Johnson v. Commissioner of Social Security

Filing 17

MEMORANDUM OPINION & ORDER by Magistrate Judge H. Brent Brennenstuhl on 6/6/2017: The final decision of the Commissioner is REVERSED. IT IS FURTHER ORDERED that this matter is REMANDED, pursuant to 42 U.S.C. § 405(g), to the Commissioner for further proceedings. cc: counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:16-CV-00106-HBB
REBECCA L. JOHNSON

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 Rebecca L. Johnson (APlaintiff@) seeking
judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both
the Plaintiff (DN 11) and Defendant (DN 16) have filed a Fact and Law Summary.
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
2, 2006 (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.

1

FINDINGS OF FACT
Plaintiff filed an application for a period of disability and Disability Insurance Benefits on
June 10, 2013 (Tr. 22, 173-79). Plaintiff alleged that she became disabled on August 1, 2012, as a
result of chronic low back pain, sciatica, high blood pressure, depression, high cholesterol,
hypothyroidism, and coronary artery disease (Tr. 22, 204). Administrative Law Judge Scott T.
Morris (AALJ@) conducted a video hearing from Paducah, Kentucky on January 16, 2015 (Tr. 22,
42-43). Plaintiff and her attorney, Sara Martin, participated from Owensboro, Kentucky (Id.).
Kenneth Boaz testified as an impartial vocational expert during the video hearing (Id.).
In a decision dated April 15, 2015 the ALJ evaluated this adult disability claim pursuant to
the five-step sequential evaluation process promulgated by the Commissioner (Tr. 22-36). At the
first step, the ALJ found Plaintiff engaged in substantial gainful activity during the period August
1, 2012 through June 4, 2013 (Tr. 24). However, the ALJ found that there has been a continuous
12-month period during which Plaintiff did not engage in substantial gainful activity (Tr. 25).
The ALJ’s remaining findings addressed the period that Plaintiff did not engage in substantial
gainful activity (Id.).
At the second step, the ALJ determined that Plaintiff has the following severe impairments:
coronary artery disease and degenerative disc disease (Tr. 25). Notably, at the second step, the
ALJ also determined that Plaintiff=s dysthymic and pain disorders are Anon-severe@impairments
within the meaning of the regulations (Tr. 25-27).
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

2

Appendix 1 (Tr. 27). More specifically, the ALJ concluded that Plaintiff does not meet or equal
the requirements of any of the impairments within listing sections 1.00 and 4.00 (Id.).
At the fourth step, the ALJ made the following findings with regard to Plaintiff’s residual
functional capacity:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform less than the full range of light work as defined in 20 CFR
404.1567(b). Specifically, the claimant can lift or carry up to 20
pounds occasionally and up to 10 pounds frequently; sit for up to six
hours in an eight-hour workday; and can stand or walk up to six
hours in an eight-hour day. The claimant must alternate between
sitting and standing every hour for approximately five minutes
before returning to the alternate position. She can push or pull up
to the same limits as lifting and carrying. The claimant can
occasionally climb ramps and stairs, but never ladders, ropes, or
scaffolds.
The claimant can frequently balance, but only
occasionally stoop, crouch and crawl. She can have occasional
exposure to unprotected heights, moving mechanical parts, extreme
cold/heat, humidity/witness, vibration, as well as fumes, odors,
dusts, and pulmonary irritants.
(Tr. 27). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable
to perform any of her past relevant work (Tr. 34).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 34-35). The ALJ found that prior to February 24, 2015, Plaintiff was a person closely
approaching advanced age (age 50-54) under the regulations (Tr. 34, Finding No. 8). See 20
C.F.R. § 404.1563(d). The ALJ also found that on February 24, 2015, Plaintiff became 55 years
old and she became a person of advanced age (age 55 or older) under the regulations (Tr. 34,
Finding No. 8). See 20 C.F.R. § 404.1563(e).

3

The ALJ found that prior to February 24, 2015, Plaintiff was capable of performing a
significant number of jobs that exist in the national economy (Tr. 34-35). The ALJ determined
that beginning on February 24, 2015, there are no jobs that exist in significant numbers in the
national economy that she could perform (Tr. 35). Therefore, the ALJ concluded that Plaintiff
was not disabled prior to February 24, 2015, but she became disabled as of that date, and has
continued to be disabled through the date of the decision (Id.).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
15-16). The Appeals Council denied Plaintiff=s request for review of the ALJ=s decision (Tr. 1-4).

