# Atkeson v. Commissioner Social Security Administration

> District Court, D. Oregon · May 3, 2024

URL: https://www.frixlaw.com/law-library/cases/10397386

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 3, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397386

## How later opinions describe it (automated extraction)

- rejecting subjective pain complaints where petitioner’s “claim that she experienced pain approaching the highest level imaginable was inconsistent with the ‘minimal, conservative treatment’ that she received”
- holding Page 5 – OPINION AND ORDER that responding favorably to conservative treatment, such as physical therapy, undermines reports regarding disabling nature of pain
- stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding severity of an impairment”
- discussing the five-step evaluation in detail

## Opinion text

+

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MICHAEL A., Ca se No. 6:23-cv-00394-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.
_____________________________________

ARMISTEAD, Magistrate Judge

In this judicial review of the Commissioner’s final decision denying Social Security
benefits, plaintiff Michael A. (his last name omitted for privacy) challenges the Administrative
Law Judge’s evaluation by failing to identify specific, clear and convincing reasons for
discounting his subject symptom testimony and by failing to properly resolve a conflict between
the vocational expert’s (VE) testimony and the Dictionary of Occupational Titles (DOT). For the
reasons explained below, the Commissioner’s decision is affirmed.1

1 The court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and all parties have
consented to jurisdiction by magistrate judge under Federal Rule of Civil Procedure 73 and 28

Page 1 – OPINION AND ORDER
ALJ’S DECISION
Plaintiff applied for Title II Disability Insurance Benefits (DIB) on July 11, 2018,
alleging disability beginning on March 13, 2018. (Tr. 249.) His claim was initially denied on
March 1, 2019, and again upon reconsideration on August 1, 2019. (Tr. 102, 117-18.) Afterward,

plaintiff filed for a hearing that was held before the ALJ on September 22, 2020. Tr. 60.)
Plaintiff appealed the ALJ’s decision, and the Appeals Council ordered a remand for further
proceedings. (Tr. 143-47.) A second hearing was held before the ALJ on October 2, 2021. (Tr.
60.)
In denying plaintiff’s application for DIB, the ALJ followed the five-step sequential
evaluation process.2 At step one, the ALJ determined that plaintiff has not engaged in
substantial gainful activity since the alleged onset date. (Tr. 16.) At step two, the ALJ determined
that he had the following severe impairments: lumbar degenerative disc disease with stenosis,
moderate right and mild left carpal tunnel syndrome, chronic obstructive pulmonary disease
(COPD)/chronic asthma, obstructive sleep apnea, gastroesophageal reflux disease (GERD), and

obesity. (Tr. 17.) At step three, the ALJ determined that his impairments singly or in
combination did not meet or medically equal the severity of any listed impairment. (Tr. 19.)
As for the ALJ’s assessment of plaintiff’s residual functional capacity (RFC), 20 C.F.R. §
404.1545, the ALJ determined that plaintiff can perform light work with the following exertional
and nonexertional limitations: he can stand and walk two hours total in an eight-hour workday;

U.S.C. § 636(c).

2 To determine a claimant’s disability, the ALJ must apply a five-step evaluation. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not
disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481
F.3d 742, 746–47 (9th Cir. 2007) (discussing the five-step evaluation in detail).

Page 2 – OPINION AND ORDER
can sit at least six hours in an eight-hour workday; can occasionally climb ramps and stairs;
never climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and crawl;
should have the use of a cane to ambulate to and from the workstation and stand or sit; can
frequently handle, finger, and feel bilaterally; avoid concentrated exposure to airborne irritants

such as fumes, odors, dusts, gases, and poor ventilation; and avoid all exposure to hazards such
as unprotected heights and exposed moving mechanical parts. (Tr. 21.)
At step four, the ALJ determined that plaintiff cannot perform his past relevant work as a
cook. (Tr. 28.) With the RFC in hand, the ALJ found at step five that jobs exist in significant
numbers in the national economy that plaintiff can perform, including such representative
occupations as cashier, office helper, and garment sorter. (Tr. 29-30.)
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation
and citation omitted). To determine whether substantial evidence exists, the court must weigh all
the evidence, whether it supports or detracts from the Commissioner’s decision. Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).
DISCUSSION
A. Basis for Discounting Plaintiff’s Testimony
Determining the credibility of a claimant’s testimony regarding subjective reports of pain
or symptoms requires the ALJ to undertake a two-step process of analysis. Trevizo v. Berryhill,

