United States District Court, S.D. Ohio, Western Division, Dayton
HEATHER R. WESTMORELAND, Plaintiff,
NANCY A. BERRYHILL, Commissioner of the Social Security Administration, Defendant.
DECISION AND ENTRY
L. Ovington United States Magistrate Judge.
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.
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.
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.”
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.
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
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.
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).
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).
of the parties' dispute over the ALJ's use of the DOT
begins with the leeway generally provided to ALJ's ...