United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. Peterson District Judge.
Kelly Delarosa seeks judicial review of a final decision of
defendant Andrew Saul, Commissioner of the Social Security
Administration, finding Delarosa not disabled within the
meaning of the Social Security Act. On appeal, Delarosa
raises a single issue: whether the ALJ erred in failing to
resolve a conflict between the vocational expert and the
Dictionary of Occupational Titles. The court concludes that
the ALJ sufficiently addressed any potential conflict, and it
will affirm the commissioner's decision and cancel the
oral argument scheduled for July 16, 2019.
a claimant not disabled, the ALJ usually relies on the
testimony of a vocational expert to determine whether there
are sufficient jobs in the national economy that the claimant
could perform. The ALJ is required to ask the vocational
expert whether the expert's testimony conflicts with the
Dictionary of Occupational Titles (DOT), and when there
appears to be a conflict, the ALJ must elicit “a
reasonable explanation for the apparent conflict.”
Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008)
(citing SSR 00-4p, at 5). As relevant to this case, the ALJ
asked the vocational expert to list jobs that Delarosa could
perform if Delarosa were limited to no overhead reaching with
her right arm, and no more than frequent reaching in all
other directions. R. 60-61. The expert testified that with
these restrictions, Delarosa would still be able to find work
as a small products assembler, electronics worker, or
inspector hand packager.
contends that the expert's testimony conflicts with the
DOT because all three jobs require frequent reaching, and
because the Selected Characteristics of Occupations (SCO) (a
companion publication to the DOT) defines reaching as
“extending hand(s) and arm(s) in any
direction.” But the ALJ addressed this potential
contradiction in his decision. He explained that the
expert's testimony was consistent with the DOT
“except for the testimony regarding overhead reaching,
which she noted was based on her experience researching and
placing people in these jobs.” R. 24. This explanation
accurately reflects the expert's testimony during the
Q: Now overhead reaching is not specifically addressed by the
DOT, drawing on your experience in placing workers and
analyzing these jobs to evaluate overhead reaching?
A: Yes, Your Honor, that's correct.
Q: And is your testimony otherwise consistent with the DOT?
A: Yes, it is.
Q: Okay. And apart from using your professional experience on
the reaching component is your testimony consistent with the
Dictionary of Occupational Titles?
A: Yes, Your Honor, yes.
Q: And, and in this case I did put a strict prohibition on
any overhead reaching with the right dominant arm . . . . the
three jobs you identified don't require any overhead
reaching with the right dominant, wouldn't require any
overhead reaching, is that correct?
A: That's correct, Your Honor.
R. 60-61. Delarosa, who was represented by counsel at the
hearing, did not object to this testimony. When a claimant
fails to object to a vocational expert's testimony about
the exertional requirements of a particular job, the claimant
forfeits that objection ...