Williams v. Commissioner of Social Security

Filing 20

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 12/12/2018: The final decision of the Commissioner is AFFIRMED. IT IS FURTHER ORDERED that judgement is GRANTED for the Commissioner. cc: counsel (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:18-CV-00017-HBB
LINDA WILLIAMS

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 Linda Williams seeking judicial review of the
final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 14)
and Defendant (DN 19) have filed a Fact and Law Summary. For the reasons that follow, the
undersigned orders that judgment be granted for the Commissioner.
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 10). By Order entered May 30,
2018 (DN 11), the parties were notified that oral arguments would not be held unless a written
request was filed and granted. No such request was filed.
FINDINGS OF FACT
Williams filed an application for Supplemental Security Income (SSI), on April 11, 2011
(DN 9-5 PageID # 292). The application claimed Williams’s disability began on March 14, 2011

and is the result of a “weak heart” and “breathing problems” (DN 9-6 PageID # 342-346).
Administrative Law Judge Kevin R. Martin (ALJ) conducted a hearing on May 23, 2013 (DN 9-2
PageID # 130-184). Williams was present and testified. (Id. at 137). Sharon Lane was also present
and testified as an impartial vocational expert (Id. at 176).
In a decision dated August 1, 2013, ALJ Martin evaluated Williams’s disability claim
pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Id. at
112). At the first step, the ALJ found Williams has not engaged in substantial gainful activity
since April 11, 2011, the application date (Id. at 114). At the second step, the ALJ determined that
Williams has the following severe impairments: non-ischemic cardiomyopathy status post single
chamber automated implantable cardioverter-defibrillator, hypertension, emphysema; and
degenerative disc disease of the cervical spine (Id.). At the third step, the ALJ concluded that
Williams does not have an impairment or combination of impairments that meets or medically
equals one of the impairments listed in 20 CFR 404, Subpart P. Appendix 1 (Id. at 115).
At the fourth step, the ALJ found Williams has the residual functional capacity to perform
light work as defined in 20 CFR 416.967(b) with certain limited exceptions (Id. at 116). The ALJ
determined Williams can perform past relevant work as an insurance specialist and other jobs in
available in the national economy (Id. at 121-122). The ALJ ruled Williams has not been under a
disability since April 11, 2011 (Id. at 123).
Williams timely filed a request to the Appeals Council to review the ALJ’s decision (DN
9-10 PageID # 1342). Her request was denied (Id.). Williams then sought review of the decision
from this Court. This Court reversed the Commissioner’s decision and remanded the matter for
further consideration (Id. at 1349).

2

The ALJ reconsidered Williams’s case and issued an unfavorable opinion (DN 9-9 PageID
# 1241). The ALJ reached the same conclusions at steps 1-3 and the residual functional capacity
at the fourth step as the first decision. However, the new ruling found Williams had no past
relevant work. (Id. at 1245-1256). At the fifth step, the burden shifts to the Commissioner to show
there is a significant number of jobs in the national economy. Here, the ALJ found that Williams
can perform a significant number of jobs in the national economy (Id. at 1255-1256). The ALJ
found Williams has not been under a disability from April 11, 2011 through the date of the
decision, March 8, 2017 (Id. at 1256). The Appeals Council again denied Williams’s request for
review (Id. at 1235). Williams returns to this Court to reverse and/or remand the ALJ’s decision
(DN 14-1 PageID # 2211).
CONCLUSIONS OF LAW
Standard of Review
Review by this 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)).

3

As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (DN 14-1 PageID # 1235). When the Appeals Council denied Williams’s request
for review of the ALJ’s decision, it 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. § 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. §416.920. The evaluation proceeds as follows:
1)

Is the plaintiff engaged in substantial gainful activity?

