Page 1 – OPINION AND ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

PATRICIA A. PERRY,

Plaintiff, 

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

Case No. 6:15-cv-02386-YY

OPINION AND ORDER

YOU, Magistrate Judge:

Plaintiff, Patricia A. Perry (“Perry”), seeks judicial review of the final decision by 

the Commissioner of Social Security1 (“Commissioner”) denying her claim for Title XVI 

Supplemental Security Income (“SSI”) benefits under the Social Security Act. This court 

has jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and 

judgment in this case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C.

 

1

 The official title of the head of the Social Security Administration, and the proper 

defendant in this case, is the “Commissioner of Social Security.” 42 U.S.C. § 902(a)(1). 
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§ 636(c). For the reasons set forth below, the Commissioner’s decision is REVERSED and 

this case is REMANDED for further proceedings. 

ADMINISTRATIVE HISTORY

On August 5, 2008, Perry applied for SSI, alleging disability beginning January 1, 

2004. Tr. 17, 114–20.

2

 Her application was denied initially and denied on reconsideration. 

Tr. 78–79. Perry then requested a hearing which was held on September 21, 2009. Tr. 34–

77. On December 23, 2009, Administrative Law Judge Michael Gilbert issued a ruling that 

Perry was not disabled. Tr. 14–26. The Appeals Council denied a request for review on 

July 5, 2011. Tr. 1–4. 

On September 2, 2011, Perry filed suit against the Commissioner seeking review of

the Commissioner’s final decision. Perry v. Comm’r Soc. Sec. Admin., 3:11-cv-01067-BR. 

On October 3, 2012, District Judge Anna J. Brown found that the Commissioner had 

properly refused to give controlling weight to a 2009 opinion of Perry’s treating doctor, 

Michael Potter, M.D., because the ALJ “properly concluded that Dr. Potter’s treatment 

notes do not support his conclusion that [Perry] is disabled due to pain from arthralgia.” Id., 

Opinion and Order (“O&O”), ECF #18, p. 22. However, Judge Brown also concluded the 

Commissioner erred by failing to “include the limitations of no repetitive manipulation and 

no prolonged standing,” id, p. 23, and by “failing to resolve conflicts in the medical 

evidence concerning [Perry’s] ability to perform repetitive motion, handling, and standing 

for extended periods.” Id., p. 31. Accordingly the court directed the Commissioner to 

 

2 Citations are to the page(s) indicated in the official transcript of the record filed on June 

21, 2016 (ECF #11 (Tr. 1–494) and #12 (Tr. 495–979)).
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obtain a consultative physical capacities assessment and remanded the case for further 

proceedings. 

On August 5, 2014, Administrative Law Judge Mary Kay Rauenzahn (“ALJ”) held 

another hearing. Tr. 599–627. On November 13, 2014, the ALJ issued a decision finding 

Perry not disabled. Tr. 576–89. The Appeals Council denied review on October 26, 2015. 

Tr. 553–56. The ALJ’s November 13, 2014 decision is therefore the Commissioner’s final 

decision subject to review by this court. 20 C.F.R. §§ 416.1481, 422.210. 

BACKGROUND

Born in 1969, Perry was 34 years old on her alleged onset date and 44 years old at 

the time of the second hearing. Tr. 603. Perry has a GED but has not completed any 

college credits or vocational training. Tr. 45, 604. Perry is capable of reading and writing 

English and performing basic math. Tr. 45–46. Perry has volunteered as a secretary, 

worked as custodian, and worked at a recycling center. Tr. 46–48. She alleges disability 

due to the combined impairments of nerve problems, numbness, chronic ulcers, edema in 

both legs, memory problems, Hepatitis B and C, anxiety, and depression. Tr. 84, 123.

FIVE-STEP INQUIRY

Disability is the “inability to engage in any substantial gainful activity by reason of 

any medically determinable physical or mental impairment which can be expected to result 

in death or which has lasted or can be expected to last for a continuous period of not less 

than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential 

inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 

C.F.R § 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir. 1999). 
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At step one, the ALJ determines if the claimant can engage in substantial gainful 

activity. 20 C.F.R § 416.920(a)(4)(i) & (b). If the claimant can engage in substantial 

gainful activity, then the claimant is not disabled. Id.

