Taylor v. Commissioner Social Security Administration

Filing 14

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 06/24/2013 by Judge Anna J. Brown. See attached 20 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BARBARA J. TAYLOR,
Plaintiff,

6:12-CV-01017-BR
OPINION AND ORDER

v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.

RICHARD F. MCGINTY
McGinty & Belcher
P.O. Box 12806
Salem, OR 97301
[phone]
Attorneys for Plaintiff

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1

- OPINION AND ORDER

S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
SUMMER STINSON
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Barbara J. Taylor seeks judicial review of a final
decision of the Commissioner of the Social Security Admini=
stration (SSA) in which he denied Plaintiff's application for
Supplemental Security Income (SSI) under Title XVI of the Social
Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed her application for SSI on
September 15, 2008, and alleged a disability onset date of

2

- OPINION AND ORDER

April 18, 1996.

Tr. 103.2

and on reconsideration.

The application was denied initially

Tr. 66, 74.

An Administrative Law Judge

(ALJ) held a hearing on August 11, 2010.

Tr. 102.

hearing Plaintiff was represented by an attorney.

At the
Tr. 102.

Plaintiff and a vocational expert (VE) testified at the hearing.
Tr. 40-60.
The ALJ issued a decision on February 24, 2011, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 25.

The Appeals Council denied Plaintiff's

subsequent request for review, making the ALJ’s decision the
final decision of the Commissioner.
See also Tr. 2-5.

See 20 C.F.R. § 404.984(d).

Plaintiff now seeks judicial review of that

decision.

BACKGROUND
Plaintiff was born on August 1, 1959, and was fifty-one
years old at the time of the hearing.

Tr. 104.

Plaintiff has an

11th grade education, speaks English, and has some post-secondary
technical training.

Tr. 42, 125.

Plaintiff has past relevant

work experience as a food preparer and a hotel maid.

Tr. 122.

Plaintiff alleges disability due to numbness in her right hand,
lower back, and left shoulder.

2

Tr. 121.

Citations to the official transcript of record filed by
the Commissioner on November 26, 2012, are referred to as "Tr."
3

- OPINION AND ORDER

Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 21-25.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate her

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district 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 as a whole.
U.S.C. § 405(g).

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
4

42

- OPINION AND ORDER

adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
activity.
5

20 C.F.R. § 416.920(a)(4)(I).

- OPINION AND ORDER

See also Keyser v.

Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
§ 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(a)(4)(iii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885

6

- OPINION AND ORDER

F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her application date of
August 29, 2008.

Tr. 20.

At Step Two the ALJ found Plaintiff’s degenerative disc
disease of the lumbar spine and mild degenerative changes of the
7

- OPINION AND ORDER

left shoulder are severe impairments.

Tr. 20.

At Step Three the ALJ concluded Plaintiff's impairments do
not medically equal the criteria for Listed Impairments under
§§ 416.920(d), 416.925, and 416.926 of 20 C.F.R. part 404,
subpart P, appendix 1.

Tr. 20.

The ALJ found Plaintiff has the

RFC to perform a range of light work as defined in 20 C.F.R.
§ 416.967(b) with the following limitations:

She can perform

tasks that involve no more than six hours of standing or walking
and no more than six hours of sitting in an eight-hour workday;
she can occasionally stoop and climb ladders, ropes, or
scaffolds; and she can occasionally engage in reaching, grasping,
or pulling on the left side only.

Tr. 20-21.

At Step Four the ALJ concluded Plaintiff is incapable of
performing any of her past relevant work.

Tr. 24.

At Step Five the ALJ concluded Plaintiff is capable of
performing jobs that exist in significant numbers in the national
economy, including soft-goods folder, linen folder, and packager
of light products.

Tr. 24-25.

Plaintiff is not disabled.

Accordingly, the ALJ found

Tr. 25.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff’s subjective symptom testimony, (2) improperly
evaluated the medical evidence, (3) posed a hypothetical to the

8

- OPINION AND ORDER

VE that was inconsistent with Plaintiff’s RFC, and (4) failed to
resolve a conflict between the VE testimony and the Dictionary of
Occupational Titles (DOT).
I.

The ALJ gave clear and convincing reasons for rejecting
Plaintiff’s testimony.
Plaintiff alleges the ALJ erred by failing to give clear and

convincing reasons for rejecting Plaintiff's testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity.
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).

General assertions that the claimant's

testimony is not credible are insufficient.

Id.

The ALJ must

identify "what testimony is not credible and what evidence

9

- OPINION AND ORDER

undermines the claimant's complaints."

Id. (quoting Lester, 81

F.3d at 834).
Plaintiff alleges she is unable to work due to numbness in
her right hand, lower back, and left shoulder.

Tr. 121.

