FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA GUTIERREZ,

Plaintiff-Appellant,

v.

CAROLYN COLVIN, 

Commissioner of Social 

Security,

Defendant-Appellee.

No. 14-35231

D.C. No.

3:13-cv-00448-MO

ORDER AND 

OPINION

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 
4 GUTIERREZ V. COLVIN

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 argument1 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.
6 GUTIERREZ V. COLVIN

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 
8 GUTIERREZ V. COLVIN

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.