At step two, the ALJ determines if the claimant has “a severe medically determinable 

physical or mental impairment” that meets the 12-month durational requirement. 20 C.F.R

§ 416.920(a)(4)(ii) & (c). Absent a severe impairment, the claimant is not disabled. Id. 

At step three, the ALJ determines whether the severe impairment meets or equals an 

impairment “listed” in the regulations. 20 C.F.R § 416.920(a)(4)(iii) & (d), 20 C.F.R Pt. 

404, Subpt. P, App. 1 (“Listing of Impairments”). If a claimant’s impairment meets or 

equals one of the impairments in the Listing of Impairments, the ALJ will determine the 

claimant is disabled regardless of their medical condition, age, education, or work 

experience. 20 C.F.R. § 416.920(d).

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and 

other relevant evidence in assessing the claimant’s residual functional capacity (“RFC”). 

The claimant’s RFC is an assessment of work-related activities the claimant may still 

perform on a regular and continuing basis, despite the limitations imposed by their

impairments. 20 C.F.R § 416.920(e), Social Security Ruling (“SSR”) 96-8p, 1996 WL 

374184 (July 2, 1996). 

At step four, the ALJ uses the RFC to determine if the claimant can perform past 

relevant work. 20 C.F.R § 416.920(a)(4)(iv) & (e). If the claimant cannot perform past 

relevant work, then at step five, the ALJ must determine if the claimant can perform other 

work in the national economy. 20 C.F.R § 416.920(a)(4)(v) & (g). 
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The initial burden of establishing disability rests upon the claimant. Tackett, 180 

F.3d at 1098. If the inquiry reaches step five, the burden shifts to the Commissioner to 

show that jobs exist in the national economy within the claimant’s RFC. Id. If the 

Commissioner meets this burden, then the claimant is not disabled. 20 C.F.R 

§§ 416.920(a)(4)(v) & (g), 416.960(c). 

ALJ’S FINDINGS

At step one, the ALJ concluded that Perry had not engaged in substantial gainful 

activity since her application date of August 5, 2008. Tr. 578. 

At step two, the ALJ determined that Perry has the severe impairments of cervical 

degenerative disc disease (status post fusion), hepatitis C (status post interferon treatment), 

small fiber neuropathy, depression with anxiety, substance abuse disorder, mild obesity, 

obstructive sleep apnea, and fibromyalgia. Id.

At step three, the ALJ determined that Perry’s impairments do not meet or medically 

equal an impairment in the Listing of Impairments, and assigned the following RFC: 

[T]he Claimant has the [RFC] to perform a limited range of light 

exertion work with lifting and carrying of 20 pounds occasionally and 

10 pounds frequently and sitting about six hours of an eight-hour 

workday, but with standing and/or walking two hours of an eight-hour 

workday. The claimant must be able to alternate between sitting and 

standing every 30 minutes while remaining on task. She can 

frequently, not constantly or repetitively, handle and finger bilaterally. 

She can occasionally reach in all directions. [She] can occasionally 

balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. She 

can never climb ladders, ropes, and scaffolds or be exposed to 

workplace hazards such as unprotected heights or dangerous 

machinery. [She] can understand, remember, and carry out only 

simple instructions that can be learned in 30 days or less. She can 

have occasional public contact but should not work directly with the 

public. [She] can have occasional coworker contact with no group 

tasks. She cannot have exposure to alcohol or drugs in the workplace. 

The work cannot involve production line pace work. 
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Tr. 582. 

At step four, the ALJ determined that Perry had no past relevant work experience, 

but had at least a high school education and was able to communicate in English. Tr. 588. 

At step five, based on the testimony of a vocational expert (“VE”) (Tr. 620–26), 

considering Perry’s age, education, work experience, and RFC, the ALJ determined that

Perry could perform three light exertion, unskilled jobs existing in significant numbers in 

the national economy and identified in the Dictionary of Occupational Titles (“DOT”) as a 

“Sorter” (DOT 713.684-018), “Laundry sorter” (DOT 361.687-014), and a “Inspector” of 

small products (DOT 559.687-074). Tr. 589. 

