Compton v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 8/9/2018. The final decision of the Commissioner is AFFIRMED. Judgment is granted for the Commissioner. cc:counsel (JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:17-CV-00171-HBB

MICHAEL W. COMPTON

PLAINTIFF

VS.

NANCY A. BERRYHILL, Acting
Commissioner of Social Security

DEFENDANT

MEMORANDUM OPINION
AND ORDER
BACKGROUND
Before the Court is the complaint (DN 1) of Michael W. Compton (APlaintiff@) seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
the Plaintiff (DN 13) and Defendant (DN 19) have filed a Fact and Law Summary. For the reasons
that follow, the final decision of the Commissioner is AFFIRMED.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
Sixth Circuit Court of Appeals in the event an appeal is filed (DN 9). By Order entered December
22, 2017 (DN 10), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
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FINDINGS OF FACT
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security
Income on December 23, 2013 (Tr. 307, 314).1 Plaintiff alleged that he became disabled on
December 25, 2009, as a result of seizure disorder; affective mood disorder; anxiety disorder;
major depression with recurrent nightmares; post-traumatic stress disorder; paranoia; social
phobia; poor memory, focus, and concentration, and difficulty dealing with stress and people (Tr.
307, 314, 364).
Prior to the administrative hearing, Plaintiff amended the alleged onset date from
December 25, 2009 to May 22, 2012 (Tr. 14, 334). Apparently, Plaintiff amended the onset date
because of Administrative Law Judge Ronald M. Kayser’s decision, issued on May 21, 2012,
denying Plaintiff’s earlier filed applications for Disability Insurance Benefits and Supplemental
Security Income (Tr. 14, 334).
Regarding the applications at issue, Administrative Law Judge Gregory O. Varo (Athe ALJ
@) conducted video hearings from Lexington, Kentucky on January 13, 2016 and May 18, 2016
(Tr. 14, 62, 98). Plaintiff and his attorney participated from Campbellsville, Kentucky (Id.).
During the later hearing, Ralph M. Crystal, Ph.D., testified as an impartial vocational expert (Id.).
In a decision dated July 14, 2016, the ALJ observed that ALJ Kayser previously found
Plaintiff could perform a range of medium work as well as jobs that existed in significant numbers
in the national economy (Tr. 14). The ALJ acknowledged that the principles of res judicata
required the administration be bound by ALJ Kayser’s decision unless Plaintiff proves a change

1 The final decision of the Commissioner indicates Plaintiff protectively filed these applications on November 13,
2013 (DN 14).

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of circumstances in his subsequent application (Id. citing Drummond v. Comm’r of Soc. Sec., 126
F.3d 847, 842 (6th Cir. 1997)). After reviewing the medical evidence, the ALJ found that
substantial new and material evidence warranted a change in the residual functional capacity
established in the prior decision of ALJ Kayser (Id.).
The ALJ then evaluated Plaintiff’s adult disability claim pursuant to the five-step
sequential evaluation process promulgated by the Commissioner2 (Tr. 14-23). At the first step,
the ALJ found Plaintiff has not engaged in substantial gainful activity since May 22, 2012, the
amended alleged onset date (Tr. 17). At the second step, the ALJ determined that Plaintiff has
the following Asevere@ impairments: history of seizure disorder; cervical radiculopathy and carpal
tunnel syndrome in the dominant right upper extremity; affective disorder; and anxiety disorder
with post-traumatic stress disorder features (Id.). At the third step, the ALJ concluded that
Plaintiff does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments in Appendix 1 (Id.).
At the fourth step, the ALJ made the following finding regarding Plaintiff’s residual
functional capacity (RFC):
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) with lifting/carrying 10 pounds frequently and 20
pounds occasionally; standing/walking 6 hours in an 8-hour day;
sitting 6 hours in an 8-hour day; frequently climbing ramps and
stairs; never climbing ladders, ropes and scaffolds; frequently
balancing, stooping, kneeling and crouching; never crawling;
handling and fingering limited to occasional in the dominant right
upper extremity; avoid all exposure to hazards such as moving
machinery and unprotected heights; able to understand, remember
and carry out very short, simple instructions; able to maintain
2 The ALJ noted that Plaintiff’s insured status expired on December 31, 2014 (Tr. 16).