Page 3 – OPINION AND ORDER
871 F.3d 664, 678 (9th Cir. 2017). In the first stage, the claimant must produce objective medical
evidence of an underlying impairment that could reasonably be expected to produce the alleged
symptoms. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014);
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, if there is no

affirmative evidence of malingering, the ALJ must provide specific, clear and convincing
reasons for discounting the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89
(9th Cir. 2015); 20 C.F.R. § 416.929. The specific, clear and convincing standard is “the most
demanding required in Social Security cases” and is “not an easy requirement to meet.”
Garrison, 759 F.3d at 1015; Trevizo v. Berryhill, 871 F.3d 664, 678-79 (9th Cir. 2017).
The ALJ discounted plaintiff’s subjective symptom testimony because: (1) his conditions
improved with treatment; and (2) his statements were inconsistent with his medical records.
1. Treatment
The ALJ discounted plaintiff’s subjective symptom testimony because his back pain,
carpal tunnel, COPD, and GERD improved with treatment, and he had periods of noncompliance

with that treatment. (Tr. 23-26.)
The ALJ relied on reports of plaintiff’s acknowledgements that his conditions were
improving with treatment. (Tr. 23-26.) In the decision, the ALJ noted instances of improvement
and noncompliance: Plaintiff was noncompliant with physical therapy despite reporting pain
relief from January to August 2019; he declined further back pain intervention—cortisone
injections and nerve block therapy—in August 2019; his carpal tunnel improved with braces and
a left wrist injection in January 2020; his COPD/chronic asthma saw moderate and marked
improvement with immunotherapy treatments for his allergies along with albuterol and Trelegy
for his cough in June 2020; and Omeprazole and a sinuplasty led to marked improvement in his

Page 4 – OPINION AND ORDER
GERD symptoms in July 2020. (Tr. 23-26, citing Tr. 756, 772, 775, 781, 840, 845, 853, 878,
881.)
Plaintiff argues that the ALJ’s findings do not consider his medical records showing that
he has severe canal stenosis at L2-3, mild congenital spinal canal stenosis at L3-4, and a slight

disc bulge at L4-5, as well as inconsistent neurological exams showing muscle weakness and
sensation change as well as normal muscle strength support that his lumbar degenerative disc
disease and subsequent pain are disabling. (Pl.’s Br. at 10, ECF 10.) Plaintiff further argues that,
although pool therapy relieved his pain, the relief was not sustained outside the pool. (Pl.’s Br. at
10, ECF 10.)
The ALJ, however, properly discounted plaintiff’s reported symptoms. Although plaintiff
testified to suffering from major back pain, and that it affected his ability to sit, stand, and walk
for any length of time, his physical therapy records from January to August 2019 show that he
admitted the therapy was working, offering immediate relief when he participated in pool
therapy. (Tr. 772, 775.) Plaintiff’s argument that pain relief was not sustained outside the pool is

correct but incomplete. That is because plaintiff only attended physical therapy sporadically,
with a total of ten visits and seven missed appointments, and he did not sustain his at home
exercises, which provided relief. (Tr. 772.) As noted by the ALJ, plaintiff also endorsed pain
relief from a combination of heat, anti-inflammatories, and narcotic pain medication. (Tr. 23,
citing Tr. 508.) Plaintiff also declined more aggressive treatment in the form of spinal cortisone
injection and nerve block therapy, choosing to remain in physical therapy. (Tr. 775.) Plaintiff’s
ability to obtain relief with treatment, inconsistent participation in treatment, and declining more
aggressive treatment undermine his complaints of disabling pain and serve as specific, clear and
convincing reasons to discount his pain testimony. See Tommasetti, 533 F.3d at 1039-40 (holding

Page 5 – OPINION AND ORDER
that responding favorably to conservative treatment, such as physical therapy, undermines
reports regarding disabling nature of pain); see Parra, 481 F.3d 742, 750-51 (9th Cir. 2007)
(stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony
regarding severity of an impairment”); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir.