STANDARD OF REVIEW

The reviewing 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. 42 

U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “‘Substantial 

evidence’ means more than a mere scintilla, but less than a preponderance, i.e. such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” Robbins 

v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young v. Sullivan, 911 F.2d 

180, 183 (9th Cir. 1990)). 

This court must weigh the evidence that supports and detracts from the ALJ’s 

conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. 

Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The entire record must be considered as a 

whole and the court “may not affirm simply by isolating a ‘specific quantum of supporting 

evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th 

Cir. 1989)). Conversely, the reviewing court may not substitute its judgment for that of the 
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Commissioner. Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1205 (9th Cir. 2008)

(citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007)). Where the evidence is 

susceptible to more than one rational interpretation, the Commissioner’s decision must be 

upheld if it is “‘supported by inferences reasonably drawn from the record.’” Tommasetti v. 

Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v. Comm’r of Soc. Sec. Admin., 

359 F.3d 1190, 1193 (9th Cir. 2004)); see also Lingenfelter, 504 F.3d at 1035. 

DISCUSSION

Perry argues the ALJ erred by: (1) providing insufficient reasons to reject the 

treating physician’s opinion, and (2) not meeting her burden at step five.

I. Treating Physician’s Opinion

A. Legal Standards 

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

treating physicians, examining physicians, and non-examining physicians. Valentine v. 

Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citation omitted). Generally, 

“a treating physician’s opinion carries more weight than an examining physician’s, and an 

examining physician’s opinion carries more weight than a reviewing physician’s.” Holohan 

v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citations omitted). Additionally, “the 

regulations give more weight to opinions that are explained than to those that are not, and to 

the opinions of specialists concerning matters relating to their specialty over that of 

nonspecialists.” Id. (internal regulatory citations omitted). “[I]f a treating physician’s 

medical opinion is supported by medically acceptable diagnostic techniques and is not 

inconsistent with other substantial evidence in the record, the treating physician’s opinion is 

given controlling weight.” Id. (citation omitted). However, “‘the ALJ need not accept the 
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opinion of any physician, including a treating physician, if that opinion is brief, conclusory, 

and inadequately supported by clinical findings.’” Lingenfelter, 504 F.3d at 1044–45 

(quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)).

If a treating doctor’s opinion is uncontroverted, the ALJ may not reject it without 

presenting clear and convincing reasons supported by substantial evidence. Reddick, 157 

F.3d at 725 (citation omitted). If a treating doctor’s opinion is contradicted by another 

doctor’s opinion, the ALJ can only reject it by providing specific and legitimate reasons that 

are supported by substantial evidence. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)

(citation omitted). The ALJ “can satisfy the ‘substantial evidence’ requirement by ‘setting 

out a detailed and thorough summary of the facts and conflicting clinical evidence, stating 

his interpretation thereof, and making findings.’” Garrison, 759 F.3d at 1012 (quoting 

Reddick, 157 F.3d at 725). It is not enough for the ALJ to simply offer conclusions. 

Reddick, 157 F.3d at 725. Instead, the ALJ must set forth his or her own interpretations and 

explain why they, instead of the treating physician’s, are correct. Id. Further, if a treating 

physician’s opinion is contradicted by another doctor, the ALJ must determine credibility 

and resolve the conflict. Valentine, 574 F.3d at 692.

B. Dr. Potter’s Findings

Dr. Potter has been Perry’s treating doctor since 2003. In 2005 and 2009, Dr. Potter 

made brief chart notes opining on Perry’s ability to work. Tr. 226, 471–72. In 2013, he 

also completed a questionnaire (“2013 Questionnaire”) sent to him by Perry’s attorney in 

anticipation of the second administrative hearing. Tr. 903–05. 