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
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)).
4

As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-4). 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).
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:

5

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, at the fifth step, the ALJ denied in part and granted in part Plaintiff’s application for
Disability Insurance Benefits (Tr. 34-35). More specifically, the ALJ found from June 4, 2013
through February 23, 2015, there were jobs that existed in significant numbers in the national
economy that Plaintiff could have performed considering her age, education, work experience, and
residual functional capacity. The ALJ also found that Plaintiff turned age 55 on February 24,
2015. The ALJ concluded that Plaintiff became disabled on that date because her age category
changed to an individual of advanced age and there are no jobs that exist in significant numbers in
the national economy that Plaintiff could perform.
A
1. Plaintiff’s Argument
Plaintiff argues that substantial evidence does not support the ALJ’s finding that jobs
existed in significant numbers in the regional economy according to the adopted residual
functional capacity (DN 11-1 PageID # 599). Plaintiff asserts that the vocational expert, Kenny
6

Boaz, Ed. D, relied on obsolete job descriptions because the DOT last updated the ticket taker
description in 1980 and monogram machine tender description in 1977 (Id. PageID # 599-601).
In an effort to substantiate her claim that the DOT job descriptions are outdated, Plaintiff
performed searches on the Occupational Information Net (O*NET)1 utilizing those two DOT
codes. Plaintiff reports that utilizing the DOT code for monogram machine tender on the O*NET
crosswalk brought up a different job title with a different description2 (Id.). Plaintiff indicates
when the DOT code for ticket taker is searched on the O*NET crosswalk, that job appears, but it
has a completely different description and SVP level than what the vocational expert testified to
during the administrative hearing3 (Id.). Plaintiff contends in light of the above circumstances
the vocational expert’s testimony regarding these jobs is not reliable (Id.).
Additionally, plaintiff argues that the number of jobs testified to by the vocational expert
are not significant (Id.).

Plaintiff explains that the vocational expert testified there were

approximately 300 ticket takers regionally and 800 monogram machine tenders regionally (Id.).
Plaintiff asserts that while there is no “magic number” that qualifies as “significant,” these
numbers do not satisfy the requirements of 20 C.F.R. § 404.1566 (Id.). According to Plaintiff,
this exact issue has been assessed by the Sixth Circuit in Cunningham v. Astrue, 360 Fed. App’x
606 (6th Cir. 2010) (DN 11-1 PageID # 599-601). Plaintiff indicates that in Cunningham the
Sixth Circuit had to address the issue of whether substantial evidence supported the Administrative
Law Judge’s finding that the existence of 25,000 document preparer’s and 5000 security camera
1 According to Plaintiff, the Department of Labor uses Occupational Information Net (O*NET) instead of the
outdated DOT (DN 11-1 PageID # 600).
2 https://www.onetonline.org/crosswalk/DOT?s=583.685-046&g=Go (last updated 2015).
3 https://www.onetonline.org/link/summary/39-3031.00 (last updated 2016).

7

monitors in the state of Ohio qualified as significant numbers (Id.). Plaintiff explains that the
Sixth Circuit in Cunningham relied upon the factors identified in Hall v. Bowen, 837 F.3d 272, 275
(6th Cir. 1998) to ultimately hold that a remand was warranted to further address this issue as
substantive evidence did not support the Administrative Law Judge’s finding (Id.).
Plaintiff argues that here the numbers are even more extreme than those in Cunningham
(DN 11-1 PageID # 599-601). Plaintiff points out that in the entire region less than 1000 jobs
exist for each job description identified by the vocational expert (Id.). Plaintiff asserts that
absolutely no evidence was proffered by the ALJ in his opinion as to how these numbers in any
way qualify as significant (Id.). Plaintiff contends that none of the factors in Hall were addressed
by the ALJ during the fifth step analysis (Id.). Plaintiff argues that given the extremely low
number of jobs available in the economy and the fact that one of these jobs does not even exist
anymore pursuant to O*NET, the ALJs decision must be reversed as jobs do not exist in significant
numbers at the residual functional capacity adopted by the ALJ (Id.). Alternatively, Plaintiff
argues as in Cunningham, this case must, in the least, be remanded so that the reliability of the
vocational expert’s testimony can properly be addressed (Id.).
2. Defendant’s Argument
Defendant contends that substantial evidence supports the ALJ’s finding that prior to
Plaintiff’s reaching advanced age, she could perform a significant number of jobs that existed in
the national economy (DN 16 PageID # 632-36). Defendant asserts because Plaintiff failed to
make her arguments before the ALJ and the Appeals Council, it is inappropriate for her to raise
these arguments for the first time before this Court (Id. citing Sims v. Comm’r of Soc. Sec., 406 F.
App’x 977, 982 (6th Cir. 2011)).
8