At the

hearing, Plaintiff testified she also has memory and
concentration difficulties.

Tr. 53-54.

In addition, Plaintiff

testified she could walk only a block and a half and that she
sometimes had difficulty holding a cup of water.

Tr. 46-47, 55.

She stated she could not sit for longer than 30-45 minutes, and
her pain is so excruciating that she must continually change
positions.

Tr. 21, 47, 52-53.

The ALJ considered Plaintiff’s testimony and rejected it as
inconsistent with the medical evidence in the record.
See also Smolen, 80 F.3d at 1284-85.

Tr. 22.

The ALJ noted consultative

physician Kurt Brewster, M.D., opined Plaintiff’s self-reports
were inconsistent with her demonstrated ability to walk and with
the lack of evidence of atrophy, straight-leg raise, and positive
Waddell signs.

Tr. 205, 209.

Dr. Brewster concluded Plaintiff’s

reported symptoms tended to indicate “pain out of proportion to
clinical findings.”

Tr. 209.

He also concluded Plaintiff’s

testimony was inconsistent with objective medical evidence that
she could “lift and carry up to 20 pounds on an occasional
basis,” stand or walk “about 6 hours, and sit about 6 hours in an
8-hour workday.”

Tr. 23, 215-22, 233-34.

10 - OPINION AND ORDER

In addition, state agency physician Neal Berner observed
after reviewing her records that Plaintiff “provided information
. . . that is false.”

Tr. 233.

Using ordinary techniques of credibility evaluation, the ALJ
reasonably inferred that Plaintiff exaggerated the degree of her
pain and limitations and was, therefore, less than credible.
Tr. 22-23.

See also Smolen, 80 F.3d at 1284; Tonapetyan v.

Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)(holding a finding
that claimant has a tendency to exaggerate is a specific and
convincing reason for discounting a claimant’s credibility).
The ALJ also noted inconsistencies between Plaintiff’s
testimony and her daily activities.

Tr. 21-22.

See also Rollins

v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)(daily activities
that are inconsistent with alleged symptoms are a relevant
credibility consideration); Smolen, 80 F.3d at 1284 (same).
Specifically, Plaintiff’s testimony that she could only walk a
block and a half is inconsistent with evidence in the record that
Plaintiff could walk several blocks and that walking was “okay”
for her.

Tr. 21-22, 46-47, 196-97.

The ALJ, therefore, had

reasons to reject Plaintiff’s credibility.

See Smolen, 80 F.3d

at 1284.
On this record the Court finds the ALJ did not err when he
rejected Plaintiff’s testimony because the ALJ provided clear and
convincing reasons supported by substantial evidence in the

11 - OPINION AND ORDER

record for finding that Plaintiff's testimony was not entirely
credible as to the intensity, persistence, and limiting effects
of her condition.
II.

The ALJ properly evaluated the medical evidence.
Plaintiff makes several arguments attacking the ALJ’s

evaluation of the medical evidence.
The ALJ is responsible for resolving conflicts in the
medical record, including conflicts among physicians’ opinions.
Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008).

The

Ninth Circuit distinguishes between the opinions of three types
of physicians:

treating physicians, examining physicians, and

nonexamining physicians.

The opinions of treating physicians are

generally accorded greater weight than the opinions of nontreating physicians.

Lester, 81 F.3d at 830.

A treating

physician’s opinion that is not contradicted by the opinion of
another physician can be rejected only for “clear and convincing”
reasons.

Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.

1991).
If a treating physician’s opinion is contradicted by the
opinion of another physician, the ALJ must provide “specific,
legitimate reasons” for discrediting the treating physician’s
opinion.

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983).

In addition, the ALJ generally must accord greater weight to the

12 - OPINION AND ORDER

opinion of an examining physician than that of a nonexamining
physician.

Lester, 81 F.3d at 830.

As is the case with the

opinion of a treating physician, the ALJ must provide “clear and
convincing” reasons for rejecting the uncontradicted opinion of
an examining physician.
(9th Cir. 1990).

Pitzer v. Sullivan, 908 F.2d 502, 506

If the opinion of an examining physician is

contradicted by another physician’s opinion, the ALJ must provide
“specific, legitimate reasons” for discrediting the examining
physician’s opinion.

Lester, 81 F.3d at 830.

Specific,

legitimate reasons for rejecting a physician’s opinion may
include reliance on a claimant’s discredited subjective
complaints, inconsistency with medical records, inconsistency
with a claimant’s testimony, and inconsistency with a claimant’s
daily activities.

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th

Cir. 2008).

See also Andrews v. Shalala, 53 F.3d 1035, 1042 (9th

Cir. 1995).

In general, the more consistent an opinion is with

the record as a whole, the more weight an opinion should be
given.

