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Westmoreland v. Berryhill

United States District Court, S.D. Ohio, Western Division, Dayton

March 28, 2018

NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendant.


          Sharon L. Ovington United States Magistrate Judge.

         Disability Insurance Benefits are available to a person who can no longer work, because he or she has a disability, among other eligibility requirements. See 42 U.S.C. § 423(d)(1)(A)-(2)(A); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). Plaintiff Heather R. Westmoreland applied for Disability Insurance Benefits asserting that her many health problems constituted a disability. Her disability began, she said, starting on May 15, 2010. The Social Security Administration denied Plaintiff's application based mainly on Administrative Law Judge (ALJ) Elizabeth A. Motta's conclusion that Plaintiff was not under a disability.

         Before ALJ Motta reached this conclusion, she held a hearing during which Plaintiff and a vocational expert testified. The vocational expert informed ALJ Motta about the number of jobs available to a hypothetical person with Plaintiff's age, education, work experience, and ability to engage in work activities. The vocational expert thought that 1.5 million light jobs would be available to this hypothetical person, with examples including stock clerk (approximately 240, 000 jobs), marking clerk, mail clerk (approximately 45, 000 jobs), office-machine operator (approximately 23, 000 jobs). (Doc. #7, PageID #121). This hypothetical person could also perform 300, 000 sedentary jobs available nationally, according to the vocational expert. Examples included general-office clerk (approximately 100, 000 jobs), document specialist, bookkeeping clerk (approximately 60, 000 jobs), word processor (approximately 15, 000 jobs). Id. at 122.

         For each job she identified, the vocational expert identified the corresponding job-classification number in the U.S. Department of Labor's Dictionary of Occupation Titles (DOT). The ALJ asked the vocational expert if her testimony was consistent with the DOT. She responded, “[T]he DOT does not address off task behavior, absenteeism or driving as part of job duties, as well as the reduced range of standing and walking. So my responses to those hypotheticals were based on my jobs placement experiences. Otherwise, I do believe it is consistent.” Id.

         When asked by Plaintiff's counsel about the source of the job numbers, the vocational expert testified that primarily used information from the Bureau of Labor Statistics. Id. at 124. She further indicated that she relied on job numbers from 2014. Id. Plaintiff's counsel did not ask the vocational expert for further information. Id. at 124-25.

         After the hearing, Plaintiff's counsel submitted objections and evidence challenging both the vocational expert's testimony and the ALJ's potential reliance on it. Despite Plaintiff's challenges, ALJ Motta credited the vocational expert's testimony and ultimately concluded that Plaintiff was not under a disability as defined under Social Security law.

         Plaintiff presently contends that ALJ Motta erred by relying on the vocational expert's testimony without adequately addressing Plaintiff's challenges to it. She seeks an Order granting judgment in her favor and remanding the matter for further administrative proceedings. The Commissioner finds no error in the ALJ's reliance on the vocational expert's testimony or in her handling of Plaintiff's post-hearing evidence and objections. The Commissioner maintains that the ALJ expressly discussed Plaintiff's post-hearing evidence and objections, and that the ALJ's consideration was legally adequate.

         The present review of ALJ Motta's decision determines whether she applied the correct legal standards and whether substantial evidence supports her findings. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). If she failed to apply the correct legal criteria, her decision may be fatally flawed even if the record contains substantial evidence supporting her findings. Rabbers, 582 F.3d at 651; see Bowen, 478 F.3d at 746; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004). Substantial evidence supports a finding when “a ‘reasonable mind might accept the relevant evidence as adequate to support a conclusion.'” Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of “more than a scintilla of evidence but less than a preponderance ....” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

         As indicated above, Plaintiff's eligibility to receive Disability Insurance Benefit hinged on whether she was under a disability. See 42 U.S.C. § 423(d)(1)(A)-(d)(2)(A); see also Bowen, 476 U.S. at 470. To determine if she was under a disability, ALJ Motta evaluated the evidence under the Social Security Administration's five-step evaluation procedure. 20 C.F.R. § 404.1520(a)(4). At the fifth and final step, ALJ Motta considered Plaintiff's age, education, work experience, and the most work activities she could do despite her impairments-her residual functional capacity, see Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002)-and concluded that a significant number of jobs existed in the national economy that Plaintiff can perform. (Doc. #7, PageID #77). The ALJ explained, in part, “The information provided by the vocational expert is consistent with the information contained in the Dictionary of Occupational Titles (DOT) as published by the United States Department of Labor (Social Security Ruling 00-4p).” Id. at 78. The ALJ also addressed Plaintiff's post-hearing evidence and objections as follows.

[Plaintiff's] Counsel's arguments have been given due consideration. His objections to the vocational expert testimony at the hearing…, are overruled and his request for an additional hearing is denied. He had adequate opportunity to question the vocational expert at the hearing and clarify any issues, which he did to only a very minimal degree and made no significant arguments as to specific bases to reject her testimony in part or in full.
Suman Srinivasan is a bona fide vocational expert deemed well qualified to testify in that role by the Social Security Administration (Exhibit 11E). Counsel's arguments are without justification and do not provide a compelling basis for disputing the information supplied by Ms. Srinivasan in this matter. Social Security regulations provide that a sufficient basis for vocational expert testimony can be professional knowledge and experiences as well as reliance on job information available from various governmental and other publications of which administrative notice is taken (see 20 CFR 404.1560(b)(2), 404.1566(d)…).
Counsel's argument regarding the inappropriateness or insufficiency of Ms. Srinivasan's testimony is misplaced. No. valid basis has been presented for the rejection of the vocational opinion evidence present at the hearing….

(Doc. #7, PageID #78).

         Analysis of the parties' dispute over the ALJ's use of the DOT begins with the leeway generally provided to ALJ's ...

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