If Plaintiff’s arguments are not deemed waived, Defendant asserts that Plaintiff’s
arguments lack merit because the ALJ was entitled to rely upon the testimony of the vocational
expert and the DOT (Id. citing 20 C.F.R. §404.1566(c)). Defendant contends that Social Security
Ruling 00-4p requires an Administrative Law Judge “to affirmatively identify and obtain any
conflicts between the occupational evidence provided by the [vocational expert] and the DOT, as
the ruling provides that the DOT is the primary source relied upon by the Agency” (Id. citing 20
C.F.R. § 404.1566(d)(1)). Defendant indicates that the regulations and policy rulings do not
contemplate O*NET as a source of evidence (Id. citing 20 C.F.R. § 404.1566(d)(1)-(5); SSR
00-4p). Defendant argues that the ALJ met his duty when he specifically asked if any of the
vocational expert’s testimony conflicted with the provisions of the DOT (Id. citing Tr. 68).
Further, Defendant asserts that it was Plaintiff’s duty to cross-examine the vocational expert about
inconsistencies between the DOT and O*NET in order to bring the conflicts to the attention of the
ALJ (Id. citing Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 158 (6th Cir. 2009) (“SSR 00-4p
only requires the ALJ to elicit a reasonable explanation when there is conflict between the
vocational expert and the DOT. The ruling does not require that the ALJ attempt to address or
resolve conflicts between the testimony of a vocational expert and the Occupational Outlook
Handbook.”); Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006) (holding that
the ALJ’s only affirmative duty was to ask if a conflict existed between the DOT and the
vocational expert’s testimony, and it was the plaintiff’s duty to bring inconsistencies to the ALJ’s
attention); Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 715 (6th Cir. 2013) (“Moreover, the
ALJ asked the VE if her testimony was consistent with the Dictionary, and she answered that it

9

was. This effectively satisfied the Commissioner’s burden. . . . Lee’s representative could have
— but did not — cross-examine the VE concerning her representation.”)).
Defendant argues that Plaintiff’s reliance on Cunningham v. Astrue, 360 F. App’ x 606
(6th Cir. 2010), is misplaced because it is factually distinguishable from the circumstances herein
(Id.). Defendant notes that in Cunningham, both jobs “appear[ed] obsolete,” and thus common
sense dictated that another source of information should have been consulted. Id. at 615-16.
Further, Defendant argues the court in Cunningham never reached the question of whether the
number of jobs provided was significant, but rather remanded because both jobs appeared obsolete
based upon their descriptions in the DOT. Id. at 614-16. Defendant asserts that the ALJ had no
affirmative duty to consider O*NET at all, let alone probing the detailed and subtle conflicts
between the DOT and O*NET (Id.).
Defendant points out that the vocational expert testified there are 300 ticket taker jobs
regionally and 30,000 nationally (Id.). Defendant argues that even if the Court accepted only the
ticket taker as a valid representative job, the Sixth Circuit has found that 30,000 total jobs in the
national economy qualifies as significant (Id. citing Templeton v. Comm’r of Soc. Sec., 215 F.
App’x 458, 462-63 (6th Cir. 2007); see also Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 905
(6th Cir. 2016) (finding only 6,000 jobs nationwide “fits comfortably within what this court and
others have deemed ‘significant.’”)).
3. Discussion
a. Waiver
The Court will begin with Defendant’s argument that Plaintiff waived this claim by
failing to raise it during the administrative hearing through cross-examination of the vocational
10

expert.

First, Defendant’s reliance on Sims v. Comm’r of Soc. Sec., 406 F. App’x 977 (6th Cir.

2011) is misplaced.

