Lundblade v. Berryhill
Filing
26
MEMORANDUM DECISION AND ORDER - Petitioners Petition for Review (Dkt. 1 ) is DENIED, the decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety, with prejudice. 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 (cjs)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
LORIE LUNDBLADE,
Case No.: 4:18-cv-00030-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
vs.
NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Respondent.
Pending is Petitioner Lorie Lundblade’s Petition for Review (Dkt. 1),1 appealing the
Social Security Administration’s final decision finding her not disabled and denying her 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 March 21, 2014, Petitioner protectively applied for Title II disability and disability
insurance benefits. (AR 25.) Petitioner alleged disability beginning August 1, 2007. (Id.) Her
claims were denied initially on June 20, 2014 and then again on reconsideration on November 3,
2014. (Id.) On December 23, 2014, Petitioner timely filed a Request for Hearing before an
Administrative Law Judge (“ALJ”). (Id.) Petitioner appeared and testified at a hearing held on
1
The pleading initiating this case bears the title “Complaint,” but it was submitted in
CM/ECF as a “Petition for Review.” Consistent with the usual practice in this District, it will be
referred to as a “Petition for Review” throughout this decision. Similarly, the parties will be
referred to as “Petitioner” and “Respondent” rather than “Plaintiff” and “Defendant.”
MEMORANDUM DECISION AND ORDER – 1
September 15, 2016 before ALJ Tanya Dvarishkis. (Id.) Impartial vocational expert Kent
Granat also appeared and testified at the hearing. (Id.)
On October 26, 2016, the ALJ issued a Decision denying Petitioner’s claim, finding that
she was not disabled within the meaning of the Social Security Act. (AR 36.) Petitioner timely
requested review from the Appeals Council on or about November 14, 2016. (AR 169.) On
November 21, 2017, the Appeals Council denied Petitioner’s Request for Review, making the
ALJ decision the final decision of the Commissioner of Social Security. (AR 1.)
Petitioner’s administrative remedies having been exhausted, she timely filed the instant
action, arguing that “[t]he conclusions and findings of fact of the [Respondent] are not supported
by substantial evidence and are contrary to law and regulation.” Pet. for Review 2 (Dkt. 1).
Petitioner contends the ALJ erred by (1) assessing an RFC that is unsupported by substantial
evidence with respect to her ability to reach, handle, and finder with her upper extremities; and
(2) failing to elicit a reasonable explanation for the inconsistencies between the Dictionary of
Occupational Titles and the jobs provided by the vocational expert when finding that Petitioner
could engage in other work. See generally Pet’r’s Mem. (Dkt. 20). Petitioner asks that the
ALJ’s decision be vacated and this matter be remanded for further administrative proceedings.
Id. at 17.
II. STANDARD OF REVIEW
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
MEMORANDUM DECISION AND ORDER – 2
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 role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow 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).
With respect to questions of law, the ALJ’s 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 weight must be given to the ALJ’s
construction of the Social Security Act. See Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir.
2009). However, reviewing federal courts “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).
MEMORANDUM DECISION AND ORDER – 3
III. DISCUSSION
A.
Sequential Process
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 requires the ALJ to determine 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 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 during the period from her alleged onset
date of August 1, 2007 through her date last insured of June 30, 2013. (AR 27.)
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”
MEMORANDUM DECISION AND ORDER – 4
when medical and other evidence establishes only a slight abnormality or a combination of slight
abnormalities that cause no more than minimal limitation on an individual’s ability to work.
SSR 96-3p, 1996 WL 374181 (July 2, 1996); see also 20 C.F.R. §§ 404.1521, 416.921. 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, through the date last insured, Petitioner had the following severe impairments:
left shoulder impingement with partial thickness cuff tear, status post arthroscopy
with other procedures; left shoulder degenerative arthritis, status post left total
shoulder arthroplasty; left greater trochanteric bursitis, status post bursectomy; left
hip osteoarthritis, status post left total hip arthroplasty; right knee medial meniscal
tear, anterior cruciate ligament tear, and osteoarthritis, status post right total knee
replacement; left knee tricompartmental osteoarthritis, status post left total knee
arthroplasty; right ankle focal cartilaginous defects, status post arthroscopy with
drilling and cartilage transplant; and rheumatoid arthritis.