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attention for two-hour periods during an eight-hour workday; able
to relate to supervisors and coworkers in a non-public setting; able
to respond to change; and requires a low stress work environment
with no fast-paced production goals, etc.
(Tr. 18). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of his past relevant work (Tr. 21).
The ALJ proceeded to the fifth step where he considered Plaintiff=s RFC, age, education,
and past work experience as well as testimony from the vocational expert (Tr. 21-22). The ALJ
found that Plaintiff can perform a significant number of jobs that exist in the national economy
(Tr. 22). Therefore, the ALJ concluded that Plaintiff has not been under a Adisability,@ as defined
in the Social Security Act, from May 22, 2012 through the date of the decision, July 14, 2016 (Tr.
22-23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ =s decision (Tr.
305-06). The Appeals Council denied Plaintiff=s request for review of the ALJ =s decision (Tr. 15).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
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Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ =s decision (Tr. 1-5). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner’s decision). Thus, the Court will be reviewing the decision of the ALJ, not
the Appeals Council, and the evidence that was in the administrative record when the ALJ rendered
the decision. 42 U.S.C. § 405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d
146, 148 (6th Cir. 1996); Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[I]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12)
months.
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
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The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity?

2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1?

4)

Does the claimant have the residual functional capacity to
return to his or her past relevant work?

5)

Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
economy?

Here, the ALJ denied Plaintiff=s claim at the fifth step.
Challenged Findings
Plaintiff disagrees with Finding Nos. 4, 5, 10, and 11 (DN 13 PageID # 910-21). With
regard to Finding No. 4, Plaintiff argues that he should receive an assessment under Listing 12.15
and the assessment he received under Listing 12.06 is not supported by substantial evidence (Id.
PageID # 911-14, 914-17). Plaintiff challenges Finding No. 5 by asserting that the ALJ failed to
explain what he meant by “a low stress work environment” in the RFC assessment (Id. PageID #
917-18). Plaintiff disputes Finding No. 10 because the ALJ failed to resolve conflicts between
the vocational expert testimony and the Dictionary of Occupational Titles (“DOT”) before relying

