Maria Gutierrez v. Carolyn Colvin , 844 F.3d 804 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA GUTIERREZ, No. 14-35231
Plaintiff-Appellant,
D.C. No.
v. 3:13-cv-00448-MO
CAROLYN COLVIN,
Commissioner of Social ORDER AND
Security, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 7, 2016
Portland, Oregon
Filed November 29, 2016
Before: Carlos T. Bea and John B. Owens, Circuit Judges
and Larry A. Burns,* District Judge.
Opinion by Judge Burns
*
The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
2 GUTIERREZ V. COLVIN
SUMMARY **
Social Security
The panel withdrew the memorandum disposition filed
July 29, 2016, and replaced it with an opinion affirming the
district court’s holding that a Social Security administrative
law judge (“ALJ”) did not err by not asking the vocational
expert more specific questions regarding a claimant’s ability
to reach overhead as part of a cashier job, in connection with
the claimant’s application for Social Security disability
benefits.
The Dictionary of Occupational Titles is a resource
compiled by the U.S. Department of Labor that details the
specific requirements for different occupations. If a
vocational expert’s opinion that a claimant is able to work
conflicts with the requirements listed in the Dictionary, then
the ALJ must ask the expert to reconcile the conflict before
relying on the expert to decide if the claimant was disabled.
The panel held that there was no apparent or obvious
conflict between the expert’s testimony that claimant could
work as a cashier, and the Dictionary’s general statement
that cashiering requires frequent reaching. The panel further
held that given how uncommon it was for most cashiers to
have to reach overhead, there was no obvious conflict
between the expert testimony and the Dictionary.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
GUTIERREZ V. COLVIN 3
COUNSEL
James S. Coon (argued), Swanson Thomas Coon & Newton,
Portland, Oregon, for Plaintiff-Appellant.
Lars J. Nelson (argued), Assistant Regional Counsel; David
Morado, Regional Chief Counsel; Office of the General
Counsel, Region X, Social Security Administration; Seattle,
Washington; Ronald K. Silver, Assistant United States
Attorney; United States Attorney’s Office, Portland,
Oregon; for Defendant-Appellee.
ORDER
Defendant-Appellee’s request for publication, filed,
September 20, 2016, is GRANTED. The original mandate
that issued on September 21, 2016 is recalled. The
memorandum disposition filed July 29, 2016 is withdrawn
and replaced with an opinion filed together with this order.
A revised memorandum disposition addressing issues not
addressed in the opinion is also filed with this order. Further
petitions for rehearing or rehearing en banc may be filed.
OPINION
BURNS, District Judge:
American citizens (and certain aliens) who believe they
can’t work because of a medical impairment may apply to
the Social Security Administration for disability benefits.
An agency representative reviews the application and makes
a disability determination. If the applicant disagrees with the
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determination, he or she has the right to a hearing before an
administrative law judge (“ALJ”).
At the hearing, the ALJ must follow a five-step
evaluation process to determine if the applicant is disabled
and entitled to benefits. 20 C.F.R. § 404.1520. At step five
– the only step relevant to this appeal – the ALJ considers
the applicant’s background and residual functional capacity,
that is, what physical tasks the applicant can still perform
despite his or her limitations, to decide if the applicant can
make an adjustment to some other available job. Tackett v.
Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999).
To aid in making this determination, the ALJ may rely
on an impartial vocational expert to provide testimony about
jobs the applicant can perform despite his or her limitations.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). The
Dictionary of Occupational Titles (“Dictionary”), a resource
compiled by the Department of Labor that details the
specific requirements for different occupations, guides the
analysis. If the expert’s opinion that the applicant is able to
work conflicts with, or seems to conflict with, the
requirements listed in the Dictionary, then the ALJ must ask
the expert to reconcile the conflict before relying on the
expert to decide if the claimant is disabled. SSR 00-4P, 2000
WL 1898704, at *2 (2000). An applicant is entitled to
disability benefits unless the ALJ finds that the person is
capable of making the adjustment to other work.
