ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383f.

For the reasons that follow, the court will deny plaintiff's motion for summary judgment, and grant the Commissioner's cross-motion for summary judgment.

I. PROCEDURAL BACKGROUND

Plaintiff applied for disability insurance benefits on December 1, 2011, and for supplemental security income on December 13, 2011. Administrative Record ("AR") 15. The disability onset date for both applications was alleged to be June 18, 2008. AR 15. The applications were disapproved initially and on reconsideration. AR 15. On February 10, 2014, Administrative Law Judge ("ALJ") Jeffrey A. Hatfield presided over the hearing on plaintiff's challenge to the disapprovals. AR 104-51 (transcript). Plaintiff, who was present and testified at the hearing, was represented by Lorie DeCristo, Esq., at the hearing. AR 104. Also testifying were Jane Hale, Vocational Expert ("VE"), and Dr. Allan D. Levine (by telephone), Medical Expert.

On March 22, 2014, the ALJ issued a partially unfavorable decision, finding plaintiff "disabled" from June 18, 2008 through October 24, 2009, but not thereafter, under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 15-99 (decision), 100-03 (exhibit list). On July 17, 2015, after receiving counsel's brief as an additional exhibit, the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-5 (decision, additional exhibit and order).

Plaintiff filed this action on September 15, 2015. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 7, 8. The parties' cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 16 (plaintiff's summary judgment motion), 19 (Commissioner's summary judgment motion).

II. FACTUAL BACKGROUND

Plaintiff was born on July 25, 1965, and accordingly was 43 years old on the alleged disability onset date, making plaintiff a "younger person" under the regulations. AR 27, 108; see 20 C.F.R §§ 404.1563(c) ("Younger person"), 416.963(c) (same). Plaintiff has a high school education, and can communicate in English. AR 27.

III. LEGAL STANDARDS

"[A] federal court's review of Social Security determinations is quite limited." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Commissioner's decision that a claimant is not disabled will be upheld "unless it contains legal error or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). "'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).

"'Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Garrison, 759 F.3d at 1009. "While inferences from the record can constitute substantial evidence, only those reasonably drawn from the record will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation and internal quotation marks omitted).

The court reviews the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Rounds v. Commissioner Social Security Admin., 807 F.3d 996, 1002 (9th Cir. 2015); Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016) ("[w]e cannot affirm ... "simply by isolating a specific quantum of supporting evidence").

It is the ALJ's responsibility "to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Brown-Hunter, 806 F.3d at 492 (internal quotation marks omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Thus, in reviewing the Commissioner's decision, this court does not substitute its discretion for that of the Commissioner. See Brown-Hunter, 806 F.3d at 492 ("[f]or highly fact-intensive individualized determinations like a claimant's entitlement to disability benefits, Congress places a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency") (internal quotation marks omitted).

The court may review "only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely." Garrison, 759 F.3d at 1010. Finally, the court will not reverse the Commissioner's decision if it is based on "harmless error," meaning that the error "is inconsequential to the ultimate nondisability determination ...." Brown-Hunter, 806 F.3d at 492 (internal quotation marks omitted).

IV. RELEVANT LAW

Disability Insurance Benefits and Supplemental Security Income are available for every eligible individual who is "disabled." 42 U.S.C. §§ 423(a)(1)(E) (DIB), 1381a (SSI). Plaintiff is "disabled" if she is "'unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment . . .." Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)).

The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the "five-step sequential evaluation process to determine disability" under Title II and Title XVI). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, the claimant is not disabled.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four.

Step four: Does the claimant's residual functional capacity make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 20 C.F.R. §§ 404.1512(a) ("In general, you have to prove to us that you are blind or disabled"), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, "[a]t the fifth step of the sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can engage in work that exists in significant numbers in the national economy." Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5.

V. THE ALJ's DECISION

Plaintiff challenges only the ALJ's findings at Step 5 of the sequential evaluation, for the period after October 25, 2009. In that regard, the ALJ found:

16. Medical improvement occurred as of October 25, 2009, the date the claimant's disability ended (20 CFR 404.1594(b)(1) and 416.994(b)(1)(i)).

17. The medical improvement that has occurred is related to the ability to work because there has been an increase in the claimant's residual functional capacity (20 CFR 404.1594(b)(4)(i) and 416.994(b)(1)(iv)(A)).