1999) (rejecting subjective pain complaints where petitioner’s “claim that she experienced pain
approaching the highest level imaginable was inconsistent with the ‘minimal, conservative
treatment’ that she received”).
For carpal tunnel, plaintiff argues that a nerve study showing moderate right and mild left
carpal tunnel syndrome, some normal strength in his upper extremities, and positive Tinel’s and
Phalen’s tests support his disabling complaints. (Pl.’s Br. at 11, ECF 10.) Plaintiff further argues
that his improvement with braces, an injection, and a declination of surgery did not serve as
specific, clear and convincing reasons to discount his testimony. (Pl.’s Br. at 11, ECF 10.)
Plaintiff’s argument is unavailing.
Plaintiff’s reported symptoms of carpal tunnel include pain, difficulty grasping and

holding objects, numbness in his hands and arms, and difficulty lifting anything more than a
gallon of milk. (Tr. 75, 308, 311.) Nerve conduction studies done on September 17, 2019,
revealed moderate right carpal tunnel syndrome and mild left carpal tunnel syndrome. (Tr. 889.)
Examinations also show that he reported 0/10 pain in November 2019 before receiving braces,
and 3/10 in January 2020 before receiving an injection in his left wrist. (Tr. 878, 881, 883, 889.)
Testing revealed that he has 5/5 grip strength in both hands with no evidence of neuropathy,
some decreased sensation in the first three digits of his right hand, and sensation to pinprick
subjectively decreased in a patchy distribution through the hands and arms. (Tr. 739, 747.)
Normal grip strength in both hands, favorable response to the use of braces, an injection, and

Page 6 – OPINION AND ORDER
declining of more aggressive treatment in the form of surgery all serve as specific, clear and
convincing reasons to discount plaintiff’s disabling complaints related to his carpal tunnel.
For his COPD/asthma, plaintiff argues that his COPD/asthma responding to medication,
his improved cough, improved allergies, and recent pulmonary function test showing only mild

restrictive airway disease are not specific, clear and convincing reasons to discount his
testimony. (Pl.’s Br. at 11-12, ECF 10.) The court disagrees.
Plaintiff explained that his labored breathing was caused by his COPD and chronic
asthma. When working in a kitchen, he said that “if you’re not able to breathe, well, you’re in a
lot of trouble because of the heat and everything” and that if he is constantly struggling to
breathe, he “tend[s] to throw up and that’s not really something you want to be doing in a job.”
(Tr. 78-79.) He also stated that he was using his BiPAP machine eight or nine hours a day, every
day, and that he uses it not just at night. (Tr. 79.) Treatment notes from June 2019 show his
chronic cough was moderately improved with treatment, that he was no longer experiencing
vomiting episodes, and that his allergies were markedly improved following immunotherapy.

(Tr. 756.) His records also show that, although he has mild restrictive airway disease and
experienced shortness of breath only with significant exertion, his reported “significant
improvement” of his condition resulted in greater exercise capacity, a reduction in the frequency
of his cough, and a reduced frequency in use of his rescue inhaler. (Tr. 756, 840.) Plaintiff’s
improvements with treatment serve as specific, clear and convincing reasons to discount his
testimony.
Lastly, plaintiff argues that the ALJ did not sufficiently address his obstructive sleep
apnea, GERD, and obesity. (Pl.’s Br. at 12, ECF 10.) Yet plaintiff does not point to any specific

Page 7 – OPINION AND ORDER
error or evidence that the ALJ overlooked. The court need not address this undeveloped
argument. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
In sum, the ALJ appropriately discounted plaintiff’s testimony regarding his pain, carpal
tunnel, and COPD/asthma because he improved with treatment.