I
In this case, Maria Gutierrez appeals the district court’s
judgment affirming the ALJ’s denial of her application for
disability benefits. It is undisputed that Ms. Gutierrez can’t
lift more than five pounds with her right arm or lift that arm
above her shoulder, but she has no limitations to her left arm.
GUTIERREZ V. COLVIN 5
At her benefits hearing, the ALJ asked the vocational expert
a hypothetical question: Assuming Ms. Gutierrez has the
above mentioned limitations, is there any job she can
perform? The expert eliminated almost all jobs from the
calculus, but opined that Ms. Gutierrez could work as a
cashier. He estimated that there were 2,000 cashier jobs
available statewide in Oregon and 200,000 such jobs
nationwide. The ALJ then specifically asked the expert if
his opinion was consistent with the description of cashiering
set forth in the Dictionary, and the expert said it was. After
considering all of the evidence, the ALJ determined that
although Ms. Gutierrez had some restrictions to her right arm
– including the inability to reach above shoulder level – she
could successfully adjust to work as a cashier and was not
disabled.
Ms. Gutierrez’s principal argument 1 on appeal is that
because the Dictionary definition specifies that cashiers
must engage in frequent “reaching,” the ALJ erred at step
five by not asking the expert more specific questions
regarding her ability to perform the job given that she can’t
reach overhead with her right arm. Resolving this argument
requires us to determine whether overhead reaching is such
a common and obvious part of cashiering that the ALJ
should have recognized a conflict and questioned the expert
more closely before concluding that Ms. Gutierrez could
work as a cashier.
II
Our review is de novo. Mayes v. Massanari, 276 F.3d
453, 458 (9th Cir. 2001). We must affirm the ALJ’s findings
1
We addressed her other arguments in a memorandum filed
simultaneously with this opinion.
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of fact “if they are supported by ‘substantial evidence’ and
if the proper legal standard was applied.” Id. at 458–59.
III
To begin with, 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.
The Dictionary’s definition of “cashier” illustrates the
definitional overlap. It’s a windy, highly technical, 1000-
word effort that specifies that a cashier may need to “reach
frequently,” but also be able to read “adventure stories and
comic books,” write in “cursive,” “interpret bar graphs,” and
follow “instructions for assembling model cars.”
Dictionary, 211.462-010 (Cashier II), 1991 WL 671840
(1991). While the ability to read, write, and follow
instructions may roughly correlate to the aptitude necessary
to perform some cashiering jobs, those abilities aren’t
necessarily essential for most cashiers. Indeed, the examples
given by the Dictionary – “Cafeteria Cashier,” “Store
Cashier,” “Change-Booth Cashier” – contemplate such
mundane functions as making change, operating a cash
register, selling tickets, and scanning Universal Product
Codes – none of which require overhead reaching. Id.; see
also Guidelines for Retail Grocery Stores: Ergonomics for
the Prevention of Musculoskeletal Disorders, U.S.
Department of Labor, 10, 17–18 (2004),
GUTIERREZ V. COLVIN 7
www.osha.gov/Publications/osha3192.pdf (noting a cashier
should “work with items at about elbow height”).
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 required.
Here, the ALJ didn’t err because there was no apparent
or obvious conflict between the expert’s testimony that Ms.
Gutierrez could perform as a cashier, despite her weight
bearing and overhead reaching limitations with her right
arm, and the Dictionary’s general statement that cashiering
requires frequent reaching. While “reaching” connotes the
ability to extend one’s hands and arms “in any direction,”
SSR 85-15, 1985 WL 56857, at *7 (1985), not every job that
involves reaching requires the ability to reach overhead.
Cashiering is a good example.
According to the Dictionary, “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. 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 Dictionary, but the obligation doesn’t extend
to unlikely situations or circumstances. Had the expert
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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
Dictionary. 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, 2 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.
AFFIRMED.
2
An 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.