20 C.F.R. 416.927(c)(4).

A. The ALJ properly rejected Dr. Sally’s opinion.
Plaintiff argues the ALJ improperly rejected the opinion of
examining physician Mitchell Sally, M.D.
Dr. Sally performed an orthopedic evaluation of Plaintiff on
October 25, 2008.

Tr. 196-200.

13 - OPINION AND ORDER

Dr. Sally opined Plaintiff could

lift or carry “less than ten pounds frequently and less than ten
pounds occasionally.”

Tr. 200. He stated Plaintiff could not

perform activities that require “manipulative” capabilities.
Tr. 218.
The ALJ assigned partial weight to Dr. Sally’s opinion, but
rejected his opinion that Plaintiff could lift or carry less than
ten pounds frequently and less than ten pounds occasionally
because it conflicted with more recent medical evidence in the
record.

See Tr. 22-23, 200.

See also Osenbrock v. Apfel, 240

F.3d 1165 (holding physician’s most recent medical reports are
“highly probative”).

For example, Neal E. Berner, M.D., and Mary

Ann Westfall, M.D., opined Plaintiff could occasionally lift and
carry up to twenty pounds.
C.F.R. 416.927(c)(4).

Tr. 215-22, 233-34.

See also 20

Because of this conflict, the ALJ was

required to provide specific, legitimate reasons for rejecting
Dr. Sally’s opinion.

See Lester, 81 F.3d at 830.

The ALJ gave great weight to the opinion of Dr. Brewster,
and incorporated the limitations he assessed into Plaintiff’s
RFC.

Tr. 20-23.

Dr. Brewster performed a neurological

evaluation of Plaintiff on November 14, 2008, and opined she
could lift or carry at most twenty pounds and could frequently
carry ten pounds.

Tr. 210.

Dr. Brewster also found Plaintiff

could occasionally reach, grasp, and pull with her left side and
had no manipulative limitations.

14 - OPINION AND ORDER

Id.

Dr. Brewster’s medical

findings, however, are inconsistent with Dr. Sally’s opinion, and
thus constitute specific, legitimate reasons for rejecting that
opinion.

See Tommasetti, 533 F.3d at 1040 (holding inconsistency

with the medical evidence is a specific, legitimate reason for
rejecting a controverted medical opinion).

Thus, the Court finds

the ALJ did not err when he rejected Dr. Sally’s opinion because
he provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
B. The ALJ properly credited Dr. Brewster’s opinion.
Plaintiff also argues the ALJ failed to resolve conflicts
between Dr. Sally’s opinion and the opinion of Dr. Brewster and
contends the ALJ should have rejected Dr. Brewster’s opinion
because it is inconsistent with the opinion of Dr. Sally.

The

ALJ’s decision to resolve the conflict by rejecting Dr. Sally’s
opinion, however, was based on legally sufficient reasons.
The Court must uphold the ALJ's interpretation of the
evidence even though the evidence can be interpreted in more than
one way.

See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.

1982)(holding when the evidence is susceptible to more than one
rational interpretation, the Commissioner's conclusion must be
upheld).

See also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

2005)(holding variable interpretations of the evidence are
insignificant if the Commissioner's interpretation is a rational

15 - OPINION AND ORDER

reading of the record, and a court may not substitute its
judgment for that of the Commissioner).

The Court, therefore,

upholds the ALJ’s decision to credit Dr. Brewster’s opinion and
to reject Dr. Sally’s conflicting opinion.
3. The ALJ properly credited Drs. Berner and Westfall.
Plaintiff contends the ALJ improperly assigned greater
weight to the medical opinions of the nonexamining state-agency
physicians Drs. Berner and Westfall than he assigned to the
opinion of Dr. Sally.

As noted, the ALJ provided legally

sufficient reasons for rejecting part of Dr. Sally’s opinion:
The ALJ found the opinions of the state-agency physicians were
more recent in time than Dr. Sally’s opinion and were more
consistent with the record as a whole.
also 20 C.F.R. 416.927(c)(4).

Tr. 215-22, 233-34.

See

The ALJ, therefore, did not err

when he assigned greater weight to the state-agency physicians’
opinions.3
III. The ALJ’s hypothetical to the VE was free of legal error.

3

Plaintiff also argues the opinions of Drs. Berner and
Westfall are not internally consistent. The state-agency
physicians found Plaintiff did not have any “fine or gross motor
deficits by [history] or exam.” Tr. 218. Plaintiff argues this
conflicts with evidence of Plaintiff’s history assessed by
Dr. Sally. The Court has found, however, that Dr. Sally’s
opinion was properly discredited, and, therefore, the Court also
rejects this argument.

16 - OPINION AND ORDER

Plaintiff contends the ALJ’s hypothetical to the VE was
deficient because it did not include all of Plaintiff’s
limitations.

