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Duncan v. Commissioner of Social Security

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

December 13, 2019

Scott Duncan, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          James L. Graham, United States District Judge.

         Plaintiff 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.

         This 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.

         I. Standard of Review

         If a 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).

         The 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)).

         II. Plaintiff's Objections

         Plaintiff 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.

         The 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).

         Here, 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 ...


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