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on the vocational expert’s testimony (Id. PageID # 919-21). Plaintiff asserts that his challenges
above preclude the ultimate determination of not disabled set forth in Finding No. 11 (Id. PageID
# 921).
A.
As mentioned above, Plaintiff makes two arguments challenging Finding No. 4 (DN 13
PageID # 911-14, 914-17). The first concerns Listing 12.15 and the second involves Listing
12.06. The Court will address Plaintiff’s arguments separately.
During the January 13, 2016 administrative hearing, Plaintiff’s counsel specifically argued
that Plaintiff’s PTSD met Listing 12.06 (Tr. 71-73). During the May 18, 2016 administrative
hearing, Plaintiff’s counsel again confirmed his position that Plaintiff’s PTSD met Listing 12.06
(Tr. 104). In the administrative decision, dated July 14, 2016, the ALJ specifically found that
Plaintiff did not meet or equal the criteria for Listing 12.06 (Tr. 17-18). On September 16, 2016,
Plaintiff made a request for Appeals Council review of the ALJ’s decision (Tr. 306). At the time
all of these events occurred, Listing 12.06 applied to Plaintiff’s PTSD claim. See 20 C.F.R. Part
404, Subpt. P, App. 1, §§ 12.00(D)(11), 12.06 (2016); Barger v. Berryhill, No. 2:17-234, 2018 WL
1089678, at *4 (W.D. Pa. Feb. 28, 2018); Titsworth v. Berryhill, No. 8:16CV287, 2017 WL
3524666, at *7 (D. Neb. Aug. 16, 2017); Ferguson v. Berryhill, No. 17-CV-01491-MEJ, 2017 WL
6450486, at *11 n.4 (N.D. Cal. Dec. 18, 2017).
1. Listing 12.15
While Plaintiff’s request for review was pending before the Appeals Council, Listing 12.15
replaced Listing 12.06 with regard to PTSD claims. The Listing focuses on “Trauma–and
stressor-related disorders,” including PTSD. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§
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12.00(B)(11), 12.15 (2017). Listing 12.15 became effective on January 17, 2017. 81 FR 66138,
2016 WL 5341732 (Sept. 26, 2016).
On February 2, 2017, Plaintiff filed a memorandum with the Appeals Council (Tr. 44449). His first claim focused on Listing 12.15 (Tr. 445-46). Plaintiff pointed out that “[t]he
agency specified upon publication in the Federal Register “that this listing will be applied ‘to
claims that are pending on or after the effective date’ of the listing of January 17, 2017” (Tr. 446
quoting 81 FR 66138-01 (Sept. 23, 2016)). Relying on the above language and the language in a
related footnote, Plaintiff reasoned “[b]ecause a final decision has not been made in the claim, the
language of the published listing specified that it is to now apply to review of the claim” (Id.).
Plaintiff asserted that in the interest of affording him a fair review under the current rules, his claim
should be remanded for consideration of whether he meets Listing 12.15 (Id.).
In a notice dated August 15, 2017, the Appeals Council denied Plaintiff’s request for
review (Tr. 1-5). The Appeals Counsel indicated that it had considered Plaintiff’s reasons for
disagreeing with the ALJ’s decision but found the reasons do not provide a basis for changing that
decision (Id.).
Although Plaintiff indicates that he is challenging Finding No. 4, he is actually disputing
the Appeals Council’s denial of his request for review (DN 13 PageID # 911-14). In doing so,
Plaintiff is turning a blind-eye to 42 U.S.C. § 405(g) which limits judicial review to a “final
decision of the Commissioner of Social Security made after a hearing . . .” See Weinberger v.
Salfi, 422 U.S. 749, 763-64 (1975); Willis v. Sullivan, 931 F.2d 390, 396 (6th Cir. 1991);
Ahghazali v. Sec’y of Health & Human Servs., 867 F.2d 921, 924-926 (6th Cir. 1989). When the
Appeals Council denies a claimant’s request for review, as it did here, the ALJ’s decision becomes
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the Commissioner’s final decision for judicial review. See Sims v. Apfel, 530 U.S. 103, 106-07
(2000) (citing 20 C.F.R. §§ 404.900(a)(4)-(5), 404.955, 404.981, 422.210(a)). The scope of
judicial review is limited to determining whether the findings set forth in the final decision of the
Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton v. Sullivan, 2
F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th
Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y of Health &
Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
In relevant part, the Federal Register reads as follows:
[W]e will use these final rules on and after their effective date, in
any case in which we make a determination or decision. We expect
that Federal courts will review our final decisions using the rules
that were in effect at the time we issued the decisions.
See Id. 81 FR 66138-01, n.1, 2016 WL 5341732 (emphasis added). Viewing the above language
in harmony with the law on judicial review, the Court is limited to considering the rules that were
in effect when the ALJ issued his decision because it became the final decision of the
Commissioner when the Appeals Council denied Plaintiff’s request for review. The ALJ issued
his decision on July 14, 2017, more than six months before Listing 12.15 became effective on
January 17, 2018. Consequently, the Court cannot consider Listing 12.15 in assessing whether
the findings set forth in the final decision of the Commissioner are supported by substantial
evidence and whether the correct legal standards were applied. Further, the Court lacks subject
matter jurisdiction under 42 U.S.C. § 405(g) to consider Plaintiff’s challenge to the Appeals
Council’s denial of his request for review.
2. Listing 12.06
During the hearing on January 13, 2016, Plaintiff’s counsel specifically explained why he
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believed the evidence demonstrated that Plaintiff’s PTSD met Listing 12.06 (Tr. 71-73). At the
start of the May 18, 2016 hearing, Plaintiff’s counsel confirmed his position that Plaintiff’s PTSD
met Listing 12.06 (Tr. 104).