2. Inconsistency with Medical Records
The ALJ discounted plaintiff’s subjective symptom testimony based on inconsistencies
with the medical record. Inconsistency with the medical record can provide a clear and
convincing basis for discounting a claimant’s symptoms, so long as it is not the sole reason for
doing so. Bray v. Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
Plaintiff argues that the ALJ erred because his reported symptoms of severe back pain,
limited ambulation, and limited ability to stand are not inconsistent with his medical records. The
court is not persuaded.
Plaintiff testified that he was bedridden for 90 percent of the day due to back pain, that he
can only stand for 15 minutes, and that he can only sit for 10-15 minutes before needing to

change position. Medical records stated, and the ALJ found, that plaintiff has moderately severe
central canal stenosis at L2-3, mild congenital spinal canal stenosis at L3-4, and a slight disc
bulge at L4-5. (Tr. 23, citing Tr. 443, 448, 511.) The ALJ also found that plaintiff regularly
reported gait problems related to lower back pain, right lower extremity weakness, and that he
used a one-handed, single-point cane for ambulation and for rising from a seated position. (Tr.
23, citing Tr. 502, 508, 510, 765, 767, 770, 777, 783, 796, 801, 949, 957, 991-92, 998, 1003,
1017.) Despite those findings, plaintiff’s records show that in August and December 2019,
plaintiff had 5/5 strength in his lower extremities with some decreased sensation on his left rather
than his right, that in October 2020 he had normal range of motion with no sensory deficits, and

Page 8 – OPINION AND ORDER
in April 2021 his spine had no tenderness to palpation. (Tr. 735, 742, 967, 1010.) His records
also show that he was a poor participant in physical therapy, that physical therapy resulted in
both immediate relief and improved pain symptoms, and that plaintiff only sometimes
participated despite the benefits. (Tr. 505, 765, 767, 772, 775, 781.) Furthermore, although

plaintiff reported severe back pain, he declined more aggressive treatment, such as cortisone
injections and nerve block therapy, opting instead to continue with physical therapy. (Tr. 775,
781.)
Plaintiff also argues that the objective medical evidence supports additional limitations
due to carpal tunnel, pointing to his impaired ability to lift more than a gallon of a milk and
numbness in both sets of arms and hands. The ALJ did find that plaintiff’s records support some
level of limitation due to carpal tunnel, reflected in test results showing moderate right and mild
left carpal tunnel syndrome. (Tr. 24, citing Tr. 739.) The ALJ also found that despite his carpal
tunnel syndrome, records from October and November 2019 show that he retained 5/5 strength
in his upper extremities as well as normal grip strength, no neuropathy or radiculopathy, intact

and symmetrical reflexes bilaterally, and only some subjective decrease in sensitivity in a patchy
distribution throughout the arms and hands. (Tr. 24, citing Tr. 738, 884, 906.) As the ALJ
discussed, records from January 2020 also show that he improved with treatment using braces
and injection therapy for his left wrist. (Tr. 24, citing Tr. 878, 881, 884.); (Tr. 310.)
Plaintiff’s arguments about his COPD/chronic asthma, sleep apnea, and GERD related
symptoms have already been addressed and will not be rehashed here. Given the above
information, plaintiff’s argument that the ALJ’s reasoning lacks specificity is not supported by
the record. Although plaintiff may wish for a different reading or even more specificity, the