2)

Does the plaintiff have a medically determinable impairment
or combination of impairments that satisfies the duration
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requirement and significantly limits his or her ability to do
basic work activities?
3)

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

4)

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

5)

Does the plaintiff’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 (DN 9-9 PageID # 1255-56).
Challenged Findings
Williams is now challenging the ALJ’s finding that she has the residual functional capacity
to perform a range of light work as defined in 20 C.F.R. §967(b), with certain limitations.
Specifically, Williams alleges the ALJ erroneously discounted the opinion of her treating
physician, Dr. Paul Moore, and gave strong weight to the opinion of Dr. David Swan, the nonexamining state agency physician. (DN 14-1 Page ID # 2211-2218). Williams also contests the
ALJ’s finding at step five that she can perform a significant amount of jobs in the national economy
(DN 14-1 PageID # 2223).
A. Step Four
1. Williams’s Argument
Williams argues the weight assigned to the opinion of her treating physician, Dr. Paul
Moore, is not supported by substantial evidence. Williams complains that the ALJ’s decision was
based on inconsistencies between the controlling physicians’ opinion and objective medical
evidence but adds that the ALJ “provided no reasoning as to why any of this evidence was so
inconsistent to not afford great or controlling weight to Dr. Moore’s opinion” (Id. at 2214).
5

Williams enumerates objective medical evidence she believes supports Dr. Moore’s medical
opinion (Id. at 2215).
2. Commissioner’s Argument
The Commissioner argues the ALJ’s decision that Williams possessed the residual
functional capacity to perform less than the full range of lightwork is supported by substantial
evidence (DN 19 Page ID # 2238). The Commissioner asserts that the ALJ relied on record
evidence and testimony and correctly discounted the treating physician’s opinion because it was
primarily based on Williams’s subjective assertions rather than objective medical evidence. (Id.)
Moreover, the Commissioner claims the ALJ appropriately applied the treating physician rule by
assessing the factors required by 20 C.F.R § 416.927(c)(2).1 Wilson v. Comm’r of Soc. Sec., 378
F. 3d 541, 544 (6th Cir. 2004).
3. Discussion - Dr. Paul Moore’s Medical Opinion
At the fourth step in the sequential evaluation process, the Administrative Law Judge
makes findings regarding the weight assigned to medical source statements in the record2, the
plaintiff=s credibility3, the plaintiff=s residual functional capacity4, the physical and mental

1

These factors are: 1) The length of the treatment relationship and frequency of examinations; 2) nature and extent
of the treatment relationship; 3) the relevant evidence that the treating physician relies upon; 4) the consistency of
the opinion with the record as a whole; 5) specialization of the treating physician.
2

20 C.F.R. § 416.927(c).

3

In assessing a plaintiff=s residual functional capacity the Administrative Law Judge must necessarily consider the
subjective allegations of the plaintiff and make credibility findings. 20 C.F.R. § 416.929; Social Security Ruling 967p.
4
The residual functional capacity finding is the Administrative Law Judge=s ultimate determination of what a
plaintiff can still do despite his or her physical and mental limitations. 20 C.F.R. § 416.945(a), 416.946. The
residual functional capacity finding is based on a consideration of medical source statements and all other evidence
in the case record about what a plaintiff can do despite limitations caused by his or her physical and mental
impairments. 20 C.F.R. §§, 416.929, 416.945(a), 416.946.

6

demands of the plaintiff=s past relevant work, and the plaintiff=s ability to return to the past relevant
work. See 20 C.F.R. § 416.920(e).
At issue here is the ALJ’s finding that Williams possessed adequate residual functional
capacity to perform certain limited light work. Specifically, how the ALJ weighed competing
medical opinions to reach that conclusion. See Gayheart v. Commissioner, 710 F. 3d 365, 375
(6th Cir. 2013). Social Security regulations “provide progressively more rigorous tests for
weighing opinions as the ties between the source of the opinion and the individual become
weaker.” Gayheart, 710 F. 3d at 365 (citations omitted). The treating physician rule mandates
that the ALJ give a treating physician’s medical opinion controlling weight if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in the case record.” Gayheart, 710 F. 3d at 376. If the treating
physician’s opinion is not given controlling weight the opinion is weighed considering the length,
frequency, nature, and extent of the treatment relationship, the treating source’s area of specialty,
its consistency with the rest of the record, and the extent it is supported by relevant evidence. 20
C.F.R. § 416.927(c)(2)-(6). “Good reasons” must be provided for discounting a treating source
opinion. Id. § 416.927(c)(2)-(6). The reasons must be supported by the record and sufficiently
specific to make clear to reviewers the weight given to a treating source’s opinion and the reasons
for the assigned weight. Gayheart, 710, F.3d at 376. (citing Soc. Sec. Rul. No. 96-2p, 1996 WL
374188, at 5 (Soc. Sec. Admin. July 2, 1996)). Non-treating and non-examining source opinions
are never given controlling weight but are weighed based on the aforementioned factors if the
treating-source opinion is deemed not controlling. 20 C.F.R. § 416.927(c).
The procedural requirements for assigning weight to the opinion of a treating source and
providing “good reasons” for that weight serve both to ensure adequacy of review and to give the

