United States District Court, S.D. Ohio, Eastern Division
L. Graham, United States District Judge.
Scott E. Duncan brings this action under 42 U.S.C. §
405(g) for review of the final decision of the Commissioner
of Social Security (“Commissioner”) denying his
applications for disability insurance benefits and
supplemental security income benefits. The administrative law
judge (“ALJ”) held a hearing at which plaintiff
appeared and was represented by counsel. In his decision of
May 25, 2018, the ALJ found that plaintiff had severe
impairments consisting of: lumbosacral degenerative disc
disease; history of right knee medial meniscal tear with
surgery; history of right carpal tunnel syndrome release;
anxiety disorder; cluster headaches; chronic obstructive
pulmonary disease; cervical spine degenerative disc disease;
and bilateral hip arthritis. PAGEID 60. The ALJ found that
plaintiff had the residual functional capacity
(“RFC”) to perform light work, except that:
claimant can occasionally climb ramps or stairs, but never
climb ladders, ropes, or scaffolds; occasionally balance,
stoop, kneel, crouch, or crawl; only occasional overhead
reaching with the right upper extremity; and frequently
finger with the right upper extremity. The claimant must
avoid concentrated exposure to extremes of cold, heat, and
humidity; must avoid concentrated exposure to fumes, odors,
dusts, gases, poor ventilation, and pulmonary irritants; and
must avoid all exposure to work around dangerous machinery or
unprotected heights. The claimant must avoid all work around
excessively bright lights or excessively loud noises
requiring eye or ear protection. The claimant is limited to
simple, routine, repetitive tasks with no fast paced
production work; occasional and superficial interaction with
coworkers and supervisors where superficial means discussing
work matters; no teamwork or tandem work; no conflict
resolution or supervisory tasks; no contact with the public;
and the claimant is able to adapt to occasional changes in a
relatively static setting.
PAGEID 63. After consideration of the testimony of Vocational
Expert (“VE”) George Parsons, the ALJ concluded
that there were jobs in the national economy which plaintiff
could perform and that he was not disabled. PAGEID 68-69.
matter is before the court on plaintiff's November 6,
2019, objections to the October 23, 2019, report and
recommendation of the magistrate judge recommending that the
decision of the Commissioner be affirmed. The Commissioner
has responded to the objections.
Standard of Review
party objects within the allotted time to a report and
recommendation, the court “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b). Upon review, the court
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1).
court's review “is limited to determining whether
the Commissioner's decision ‘is supported by
substantial evidence and was made pursuant to proper legal
standards.'” Ealy v. Comm'r of
Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010)
(quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d
234, 241 (6th Cir. 2007)); see also, 42 U.S.C.
§ 405(g) (“The findings of the Commissioner of
Social Security as to any fact, if supported by substantial
evidence, shall be conclusive.”). “The findings
of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to
support a different conclusion.” McClanahan v.
Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir.
2006) (quotation marks and citation omitted). However,
“‘a decision of the Commissioner will not be
upheld where the [Commissioner] fails to follow its own
regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial
right.'” Rabbers v. Comm'r of Soc.
Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting
Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746
(6th Cir. 2007)).
argues that the ALJ's finding that plaintiff was not
disabled is not supported by substantial evidence due to the
ALJ's reliance on the VE's testimony. Based on
plaintiff's RFC, the VE testified that plaintiff could
perform the jobs of weights measure checker (45, 000 jobs
available nationally), protective clothing issuer (68, 000
jobs available nationally), and bus monitor (23, 000 jobs
available nationally). The VE indicated that his testimony
did not conflict with the Dictionary of Occupational Titles
(“DOT”). PAGEID 106. However, plaintiff argues,
and the Commissioner does not contest, that the DOT's job
requirements for protective clothing issuer and bus monitor
conflict with the limitations in plaintiff's RFC.
Specifically, the position of protective clothing issuer
requires frequent climbing, stooping, crouching and crawling,
whereas the RFC permits these activities only occasionally.
The position of school bus monitor, as defined in the DOT,
requires frequent talking and hearing, i.e.,
activities involving interaction with the general public and
conflict resolution, which are precluded under the RFC.
However, plaintiff concedes that no conflict with the DOT
exists in regard to the position of weights measure checker.
court agrees with the analysis of the magistrate judge.
First, at Doc. 19, p. 5, the magistrate judge referred to
Social Security Ruling 00-04p, which states that
[w]hen there is an apparent unresolved conflict between VE 
evidence and the DOT, the adjudicator must elicit a
reasonable explanation for the conflict before relying on the
VE  evidence to support a determination or decision about
whether the claimant is disabled. At the hearings level, as
part of the adjudicator's duty to fully develop the
record, the adjudicator will inquire, on the record, as to
whether or not there is such consistency.
SSR 00-04p, 2000 WL 1898704, *2).
the ALJ asked the VE whether his testimony was in conflict
with the DOT, to which the VE responded that it was not.
PAGEID 106. The magistrate judge correctly found that the ALJ
thereby satisfied his obligations under SSR 00-04p, and that
the ALJ was under no duty to inquire further of the VE, as
there were no apparent discrepancies revealed at the hearing.
Doc. 19, p. 6. See Lindsley v. Comm'r of Soc.
Sec., 560 F.3d 601, 606 (6th Cir. 2992) (after the VE
responded that there were no discrepancies between the
information provided by the DOT and the VE's testimony,
the ALJ had no duty under SSR 00-4p to interrogate him
further); Martin v. Comm'r of Soc. Sec., 170
Fed.Appx. 369, 374 (6th Cir. 2006) (ALJ had no duty to
conduct an independent investigation into the testimony of
witnesses to determine if they are correct). As the
magistrate noted, Doc. 19, p. 7, it was incumbent on
plaintiff's counsel to bring out any conflicts between
the VE's testimony and the DOT. See Beinlich v.
Comm'r of Soc. Sec., 345 Fed.Appx. 163, 168-69 (6th
Cir. 2009)(the ALJ is under no obligation to investigate the
accuracy of the VE's testimony beyond the inquiry
mandated by SSR 00-04p); Baranich v. Barnhart, 128
Fed.Appx. 481, 489 ...