Page 9 – OPINION AND ORDER
ALJ’s findings are supported by substantial evidence and cannot be second-guessed. Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
B. Plaintiff’s Mental Health Symptoms
The ALJ discussed plaintiff’s major depressive disorder and generalized anxiety disorder

at step two and determined that they were nonsevere. Plaintiff argues that the ALJ erred by
failing to account for his mental health limitations when formulating his RFC. (Pl.’s Br. at 10.)
But plaintiff does not point to limitations or evidence that the ALJ should have, but did not,
consider. The court does not address this undeveloped argument. Carmickle, 533 F.3d at 1161
n.2.
\ \ \ \ \
\ \ \ \ \
C. Step Five
At step five, the Commissioner has the burden “to identify specific jobs existing in
substantial numbers in the national economy that the claimant can perform despite [his]

identified limitations.” Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); 20 C.F.R. §
404.1520(g). In making that determination, the ALJ relies on the Dictionary of Occupational
Titles (DOT), which is the Social Security Administration’s “primary source[] of reliable job
information” about jobs that exist in the national economy. Terry v. Sullivan, 903 F.2d 1273,
1276 (9th Cir. 1990); 20 C.F.R. §§ 404.1569, 404.1566(d)(1).
The ALJ relies on the testimony of a vocational expert (VE) to identify specific
occupations that a claimant can perform in light of her RFC. 20 C.F.R. § 404.1566(e); Valentine
v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). When there is an apparent
conflict between the vocational expert’s testimony and the DOT, the ALJ is required to reconcile

Page 10 – OPINION AND ORDER
that inconsistency by posing questions about the potential conflict. See Massachi v. Astrue, 486
F.3d 1149, 1153 (9th Cir. 2007). Even so, if the ALJ fails to ask the vocational expert about the
potential conflict, that “procedural error” may be “harmless” if there is no conflict between the
vocational expert’s testimony and the DOT. Id. at 1154 n.19.

Here, the ALJ found at step five that plaintiff could perform the occupations of cashier
(DOT #211.462-010), office helper (DOT #239.567-010), and garment sorter (DOT #222.687-
014). Each of those occupations is listed as unskilled, light work, and total about 155,187 jobs in
the national economy, representing a decreased total based on a person with plaintiff’s RFC, as
testified to by the vocational expert. (Tr. 29-30.) Plaintiff asserts that the ALJ failed to reconcile
an alleged conflict between the VE’s testimony and the DOT, and that failing to resolve that
conflict would have resulted in an inability to identify jobs in the national economy plaintiff
could perform. Plaintiff alleges a conflict between the use of a cane and light exertional
requirements of lifting and carrying up to 20 pounds. (Pl.’s Br. at 7, ECF 10.)
Plaintiff’s argument is unpersuasive. The alleged conflict arose because of a hypothetical

put forth by plaintiff. In the hypothetical, plaintiff asked if both use of a cane for ambulating to
and from the workstation, as well as standing and sitting, and a limitation to lifting and carrying
no more than 10 pounds would eliminate the identified occupations. (Tr. 56.) The VE testified
that a less than 10-pound lifting and carrying limitation combined with use of a cane would
eliminate all of the identified jobs above. (Tr. 56.) Plaintiff’s argument fails for two reasons: (1)
his RFC does not contain a lifting and carrying limitation of no more than 10 pounds; and (2) the
ALJ resolved the conflict between cane use and the light exertional lifting and carrying
requirement through the VE’s testimony.

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As for the first reason, an ALJ is not “bound to accept as true the restrictions presented in
a hypothetical question propounded by a claimant’s counsel.” Magallenes v. Bowen, 881 F.2d
747, 756 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986)). The
ALJ is “free to accept or reject these restrictions . . . as long as they are supported by substantial

evidence.” Martinez, 807 F.2d at 774. Plaintiff’s RFC does not include a 10-pound lifting and
carrying restriction, and plaintiff does not argue for that limitation. And so the ALJ was not
required to consider that limitation when questioning the VE.
As for plaintiff’s second reason, the conflict between cane use and light exertional
lifting/carrying requirement of up to 20 pounds, the ALJ resolved this conflict by questioning the
VE. The ALJ proposed a hypothetical to the VE containing all the limitations present in
plaintiff’s RFC, including use of a cane to ambulate to and from his workstation. (Tr. 50-51.)
The VE responded that plaintiff could perform three jobs: cashier with 569,000 jobs; garment
sorter with 9,662 jobs; and office helper with 13,649 jobs. The VE then reduced the job numbers
for the cashier to 142,383 to eliminate jobs that would not allow sitting, and then reduced the

