to
do physical and mental work activities on a sustained basis despite limitations from his or her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work he
performed within the last 15 years or 15 years prior to the date that disability must be
established, if the work was substantial gainful activity and lasted long enough for the claimant
to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ
found that physically, Petitioner’s physical limitations (i.e. the congenital heart defect and
curvature of the spine) meant he had the residual functional capacity to perform only light work
as defined in 20 CFR 4.4.1567.(b) and 416.967(b), with certain other limitations not pertinent to
this appeal. In terms of cognitive limitations, the ALJ determined that Petitioner had the residual
functional capacity to perform simple, routine, and repetitive tasks, but not at a production rate
(i.e. assembly line) pace. The ALJ further found that Petitioner would be able to make and
perform simple work-related decisions, and that he would be off task about ten percent of an
eight-hour workday. AR 18.
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Garrison v. Colvin, 759 F.3d 995, 1011 (9th
Cir. 2014). If the claimant can do such other work, he is not disabled; if the claimant cannot do
MEMORANDUM DECISION AND ORDER - 6
other work and meets the duration requirement, he is disabled. Here, the ALJ found that as of the
date of his decision, Petitioner could work full time as an electrode cleaner (729.687-014);
garment folder (789.687- 066); and food sorter (529.687- 186). AR 24-25. The ALJ further
found that these jobs exist in significant numbers in the national economy. (Id.) Based on these
findings, the ALJ concluded that Claimant was not disabled.
Neither party assigns error to the ALJ’s conclusion that Petitioner’s physical defects—i.e.
his congenital heart defect and/or curvature of the spine—limited him to an RFC allowing only
for certain kinds of light work. Therefore, in this appeal, the Court only considers the ALJ’s
assessment of Petitioner’s mental and intellectual functioning as it related to his ability to find
work within the already somewhat limited field of light work available to him by reason of his
1. The ALJ Did Not Err by Electing to Give Little Weight to Dr. Sather’s Opinions.
Petitioner challenges the ALJ’s decision to give little weight to the opinions of Dr. Nels
Sather, a clinical psychologist who examined Petitioner in 2015 and then again in 2017. In his
2017 report, Dr. Sather opined that Plaintiff had “marked” limitations in: 1) understanding,
remembering, and carrying out complex instructions, sustaining concentration, and making
judgments on complex work decisions; and 2) responding appropriately to workplace change.
AR 349. If accepted as true, these limitations would meet the criteria for listing 12.11, relating to
disabilities arising from certain neurodevelopmental disorders.
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The Court disagrees that the ALJ committed legal error in his decision to give little
weight to the opinions of Dr. Sather. An ALJ may reject the contradicted opinion of an
examining doctor “by providing specific and legitimate reasons that are supported by substantial
evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Moreover, the ALJ must
resolve conflicts in evidence, including conflicting opinions of medical providers. Richardson v.
Perales, 402 U.S. 389, 402, 91 S.Ct. 1420, 1427, (1971).
Here, in addition to Dr. Sather’s report, the record includes other professionals who
offered opinions regarding Plaintiff’s functional limitations. One is a 2018 report prepared by
Brooke Sjostrom, a social worker, which was prepared under the supervision of Thomas Genthe,
Ph.D., a psychologist. AR 409-17. Ms. Sjostrom examined Petitioner at the request of the Idaho
State Division of Vocal Rehabilitation, to clarify his “cognitive abilities, mental health status,
mental status, and adaptive level of functioning.” AR 409. In addition to a diagnostic interview,
she administered tests, including the Wechsler Adult Intelligence Scale – IV (WAIS-IV), which
revealed that Petitioner’s full-scale IQ was 80, in the low average range. AR 416. Other tests
indicated that Petitioner’s working memory was borderline, his perceptual reasoning and
processing speed were low average, and his verbal comprehension was average. Id. Nonverbal
skills were in the low average range and his ability to sustain attention and concentration was
“borderline.” Id. Testing also indicated that Petitioner had limited math skills, such that Ms.
Sjostrom concluded he could not work in any position requiring even simple math skills, such as
cashier work. Id.
Based on this combination of skills and limitations, Dr. Genthe and Ms. Sjostrom
concluded that Petitioner had the intellectual capacity to function in entry-level jobs requiring
MEMORANDUM DECISION AND ORDER - 8
only simple, repetitive tasks, so long as those jobs did not involve math. AR 416-17. The ALJ
adopted these findings of Ms. Sjostrom and Dr. Genthe, in arriving at the residual functional
capacity for Petitioner and stated that he was giving these findings “great weight.” AR 20.