In the section cited by Defendant, the Sixth Circuit addressed Sims’

argument that the hypothetical questions to the vocational expert did not reflect Dr. Guerrero’s
conclusion that she was moderately limited in her ability to maintain attention and concentration.
Id. at 982. The Sixth Circuit held that Sims’ argument failed “because the ALJ asked the
vocational expert if this restriction would impact a claimant's ability to work as a security
monitor, and the expert testified that it would not.” Id. The Sixth Circuit merely pointed out
that the vocational expert’s testimony could have been further refined through cross-examination
but Sims’ counsel failed to take advantage of that opportunity. Id. at 982. The Sixth Circuit
did not hold that Sims waived the claim by failing to cross-examine the vocational expert. Id.
Thus, the Sims case does not support Defendant’s argument that Plaintiff waived her claim by
failing to raise it before the ALJ through cross-examination of the vocational expert.
Obviously, Plaintiff’s counsel must be familiar with the information at issue in order to
refine the vocational expert’s testimony through cross-examination. For example, Plaintiff’s
counsel was familiar with the limitations expressed by Dr. Bradley.

As a result, counsel refined

the vocational expert’s testimony through cross-examination about the vocational impact of Dr.
Bradley’s limitations on both jobs (Tr. 68-69).
The circumstances here are distinguishable because there are literally thousands of jobs
identified in the DOT.

4

Further, prior to the administrative hearing Plaintiff’s counsel had no

inkling that the vocational expert would identify the ticket taker (DOT 344.667-010) and

4 According to one source, the DOT defines over 13,000 different types of jobs.
https://en.wikipedia.org/wiki/Dictionary_of_Occupational_Titles

11

monogram machine tender (DOT 583.685-046) jobs in response to the ALJ’s second
hypothetical question (Tr. 65-67).

Obviously, to refine the vocational expert’s testimony

through cross-examination, Plaintiff’s counsel would have needed to conduct research on the
DOT and O*NET after the vocational expert identified the two jobs. However, it would be
unrealistic to expect Plaintiff’s counsel to conduct such research during the hearing. Thus, this
part of Defendant’s waiver argument is without merit because it places an unreasonable burden
on Plaintiff’s counsel.
Next, the Court will address Defendant’s argument that Plaintiff waived this claim by
failing to raise it in her post-hearing brief to the Appeals Council. The record shows that
Plaintiff filed a request for review by the Appeals Council (Tr. 15-16) and her post-hearing brief
did not include the claim she now raises before the Court (Tr. 307-08).

However, in Sims v.

Apfel, the Supreme Court held that “[c]laimants who exhaust administrative remedies need not
also exhaust issues in a request for review by the Appeals Council in order to preserve judicial
review of those issues.”

530 U.S. 103, 112.

In reaching this holding the Supreme Court

observed that no statute or regulation required issue-exhaustion, and a judicially imposed
issue-exhaustion requirement was not appropriate because the Social Security administrative
proceeding is not adversarial.

Id. at 107-112.

Inasmuch as Plaintiff has exhausted her

administrative remedies, she may seek judicial review of her claim.

Thus, there is no merit to

either part of Defendant’s waiver argument.
b. Significant Number of Jobs
The Court will now focus on the merits of Plaintiff’s claim and Defendant’s response.
At the fifth step, the Commissioner has the burden of demonstrating that a “significant” number
12

of jobs exist in the local, regional and national economies that the claimant can perform, given
her residual functional capacity, age, education, and past work experience.

20 C.F.R. §

404.1520(a)(4)(v) and (g); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 684 (6th
Cir. 1992); Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990); Allen v. Califano, 613 F.2d
139, 145 (6th Cir. 1980).
ways.

Essentially, the Commissioner can satisfy this burden in one of two

When a claimant=s age, education, previous work experience, and residual functional

capacity coincide with all of the criteria of a particular Grid Rule in Appendix 2 of the
regulations, referred to as the medical-vocational guidelines, the Commissioner may rely on that
Grid Rule to meet this burden.

20 C.F.R. §§ 404.1569, 416.969; Grid Rule 200.00; Born v.

Sec’y of Health & Human Servs., 923 F.2d 1168, 1174 (6th Cir. 1990);Moon, 923 F.2d at 1181.
However, when a claimant=s residual functional capacity does not coincide with the criteria of a
particular Grid Rule, the Commissioner is limited to using the Grid Rule as a framework in the
decision making process and must make a non-guideline determination based on the testimony of
a vocational expert.