7

plaintiff a better understanding of the disposition of his case. Cole v. Astrue, 661 F.3d 931, 939
(6th Cir. 2011) (citing Rogers v. Comm’r, 486 F.3d 234, 242 (6th Cir. 2007)). “These procedural
requirements are ‘not simply a formality’ and are intended ‘to safeguard the plaintiff's procedural
rights.’” Cole, 661 F.3d at 937. The Sixth Circuit has indicated it will not hesitate to remand when
it encounters decisions from Administrative Law Judges that do not comprehensively set forth the
reasons for the weight assigned to a treating physician's opinion. Id. at 939 (citations omitted).
Williams alleges the ALJ erroneously discounted a May 16, 2013 report produced by her
treating physician Dr. Paul Moore, M.D. (DN 14-1 PageID # 2212). This is the same issue
Williams raised in her first appeal to this Court (DN 14-1 PageID # 2210). She now contends that
the ALJ failed to properly follow this Court’s order issued on October 2, 2015 (Id.). At that time,
this Court found the ALJ failed to make separate findings concerning controlling weight and the
amount of weight given to the treating source’s opinion (DN 9-10 PageID # 1357-1359). In
addition, the ALJ’s assignment of weight to a non-treating examining physician, Dr. Swan, was
not based on substantial evidence (DN 9-10 PageID # 1360).
Contrary to Williams’ contention, the ALJ remedied these defects with his second bite at
the apple. If an Administrative Law Judge does not give controlling weight to a treating source
physician’s opinion he must explain that the opinion is not well-supported by medically acceptable
clinical or laboratory diagnostic techniques and is inconsistent with the other evidence in the case
record. Gayheart, 710 F. 3d at 376. The ALJ explained that Dr. Moore’s opinion was not
supported by “medically acceptable clinical and laboratory diagnostic techniques” (Id.). The ALJ
cited chest imaging and an “Echo” that showed results inconsistent with Dr. Moore’s opinion and
Williams’s reported symptoms (DN 9-9 PageID # 1254). He added that Dr. Moore’s opinion was
inconsistent with “plaintiff’s noted activities of daily living” (Id.). Furthermore, records from

8

plaintiff’s heart specialists indicated her condition is under better control than indicated by Dr.
Moore, a family practitioner (Id.).
After deciding Dr. Moore’s opinion was not entitled to controlling weight, the ALJ
discussed reasons why it was afforded little weight. These reasons, if brief, nevertheless align
with the factors contemplated by 20 C.F.R. § 416.927(c)(2)-(6)5 The ALJ was aware of the nature
of the treating relationship between Williams and Dr. Moore, her family practitioner. The ALJ
was concerned that Dr. Moore’s opinion relied too heavily on subjective complaints from Williams
and was contradicted by objective medical evidence (Id. at 1254). The ALJ cited several
inconsistencies between Dr. Moore’s opinion and the rest of the record. Notes from other medical
providers describe Williams as doing well (Id.). Her self-reported physical activity contradicted
Dr. Moore’s recommendations (Id.).

His opinion was inconsistent with Williams’s heart

specialists who did not consider her condition as dire as Dr. Moore. (DN 9-9 PageID # 12531254).
Importantly, this court’s review is limited to determining whether the ALJ’s decision “is
supported by substantial evidence and made pursuant to proper legal standards.” Rogers v Comm’r
of Soc. Sec., 486 F. 3d 234, 241 (6th Cir. 2007). If the ALJ’s decision was based on substantial
evidence this Court must affirm, even if substantial evidence would also support the opposite
conclusion. Gayheart, 710 F. 4d at 374. Substantial evidence is defined as evidence that a
reasonable mind might accept as adequate to support the challenged conclusion. Smith, 893 F.2d
at 108 (citing Richardson v. Perales, 402 U.S. 389 (1971)).