Dr. Potter’s 2005 chart note states that “[Perry’s] disability issues would be job 

restrictions of no prolonged standing, squatting, kneeling. Sitting activities would be fine. 
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No repetitive manipulation with the hands because of hand symptoms.” Tr. 226. His 2009 

chart note (“the 2009 Opinion”), states that Perry’s chronic joint pain prevents her from 

working, and that there was “[n]o course other than analgesic control and activity limitation 

to ameliorate symptoms.” Tr. 472. As noted above, this court previously concluded that the 

2009 Opinion was not entitled to controlling weight, but remanded this case so the 

Commissioner could resolve discrepancies in the medical evidence concerning Perry’s 

ability to perform repetitive motion, handling, and standing for extended periods. O&O, 

p. 31. 

In the 2013 Questionnaire, Dr. Potter calculated an RFC for Perry by checking a 

series of boxes and filling in blanks on a variety of physical limitations. Tr. 903. Dr. Potter 

indicated Perry could occasionally lift/carry up to ten pounds, frequently lift/carry less than 

ten pounds, stand and walk for thirty minutes for a total of two hours in an eight-hour day,

and sit for two hours at a time for a total of four hours in an eight hour day. Tr. 904. The 

remainder of the eight hours would have to be spent reclining or laying down. Id. Perry 

could never climb, balance, stoop, bend, kneel, crouch, and crawl, but could occasionally 

reach overhead, reach at shoulder level, handle (gross manipulation), and finger (fine 

manipulation). Id. Dr. Potter estimated that Perry would be unable to perform even simple 

work tasks 50% of the time, and expected Perry would miss sixteen hours or more a month 

due to her combination of pain, psychiatric condition (depression and anxiety), and fatigue 

which all require a greater than normal need for rest and recovery. Tr. 905. 

C. Analysis

The ALJ gave several reasons for discounting Dr. Potter’s opinions. First, the ALJ 

surmised that, if Perry condition were as limiting as found by Dr. Potter, the ALJ would have 
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expected Dr. Potter to increase her medication dosage, change her medications, or perhaps refer

Perry to a specialist or a counselor: 

[Dr. Potter’s] assertion that mental impairments contribute so greatly is 

inconsistent with the treatment record that is limited to medication 

management by Dr. Potter. Were these impairments so problematic, it 

would be reasonable to expect the physician to alter the claimant’s 

prescription by increasing doses or changing medications or to refer the 

claimant for additional treatment with a more specialized prescribing 

source and for counseling.

Tr. 587. 

An ALJ is charged with evaluating the medical evidence, but is not a medical expert and 

may not substitute his or her opinion for that of a physician. Day v. Weinberger, 522 F.2d 1154, 

1156 (9th Cir. 1975). To the degree the ALJ’s decision speculates about possible treatment 

choices Dr. Potter should have explored, such as increasing Perry’s medication dosages, 

changing her medications, or referring her for additional medical or psychiatric evaluations, the 

ALJ’s opinion exceeds permissible bounds. Such medical opinions by an ALJ provide no basis 

for rejection of a treating doctor’s opinions. To the limited degree the ALJ’s statements may be 

interpreted as pointing out an internal inconsistency between Dr. Potter’s treatment record and

his management of Perry’s medications, the ALJ’s statements are so generalized as to similarly 

provide no basis for rejecting Dr. Potter’s opinion. An ALJ errs by rejecting a medical opinion 

without offering “a substantive basis for his conclusion.” Garrison, 759 F.3d at 1013. 

Accordingly, the ALJ’s decision must be evaluated without regard to the ALJ’s comments 

regarding possible other treatment options. 

The ALJ also rejected Dr. Potter’s 2013 assessment because it was at odds with 

Perry’s reported ability to engage in certain activities and unsupported by recent medical 

records: 
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The limitations assessed are also inconsistent with the claimant’s 

reports of being able to engage in several different forms of exercise 

and her response to treatment with Cymbalta (Ex. 34F/22–25; 37F/1). 

The complete ban on the postural activities is at odds with the 

claimant’s stated independence in daily activities—while her 

combination of impairments call for some restrictions, her ability to do

household chores and self-care, as well as swim, dance and use an 

elliptical trainer, shows that she is more capable than Dr. Potter 

asserts. The most recent records do not show complaints of fatigue that 

Dr. Potter states is so limiting (Ex. 46F). For these reasons, the July 

20l3 assessment is given little weight. 