Opinions from the two consulting physicians were generally in accord with the
Sjostrom/Genthe opinion. Both consulting reports specifically addressed Dr. Sather’s opinions
and concluded that those opinions exaggerated the severity of Petitioner’s functional limitations.
The ALJ gave these consulting physician opinions “great weight” because he concluded they
were “more consistent with the record as a whole.” AR 23. The ALJ also rejected Dr. Sather’s
opinion that Petitioner was “seriously impaired” in his ability to perform work related activities
in the areas of remembering, understanding, persistence, sustaining concentration, and adapting
to workplace change, because the ALJ found such an opinion to be inconsistent with the fact that
Petitioner completed high school with the assistance of an independent educational plan. AR 23,
As evidenced from the foregoing discussion, there was substantial evidence in support of
the ALJ’s opinion. The opinion of Dr. Genthe and Ms. Sjostrom on its own, based upon Ms.
Sjostrom’s independent examination of Petitioner, constitutes substantial evidence supporting the
ALJ’s decision. See, eg. Tonapetyan v. Halter, F.3d at 242 F.3d 1144 (9th Cir. 2004). And even
though they were neither examining nor treating physicians, the two opinions from state
consulting physicians bolsters the ALJ’s conclusion. “Although the contrary opinion of a nonexamining medical expert does not alone constitute a specific, legitimate reason for rejecting a
treating or examining physician's opinion, it may constitute substantial evidence when it is
MEMORANDUM DECISION AND ORDER - 9
consistent with other independent evidence in the record.” Tonapetyan, at 1149. See also
Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989).
Finally, the ALJ also relied heavily, both at the hearing and in his written opinion, on the
fact that Petitioner had successfully completed high school. AR 23. At the hearing, the ALJ
engaged in an extensive discussion of Petitioner’s high school record and noted that while he had
failed some classes, he had passed high school overall. The ALJ stated:
The point I’m making . . . . is that although he does have lower grades and lower
skills, it’s not quite as dramatic as someone that’s truly required special education.
It’s . . . indicative of an 80 full scale IQ, but that’s not indicative necessarily of
being unable to do simple, routine, repetitive tasks.
AR 68. It was not illogical for the ALJ to conclude that someone capable of completing high
school, albeit with educational accommodations and comparatively lower grades, would be
capable of performing routine entry level jobs.
The ALJ’s detailed assessment of Petitioner’s high school record and its implications for
his employability, together with the divergent opinion evidence discussed above, all constitutes
substantial evidence in support of his decision to give Dr. Sather’s opinion minimal weight.
2. Whether Claimant Met the Requirements of Listing 12.11
Next, the Court addresses Petitioner’s argument that he met the requirements for listing
12.11, which addresses how certain neurodevelopmental disorders may create a listing level
disability. The crux of the parties’ disagreement is over whether Criteria B of this listing was
met. Petitioner argues almost entirely from Dr. Sather’s opinion that he has “marked” deficits in
the domains of 1) understanding, remembering, and carrying out complex instructions, sustaining
concentration and making judgment on complex work decisions; and 2) responding appropriately
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to workplace change. AR 349. While this opinion, if credited, would place Petitioner within the
umbrella of Listing 12.11, the record includes only Dr. Sather’s opinion that Petitioner has
marked limitations in both of these domains. The ALJ decided that Dr. Sather’s opinion was only
entitled to minimal weight. Hence, Petitioner’s argument that he met the requirements of the
The inquiry continues, however, because Petitioner also argues that his low cognitive test
scores alone are enough to establish a disability under the relevant listing. Petitioner draws upon
a provision of the Social Security Programs Operations Manual which discusses when proof of
disabling levels of cognitive impairment can be supported by standardized testing. The relevant
“we will find that you have a ‘marked’ limitation in a domain when your
impairment(s) interferes seriously with your ability to independently initiate,
sustain, or complete activities. ‘Marked’ limitation also means a limitation that is
"more than moderate" but "less than extreme." It is the equivalent of the
functioning we would expect to find on standardized testing with scores that are at
least two, but less than three, standard deviations below the mean.
POMS DI 25225.020; https://secure.ssa.gov/poms.nsf/lnx/0425225020 (Accessed May 28,
2021). The same language is found in the regulations. See 20 C.F.R. § 419.926a(e)(2)(i).