20 C.F.R. § 404.1566(e); Born, 923 F.2d at 1174; Varley v. Sec’y of

Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987); Kirk v. Sec’y of Health & Human
Servs., 667 F.2d 524, 531, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983).
Here, the ALJ found that Plaintiff’s residual functional capacity did not coincide with the
criteria of Grid Rule 202.14 because Plaintiff could not perform a full range of light work (Tr.
35).

Therefore, the ALJ used Grid Rule 202.14 as a framework in the decision making process

and made a non-guideline determination based on the vocational expert’s testimony (Id.).
Relying on the vocational expert’s testimony in response to the second hypothetical question, the
ALJ found that prior to February 24, 2015, there were jobs that existed in significant numbers in
13

the national economy that Plaintiff could have performed considering her age, education, work
experience, and residual functional capacity (Tr. 34-35 citing 20 C.F.R. §§ 404.1569 and
404.1569a).

Specifically, the vocational expert testified that the hypothetical individual could

perform work as a ticket taker (DOT 344.667-010) which is light in exertional level, unskilled
with an SVP of two, and there are 300 such jobs in the regional economy5 and 30,000 such jobs in
the national economy; and monogram machine tender (DOT 583.685-046) which is also light in
exertion, unskilled with an SVP of two, and there are 800 such jobs in the regional economy and
80,000 such jobs in the national economy (Tr. 66-67).

Pursuant to SSR 00-4p, the ALJ

confirmed that the vocational expert’s testimony was consistent with the information contained in
the DOT (Tr. 35, 68).
The Sixth Circuit has made clear that there is no “magic number” that qualifies as
“significant” for the purposes of satisfying this prong of the disability inquiry.
837 F.2d 272, 275 (6th Cir. 1988).

Hall v. Bowen,

Instead, the Court must make a fact-specific inquiry that is

guided by common sense:
We are not blind, however, to the difficult task of enumerating
exactly what constitutes a “significant number.” We know that
we cannot set forth one special number which is to be the boundary
between a “significant number” and an insignificant number of
jobs. . . . A judge should consider many criteria in determining
whether work exists in significant numbers, some of which might
include: the level of claimant’s disability; the reliability of the
vocational expert’s testimony; the reliability of the claimant’s
testimony; the distance claimant is capable of traveling to engage
in the assigned work; the isolated nature of the jobs; the types and
availability of such work, and so on. The decision should

5 The vocational expert confirmed that “regional economy” meant the Commonwealth of Kentucky (Tr. 68).

14

ultimately be left to the trial judge’s common sense in weighing
the statutory language as applied to a particular claimant’s factual
situation.
Id. (emphasis added). Here, Plaintiff asserts that the factors set out in Hall raise doubt as to
whether the number of jobs identified by the vocational expert is significant. Specifically,
Plaintiff asserts that the vocational expert’s testimony is not reliable because it is based on
obsolete occupational descriptions in the DOT.
The vocational expert based his testimony on two job descriptions set forth in the DOT (Tr.
65-68), a document published by the United States Department of Labor that has not been updated
since 1991. 6 However, in the trailer that follows the occupational description, the date last
updated (DLU) designation indicates that the ticket taker (DOT 344.667-010) description has not
been updated since 19807, and the monogram machine tender (DOT 583.685-046) description has
not been updated since 19778. Thus, when he responded to the ALJ’s hypothetical question, the
vocational expert’s testimony was actually based on occupational descriptions in the DOT that
were 35 and 37 years old, respectively.
The applicable regulation indicates that the Commissioner will take administrative notice
of “reliable job information” available from various sources, including the DOT, when
determining whether a specific job exists in significant numbers in the regional and national
economy. 20 C.F.R. § 404.1566(d)(1); Social Security Ruling 00-4p, 2000 WL 1898704, at *2
(Dec. 4, 2000). “Reliable job information” cannot be obtained from obsolete occupational
6 https://www.oalj.dol.gov/LIBDOT.HTM
7 http://www.occupationalinfo.org/34/344667010.html
8 http://www.occupationalinfo.org/58/583685046.html