Tr. 587. 

The reference by the ALJ to a “complete ban on the postural activities” appears to be 

a reference to Dr. Potter’s assessment that Perry should never engage in climbing, 

balancing, stooping/bending, kneeling, crouching, and crawling. Tr. 904. The difficulty 

with the ALJ’s criticism of Dr. Potter’s assessment is that the records cited by the ALJ 

reveal that the exercises performed by Perry are part of her treatment plan. The “healthy 

lifestyle plan” noted in Dr. Potter’s chart includes “swimming, dancing, elliptical” and 

healthy eating. Tr. 865. Moreover, the cited records give no indication that Perry’s activity 

level—either in the form of household chores or in exercises—is inconsistent with the 

restrictions endorsed by Dr. Potter. To the contrary, the hearing testimony reveals a 

disconnect between what the ALJ assumed was involved in Perry’s exercise routine and 

what she testified regarding what she was in fact doing. Based on the references to Perry’s 

prescribed exercises, the ALJ described Perry as “really active,” to the point she “could 

swim, dance, and workout on [her] elliptical.” Tr. 612. However, Perry described her 

exercises as recommended by her rheumatologist and explained that they started with her 

trying to “focus on five minutes of movement at a time,” building up to the point where she 

could “get on elliptical.” Id. As for the “aerobic dance,” that consisted of “minimal . . . 
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water aerobics for some of us older not so health[y] people.” Tr. 613. In sum, these two 

reasons do not support discounting Dr. Potter’s opinions. 

Despite these errors, however, a review of the entire record reveals that the ALJ did 

not err in rejecting certain restrictions endorsed by Dr. Potter in the 2013 Questionnaire. 

Dr. Potter opined that Perry would have to spend two hours per day reclining or lying down. 

Additionally, he opined that Perry would be unable to perform even simple work tasks 50% 

of the time. Tr. 905. The ALJ included RFC restrictions in excess of those recommended 

by the state agency consultants, but less than those endorsed by Dr. Potter. In particular, the 

ALJ did not include any requirement that Perry be able to recline or lie down, and instead 

limited Perry to standing and walking two hours and included a requirement for a sit/stand 

option “to assist in maintaining comfort.” Tr. 587. With regard to maintaining focus on 

work tasks, the ALJ credited the opinion of state agency non-examining psychological 

consultants from September 2008 and January 2009 finding that Perry “could carry out 

simple routine tasks in an independent environment.” Tr. 588. 

The ALJ points out that the same problems noted in this court’s prior O&O continue 

to be an issue, including a lack of treatment notes supporting Dr. Potter’s conclusions. Tr. 

586. Additionally, the ALJ cites long gaps in treatment, including nine months in 2010, six 

months in 2011, and over seven months from 2012 into 2013. Id. The ALJ also relies on 

the fact that no treating source has mentioned that Perry needs to elevate her legs and that 

Dr. Potter’s treatment records are limited to medication management. Tr. 586–87. Checkoff reports that do not “contain any explanation of the bases of their conclusions” may 

properly be rejected. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Crane 

v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)) (remaining citation omitted). The 2013 
Page 13 – OPINION AND ORDER

Questionnaire endorses significant restrictions, offering only the explanation that the 

combination of Perry’s “pain, psychiatric condition (depression/anxiety) and fatigue 

requires greater than typical need for rest and recovery as well as reduced exertional 

capacity.” Tr. 905. This one-line explanation stands in stark contrast to the long periods 

without treatment and the lack of treatment records substantiating the limitations Dr. Potter 

endorses with regard to needs for reclining or elevating legs, and being unable to perform 

even the simplest work tasks 50% of a work day. Finally, the ALJ notes that Perry’s 

independence in daily activities is inconsistent with the limitations endorsed by Dr. Potter. 

Daily activities “indicating capacities that are transferable to a work setting” provide a

legitimate basis for rejecting claims of a totally debilitating impairment. Molina, 674 F.3d 

at 1113. 