However, the fact that Petitioner’s IQ scores are at least two standard deviations below
the mean does not necessarily establish that he meets listing 12.11. To begin, the rule Petitioner
cites may not have any applicability to the case at bar. Although the parties, in their briefing,
touch upon the issue of which regulations apply, they do not do so in a way that identifies a clear
connection or lack of connection between the rule and this case. The Commissioner points out
that 20 C.F.R. § 419.926a(e)(2)(i) (the regulation that parallels the portion of the Programs
MEMORANDUM DECISION AND ORDER - 11
Operation Manual Cited by Petitioner) deals only with functional equivalence for children, not
for adults, and argues that it is therefore inapplicable to Petitioner’s claim. Respondent’s Brief,
Dkt. 24 at p. 9. Petitioner, for his part, points out that part of his claim consists of an application
for child’s insurance benefits. AR 13, Petitioner’s Reply Brief, Dkt. 25 at p 5. The
Commissioner, however, also points out that Petitioner’s asserted date of disability onset was
December 20, 2013 (his eighteenth birthday), the implication presumably being that the rules for
adults, not the rules for children, apply to his case.
Ordinarily, this lack of clarity over which set of regulations applies to which claims
would be a matter upon which the Court might be inclined to ask for further briefing.1 However,
the Court need not do so because despite the disagreement about which set of regulations apply
here, both sets of regulations provide that a single piece of evidence, viewed in isolation, cannot
definitively establish a disability. For instance, the portion of Listing 12.00 (for adults) makes
clear that limitations in mental functioning are considered on a holistic basis:
Limitation of an area of mental functioning reflects the overall degree to which
your mental disorder interferes with that area. The degree of limitation is how we
document our assessment of your limitation when using the area of mental
functioning independently, appropriately, effectively, and on a sustained basis. It
does not necessarily reflect a specific type or number of activities, including
activities of daily living, that you have difficulty doing. In addition, no single
piece of information (including test results) can establish the degree of limitation
of an area of mental functioning.
Listing 12.00F, https://www.ssa.gov/disability/professionals/bluebook/12.00-MentalDisordersAdult.htm (accessed May 28, 2021). (emphasis added). Other portions of this listing allow the
ALJ to consider a wide variety of evidence in determining the functional limitations created by a
Aside from the issue regarding how to treat IQ scores, Petitioner’s brief cites to the same regulations and
case law as would govern an ordinary SSI or SSDI case. The ALJ’s decision does the same.
MEMORANDUM DECISION AND ORDER - 12
mental impairment, besides just psychological or cognitive testing, to include specifically,
evidence obtained from educational settings, and observations obtained during therapy,
counseling, or psychological examinations. Id. at 12.00C(2)(j) and 12.00C(4). The same thing is
true of the regulations upon which Petitioner relies. That regulation unequivocally states that the
ALJ “will not rely on any test score alone. No single piece of information taken in isolation can
establish whether you have a ‘marked’ or an ‘extreme’ limitation in a domain.” 20 C.F.R. §
416.926a(e)(4)(i). It further states that, with respect to low IQ scores, the Commissioner will
only find marked or extreme limitations if “your day-to-day functioning in domain-related
activities is consistent with that score.” § 416.926a(e)(2)(iii), (3)(iii). In other words, contrary to
Petitioner’s argument, it appears that the Commissioner simply does not consider IQ scores in
isolation when determining disability, whether a claimant has applied for benefits as a child or as
For these reasons, the ALJ’s decision to give great weight to Petitioner’s educational
history and to opinions of Dr. Genthe and Ms. Sjostrom, as opposed to looking solely at his IQ
scores, was perfectly consistent with the Commissioner’s regulations and supported by
The ALJ Met His Burden at Step Five.
Finally, the Court considers Petitioner’s argument that the ALJ failed to meet his burden
at step five of proving that there are jobs in the national economy that someone with Plaintiff’s
residual functional capacity could perform. Again, the ALJ determined that Petitioner could
work as an electrode cleaner, a garment folder, or as a food sorter, and that these jobs existed in
significant numbers both statewide and nationally.