15

descriptions. The Sixth Circuit has said as much when it commented, “common sense dictates
that when such descriptions appear obsolete, a more recent source of information should be
consulted.” Cunningham v. Astrue, 360 F. App’x 606, 615 (6th Cir. 2010). The two relevant
descriptions here--ticket taker and monogram machine tender--appear potentially vulnerable for
this reason.
The DOT occupational description for a ticket taker reads as follows:
344.667-010 TICKET TAKER (amuse. & rec.)
Collects admission tickets and passes from patrons at entertainment
events: Examines ticket or pass to verify authenticity, using criteria
such as color and date issued. Refuses admittance to patrons
without ticket or pass, or who are undesirable for reasons, such as
intoxication or improper attire. May direct patrons to their seats.
May distribute door checks to patrons temporarily leaving the
establishment. May count and record number of tickets collected.
May issue and collect completed release forms for hazardous
events, and photograph patron with release form for permanent
records file. May Be Designated Gate Attendant (amuse. & rec.) or
Turnstile Attendant (amuse. & rec.) when collecting tickets at
open-air event.
GOE: 09.05.08 STRENGTH: L GED: R2 M1 L2 SVP: 2 DLU: 80
DOT (1991), available at http://www.oalj.dol.gov (follow “DOT” hyperlink; then follow “Service
Occupations: 301.137-010 to 362.687-018” hyperlink). The trailer that follows the occupational
description indicates an SVP (Specific Vocational Preparation) of 2, which means “[a]nything
beyond short demonstration up to and including one month.”9

9 http://www.occupationalinfo.org/appendxc_1.html

16

The DOT occupational description for what the vocational expert referred to as a
monogram machine tender reads as follows:
583.685-046
knitting)

FUSING-MACHINE

TENDER

(garment;

Tends machine that fuses decorative emblems, monograms, labels,
collar stays, and backing material to hose or garment parts: Places
appliqué on hose or garment part or positions backing on garment
part and presses button or lever to activate machine that heats in
seals articles together. May be designated according to article
fused as Collar-Stay-Fuser Tender (garment); Emblem-Fuser
Tender (garment; knitting); Label-Fuser Tender (garment).
GOE: 06.04.05 STRENGTH: L GED: R1 M1 L1 SVP: 2 DLU: 77
DOT (1991), available at http://www.oalj.dol.gov (follow “DOT” hyperlink; then follow
“Processing Occupations: 583.137-010 to 599.687-038” hyperlink).
At the time of Plaintiff’s administrative hearing before the ALJ, more current occupational
descriptions were available. Specifically, the United States Department of Labor replaced the
DOT with O*NET, a database that is continually updated based on data collection efforts that
began in 2001. 10 See Cunningham, 360 F. App’x at 616.
The DOT Crosswalk Search Option on O*NET reveals that the ticket taker (DOT
344.667-010) occupation is now designated ushers, lobby attendants, and ticket takers (O*NET
39-3031.00). 11

The O*NET description reads, “[a]ssist patrons at entertainment events by

performing duties, such as collecting admission tickets and passes from patrons, assisting in
finding seats, searching for lost articles, and locating such facilities as restrooms and

10 https://www.onetcenter.org/dataCollection.html; and https://www.oalj.dol.gov/LIBDOT.HTM
11 https://www.onetonline.org/link/summary/39-3031.00

17

telephones.”12 Notably, the O*NET description indicates the SVP range for this occupation is 4.0
to < 6.0 and explains that employees “need anywhere from a few months to one year of working
with experienced employees.”13 Thus, the O*NET description indicates a substantially higher
level of specific vocational preparation than the 35 year old DOT description. Moreover, the
O*NET description indicates that technology skills for this occupation include office suite
software, operating system software, optical character reader or scanning software, and
spreadsheet software.14 Because of these substantial conflicts between the descriptions set forth
in the DOT and O*NET, the vocational expert’s dependence on the 35-year-old DOT listing alone
does not warrant a presumption of reliability.
The DOT Crosswalk Search Option on O*NET reveals that the monogram machine tender
(DOT 583.685-046) occupation is not even listed on O*NET. Under the circumstances, the
vocational expert’s reliance on the 37-year-old DOT listing alone does not warrant a presumption
of reliability.
Defendant’s attempt to rebut Plaintiff’s argument with Social Security Ruling 00-4p is
misguided. The purpose of this policy ruling is to emphasize that before deciding whether a
vocational expert’s testimony supports a disability determination, Administrative Law Judges
must identify and obtain a reasonable explanation for any conflicts between the occupational
evidence provided by the vocational expert and information in the DOT, including its companion
publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of