18. [Residual Functional Capacity] After careful consideration of the entire record, the undersigned finds that, as of October 25, 2009, the claimant has had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)

further restricted by the following limitations: lift and/or carry 10 pounds frequently and 20 pounds occasionally; stand and/or walk for a total of 2 hours in an 8-hour workday; sit for a total of 6 hours in an 8-hour workday; stand/walk for a total of 2 hours in an 8-hour workday; frequently climb ramps/stairs, balance; occasionally stoop, kneel, crouch, crawl; never climb ladders/rope/scaffolds; never reach overhead with bilateral upper extremities; avoid concentrated exposure to machinery and unprotected heights; limited to simple, routine, repetitive tasks; limited to only occasional changes in the work setting; and limited to frequent interaction with the public and co-workers.

19. The claimant is still unable to perform past relevant work (20 CFR 404.1565 and 416.965).

20. The claimant's age category has not changed since October 25, 2009 (20 CFR 404.1563 and 416.963).

21. The claimant's education level has not changed (20 CFR 404.1564 and 416.964).

22. Beginning October 25, 2009, transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

23. [Step 5] Beginning October 25, 2009, considering the claimant's age, education, work experience, and residual functional capacity, there have been jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c) and 416.966).

24. The claimant's disability ended October 25, 2009 (20 CFR 404.1594(f)(8) and 416.994(b)(5)(vii)).

VI. ANALYSIS

Plaintiff contends that the ALJ committed reversible error because, she argues, the ALJ's residual functional capacity precludes her from performing the alternative work identified at Step 5. Specifically, the identified jobs all require frequent "reaching," even though the residual functional capacity ("RFC") states that plaintiff should "never reach overhead with bilateral upper extremities." AR 30. Plaintiff argues that "reaching" includes "overhead reaching," and therefore there is a conflict between the RFC and the requirements for the alternative jobs plaintiff can supposedly perform.

A. Issue Exhaustion

The ALJ's RFC states that plaintiff can "never reach overhead with bilateral upper extremities." AR 30. At Step 5, however, the ALJ accepted the VE's testimony that plaintiff could perform three alternative jobs, each of which involve frequent "reaching." On appeal, plaintiff argues that the RFC precludes the jobs identified at Step 5 because "reaching" includes "overhead reaching." However, plaintiff, who was represented by counsel, did not question the VE about this asserted conflict. Moreover, plaintiff did not mention this issue on her appeal to the Appeals Council.

Defendant argues that this "failure to raise the issue during the administrative proceedings, when it could have been addressed, is fatal to Plaintiff's claim." ECF No. 19 at 7, citing Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). In Meanel, plaintiff failed to raise an issue before the ALJ, and failed to raise it before the Appeals Council. The Ninth Circuit held that, "at least when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal." Meanel, 172 F.3d at 1115. It further stated that it would "only excuse a failure to comply with this rule when necessary to avoid a manifest injustice ...." Id.

1. The hearing

Here, a manifest injustice would arise from precluding plaintiff from raising the issue in this court. Defendant argues that after the VE had identified the alternative jobs, plaintiff's counsel "asked not a single question concerning the reaching requirements of the jobs identified ...." ECF No. 19 at 7. However, there was no reason for plaintiff's counsel to suspect that there might be a conflict. The two hypotheticals the ALJ put to the VE specifically included the restrictions "[n]o reaching overhead," and "any lifting should not be above shoulder level." AR 143, 145. When the VE then testified that plaintiff could still perform the three jobs she identified, plaintiff's counsel had no reason to suspect that those jobs in fact involved overhead reaching. There is nothing in the record to indicate that plaintiff knew in advance that the VE would pluck those three jobs out of the Dictionary of Occupational Titles ("DOT"), and therefore counsel had no advance opportunity to study the jobs for possible inconsistencies with the ALJ's hypotheticals. It would work an injustice on plaintiff to preclude her from arguing the asserted conflict here, when she had no reasonable basis for thinking that there was a conflict at the time of the hearing.

2. The Appeals Council

Plaintiff failed to raise this issue before the Appeals Council. However, to the degree that Meanel holds that failure to raise an issue before the Appeals Council bars a party from raising it on appeal to the district court, the holding was seriously called into doubt by Sims v. Apfel, 530 U.S. 103 (2000). In Meanel, the Ninth Circuit held that this bar applied so long as the party was represented by counsel in the administrative proceeding, and no manifest injustice would result. However, in Sims, "the Supreme Court indicated that judicially created issue exhaustion is not always appropriate." Alaska Survival v. Surface Transp. Bd., 705 F.3d 1073, 1080 (9th Cir. 2013). It further held that the reasons for imposing issue exhaustion on some administrative proceedings did not apply to social security disability determinations, as they are non-adversarial proceedings, and no statute or regulation requires issue exhaustion. Sims, 530 U.S. at 105-10.