In his decision, the ALJ concluded that Plaintiff’s mental

impairments, considered singly and in combination, did not meet or equal the criteria of Listing
12.06 (Tr. 17-18).
Plaintiff accuses the ALJ of supporting his findings with mischaracterizations of what
Plaintiff actually indicated in an Adult Function Report, a Pain Questionnaire, and his hearing
testimony (DN 13 PageID # 914-17). Plaintiff asserts that there is substantial evidence in the
record to support a finding that he does meet Listing 12.06 (Id.).
Defendant argues that the ALJ properly found Plaintiff did not meet Listing 12.06 (DN 19
PageID # 944-45). Defendant points out that the ALJ’s findings regarding the degree of limitation
under the B criteria is supported by medical opinions in the record (Id.).
At the third step, a claimant has the burden of demonstrating he has an impairment that
meets a listing in Appendix 1. See 20 C.F.R. §§ 404.1520(d), 416.920(d); Burgess v. Sec’y of
Health & Human Servs., 835 F.2d 139, 140 (6th Cir. 1987). To meet a listing in Appendix 1, the
medical records regarding the impairment must satisfy both the diagnosis and severity
requirements for the listing. Social Security Ruling 96-5p; 20 C.F.R. §§ 404.1525(d), 416.925(d);
Hale v. Sec’y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1984).
Listing 12.06 concerns anxiety related disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1,
Listing 12.06. To satisfy the “paragraph B” criteria for this Listing, a claimant must demonstrate
two of the following: (1) marked restrictions in activities and daily living; 2) marked difficulties
in maintaining social functioning; 3) marked restrictions in maintaining concentration, persistence,
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or pace; or 4) repeated episodes of decomposition, each of an extended duration. Id. To satisfy
the “paragraph C” criteria for this Listing, a claimant must demonstrate the anxiety related disorder
results “in a complete inability to function independently outside the area of one’s home.” Id.
The ALJ appropriately recognized that Plaintiff must satisfy either the “paragraph B” or
“paragraph C” criteria to meet Listing 12.06 (Tr. 17-18). See 20 C.F.R. Pt. 404. Subpt. P, App.
1, § 12.06 (2016). In making his findings regarding the “paragraph B” and “paragraph C” criteria,
the ALJ considered Plaintiff’s subjective statements in an Adult Function Report, a Pain
Questionnaire, and the two administrative hearings (Tr. 17-18). The ALJ did not mischaracterize
Plaintiff’s subjective statements in the above-mentioned reports and hearing testimony. Rather,
the ALJ found Plaintiff’s statements were not entirely consistent with the medical evidence and
other evidence in the record regarding the severity of Plaintiff’s condition (Tr. 19, 20-21). The
ALJ gave significant weight to the limitations expressed in the 2014 opinion of Ollie Dennis,
Ed.D., and the assessments of the state agency psychological consultants (Tr. 17-18, 21). This
medical evidence provided substantial evidence to support the ALJ’s findings regarding the
“paragraph B” and “paragraph C” criteria and his conclusion that Plaintiff did not meet or equal
Listing 12.06. In sum, the ALJ’s findings are supported by substantial evidence in the record and
comport with applicable law. Notably, the Sixth Circuit has held that a reviewing court should
not upset an ALJ's findings that are supported by substantial evidence, even if substantial evidence
could support a decision the other way. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004). Thus, Plaintiff is not entitled to relief on this claim.
B.
Finding No. 5 sets forth the ALJ’s assessment of Plaintiff’s RFC (Tr. 18). Plaintiff
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challenges Finding No. 5 by asserting that the ALJ failed to explain what he meant by “a low stress
work environment” (DN 13 PageId # 917-18). Plaintiff argues this phrase does not adequately
articulate his maximum RFC for basic mental work-related activities (Id.). Plaintiff contends the
ALJ should have articulated more specific limitations regarding basic mental work-related
activities (Id. citing 20 C.F.R. §§ 404.1545(c) 416.945(c); Social Security Ruling 85-15).
Defendant points out that the ALJ’s RFC finding accommodated Plaintiff’s mental
impairments by limiting him to jobs that require “very short, simple instructions,” a “non-public
setting,” and a “low stress work environment” including “no fast-paced production” (DN 19
PageID # 951-53 citing Tr. 18). Defendant asserts that the RFC finding is consistent with state
agency reviewing doctors’ opinions that Claimant could do “low stress work.” (Id. citing Tr. 158,
171, 191, 207). Defendant notes that neither of the two vocational experts asked for clarification
of the phrase “a low stress work environment” before identifying jobs that the hypothetical
individual could perform (Id. citing Tr. 93-94, 117-18). Defendant asserts that several cases in