(AR 27.)
The third step requires 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, her 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 28.)
The fourth step of the evaluation process requires the ALJ to determine 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 her
MEMORANDUM DECISION AND ORDER – 5
ability to do physical and mental work activities on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work she
performed within the last 15 years or 15 years prior to the date that disability must be
established, as long as the work was substantial gainful activity and lasted long enough for her to
learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ
determined that Petitioner had the RFC:
to perform sedentary work as defined in 20 CFR 404.1567(a). The claimant could
lift, carry, push, and pull up to 10 pounds occasionally and less than 10 pounds
frequently; could stand and walk for not more than two hours total in an eight-hour
day; and could sit for up to six hours total in an eight-hour day. The claimant could
occasionally operate foot controls with the bilateral lower extremities and
frequently operate hand controls with the bilateral upper extremities. The claimant
could never overhead reach with the left upper extremity and could frequently
handle, finger, and feel with the bilateral upper extremities. The claimant could
never climb ladders, ropes, or scaffolds and could only occasionally climb ramps
or stairs, balance, stoop, kneel, crouch, or crawl. The claimant could have no
exposure to unprotected heights, moving mechanical parts, or other workplace
hazards. The claimant could not more than occasionally operate a motor vehicle as
part of the job duties. The claimant could have no exposure to extreme cold,
vibration, or work on rough or uneven surfaces.
(AR 28–29.) The ALJ further found that Petitioner was capable of performing her past relevant
work as an insurance clerk, because such work did not require the performance of work-related
activities precluded by her RFC. (AR 34.)
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her 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 is able to do such other work, she is not disabled; if the claimant is
not able to do other work and meets the duration requirement, she is disabled. Here, although the
MEMORANDUM DECISION AND ORDER – 6
ALJ had already found that Petitioner was capable of performing past relevant work, she also
considered whether there were other jobs in the national economy Petitioner was able to perform.
The ALJ found that Petitioner’s RFC is compatible with work as a “receptionist,” “data
examination clerk,” or “clerical sorter.” (AR 35.) The ALJ further found that these jobs exist in
significant numbers in the national economy. (Id.)
Based on the finding that Petitioner could perform past relevant work or other jobs that
exist in significant numbers in the national economy, the ALJ ultimately concluded that
Petitioner “was not under a disability, as defined in the Social Security Act, at any time from
August 1, 2007, the alleged onset date, through June 30, 2013, the date last insured.” (AR 36.)
B.
Analysis
Petitioner raises two issues with the ALJ’s decision. First, she argues the ALJ erred by
assessing an RFC that is unsupported by substantial evidence with respect to her ability to reach,
handle, and finger with her upper extremities because the record lacks any medical assessment
that opines to limitations in these functions. Pet’r’s Mem. 1, 10–13 (Dkt. 20). Second, she
argues the ALJ erred by failing to elicit a reasonable explanation for the inconsistencies between
the Dictionary of Occupational Titles and the jobs provided by the vocational expert when
finding that Petitioner could engage in other work. Pet’r’s Mem. 2, 13–16 (Dkt. 20). These
issues will be addressed in order.
1. The ALJ Did Not Err in Assessing Petitioner’s RFC.
The ALJ found that Petitioner “could never overhead reach with the left upper extremity
and could frequently handle, finger, and feel with the bilateral upper extremities.” (AR 29.)
Petitioner contends this portion of the assessed RFC is unsupported by substantial evidence
because “there are no medical opinions on record that support these limitations.” Pet’r’s Mem.
MEMORANDUM DECISION AND ORDER – 7
10 (Dkt. 20). She notes that two non-examining state agency physicians, Dr. Cusack and Dr.