The Court was not able resolve the question of whether issue exhaustion should apply, with only a Plurality holding that "judicially created issue-exhaustion requirement is inappropriate" in the social security context. See Sims, 530 U.S. at 112 (Opinion of Thomas, J.). However, the Ninth Circuit, post-Sims, treats the Meanel decision as a dead letter, at least as it regards failure to raise issues before the Appeals Council. See Edlund v. Massanari, 253 F.3d 1152, 1160 n.9 (9th Cir. 2001) ("[T[he Commissioner argues that Edlund waived this claim for failure to raise it with the Appeals Council and in the district court. The SSA's argument with respect to the Appeals Council is foreclosed by the recent holding in Sims v. Apfel ...") (emphasis added). Following Edlund, the undersigned declines to follow Meanel here, and therefore turns to plaintiff's assignment of error.

B. The RFC and the Alternative Jobs

It is undisputed that all three jobs identified by the VE require frequent "reaching." Plaintiff argues that "reaching" necessarily includes "overhead reaching," and therefore plaintiff cannot perform any of those jobs.

Specifically, plaintiff argues that "[t]he DOT describes the three identified alternative occupations as requiring constant ... or frequent use ... of both upper extremities to reach overhead." ECF No. 16 at 6 (emphasis added). That is not correct. The DOT requires "reaching," but makes no reference to "overhead" reaching. See ECF No. 16-1 (Reprint of DOT) at 3, 7, 11.

Plaintiff next turns to the Revised Handbook for Analyzing Jobs, which she describes as documenting the methodology "used to create the job descriptions in the DOT." ECF No. 16 at 6. In the Revised Handbook, plaintiff asserts, "reaching is described as 'extending hand(s) and arm(s) in any direction' to lift up or bring down." ECF No. 16 at 6. However, there is nothing in this document that equates "reaching" with reaching "overhead." To the contrary, the document includes reaching for a pencil as an example of what is meant by "reaching." See ECF No. 16-2 at 12 ¶ 8(R:1) ("Reaches for ledgers, tax tables, and writing instruments") (emphasis added).

Plaintiff next turns to Social Security Ruling 85-15, to argue that "the definition of reaching is 'extending the hands and arms in any direction ...." Plaintiff misconstrues the language of this Ruling. The point of the Ruling is not to define what is meant by "reaching" - which could naturally refer to extending the hands and arms in any direction - but rather, to ensure that if a reaching limitation is at issue, "the assistance of a VS [vocational specialist] may be needed to determine the effects of the limitations." Social Security Rulings ("SSR") 85-15. That is precisely what the ALJ did in this case. While DOT jobs calling for "reaching" could include jobs that call for overhead reaching, the VE here was asked to eliminate those jobs from her consideration, as the ALJ's hypotheticals called for "[n]o reaching overhead," and "any lifting should not be above shoulder level." AR 143, 145 (emphasis added). Plaintiff has done nothing to show that the VE failed to do what was asked of her.

Plaintiff's cases do not support her argument. Plaintiff cites cases in which the ALJ failed to ask the VE if there was a conflict between the VE's testimony and the DOT, even though doing so is required by SSR 00-04. See Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) ("the ALJ did not ask the vocational expert whether her testimony conflicted with the Dictionary of Occupational Titles"); Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) ("[t]he ALJ here took testimony from an expert as to whether certain job requirements were compatible with Prochaska's various limitations, but did not ask whether the expert's analysis conflicted with the DOT"). Here, the ALJ asked the VE if her testimony was "consistent with the definitions in the Dictionary of Occupational Titles," and the VE confirmed that it was. AR 146. The ALJ went further, and asked if the VE's testimony needed to be modified at all by her own experience. AR 146. The VE confirmed that no modifications were needed. AR 146.

All plaintiff is left with, then, is an unsupported assertion that the VE did not do what the ALJ asked her to do. Even assuming that the entire set of DOT jobs that call for "reaching" includes jobs requiring "overhead" reaching, the VE was asked to eliminate all jobs that included overhead lifting and to then determine whether plaintiff could perform the remainder. The VE concluded that the three jobs she identified were consistent with the specified restrictions. This is plainly substantial evidence on which the ALJ could, and did, base his decision. See Hill, 698 F.3d at 1161 ("[t]he ALJ may meet his burden at step five by asking a vocational expert a hypothetical question based on medical assumptions supported by substantial evidence in the record and reflecting all the claimant's limitations, both physical and mental, supported by the record").

VII. CONCLUSION

For the reasons set forth above, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (ECF No. 16), is DENIED;

2. The Commissioner's cross-motion for summary judgment (ECF No. 19), is GRANTED; and //// ////

3. The Clerk of the Court shall enter judgment for defendant, and close this case. DATED: February 23, 2017

/s/_________

ALLISON CLAIRE

UNITED STATES MAGISTRATE JUDGE