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Delarosa v. Saul

United States District Court, W.D. Wisconsin

July 8, 2019

KELLY DELAROSA, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.[1]

          OPINION AND ORDER

          James D. Peterson District Judge.

         Plaintiff 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.[2]

         ANALYSIS

         To find 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.

         Delarosa 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.”[3] 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 hearing:

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 ...


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