Song, each determined Petitioner had no limitations in reaching, handling, fingering, or
fine/gross manipulation. Id. (citing AR 73–76, 83–88). Indeed, the state agency forms
completed by each physician indicate “No” to the query “Does the individual have manipulative
limitations?” (AR 74 (Dr. Cusack), AR 85 (Dr. Song).)
Petitioner argues that the RFC must generally be supported by a medical opinion from an
acceptable medical source, Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993), and that an ALJ
should not make his or her own exploration and assessment as to a claimant’s impairments, Day
v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). Pet’r’s Mem. 10–11 (Dkt. 20). She
concludes that the lack of any treating or examining opinion on the record regarding her alleged
reaching and manipulative limitations denotes a lack of substantial evidence supporting the RFC.
Id. at 11.
The Court is not persuaded by Petitioner’s argument on this point. As an initial matter,
the Court notes that the assessed RFC is more restrictive than the cited opinions suggest it should
be, which implies the ALJ considered evidence beyond the opinions themselves (as he was
required to do). Indeed, the record does contain other evidence that Petitioner experienced
manipulative limitations prior to her date last insured: At the hearing, Petitioner testified that on
days her arthritis was bad, she could not use her fingers at all, to the point that she could not type
and required assistance getting dressed. (AR 62.) Moreover, and as Petitioner cites, there are
extensive medical records regarding assessment and treatment of her left shoulder pain. (AR
262–266, 280–283.)
Petitioner faults the ALJ for not considering or referring to medical opinions of treating
providers when assessing her limitations related to upper extremity reaching and manipulation.
MEMORANDUM DECISION AND ORDER – 8
But it is not clear that any treating providers’ medical opinions appear in the record or were even
created. It is Petitioner’s burden in the first instance to prove that she is disabled. Stone v.
Heckler, 722 F.2d 464, 468 (9th Cir. 1983). The ALJ has a duty to fully develop the record,
Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983), but this duty is framed by Social Security
regulations. Per 20 C.F.R. § 404.1520b(a), if all the evidence, including all medical opinions, is
consistent and there is sufficient evidence to determine whether a claimant is disabled, a decision
will be based on that evidence. If evidence in the case record (including any medical opinions
and prior administrative medical findings) is inconsistent, Respondent will consider the relevant
evidence to assess whether making a disability determination is possible to determine whether
the claimant is disabled based on the evidence in the record. 20 C.F.R. § 404.1520b(b)(1).
When Respondent cannot resolve inconsistencies in the evidence, a decision will be made based
on the evidence in the record. 20 C.F.R. § 404.1520b(b)(3). Moreover, “[f]indings made by a
State agency disability examiner … at a previous level of adjudication about a medical issue” are
“inherently neither valuable nor persuasive” when assessing whether a claimant is disabled, and
Respondent is not to “provide any analysis about how … such evidence” was considered. 20
C.F.R. § 404.1520b(c)(2). It is the ALJ’s duty ultimately to resolve inconsistencies in the
evidence. Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
There is no indication here that the ALJ needed to more fully develop the record or even
that the evidence of record was inconsistent. The ALJ’s assessment of Petitioner’s RFC
regarding reaching and manipulative limitations is consistent with the record. Although the
record lacks any medical opinion by a treating provider that expressly addresses the extent of
Petitioner’s limitations in these areas, there was nonetheless enough record evidence for the ALJ
to make the challenged findings. As to Petitioner’s reaching limitations, the ALJ found that
MEMORANDUM DECISION AND ORDER – 9
Petitioner’s severe impairments included “left shoulder impingement with partial thickness cuff
tear, status post arthroscopy with other procedures; left shoulder degenerative arthritis, status
post left total shoulder arthroplasty; … and rheumatoid arthritis.” (AR 27.) Petitioner does not
challenge these findings about her severe impairments. Additionally, the record includes
Petitioner’s own hearing testimony that reaching overhead is very difficult on her left side. (AR
61.) There was substantial evidence to assess an RFC precluding Petitioner from reaching
overhead on her left side and there was no duty to elicit a medical opinion from a treating or
examining provider on this issue.