5

Bound by this standard, the

These factors are: 1) The length of the treatment relationship and frequency of examinations; 2) nature and extent
of the treatment relationship; 3) the relevant evidence that the treating physician relies upon; 4) the consistency of
the opinion with the record as a whole; 5) specialization of the treating physician.
5

20 C.F.R. § 416.927(c).
9

undersigned concludes the ALJ's finding that Dr. Moore’s opinion was not entitled to controlling
weight is supported by substantial evidence.
4. Dr. Swan’s Medical Opinion
Williams argues that after discounting Dr. Moore’s medical opinion, the ALJ erroneously
assigned significant weight to the medical opinion of Dr. David Swan, M.D., a non-examining
agency physician. Williams contends the ALJ’s decision was not supported by substantial
evidence (DN 14-1 PageID # 2219). See Cotton v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993).
Notably, non-treating and non-examining source opinions are never given controlling weight.
Their weight is assigned based on the 20 C.F.R. § 416.927(c)(2)-(6) factors if the treating-source
opinion is deemed not controlling.
Dr. Swan recommended Williams be restricted to a reduced range of light exertion (DN 99 PageID #1253). The ALJ assigned significant weight to this opinion (Id.). Despite Williams
claims to the contrary, the ALJ considered the appropriate factors when he analyzed Dr. Swan’s
opinion. The ALJ considered nature the and frequency of the relationship between Dr. Swan and
Williams. He acknowledged that Dr. Swan is a state agency medical consultant, implicitly
recognizing there was no treating or examining relationship between Dr. Swan and Williams. The
ALJ explained that despite this limitation, state agency opinions are given by “highly trained
medical providers who are familiar with the rules and regulations of disability determinations”
(Id.). The ALJ also explained that Dr. Swan’s opinion was more consistent with the whole medical
record. The ALJ cited a conservative treatment regimen, “good” objective diagnostic imaging,
physical and mental status examination results, and Williams’s admitted activities of daily living
as evidence that Williams can perform limited light work consistent with Dr. Swan’s medical
opinion (Id.).

10

Again, this Court is restricted to answering a limited inquiry: Is the ALJ’s decision
supported by substantial evidence? Rogers, 486 F. 3d at 241. If the answer to the above question
is Ayes,@ then the Court may not even inquire whether the record could support a decision the other
way. Smith, 893 F.2d at 108 (citing Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453
n. 4 (6th Cir. 1986)). The undersigned concludes that the ALJ’s decision to assign Dr. Swan’s
opinion significant weight was supported by substantial evidence.
5. Williams’s Testimony
Williams next argues that the ALJ erred by failing to accept her testimony as fully credible
and failing to state adequate reasons for doing so (DN 14-1 PageID # 2220). When considering
symptoms reported by a plaintiff the ALJ must consider the plaintiff’s testimony and its
consistency with objective medical evidence and other evidence in the record. 20 C.F.R. §
416.929(c). The ALJ clearly did not afford much weight to Williams’s testimony. However, he
provided ample reasons for doing so. The ALJ found that the objective medical evidence and
William reports of physical activity did not support symptoms with the intensity, persistence, and
limiting effects described by Williams (DN 9-9 PageID #1252).
The medical evidence showed that Williams showed no signs of an abnormal heartrate or
rhythm, no murmur, rub, or gallops (Id. at 1251). Chest pain was treated with nitroglycerin and
there were no signs of coronary artery disease (Id). Williams was diagnosed with emphysema, but
exams showed normal breath sounds and no respiratory distress (Id.). Chest imagining revealed
clear lungs and no cardiac issues (Id.). Despite being diagnosed with hypertension, William’s
blood pressure was “under control” (Id.). Williams has degenerative disc disease, but exams
showed normal range of motion in the neck, major joints, and normal motor function –
contradicting her claims of debilitation (Id.).

11

The ALJ also emphasized Williams’s admitted activities of daily living (Id. at 1252).
Williams reported completing several daily household tasks including preparing meals,
performing house work, and doing laundry (Id.). Importantly, Williams remained capable of
completing strenuous tasks such as caring for wild animals (Id.). The ALJ noted Williams’s
testimony regarding her physical capabilities did not match her treatment records. For example,
on May 23, 2013 she testified she had not done any yard work or gardening since 2010. But she
reported in October 2011 that she regularly uses a tiller to clear brush from her property (Id.). At
the same hearing she testified that she was no longer able to partake in wildlife rescue activities.
But her treatment records and newspaper articles indicate she continued to rescue wildlife as much
as three years later (Id.).
Subjective complaints of pain or other symptoms may support a disability claim.
Blankenship v. Bowen, 874 F.2d 1116, 1123 (6th Cir. 1989). However, these complaints must be
supported by objective medical evidence. Blankenship, 874 F.2d at 1123. In this case, the ALJ
thoroughly examined the objective medical evidence and Williams’s self-reported physical
activity and found her claims of complete debilitation lacking. The ALJ’s finding that William’s
testimony was “not entirely credible” is at the very least supported by substantial evidence (DN 99 PageID # 1253).
6. ALJ Independent Medical Findings
In her final argument at step four, Williams contends the ALJ improperly speculated to
reach independent medical conclusions (DN 14-1 PageID #2220-2221). Williams adds that the
ALJ’s error went beyond mere speculation, but constituted “clear bias” against her (Id. at 2222).
This argument may be resolved quickly as it rehashes many of the same points in the
sections above. Williams contends that the ALJ wrongfully interpreted Dr. Moore’s treating notes,

