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Robberts v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

August 26, 2019

LESA MAXINE ROBBERTS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          ELIZABETH A. PRESTON DEAVERS CHIEF UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Lesa Maxine Robberts (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Social Security Disability Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”). This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 15), the Commissioner's Memorandum in Opposition (ECF No. 20), Plaintiff's Reply (ECF No. 21), and the administrative record (ECF No. 10). For the following reasons, Plaintiff's Statement of Errors is OVERRULED and the Commissioner's decision is AFFIRMED.

         I. BACKGROUND

         Plaintiff applied for disability benefits and supplemental security income in November 2014. (R. at 230-40.) Plaintiff's claim was denied initially and upon reconsideration. (R. at 11.) Upon request, a hearing was held on March 29, 2017, in which Plaintiff, represented by counsel, appeared and testified. (R. at 56-92.) A vocational expert also appeared and testified at the hearing. (Id.) On July 18, 2017, Administrative Law Judge Jeffrey Hartranft (“the ALJ”) issued a decision finding that Plaintiff was not disabled at any time after January 15, 2014, the alleged onset date. (R. at 11-32.) On April 5, 2018, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-4.) Plaintiff then timely commenced the instant action. (ECF No. 5.)

         II. RELEVANT HEARING TESTIMONY[1]

         Lynne Kaufman testified as the vocational expert (“VE”) at the March 2017 hearing. (R. at 82-92.) Plaintiff's attorney stipulated to the VE's qualifications. (R. at 82-83.) The VE described Plaintiff's past work as a phlebotomist under the Dictionary of Occupational Titles (“DOT”) code 079.364-022. (R. at 83.) She testified that it is considered a light job and semiskilled with a specific vocational preparation of three (3). (Id.) The VE further testified that Plaintiff had one job where she had to lift patients, which the VE estimated to be “heavy to very heavy.” (R. at 83-84.) The VE testified that Plaintiff described another job at the blood bank which would be heavy and semi-skilled, specific vocational preparation of four (4), DOT 022.387-058, in the medium strength range. (R. at 84.) As to Plaintiff's past work as an inspector/packer, the VE testified the DOT considers that as a light job and unskilled, specific vocational preparation of two (2), under DOT code 559.687-074. (Id.)

         The VE testified that for Plaintiff's work as a stock clerk the job would be considered heavy strength, semi-skilled, specific vocational preparation of four (4), DOT code 299.367-014, but estimated Plaintiff's performance as light. (Id.) The VE indicated that Plaintiff worked as a warehouse worker, which would be “under laborer, stores” and is considered a medium strength job and unskilled, specific vocational preparation of two (2), DOT code 922.687-058. (R. at 84- 85.) The VE also indicated that Plaintiff did a lot of temp jobs in that category including one that would be categorized under “clerk, typist, ” which is a sedentary job, semi-skilled, specific vocational preparation of four (4), DOT code 214.382-014. (R. at 85.)

         The ALJ asked the VE to assume Plaintiff is capable of working at the light exertional level, that she could frequently climb ramps and stairs, could occasionally climb ladders, ropes, or scaffolds, would be capable of frequent stooping, kneeling, crouching, and crawling, would need to avoid workplace hazards such as uncontrolled heights and machinery, would be capable of simple, routine, and repetitive tasks involving only simple work-related decisions and few if any workplace changes, and would be capable of occasional interaction with the general public, coworkers, and supervisors. (Id.) Assuming those limitations, the VE testified that Plaintiff could perform her past work of “inspector, packer” but not the other jobs, which would be semiskilled, because of the simple, repetitive limitation. (Id.)

         The ALJ asked the VE to assume a hypothetical individual with Plaintiff's educational and vocational background, along with the previously described restrictions. (R. at 85-86.) Assuming those limitations, the VE testified the individual could perform work in light packing jobs, for example DOT code 920.687-166, which she estimated had about 8, 000 options in Ohio and about 175, 000 options nationally. (R. at 86.) The VE also testified that the individual could perform work in some sorting positions, for example DOT code 222.687-014, which she estimated had about 6, 000 options in Ohio and about 120, 000 options nationally. (Id.) The VE further testified that the individual could perform work in some marker jobs, for example DOT code 209.587-034, which she estimated had about 4, 000 options in Ohio and about 90, 000 options nationally. (Id.)

