United States District Court, N.D. Ohio, Western Division
David P. Watson, Plaintiff
Commissioner of Social Security, Defendant
G. CARR SR. U.S. DISTRICT JUDGE
a Social Security case in which the plaintiff, David Watson,
appeals the Commissioner's decision denying his
application for Disability Insurance Benefits.
administrative law judge found that Watson was not disabled
because: 1) he possessed the residual functional capacity to
perform “less than the full range of light work as
defined in 20 C.F.R. § 404.1567(b)”; and 2)
“there were jobs that existed in significant numbers in
the national economy that [Watson] could have
performed.” (Doc. 11 at 62, 67). To support the latter
conclusion, the ALJ relied on the unchallenged testimony of a
vocational expert that 25, 000 such jobs, in three different
categories, were available regionally, with 437 of those jobs
available in northwest Ohio and southeast Michigan.
(Id. at 73 & nn. 27-29).
is Magistrate Judge Burke's Report and Recommendation,
which recommends that I affirm the Commissioner's
decision. (Doc. 16). She concluded that substantial evidence
supported the ALJ's finding that a significant number of
jobs existed in the national economy that Watson could
perform. (Id. at 9-12).
concluding, Magistrate Judge Burke recognized that there was
“‘no bright line boundary separating a
significant number from [an] insignificant number of
jobs.'” (Id. at 9) (quoting Howard v.
Astrue, 2012 WL 4753364, *8 (N.D. Ohio)).
the 25, 000 jobs at issue here, the Magistrate Judge found
that the figure was consistent with cases holding that
figures much lower still amounted to “significant
numbers” of jobs. (Id. at 11) (citing
Taskila v. Comm'r of Soc. Sec., 819 F.3d 902,
905 (6th Cir. 2016) (6, 000 jobs) and Dawson v.
Comm'r of Soc. Sec., 468 Fed.Appx. 510, 514 (6th
Cir. 2012) (19, 000 jobs)); see also Nejat v. Comm'r
of Soc. Sec., 359 Fed.Appx. 547, 59 (6th Cir. 2009) (500
to 2, 500 jobs).
Judge Burke then rejected Watson's argument that one
basis for the vocational expert's testimony - the
Dictionary of Occupational Titles, which defines
different types of jobs - was unreliable. For one thing, the
Magistrate Judge observed, Watson had not “challenge[d]
the VE's reliance on the DOT at the hearing” before
the ALJ. (Doc. 16 at 11-12). For another, Watson had not
shown that “the information relied upon by the VE or
the ALJ was inaccurate or unsupported by the record.”
(Id. at 12).
has filed an objection (Doc. 17), but on de novo review of
the R&R, see 28 U.S.C. § 636(b)(1), I
overrule the objection, adopt the R&R as the order of the
court, and affirm the Commissioner's decision.
repeats his argument that the DOT is unreliable
because it is outdated (Doc. 17 at 2-4), but that argument
gets no more traction with me than it did with the Magistrate
Judge. That is because Watson did not challenge the
reliability of the vocational expert's testimony, and his
reliance on the DOT, at the hearing before the ALJ.
Indeed, Watson's lawyer did not ask the expert how he
determined which jobs Watson could perform, or how he
calculated the number of such jobs available in the national
or regional economy. (Doc. 13-1 at 29-34). Consequently,
there is no evidence in the record to support Watson's
argument that the DOT numbers are, in fact,
factual basis for his objection, Watson points to decisions
from the Seventh Circuit that have criticized the use of the
DOT in Social Security cases. E.g.,
Alaura v. Colvin, 797 F.3d 503, 507-08 (7th Cir.
2015); Browning v. Colvin, 766 F.3d 702, 708-09 (7th
Cir. 2014). According to Watson, the Seventh Circuit has
rejected vocational-expert testimony that relies on the
“outdated” DOT, particularly when the
estimate the number of jobs of a type the applicant . . . can
perform by the unacceptably crude method of dividing the
number of jobs in a large category (which may be the only
available data) by the number of job classifications in the
category, even though there is no basis for assuming that
there are that many jobs available.
(Doc. 17 at 3).
it's true that the Seventh Circuit has been rather
critical of vocational experts' reliance on the
DOT, it is not clear that the Sixth Circuit shares
Biestek v. Comm'r of Soc. Sec., 880 F.3d 778,
790 (6th Cir. 2017), the Circuit surveyed the case law and
found that the Seventh Circuit's approach to
vocational-expert testimony “has ...