12

leading him to inappropriately speculate about her ability to work. (Id. at 2221) See Rohan v.
Chater, 98 F. 3d 966, 970 (7th Cir. 1996). Again, this Court’s inquiry is limited to determining if
the ALJ’s decision was supported by substantial evidence, even if substantial evidence supports
the opposite conclusion. Gayheart, 710 F. 4d at 374. The ALJ’s decision to not assign controlling
weight to Dr. Moore’s opinion was based on substantial evidence, as was his decision to assign
significant weight to Dr. Swan’s opinion. The ALJ did not “speculate” as to Williams’s work
capabilities. He adopted the recommendations made by Dr. Swan (DN 9-3 Page ID #205-07).
The ALJ’s decision was not reached independently through his own interpretation of the medical
records, rather it was dependent on Dr. Swan’s analysis of the full medical record and subsequent
recommendation (DN 9-9 PageID # 1253). The ALJ’s determination that Williams possessed the
residual functional capacity to perform light work with certain limitations was supported by
substantial evidence.
B. Step Five
1. Williams’s Argument
Williams’s final argument comes at the fifth step in the sequential evaluation process. She
argues that the ALJ improperly relied upon testimony from the Vocational Expert (VE) that was
based on outdated occupational information. Specifically, Williams’s challenges the VE’s use of
the Dictionary of Occupational Titles (DOT) rather than the updated O*NET database to determine
jobs Williams is capable of performing. Williams argues that the DOT information is obsolete
and therefore cannot be considered “substantial evidence.” (DN 14-1 PageID # 2222).
2. Commissioner’s Argument
The Commissioner argues that substantial evidence supports the ALJ’s finding that
Williams can perform a significant number of jobs that exist in the national economy (DN 19

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PageID 2245-2246). The Commissioner adds that because Williams 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.). The Commissioner contends that a plaintiff must raise a conflict
with the DOT at the hearing pursuant to SSR 00-4p. The Commissioner adds that the ALJ is under
no obligation to investigate the accuracy of the VE’s testimony and it was Williams’s duty to crossexamine the VE about inconsistencies. In the alternative, the Commissioner argues that the ALJ’s
reliance on the VE’s testimony that does not conflict with the DOT provides substantial evidence
for the ALJ’s step five finding (Id. at 2247).
3. Waiver of Claim
The Court will first address the Commissioner’s argument that Williams waived this claim
by failing to raise it during the administrative hearing and to the Appeals Council. To support this
argument, the Commissioner relies on Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 636 (6th
Cir. 2016). In Kepke, the Sixth Circuit rejected the argument that hypothetical questions posed to
the VE by the ALJ were insufficiently specific. Id. at 636. The Court held that any error was
“slight” and “not reversible” because the VE properly took Kepke’s limitations into account. The
Sixth Circuit cited Sims v. Comm’r of Soc. Sec., 5406 F. App’x 977 (6th Cir. 2011) merely to point
out that the VE’s testimony could have been refined through cross examination. Kepke, 636 F.
App’x 625 at 636. The Sixth Circuit did not hold that the claim was waived for failure to
sufficiently cross-examine the VE. Id.
A plaintiff must be familiar with the information at issue to broach the subject on cross
examination. There are thousands of jobs listed in the DOT. Prior to the administrative hearing
Williams had no indication that the VE would identify sorter, nut and bolt assembler, and routing
clerks as jobs she was capable of working. To effectively cross examine the VE about his reliance