the Sixth Circuit have used the phrase, along with other mental accommodations, without
specifically defining the term (Id. citing Smith v. Halter, 307 F.3d 377, 378-79 (6th Cir. 2001)
(The ALJ “characterized [the claimant’s] mental impairment as limiting him to jobs that are routine
and low stress.”); Proctor v. Astrue, No. 3:07-CV-442-J, 2008 WL 2597045, at *2 (W.D. Ky. June
26, 2008) (adopting the argument that “there is evidentiary support for the ALJ's conclusion that
Ms. Proctor had the capacity for low-stress, simple, routine work.”)). Defendant asserts that
Plaintiff’s reliance on SSR 85-15 is misplaced because the ALJ made adequate findings, supported
by substantial evidence, showing that Plaintiff is not so mentally impaired as to be unable to
perform work at low-stress jobs (Id.). Further, Defendant suggests that Plaintiff has waived this
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vagueness claim by failing to raise it during the two hearings (Id.).
The residual functional capacity finding is the Administrative Law Judge=s ultimate
determination of what a claimant can still do despite his or her physical and mental limitations.
20 C.F.R. §§ 404.1545(a), 404.1546, 416.945(a), 416.946. The Administrative Law Judge makes
this finding based on a consideration of medical source statements and all other evidence in the
case record. 20 C.F.R. §§ 404.1529, 404.1545(a), 404.1546, 416.929, 416.945(a), 416.946;
Social Security Ruling 96-5p; Social Security Ruling 96-7p.
In support of his argument, Plaintiff quotes from a subsection in SSR 85-18 entitled “Stress
and Mental Illness” and cites 20 C.F.R. §§ 404.1545(c) and 416.945(c). The subsection and
regulations indicate that an RFC assessment of a claimant’s mental impairment(s) should take into
consideration his or her highly individualized reactions to work related stressors. SSR 85-15,
1985 WL 56857, at *6 (1985); 20 C.F.R. §§ 404.1545(c), 416.945(c). Here, the ALJ did that and
found that Plaintiff is “able to understand, remember and carry out very short, simple instructions;
able to maintain attention for two-hour periods during an eight-hour workday; able to relate to
supervisors and coworkers in a non-public setting; able to respond to change; and requires a low
stress work environment with no fast-paced production goals, etc.” (Tr. 18). Thus, the ALJ’s RFC
assessment of Plaintiff’s mental impairments comports with the directives in SSR 85-18 and §§
404.1545(c) and 416.945(c). Further, a review of the record reveals that substantial evidence in
the record supports the ALJ’s findings. In sum, there is no merit to Plaintiff’s challenge to Finding
No. 5.
C.
Next, Plaintiff argues that Finding No. 10 is not supported by substantial evidence because
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the ALJ failed to comply with his obligation under Social Security Ruling 00-4p (“SSR 00-4p”) to
resolve conflicting vocational expert (“VE”) testimony regarding whether the DOT discusses
certain restrictions (DN 13 PageID # 919-21). Defendant argues that Plaintiff’s citation to SSR
00-4p fails as a matter of law because it discusses a conflict between a VE and the DOT, not
conflicting VE testimony regarding whether the DOT discusses certain restrictions (DN 19 PageID
# 954-55). Alternatively, Defendant asserts that Plaintiff waived his claim because he did not
cross-examine the VE or otherwise bring the conflict to the ALJ’s attention despite having the
opportunity to do so (Id. citing Tr. 95-96, 122).
The introductory paragraph to SSR 00-4p reads as follows:
PURPOSE: This Ruling clarifies our standards for the use of
vocational experts (VEs) who provide evidence at hearings before
administrative law judges (ALJs), vocational specialists (VSs) who
provide evidence to disability determination services (DDS)
adjudicators, and other reliable sources of occupational information
in the evaluation of disability claims. In particular, this ruling
emphasizes that before relying on VE or VS evidence to support a
disability determination or decision, our adjudicators must: Identify
and obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs or VSs and information in
the Dictionary of Occupational Titles (DOT), including its
companion publication, the Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles (SCO),
published by the Department of Labor, and Explain in the
determination or decision how any conflict that has been identified
was resolved.
SSR 00-4p, 2000 WL 1898704, at *1 (Dec. 4, 2000). Once the VE has completed his or her
testimony, the ALJ is required to ask the VE if the evidence he or she provided conflicts with
information in the DOT. Id. at *2, 4. If the VE responds in the affirmative, the ALJ must obtain
from the VE a reasonable explanation for the apparent conflict. Id. The ALJ must explain in the
decision how he or she resolved the apparent conflict. Id. The Sixth Circuit has indicated that
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“SSR 00-4p does not address what to do when a conflict is not apparent.”