In April 2013, Dr. Andrea Marshall (“Dr. Marshall”) conducted a disability 

examination of Perry. Tr. 814–19. Perry also underwent a functional capacity evaluation 

with Christopher Park, OTR, on June 28, 2013. Tr. 827–38. After reviewing the record 

with regard to the specific impairments alleged by Perry (Tr. 583–84), the ALJ discussed 

these most recent evaluations at length, noting the discrepancies between those evaluations 

and the limitations endorsed by Dr. Potter. Tr. 584–85. Dr. Marshall noted that Perry 

“made easy transfers, she sat comfortably, and was able to remove her shoes without 

difficulty.” Tr. 819. The ALJ found Dr. Marshall’s examination “significant” in that it 

“show[ed] [Perry had] an ability to perform movements that Dr. Potter asserted [she] could 

not.” Tr. 585. The ALJ noted Mr. Park’s observations and reports of daily activities, 

finding that his assessment supported the conclusion that Perry is capable of a range of light 
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exertion work. Id. Finally, the ALJ noted that the recent medical records do not support the 

complaints of fatigue that Dr. Potter states are so limiting. Tr. 587. 

This court concludes that the ALJ did not err in rejecting Dr. Potter’s assessment to 

the extent it endorses restrictions beyond those identified by the ALJ’s RFC analysis. The 

ALJ’s evaluation of the evidence reflects a thorough and rational reading of the record and 

is upheld. 

II. Step Five

At step five, the burden of proof shifts to the Commissioner to demonstrate that the 

claimant can engage in substantial gainful activity that exists in significant numbers in the 

national economy. This requires the ALJ to consider the claimant’s RFC, age, education, 

and work experience. 20 C.F.R. § 416.920(f). The step five analysis requires assessment of 

the medical evidence, the claimant’s daily activities, prior work record, functional 

restrictions and limitations, medication and other treatment for relief of symptoms, and 

evidence from physicians and third parties. 20 C.F.R. § 416.929. The ALJ may satisfy the 

Commissioner’s burden under step five either through use of the Medical Vocational

Guidelines (“the Grids”) or with testimony from a VE. 20 C.F.R. § 416.966. 

If the VE’s hypothetical occupation does not reflect all of the disability claimant’s 

limitations, including pain, the VE’s testimony has “‘no evidentiary value to support a 

finding that the claimant can perform jobs in the national economy.’” Matthews v. Shalala, 

10 F.3d 678, 681 (9th Cir. 1993) (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 

1991)). Further, if there is a conflict with the VE’s recommendation, the ALJ must resolve 

the conflict, and make findings about how the conflict was resolved, before relying on the 
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testimony to find that a claimant is not disabled. Massachi v. Astrue, 486 F.3d 1149, 1154 

n.18 (9th Cir. 2007). 

At the administrative hearing, the VE testified that Perry could work as benchworker (DOT #713.684-018), laundry sorter (DOT #361.687-014), and inspector (DOT 

#559.687-074). Tr. 589. The ALJ relied on the VE’s testimony, in combination with the 

fact that Perry did not have relevant past work, and determined that Perry could perform the 

suggested jobs. Tr. 588. 

Perry argues the ALJ’s reliance on the jobs recommended by the VE was 

inconsistent with the DOT. In making disability determinations, the Commissioner relies 

“primarily on the DOT (and its companion publication, the [Selected Characteristics of 

Occupations Defined in the Revised Dictionary of Occupational Titles (“SCO”)].” SSR 00-

4P, 2000 WL 1898704 (December 4, 2000). All three jobs proposed by the VE and relied 

on by the ALJ in finding Perry not disabled require frequent reaching. In contrast, the ALJ 

calculated Perry’s RFC as limited to only occasional reaching. Tr. 582, 587. 

Before relying on the testimony of a VE, an ALJ has an “affirmative responsibility to 

ask about any possible conflict between [the VE’s testimony] and information provided in 

the DOT.” SSR 00-4P at *4. When faced with such a conflict, the “adjudicator will obtain 

a reasonable explanation for the apparent conflict.” Id. The jobs identified by the VE have 

physical demands exceeding the RFC determined by the ALJ and given in the hypothetical 

questions propounded to the VE at the hearing. See Tr. 621. The ALJ asked the VE 

whether her opinions were consistent with the DOT, to which the VE responded that they 

were “in general” consistent, and that she had reviewed the occupational listings in the 

Occupational Network Database (“O*NET”). Tr. 625–26. O*NET is “a database that the 
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Department of Labor developed to replace the now-defunct DOT and that has crossreferences to the old DOT listings.” Abbott v. Astrue, 2010 WL 3075267 at *5 (7th Cir. 