14

on the DOT, Williams’s counsel would have needed to research the occupations using DOT and
O*NET during the hearing. This is impractical and an unreasonable burden for a Plaintiff to bear.
Williams also did not waive this claim by failure to raise it to the Appeals Council. The
Supreme Court has held that “claimants 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. Sims v. Apfel, 530 U.S. 103, 112 (2000). The Court noted that no statute or
regulation required issue-exhaustion and a court-imposed issue-exhaustion requirement was
inappropriate in a non-adversarial setting. Id. at 107-112. Thus, Williams may seek judicial
review of her claim.
4. Obsolete Information in the DOT
The Court will now turn to the merits of Williams’s claim. At the fifth step in the sequential
evaluation process, the Commissioner must show that a significant number of jobs exist in the
local, regional, and national economies that Williams can perform considering her residual
functional capacity, age, education, and past work experience. 20 C.F.R. § 416.920(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). Essentially, the Commissioner can satisfy this burden in one of two ways. When a
claimant’s age, education, previous work experience, and residual functional capacity coincide
with all 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. § 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

15

to using the Grid Rule as a framework in the decision-making process and must make a nonguideline determination based on the testimony of a vocational expert. 20 C.F.R. § 416.966(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 Williams’s residual functional capacity did not coincide with the
criteria of Medical-Vocational Rule 202.20 because she could not perform a full range of light
work (DN 9-9 PageID #1255). Therefore, the ALJ departed from the guidelines and made a
determination based on VE testimony (Id.). The VE found that Williams is capable of performing
certain occupations found in the Dictionary of Occupational Titles (DOT), including: 1) Sorter
(#222.687-014), 51,000 jobs in the national economy; 2) Nut and bolt assembler (#929.587-010),
54,000 jobs in the national economy; and 3) Routing clerk (#222.687-022), 45,000 jobs in the
national economy. The VE added several jobs at the sedentary level of exertion that Williams can
perform: 1) Final Assembler (#713.687-018), 33,000 jobs in the national economy; 2) Table
worker (#739.687-182) 28,000 jobs in the national economy; and 3) Cuff folder (#685.687-014)
23,000 jobs in the national economy (Id. at 1303-1304). The ALJ determined that the VE’s
testimony is consistent with the information in the DOT (DN 9-9 PageID # 1302). See SSR 004p.
Here, Williams is challenging whether substantial evidence supports the ALJ’s finding that
she is capable of performing a significant number of jobs that exist in the national economy. The
basis for this challenge is that the information provided by the VE was derived from outdated
information in the DOT (DN PageID # 2225). The contested jobs – Sorter (#222.687-140), nut

16

and bolt assembler (#929.587-010), and routing clerk (#222.687-022) were last updated in 1977.6
Notably, the three jobs at the sedentary level identified by the VE that Williams is capable of
performing – Final assembler (#713.687-018), 33,000 jobs in the national economy; Table worker
(#739.687-182), 28,000 jobs in the national economy, and Cuff folder (#685.687-014), 23,000 jobs
in the national economy (DN 9-9 PageID #1304) – were not contested by Williams but were also
last updated in 1977.
There is no “magic number” of jobs that qualifies as significant. Hall v. Bowen, 837 F.2d
272, 275 (6th Cir. 1988). The Court must make a fact specific inquiry guided by common sense
and certain factors including: “the level of claimant’s disability, the reliability of the vocational
expert’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 the work, and so on.” Hall 837 F. 2d at
275 (emphasis added). Williams claims that because the VE testimony was based on obsolete
information last updated in 1977 it is inherently unreliable (DN 14-1 PageID # 2224).
The DOT is a legitimate source of occupational information under Social Security
regulations. 20 C.F.R. § 416.966(d)(1). However, it has not been updated since 1991, and has
been supplemented by O*NET. O*NET is a database that has been continually updated since
2001. See Cunningham v. Astrue, 360 F. App’x 606, 616 (6th Cir. 2010). The DOT to O*NET
Crosswalk Search function provided by the Department of Labor allows for comparison of DOT
listed occupations with similar occupations in the modernized O*NET.7 Crosswalk searches of
the six occupations provided by the VE (3 light work, 3 sedentary) reveal inconsistencies that cast
doubt on the reliability of parts of the VE’s testimony. For example, Sorter (#222.687.140) and