The Court disagrees.

The ALJ properly included all credible limitations in his
evaluation of Plaintiff’s RFC.

See Batson v. Comm’r, 359 F.3d

1190, 1197 (9th Cir. 2004)(holding the ALJ is not required to
include properly discounted opinion evidence into a plaintiff’s
RFC).

See also Osenbrock, 240 F.3d at 1164-66 (holding

restrictions not supported by substantial evidence may freely be
accepted or rejected by the ALJ).

Moreover, the ALJ posed a

hypothetical to the VE that contained Plaintiff’s credible
limitations and included the limitation that Plaintiff only
occasionally reach overhead and grasp and pull on her left side
only.

Tr. 58.
Plaintiff, nevertheless, argues the ALJ erred because he

included the functional limitation of occasional “overhead
reaching” in the VE hypothetical even though Plaintiff’s RFC
included the functional limitation of occasional “reaching,”
which requires the ability to reach in “all directions.”
58, 218.

Tr. 24,

The ALJ’s hypothetical to the VE, therefore, includes

limitations actually more restrictive than included in
Plaintiff’s RFC.

As a result, the VE’s resultant testimony is,

in effect, less inclusive of jobs that Plaintiff is capable of

17 - OPINION AND ORDER

performing.

Thus, any error in this regard was harmless.

See

Molina, 674 F.3d at 1115 (“[A]n ALJ’s error is harmless where it
is inconsequential to the nondisability determination.”).
Plaintiff also argues the ALJ’s assessment of Plaintiff’s
RFC conflicts with the DOT definition of “light work.”
Dr. Brewster assessed Plaintiff as limited to lifting and
carrying twenty pounds at a maximum and ten pounds frequently.
The DOT defines “light work” as “[e]xerting up to 20 pounds of
force occasionally.”
conflict here.

DOT App’x C at 1013.

Thus, there is not a

Because it included all of Plaintiff’s credible

limitations, the ALJ’s assessment of Plaintiff’s RFC was not
defective.
IV.

See Batson, 359 F.3d at 1197.

There was not a conflict between the VE testimony and the
DOT.
Finally, Plaintiff argues the ALJ erred by not identifying

and resolving a conflict between the testimony of the VE and the
DOT.
The DOT is presumptively authoritative regarding job
classifications, but that presumption is rebuttable.
Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).

Johnson v.

“[A]n ALJ may rely

on expert testimony which contradicts the DOT, but only insofar
as the record contains persuasive evidence to support the
deviation.”

Id.

Thus, before he may rely on the VE's testimony,

an ALJ “must first determine whether a conflict exists.”

18 - OPINION AND ORDER

Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007).

In

accordance with SSR 00–4p, the ALJ must ask the VE whether her
testimony is consistent with the DOT.

Id. at 1152–53.

If “there

is an apparent unresolved conflict between VE . . . evidence and
the DOT, the [ALJ] must elicit a reasonable explanation for the
conflict.”

SSR 00–4p, 2000 WL 1898704, at *2.

See also

Massachi, 486 F.3d at 1153–54.
As noted, the ALJ included Plaintiff’s functional
limitations in the hypothetical question presented to the VE.
Tr. 58.

The VE testified an individual with those limitations

could perform work that exists in significant numbers in the
national economy, including soft-goods folder, linen folder, and
packager of light products.
consistent with the DOT.

The VE testified these jobs are

Tr. 60.

See also Bayliss, 427 F.3d at

1218 (“An ALJ may take administrative notice of any reliable job
information, including information provided by a VE.”).

The DOT

does not include any discussion of the effect of not using two
arms in these occupations.
Plaintiff, nevertheless, argues the DOT's lack of further
specificity creates a conflict with the VE's testimony that
Plaintiff would be able to perform the identified jobs.

The

Court, however, does not find a direct conflict between the DOT
and the VE’s testimony in light of the fact that the DOT
description of soft-goods folder, linen folder, and packager of

19 - OPINION AND ORDER

light products does not include a requirement of overhead
reaching with both arms.

The Court also notes Plaintiff, who was

represented by counsel in the hearing before the ALJ, did not
bring this issue to the ALJ's attention at that time.

Claimants

who are represented by counsel must raise all issues and evidence
at the administrative proceedings in order to preserve them
unless failure to excuse the waiver would result in manifest
injustice.

Meanel, 172 F.3d at 1115.

In summary, the ALJ properly relied on the VE’s expert
testimony when the ALJ concluded Plaintiff is not disabled.
Bayliss, 427 F.3d at 1218.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 24th day of June, 2013.

/s/ Anna J. Brown

ANNA J. BROWN
United States District Judge

20 - OPINION AND ORDER

See