2010) (citing O*NET Online, http://online.onetcenter.org (last accessed June 13, 2017)). 

Neither the ALJ nor the VE discussed the inconsistency evident between the reaching 

requirements listed in the SCO and the reaching limitation imposed in the RFC. 

The Commissioner argues that the VE’s testimony does not conflict with the DOT, 

but instead supplements it. In particular, the Commissioner points out that the DOT is silent 

as to how frequently the identified jobs require “overhead” reaching and also does not 

contemplate the effect of “differing reaching limitations between extremities, whether 

dominant or non-dominant.” Defendant’s Brief (ECF #18), p. 10 (emphasis added). 

However, those distinctions make no difference, given that the RFC limits Perry to 

occasional reaching “in all directions” and hints at no ability to “frequently” reach, whether 

overhead or with a particular extremity. Tr. 582. To the contrary, the ALJ’s decision 

expressly identified the limitations on reaching and manipulative activities as necessary to 

prevent exacerbation of Perry’s cervical impairment and fibromyalgia pain by avoiding 

“placing additional stress on the neck . . . [and] avoid[ing] excessive use of the hands that 

could exacerbate neuropathic symptoms.” Tr. 587. Such limitations plainly conflict with a 

job requirement of “frequent” reaching. The VE did not provide any testimony regarding 

how the jobs she identified stacked up against the restrictions in the hypothetical questions, 

except with regard to the availability of a sit/stand option. Tr. 626. To the degree the VE 

provided any such testimony, it is readily distinguishable from the supplemental testimony 

at issue in Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995) (supplemental testimony 

regarding claimant’s ability to perform particular jobs in particular geographic region). 
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This court also rejects the Commissioner’s suggestion that Perry should have raised 

this issue at the administrative hearing. The step five burden is on the Commissioner, not 

the claimant. It is the ALJ’s affirmative duty to develop the record with regard to conflict 

between VE testimony and the requirements of particular jobs. Similarly, it is the ALJ’s 

burden to explain how any conflict was resolved: “SSR 00-4P . . . explicitly requir[es] that 

the ALJ determine whether the expert’s testimony deviates from the [DOT] and whether 

there is a reasonable explanation for any deviation.” Massachi, 486 F.3d at 1153 (further 

noting that SSR 00-4P postdates and “goes one step further” than the decision in Johnson). 

The evident inconsistency between the restrictions in the RFC assigned by the ALJ and the 

physical requirements in the jobs identified by the VE went unexplained and this court 

concludes that it was error for the ALJ to rely on those jobs without resolving that conflict. 

III. Remand

Perry asks the court to remand for an immediate award of benefits, emphasizing the 

lengthy adjudicative process and failure of the ALJ to reconcile the RFC with the jobs she 

found Perry could perform. While this court is mindful of the years-long process Perry has 

endured, this case suffers from the same defect as in Massachi, namely “an apparent conflict 

with no basis for the vocational expert’s deviation.” 486 F.3d at 1154 n. 19. Accordingly, 

this court concludes that the same resolution is in order, namely remand for further 

proceedings applying the requirements of SSR 00-4P at step five. 

ORDER

For the reasons discussed above, the Commissioner’s decision is REVERSED and 

REMANDED for further proceedings at step five, pursuant to sentence four of 42 USC 

§ 405(g). This case is remanded so that the ALJ can apply the requirements of SSR 00-4P 
Page 18 – OPINION AND ORDER

and determine whether there is a reasonable explanation for the inconsistency between the 

jobs identified by the VE and the information in the DOT and the SCO. 

DATED this 14th day of June, 2017.

Youlee Yim You

United States Magistrate Judge 

 /s/ Youlee Yim You