6

https://www.oalj.dol.gov/LIBDOT.HTM

7

https://www.onetonline.org/

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final assembler (#713.687-018) do not appear in O*NET and are replaced with a generalized
position of “Production Worker” that does not enumerate specific skills and capabilities required
to complete the job. 8 Nut and bolt assembler (#939.587.010) and Cuff Folder (#685.687-014) are
replaced with “Helpers-Production Workers (51-9198.00).9 The O*NET occupation description
indicates the position requires interaction with industrial equipment that the VE testified Williams
would not be able to operate due to her internal defibrillator (DN 9-9 PageID # 1306-1310).
However, the VE also identified Routing Clerk (#222.687-022) and Table Worker
(#739.687-182) as occupations Williams is capable of performing. While, these DOT descriptions
do not have an exact match in the O*NET they are similar enough to be considered reliable. The
DOT description for Routing Clerk reads:
Sorts bundles, boxes, or lots of articles for delivery: Reads delivery
or route numbers marked on articles or delivery slips, or determines
locations of addresses indicated on delivery slips, using charts.
Places or stacks articles in bins designated according to route, driver,
or type. may be designated according to work station as Conveyor
Belt Package Sorter (retail trade). May sort sacks of mail and be
known as Mail Sorter (r.r. trans.).10
The corresponding O*NET description reads:
Summary Report for:
43-5071.00 -Shipping, Receiving, and Traffic Clerks
Verify and maintain records on incoming and outgoing shipments.
Prepare items for shipment. Duties include assembling, addressing,
stamping, and shipping merchandise or material; receiving,
unpacking, verifying and recording incoming merchandise or
material; and arranging for the transportation of products.11

8

https://www.onetonline.org/link/summary/51-9199.00

9

https://www.onetonline.org/link/summary/51-9198.00

10
11

https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT02B.HTM
https://www.onetonline.org/link/summary/43-5071.00

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The description for Table Worker reads:
Examines squares (tiles) of felt-based linoleum material passing
along on conveyor and replaces missing and substandard tiles.12
The corresponding O*NET description reads:
Inspect, test, sort, sample, or weigh nonagricultural raw materials or
processed, machined, fabricated, or assembled parts or products for
defects, wear, and deviations from specifications. May use precision
measuring instruments and complex test equipment.
Sample of reported job titles: Inspector, Picker / Packer, Quality
Assurance Auditor, Quality Assurance Inspector, Quality Assurance
Technician, Quality Auditor, Quality Control Inspector, Quality
Control Technician, Quality Inspector, Quality Technician13
Social Security regulations make clear that the ALJ may take notice of the DOT when
determining if jobs exist in the national economy. Cunningham, 360 F. Appx. at 615. However,
that information must be reliable. Id. In Cunningham, the Court held that there was not
substantial evidence to support the ALJ’s finding that a significant number of jobs existed
because the relevant DOT listed occupations were not found in the O*NET. Here, that is true of
4 of the 6 jobs enumerated by the VE. It is not true of the Routing Clerk and Table Worker
positions. Admittedly, the DOT and O*NET descriptions for the jobs are not exact matches.
However, because “descriptions contained in the O*NET are more expansive than those in the
DOT, they do not raise doubts as to the reliability of the DOT descriptions.” Earls v. Comm’r of
Soc. Sec., 2011 WL 3652435, *7 (N.D. Ohio, August 2011).
If the Court considers only Routing Clerk and Table Worker positions, the number of
jobs available is significant according to the Sixth Circuit. The VE identified 51,000 Routing
Clerk jobs and 28,000 Table Worker jobs available in the national economy (DN 9-9 Page ID#

12

https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT07D.HTM

13

https://www.onetonline.org/link/summary/51-9061.00

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1303-1304) – totaling 79,000 jobs. There is no bright-line that separates an insignificant number
from a significant number of jobs. Hall, 837 F.2d 272 at 275. However, the Sixth Circuit
routinely holds substantially fewer number of jobs to be significant. Taskila v. Comm’r of Soc.
Sec., 819 F.3d 902, 905 (6th Circ. 2016) (6,000 jobs in the national economy is significant);
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 579 (6th Cir. 2009) (2,000 jobs). Therefore,
the undersigned concludes that 79,000 jobs in the national economy is significant. The ALJ’s
decision that Williams is capable of performing a significant number of jobs in the national
economy is supported by substantial evidence.
ORDER
IT IS HEREBY ORDERED that the final decision of the Commissioner is AFFIRMED.
IT IS FURTHER ORDERED that judgement is GRANTED for the Commissioner.

December 12, 2018

Copies: Counsel

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