As to manipulative limitations, Petitioner testified that on days when her arthritis was
bad, she could not use her fingers at all. (AR 62.) But she had trouble specifying how frequently
she was limited by her impairments prior to her date last insured, which was more than three
years prior to the hearing. (AR 50–51, 53, 54, 56–58.) She also testified that she had trouble
remembering things after having brain surgery. (AR 51.) Her medical history includes several
years of treatment from a rheumatologist, with the records of those treatments generally
indicating she was responding well to medication for rheumatoid arthritis and not indicating any
difficulties with manipulation despite occasional mild synovitis at times in the joints in her upper
extremities. (AR 326–349.) A finding that she could “frequently” manipulate is consistent with
the evidence that she had difficulties manipulating on bad arthritis days, that extensive notes
from her rheumatologist failed to indicate manipulative limitations, and that two non-examining
state agency physicians each opined that she had no manipulative limitations.
In sum then, on this issue, there was substantial evidence to support the ALJ’s RFC
assessment as to reaching and manipulation and there was no duty to elicit a medical opinion
MEMORANDUM DECISION AND ORDER – 10
from a treating or examining provider. Thus, Petitioner has failed to show that the ALJ’s RFC
assessment was not based on substantial evidence.
Petitioner also contends the ALJ improperly substituted her own lay opinion as that of a
medical source or otherwise improperly imposed her own lay interpretation of the medical
evidence. Pet’r’s Br. 10–12 (Dkt. 20). This argument is unavailing. The nature of the ALJ’s
responsibility is to interpret the evidence of record, including medical evidence. Such a
responsibility does not result in the ALJ committing legal error when she assesses an RFC that is
consistent with the record. Here, before she assessed an RFC saying Petitioner “could never
overhead reach with the left upper extremity,” the ALJ met her duties by examining the evidence
of Petitioner’s extensive left shoulder treatment and testimony that the Petitioner could not reach
overhead. (AR 29.) The ALJ did not deviate from her duty in examining the evidence of
Petitioner’s rheumatoid arthritis and testimony that on bad arthritis days she could not
manipulate when assessing an RFC saying she “could frequently handle, finger, and feel with the
bilateral upper extremities.” (AR 29.) These instances were not the result of an ALJ improperly
imposing lay opinion regarding medical evidence. These were the result of an ALJ properly
interpreting evidence of record, as she is charged to do. Moreover, they were not expressions of
an improper medical opinion. Rather, they were expressions of findings and conclusions
mandated by the disability determination process. Petitioner has not shown the ALJ erred in
assessing her RFC.
2. The ALJ Did Not Err in Finding Petitioner Could Engage in Other Work.
Petitioner contends the ALJ failed to reconcile differences between the testimony of the
vocational expert (“VE”) who testified at the hearing and the content of the Dictionary of
Occupational Titles (“DOT”). She contends that such a failure means the ALJ’s finding
MEMORANDUM DECISION AND ORDER – 11
Petitioner could engage in other work is not supported by substantial evidence. Pet’r’s Mem.
13–16 (Dkt. 20). Specifically, Petitioner argues that the three jobs cited by the VE are
inconsistent with the ALJ’s limitation regarding overhead reaching. Even though the VE
described that his testimony was consistent with the DOT (AR 66), Petitioner argues that it was
inconsistent and the ALJ erred by not reconciling the inconsistency.
Petitioner relies on SSR 00-4P, an interpretive ruling regarding the use of vocational
experts in disability determinations. It provides in relevant part that:
Occupational evidence provided by a VE … generally should be consistent
with the occupational information supplied by the DOT. When there is an apparent
unresolved conflict between VE … evidence and the DOT, the adjudicator must
elicit a reasonable explanation for the conflict before relying on the VE … evidence
to support a determination or decision about whether the claimant is disabled.
SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000), at *2. An ALJ may rely on VE testimony over
the DOT if a reasonable explanation is given for a conflict between them. Id. One such
reasonable explanation may be that “[t]he DOT lists maximum requirements of occupations as
generally performed, not the range of requirements of a particular job as it is performed in
specific settings. A VE … may be able to provide more specific information about jobs or
occupations than the DOT.” Id. at *3.