Martin v.

Commissioner, 170 F. App’x 369, 374 (6th Cir. 2006).
Here, the ALJ conducted hearings on January 13, 2016 and May 18, 2016. Christopher
Rymer testified as a VE during the first hearing and Ralph Crystal did so during the second hearing.
Plaintiff concedes that each VE rendered an opinion based on a hypothetical question that was
consistent with the adjudged RFC (DN 13 PageID # 920). Further, Plaintiff acknowledges that
the ALJ satisfied his obligation under SSR 00-4p by asking each VE about any apparent
discrepancies between the information provided by the DOT and that which the VE presented (Id.).
See SSR 00-4p, 2000 WL 1898704, at *4.
Specifically, the ALJ asked each VE if his testimony was consistent with the DOT (Tr. 95,
122). VE Rymer responded to the ALJ’s question as follows:
It is, Your Honor, though the issues not directly addressed by the
DOT such as nonpublic or low stress work, that would be based
upon my training and experience in the field, as well as my
observations at how jobs are typically performed and tolerances and
accommodations that most employers would be willing to make.
(Id. citing Tr. 95-96). By contrast, four months later, when asked if his testimony was consistent
with the DOT, VE Crystal responded “[y]es, sir, it is” (Tr. 122). Plaintiff relies on VE Rymer’s
earlier response to identify a conflict that was not apparent from VE Crystal’s answer.
Stripped of its technical veneer, Plaintiff’s claim amounts to a contention that the ALJ did
not interrogate VE Crystal with sufficient rigor about potential conflicts between his testimony
and the DOT. But, VE Crystal credibly testified that there was no such conflict. And Plaintiff
did not bring VE Crystal’s purported mistake to the ALJ’s attention.

Considering the

circumstances, nothing in SSR 00-4p imposed an affirmative duty on the ALJ to interrogate VE
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Crystal further. See Lindsley v. Comm’r Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009); Martin,
170 F. App’x at 374 (“Nothing in SSR 00-4p places an affirmative duty on the ALJ to conduct an
independent investigation into the testimony of witnesses to determine if they are correct.”). In
sum, Plaintiff’s argument lacks merit. Moreover, Finding No. 10 is supported by substantial
evidence in the record and comports with applicable law.
D.
Plaintiff asserts that his challenges above preclude the ultimate determination of not
disabled set forth in Finding No. 11 (Id. PageID # 921). For the reasons set forth above, there is
no merit to Plaintiff’s assertion. Further, Finding No. 11 is supported by substantial evidence in
the record and comports with applicable law.
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgment is granted for the Commissioner.

August 9, 2018

Copies:

Counsel

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