         The ALJ then asked the VE to add the limitation that the hypothetical could work in positions that do not require strict production quotas or fast-paced work such as on an assembly line. (Id.) The VE testified that with that limitation Plaintiff's past work would be eliminated. (Id.) She further testified that as far as the other jobs, she would give about a 25% reduction on the numbers for this restriction. (Id.) The ALJ then asked the VE to assume, for either of the first two hypotheticals, that the hypothetical individual would need to be able to use a cane for prolonged ambulation but could carry up to the exertional levels in the hand not using the cane. (R. at 86-87.) The VE testified that with this restriction she would put Plaintiff in a more sedentary strength range, and examples of sedentary jobs that she could perform would be some inspector positions such as DOT code 726.684-110, which she estimated would have about 2, 500 options in Ohio and about 25, 000 options nationally. (R. at 87.) The VE also testified that there would be some table worker positions available to Plaintiff, for example DOT code 739.687-182, which she estimated had about 2, 000 options in Ohio and about 35, 000 options nationally. (Id.) Furthermore, the VE testified that Plaintiff could look at some assembler work, such as DOT code 713.687-018, which she estimated had about 2, 500 options in Ohio and about 60, 000 options nationally. (Id.)

         The ALJ then added to any of the previous hypotheticals the limitation that because of pain, anxiety, side effects of medication, or any other reason, the hypothetical individual would be off-task 10% of the workday in addition to the normal breaks on an ongoing basis. (Id.) The VE testified that this limitation, in combination with the other restrictions, would be work preclusive. (R. at 88.) The ALJ then added to the first three hypotheticals the restriction that the individual's supervisor or lead worker would need to check every hour to see if the individual was properly performing their job and on-task. (Id.) The VE testified that this restriction “really exceeds customary tolerances in the sense of close supervision, so [she did not] think it's really reflective of competitive work.” (Id.) Regarding the tolerance for absenteeism in unskilled work, the VE testified that she uses the standard of not more than one day per month if ongoing or repetitive, and anything in excess would be work preclusive. (Id.)

         Plaintiff's counsel asked the VE if frequent redirection would be considered the same thing as checking in every hour. (Id.) The VE testified that “it could be included as part of that[.]” (Id.) Plaintiff's counsel then asked the VE if a requirement of frequent redirection would be prohibitive of work to which VE responded that “I think that's again not reflective of competitive. It's more like a supported employment or you know situation.” (R. at 89.) Plaintiff's counsel asked the VE if a restriction was added to any of the hypotheticals that the individual would be unable to carry out detailed written and oral instructions, would the restriction preclude the individual from work or change any of the potential positions. (Id.) The VE testified that she “would tend to put the ability to handle detailed written or oral instructions at least in a more semi-skilled rather than unskilled” and that “once it gets to detailed then I think you know you're moving to a more skilled job.” (Id.)

         The VE testified that she reviewed the “E exhibits” in preparing for her testimony, that her job numbers were current job numbers, and that she considered Plaintiff's testimony in identifying the past work. (R. at 89-90.) The VE further testified that in drawing conclusions for making adjustments for the reduced numbers of jobs available she used a variety of resources, including information from the U.S. Department of Labor Bureau of Labor Statistics Occupational Outlook Handbook, her own research on all the Ohio labor market information, and SkillTRAN. (R. at 90.) The VE also testified that she believed her testimony was consistent with the DOT but there were several issues not addressed in the DOT so she looked to other resources to develop an answer. (R. at 90-91.)

         III. RELEVANT RECORD EVIDENCE

         On April 12, 2017, prior to the ALJ's administrative decision, Plaintiff submitted a Post-Hearing Memorandum of Law and Objections to the Vocational Witness' Testimony and supporting exhibits to the ALJ. (R. at 324-84.) In the memorandum, Plaintiff asserts that “a number of inconsistencies arose during the vocational testimony, and must be resolved pursuant to SSR 00-4p.” (R. at 324.) Plaintiff indicated several objections:

We object: to any purported expert testimony from Ms. Kaufman regarding job incidence in the local, regional or national economy as the record in this matter on its face fails to show any qualifications through training, education or experience that would establish the necessary expertise to give opinions on the number of jobs that exist in the local, regional or national economy.
We object: to the vocational witness' testimony regarding job incidence in that said testimony is unfounded, unsupported, unreliable and conjured from whole cloth.
We object: to the vocational witness' testimony as the jobs offered at hearing are no longer performed at the unskilled level pursuant to current labor market data.
We object: to the positions offered by the vocational witness in response to the hypothetical residual functional capacity assessment, as this opinion is not reliable and is not supported by substantial evidence because current labor market research and reliable sources of job information dictate that these positions would require more than occasional interaction with coworkers and supervisors.
We object: to the vocational testimony that the jobs of Table Worker (DOT: 739.687-182) and Final Assembler (DOT: 713.687-018) could be performed within the hypothetical residual functional capacity assessment.
We object: to an unfavorable decision being issued in the instant matter prior to affording the claimant the opportunity to address the aforementioned evidentiary and vocational inconsistencies at a ...

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