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The crux of Petitioner’s argument is that the ALJ failed to resolve a conflict between the
specific job descriptions for these positions and the broader discussions of the maximum skills
that may be required for such occupations, as set forth in the Dictionary of Occupational Titles
(“DOT”). Specifically, the sections of the DOT cited by Petitioner indicate that occupations like
electrode cleaners, food sorters, and garment folders may require “Level 1” mathematical ability,
which is a shorthand way of describing an individual able to “add and subtract two-digit
numbers, multiply and divide 10s and 100s by 2, 3, 4, and 5, and perform basic arithmetic
operations with coins as part of a dollar,” and perform basic operations with standard units of
measurement. Exhibit to Plaintiff’s Brief, Dkt. 20, p. 42. However, the more specific job
descriptions used by the Vocational Expert (“VE”) and the ALJ make no mention that math
skills are necessary for the positions determined to be within Petitioner’s residual functional
capacity. Rather, as common sense would suggest, the job descriptions for the positions of
electrode cleaner, garment folder, and food sorter each focus on a discrete number of simple,
repetitive manual tasks. Respondent’s Brief at p. 11; See also DOT No. 729.687-014, 1991 WL
679734 (electrode cleanser); DOT No. 789.687-066, 1991 WL 681266 (garment folder); DOT
No. 529.687-186, 1991 WL 674781 (food sorter). At the hearing, the VE concluded that
Petitioner was capable of performing these jobs, which he described as being “as simple as any
that exist.” AR 73-78. Nor is it immediately obvious to this Court that even rudimentary math
skills would be required to adequately perform these jobs.
Several years ago, in Gutierrez v. Colvin, the Ninth Circuit was faced with a case which
involved a similar disconnect between the generalized DOT descriptions of the educational
levels suitable for certain types of occupations and the core requirements of a particular job.
MEMORANDUM DECISION AND ORDER - 14
Gutierrez, 844 F.3d 804 (9th Cir. 2016). There, the ALJ ruled that a claimant had a residual
functional capacity to work as a cashier and was therefore not disabled. The claimant appealed
the ALJ’s decision, arguing in part that the generalized DOT descriptions indicated that some
cashiers might be required to “frequently” engage in overhead reaching, something the claimant
could not do. In affirming the ALJ’s finding of no disability, the court held:
It’s important to keep in mind that the Dictionary refers to “occupations,” not to
specific jobs. “Occupation” is a broad term that includes “the collective
description” of “numerous jobs” and lists “maximum requirements” of the jobs as
“generally performed.” SSR 00-4P, 2000 WL 1898704, at *2–3. Because of this
definitional overlap, not all potential conflicts between an expert's job suitability
recommendation and the Dictionary's listing of “maximum requirements” for an
occupation will be apparent or obvious. And, to reiterate, an ALJ need only
follow up on those that are.
For a difference between an expert's testimony and the Dictionary's listings to be
fairly characterized as a conflict, it must be obvious or apparent. This means that
the testimony must be at odds with the Dictionary's listing of job requirements
that are essential, integral, or expected. This is not to say that ALJs are free to
disregard the Dictionary's definitions or take them with a grain of salt—they
aren't. But tasks that aren't essential, integral, or expected parts of a job are less
likely to qualify as apparent conflicts that the ALJ must ask about. Likewise,
where the job itself is a familiar one—like cashiering—less scrutiny by the ALJ is
Id. at 807-809.
Based on the holding in Gutierrez, the Court agrees with the Commissioner that, at most,
the ALJ committed harmless error by failing to clarify whether the jobs the VE identified
required math skills. None of the three occupations identified by the VE strikes the Court as
needing even very rudimentary math skills. Someone employed as an electrode cleaner, garment
worker, or food sorter might occasionally encounter math problems, but mathematical skills are
not mentioned in the core requirements of the job descriptions. Nor has Petitioner made any
MEMORANDUM DECISION AND ORDER - 15
argument that the jobs regularly require math skills. Thus, any conflict is not “obvious” and the
ALJ therefore did not err in failing to reconcile the alleged conflict at the hearing.
For all the foregoing reasons, the Court finds that the ALJ’s decision was supported by
substantial evidence and free of reversible error. Because the Court so finds, it need not reach
Petitioner’s argument that the Court should credit as true Petitioner’s testimony about his own
functional limitations, since such considerations only come into play if the Court must decide
whether to enter an immediate order finding that a claimant is disabled as opposed to remanding
for further proceedings. These considerations do not come into play where, as here, the Court
affirms the ALJ’s decisions.
Based on the foregoing, Petitioner’s Petition for Review and the accompanying Motion for
Summary Judgment (Dkts. 1 & 20) are DENIED, and the decision of the Commissioner is
DATED: June 4, 2021
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 16
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