numbers for office helper to 6,824 to eliminate jobs that required “more frequent on the feet.”
(Tr. 51-52) The VE did not reduce the number of jobs for garment sorter. The ALJ asked if the
VE’s testimony was consistent with the DOT, to which the VE responded that it was, except for
the use of a cane to and from the workstation. (Tr. 54.) That was based on her 35 years of
experience, including observations of those needing assistance with walking, such as using a
cane, in the identified occupations. (Tr. 54-55.) Plaintiff added another limitation to the ALJ’s
hypothetical, use of a cane to rise from sitting. (Tr. 55.) The VE testified that that limitation
would not affect the cashier or garment sorter, but that it would become “problematical” for the
office helper “when someone is carrying any items from their workstation to another area.” (Tr.

Page 12 – OPINION AND ORDER
55.) The VE then further reduced the number of jobs for office helper to 3,412. (Tr. 55.) Thus,
when considering the use of a cane, the VE identified 155,457 jobs in the national economy that
plaintiff can perform. Following the hearing, the ALJ asked the VE to confirm her testimony via
interrogatories, which she did. (Tr. 372, 383.) Given the VE’s testimony, and the confirmation

provided via interrogatory, the ALJ resolved any conflict between the DOT’s light exertional
lifting requirement of up to 20 pounds and the use of a cane.
Plaintiff relies on Giancone v. Colvin, Case No. 3:12-cv-00495-JE, 2013 WL 4521123, at
*11 (D. Or. Aug. 26, 2013), to bolster his argument that use of a cane precluded him from
fulfilling the light exertional lifting and carrying requirement. In Giancone, the VE testified that
use of a cane precluded the ability to carry, and that the jobs identified in the light work category,
document scanner, cashier, and extruder, required no carrying, creating a direct conflict with the
DOT. (Id.) As noted in that case, the “DOT does not except the light exertional level extruder
and cashier positions from this requirement.” (Id.) Because the VE failed to explain why the
extruder and cashier required no carrying and failed to explain the “divergence between” the

DOT’s requirements and his assertion that no carrying was required, the ALJ erred by relying on
the VE’s testimony. (Id.) Giancone is distinguishable from plaintiff’s case because the VE
provided testimony explaining any apparent conflict between the light exertional lifting and
carrying requirement and the DOT, and the ALJ was justified in relying on her testimony.
Plaintiff also argues that the conflict between the general light exertional lifting
requirements and use of cane would eliminate the cashier job, thus reducing the total number of
jobs in the national economy to below that required to satisfy a “significant number,” again
relying on Giancone. (Pl.’s Br. at 7.) Giancone is again distinguishable. It is unknown which
cashier position was at issue in Giancone. The Cashier II position identified by the VE here does

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not include “carrying” within the DOT description. See DICTIONARY OF OCCUPATIONAL TITLES,
211.462-010, available at 1991 WL 671840 (describing exerting force and pushing and pulling).
In Giancone, the VE failed to explain the apparent conflict regarding carrying. 2013 WL
4521123, at *11. Unlike Giancone, the VE here relied on her decades of experience and
observations to explain any conflict—she testified and confirmed via interrogatory that the
cashier and garment sorter positions would not be reduced when using a cane for rising from
sitting to standing, but did reduce the officer helper job numbers to account for “carrying.” (Tr.
55.) For those reasons, Giancone is not persuasive. The ALJ did not err.
In sum, the ALJ properly relied on the VE’s testimony to resolve any apparent conflict
with the DOT and, therefore ALJ’s step five finding 1s supported by substantial evidence.

CONCLUSION
For the above reasons, the court AFFIRMS the Commissioner’s final decision, and this
action is DISMISSED.

ORDERED on May 3, 2024.
whe TEAD
United State Magistrate Judge

Page 14 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397386. Public record. Not legal advice.