Petitioner argues that the VE’s testimony that Petitioner could perform the jobs of
“receptionist,” “data exam clerk,” or “clerical sorter” were all inconsistent with an RFC
precluding overhead reaching on the left side, because the DOT indicates that each of these
occupations requires frequent reaching. She contends the ALJ erred by failing to resolve this
conflict.
Petitioner’s argument challenges the ALJ’s Step Five finding that she could engage in
other jobs that exist in substantial numbers in the national economy. Pet’r’s Mem. 13 (Dkt. 20)
MEMORANDUM DECISION AND ORDER – 12
(“The ALJ’s Step 5 determination is unsupported by substantial evidence…”). But although the
ALJ did make a Step Five determination, such determination was in the alternative after she had
already found, at Step Four, that Petitioner could engage in past relevant work as an insurance
clerk. (AR 34.) Such a Step Four finding made further findings unnecessary and mandated a
finding that Petitioner was not disabled. Petitioner did not challenge the ALJ’s Step Four finding
that she could engage in past relevant work as an insurance clerk. For this reason, Respondent
argues that Petitioner waived such an argument and therefore it is immaterial whether the ALJ
erred at Step Five. Resp’t’s Mem. 7 n.3 (Dkt. 24.) The Court notes that the DOT listing for
insurance clerk also requires frequent reaching, so the issue Petitioner raises is applicable equally
at both Step Four and Step Five in this case. Regardless, the Court need not, and does not,
address whether Petitioner waived the issue as to Step Four because the Court is not persuaded
by Petitioner’s argument regarding an alleged inconsistency in Step Five. Hence, the result is the
same either way.
Petitioner cites decisions from other jurisdictions not binding on this Court, which hold
that overhead reaching is included within reaching. Pet’r’s Mem. 14 (Dkt. 20). But Respondent
points out that the DOT definition of “reaching” – “extending hands and arms in any direction” –
is quite broad and does not distinguish whether one or both hands are needed to perform the
work, whether the reaching can be performed with only one hand or arm, or whether the work
involves reaching overhead, to the side, front, or behind. Resp’t’s Mem. 8 (Dkt. 24) (quoting
SSR 85-15, 1985 WL 56857, at *7). Respondent also cites binding precedent holding that “not
every job that involves reaching requires the ability to reach overhead.” Id. (quoting Gutierrez v.
Colvin, 844 F.3d 804, 808 (9th Cir. 2016)). In Gutierrez, the Ninth Circuit concluded that some
jobs that require frequent reaching may nonetheless not require overhead reaching: “According
MEMORANDUM DECISION AND ORDER – 13
to the [DOT], ‘frequent reaching’ is required of both cashiers and stock clerks. But anyone who's
made a trip to the corner grocery store knows that while a clerk stocking shelves has to reach
overhead frequently, the typical cashier never has to.” Gutierrez, 844 F.3d at 808.
The Gutierrez court went on to describe the circumstances when an ALJ must inquire
further of a VE:
To be sure, an ALJ must ask follow up questions of a vocational expert when the
expert's testimony is either obviously or apparently contrary to the [DOT], but the
obligation doesn't extend to unlikely situations or circumstances. Had the expert
opined that Ms. Gutierrez could stock shelves or wash windows, the conflict would
have been apparent and obvious, and the ALJ would have needed to follow up with
more specific questions. But where the frequency or necessity of a task is unlikely
and unforeseeable—as it is with cashiers having to reach overhead—there's no
similar obligation.
Given how uncommon it is for most cashiers to have to reach overhead, we
conclude that there was no apparent or obvious conflict between the expert's
testimony and the [DOT]. The requirement for an ALJ to ask follow up questions
is fact-dependent. While we acknowledge that there may be exceptional
circumstances where cashiers have to reach overhead, this case doesn't present any.
Responding to the ALJ's hypothetical question that specifically accounted for Ms.