12 Id.
13 Id.
14 Id.

18

Occupational Titles (SCO). 2000 WL 1898704, at *1; see Lee v. Barnhart, 63 F. App’x. 291,
292–93 (9th Cir.2003) (“SSR 00–4p does not preclude reliance on the O*NET; it merely provides
that where there is a conflict between the DOT and another source, and the ALJ relies on the other
source, the ALJ must explain his reasons for doing so.”). Here, the Court is not dealing with a
conflict between occupational evidence provided by the vocational expert and information in the
DOT. Instead, the Court is dealing with the reliability of the vocational expert’s evidence in light
of his reliance on occupational descriptions in the DOT that were 35 and 37 years old, as this has
an impact on whether the vocational expert has identified a significant number of jobs that exist in
the regional and national economies that the Plaintiff can perform given her age, education, past
work experience, and residual functional capacity.
The Court does not agree with Defendant’s contention that the regulations and policy
rulings do not contemplate the O*NET as a source of evidence. See Lee, 63 F. App’x. at 292–93
(federal law “does not preclude reliance on the O*NET”); Moss v. Astrue, No. 09–1196, 2010 WL
2572040, at *7 (C.D. Ill. June 22, 2010) (“[T]he VE is not required to limit his hypothetical to
DOT data; the VE can also use outside data, including ONET.”). As worded, the regulation
makes clear that the Commissioner “will take administrative notice of reliable job information
available from various governmental and other publications.” 20 C.F.R. § 404.1567(d). The
regulation then sets forth a non-exhaustive list of examples that includes the DOT. Id.; see
Wennersten v. Colvin, No. 12-cv-783-bbc, 2013 WL 4821474, at * (W.D. Wis. Sept. 10, 2013)
(“the list is not exclusive”). This interpretation of the regulation is consistent with Social Security
Ruling 00-4p which in relevant part reads, “[t]he regulations at 20 CFR 404.1566(d) and
416.966(d) provide that we will take administrative notice of ‘reliable job information’ available
19

from various publications, including the DOT.” 2000 WL 1898704, at *2. As previously
mentioned, the United States Department of Labor replaced the DOT with O*NET, a database that
is continually updated based on data collection efforts that began in 2001. 15 See Cunningham,
360 F. App’x at 616. Thus, the O*NET contains “reliable job information” of which the
Commissioner could take administrative notice when determining whether a particular job exists
in significant numbers in the regional and national economy.
For the foregoing reasons, the vocational expert’s reliance on the two DOT occupational
listings does not warrant a presumption of reliability.

Thus, there does not appear to be

substantial evidence to support the ALJ’s finding that prior to February 24, 2015, there were jobs
that existed in significant numbers in the national economy that Plaintiff could have performed
considering her age, education, work experience, and residual functional (Tr. 34-35 Finding No.
11). Inasmuch as the Commissioner’s findings are not supported by substantial evidence, the
final decision of the Commissioner will be reversed and this matter will be remanded, pursuant to
sentence four of 42 U.S.C. § 405(g), to the Commissioner for reconsideration of whether the DOT
listings, specifically the ticket taker and monogram machine tender descriptions, were reliable in
light of the economy as it existed at the time of the hearing before the ALJ. See Faucher v. Sec’y
of Health & Human Servs., 17 F.3d 171, 175 (6th Cir. 1994) (sentence four of 42 U.S.C. §
405(g) authorizes a post judgment remand).
B
The undersigned is aware that Plaintiff has raised other claims with regard to the ALJ’s
findings (DN 11). In light of the above conclusion, the undersigned deems it unnecessary to
15 https://www.onetcenter.org/dataCollection.html; and https://www.oalj.dol.gov/LIBDOT.HTM

20

address those other claims. Further, the ALJ will have the opportunity to remedy those issues
when he conducts additional proceedings to remedy the above identified defect in the original
proceedings.

ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is REVERSED.
IT IS FURTHER ORDERED that this matter is REMANDED, pursuant to 42 U.S.C. §
405(g), to the Commissioner for further proceedings.

June 6, 2017

Copies:

Counsel

21