Gutierrez's limitations, the expert eliminated all jobs that would have required
weight bearing and overhead reaching with her right arm, identifying a single job
she could perform despite her limitations. The ALJ was entitled to rely on the
expert's “experience in job placement” to account for “a particular job's
requirements,” SSR 00-4P, 2000 WL 1898704, at *2, and correctly did so here.
Id. at 808–809. Moreover, a footnote omitted from the above passage states that “[a]n example
of cashiering that could involve overhead reaching is where a store sells restricted merchandise,
such as cigarettes, which are kept overhead. But even in this atypical example, Ms. Gutierrez's
reaching restriction would not have prevented her from reaching overhead with her left arm.” Id.
at 809 n.2.
Respondent contends that this case presents circumstances closely analogous to those in
Gutierrez: there is an overhead reaching limitation on one side only, the hypothetical the VE
considered matches the RFC ultimately assessed to Petitioner, the jobs the VE identified do not
MEMORANDUM DECISION AND ORDER – 14
obviously or apparently require frequent overhead reaching, and the ALJ was entitled to rely on
the VE’s testimony that his opinion was consistent with the DOT – even though the potential
conflict or ambiguity was not identified or resolved at the time. Respondent cites the DOT
descriptions for each of the three jobs the VE identified. The relevant portions of the
descriptions are repeated here:
A receptionist “[r]eceives callers at establishment, determines the nature of business, and
directs callers to destination: Obtains caller's name and arranges for appointment with
person called upon. Directs caller to destination and records name, time of call, nature of
business, and person called upon. May operate PBX telephone console to receive
incoming messages. May type memos, correspondence, reports, and other documents.”
DOT #237.367-038.
A data examination clerk “[r]eviews computer input and output documents to ensure
accuracy, completeness, and adherence to establishment standards: Reviews documents,
such as surveys, to ensure completeness and appropriateness prior to data entry. Reads
notes and instructions written on source documents and compares information with
printouts to detect errors and ensure completeness and conformity with establishment
policies and procedures. Notifies supervisor when errors and shortage of output are
detected, and corrects errors or refers work to other workers for correction. Compares
corrected input and output data with source documents, worksheets, and data displayed
on screen of computer terminal to verify corrections. May review only computer input or
output. May operate machines to separate and remove carbon paper from computer
generated forms. May re-type mutilated forms, using typewriter. May sort printouts for
distribution.” DOT #209.387-022.
A sorter “[s]orts data, such as forms, correspondence, checks, receipts, bills, and sales
tickets, into specified sequence or grouping, such as by address, code, quantity, and class,
for such purposes as filing, mailing, copying, or preparing records.” DOT #209.687-022.
The Court agrees with Respondent. It is neither obvious nor apparent that a receptionist,
data exam clerk, or clerical sorter would need to reach overhead frequently, or that on occasions
when overhead reaching may be necessary the job could not be performed by using only one
MEMORANDUM DECISION AND ORDER – 15
hand to do so.2 Gutierrez is on all fours with the instant case and its holding vitiates Petitioner’s
argument.
IV. CONCLUSION
Petitioner has not shown that the ALJ erred, either by assessing an RFC that is
unsupported by substantial evidence or by failing to reconcile alleged inconsistencies between
the Dictionary of Occupational Titles and the vocational expert’s testimony. Accordingly, the
ALJ’s decision is supported by substantial evidence and it will be upheld. Petitioner’s Petition
for Review will be denied.
V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is DENIED, the
decision of the Commissioner is AFFIRMED, and this action is DISMISSED in its entirety,
with prejudice.
DATED: March 27, 2019
_________________________
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge
2
The same is true for an insurance clerk, DOT #219.387-014, who “[c]ompiles records of
insurance policies covering risks to property and equipment of industrial organization: Files
records of insurance transactions and keeps calendar of premiums due and expiration dates of
policies. Prepares vouchers for payment of premiums and verifies that payments have been
made. Fills in data on renewal policy applications and forwards applications to insurance
company. Compiles statistical data for reports to insurance company and departments in
organization. May notify insurance company of changes in property or equipment affecting
insurance coverage. May type amortization schedules.”
MEMORANDUM DECISION AND ORDER – 16
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