Chinn v. Commissioner of Social Security

Filing 23

MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 3/12/2019: 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 (JM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:18-CV-00054-HBB
ALLEN CHINN

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 Allen Chinn seeking judicial review of the
final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 17)
and Defendant (DN 22) have filed a Fact and Law Summary. For the reasons that follow, the final
decision of the Commissioner is REVERSED, and this matter is REMANDED pursuant to 42
U.S.C. § 405(g), to the Commissioner for further proceedings.
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 11). By Order entered July 17,
2018 (DN 12), 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
Chinn filed an application for disability insurance benefits on October 25, 2013 (Tr. 328).
He also filed an application for supplemental security income on September 30, 2013 (Tr.336). In
both applications, Chinn alleged that he became disabled on September 5, 2013 as a result of: heart
murmur; heart attack; triple bypass surgery; crushed right shoulder; “messed up C5, C6 and C7;”
and severed hand tendons (Tr. 151). Administrative Law Judge Amber Downs (AALJ@) conducted
a hearing on August 13, 2015 in Paducah, Kentucky. A second hearing was conducted via video
on March 1, 2017. The ALJ participated from Tampa, Florida and Plaintiff represented by counsel,
Sara J. Martin, participated from Owensboro, Kentucky. Also present and testifying at the 2015
hearing was Tom Wagner, M.D. an impartial medical expert and Kenneth Boaz, an impartial
vocational expert. At the 2017 hearing, Thomas Passo, M.D. testified as an impartial medical
expert and Lynn Jones as an impartial vocational expert.
In a decision dated April 10, 2017, the ALJ evaluated this adult disability claim pursuant
to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 19-29). At
the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since
September 5, 2013, the alleged onset date (Tr. 19). At the second step, the ALJ determined that
Plaintiff=s ischemic heart disease, depression, anxiety, degenerative disc disease, avascular
necrosis of left hip, and degenerative joint disease are Asevere@ impairments within the meaning of
the regulations (Tr. 19). Notably, at the second step, the ALJ also determined that Plaintiff=s
hypertension and insomnia are Anon-severe@ impairments within the meaning of the regulations
(Tr. 19). At the third step, the ALJ concluded that prior to October 12, 2015, the date Chinn

2

became disabled, he did not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments in Appendix 1 (Tr. 20).
At the fourth step, the ALJ found that prior to October 12, 2015, the date Chinn became
disabled, he had the residual functional capacity to perform less than a full range of sedentary work
(Tr. 21). More specifically, the ALJ found that Chinn can lift 10 pounds occasionally and less
than 10 pounds frequently; stand/walk two hours in a workday; and sit 6 hours in a workday. He
can occasionally climb ladders, ropes and scaffolds. He can occasionally be exposed to extreme
cold and heat. He can occasionally perform right overhead reaching and frequently perform all
other reaching on the right. He needs a sit/stand alternative after a period of 30 minutes. He is
limited to simple routine tasks, occasional complex or detailed tasks, occasional contact with the
general public and supervisors. He can have no sustained attention to detail and no strict quota
based or face paced work environments. He cannot work in a loud or confusing work environment.
(Tr. 21-22). Relying on testimony from the vocational expert, the ALJ found that since September
5, 2014, Chinn has been unable to perform any of his past relevant work (Tr. 27).
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. 27-28). The ALJ found that prior to October 12, 2015 Chinn is capable of performing a
significant number of jobs that exist in the national economy (Tr. 27). The ALJ determined that
beginning on October 12, 2015 the severity of claimant’s impairments met the criteria of 4.04C of
20 CFR Part 404, Subpart P, Appendix 1 (Tr. 28). Plaintiff timely filed a request for the Appeals
Council to review the ALJ=s decision (Tr. 326-27). The Appeals Council denied Plaintiff=s request
for review of the ALJ=s decision (Tr. 1-7).
3

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)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-7). 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).

4

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:
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,
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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
1. Step Two
Chinn first argues that there is not substantial evidence to support the ALJ’s failure to
recognize his avascular necrosis of the right shoulder as a severe impairment (DN 17-1 PageID #
3126).

He alleges this impairment should have been classified as severe and properly

accommodated in the ALJ’s residual functional capacity (RFC) assessment. Chinn contends the
ALJ’s decision is unsupported by the medical records, and if properly considered would have led
to a finding that he was disabled prior to October 12, 2015 (Id.). The Commissioner responds
arguing that the decision not to consider Chinn’s impairment severe is irrelevant because she gave
it due consideration when determining Chinn’s RFC (DN 22 PageID # 3146-47).

The

Commissioner adds that the ALJ supported her RFC finding with substantial evidence and Chinn
has failed to demonstrate a reversible error (Id. at 3147-48).
At the second step in the sequential evaluation process a claimant must demonstrate he has
a Asevere@ impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir. 1988) (per curiam). To satisfy this burden, the claimant must show he
suffers from a Amedically determinable@ physical or mental condition that satisfies the duration
requirement and Asignificantly limits@ his ability to do one or more basic work activities. 20 C.F.R.
'' 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c); Social Security Ruling 96-3p; Social
Security Ruling 96-4p; Higgs, 880 F.2d at 863. Alternatively, the claimant must show he suffers
6

from a combination of impairments that is severe and meets the duration requirement. 20 C.F.R.
§ 404.1520(a)(4)(ii) and (c). An impairment can be considered not severe only if it is a slight
abnormality that minimally effects work ability, regardless of age, education and work experience.
Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citing Farris v. Sec’y of Health & Human
Servs., 773 F.2d 85, 89-90 (6th Cir. 1985)).
According to the regulations, upon determining that a claimant has at least one severe
impairment, the ALJ must continue with the remaining steps in the disability evaluation outlined
above. 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c). Here, the ALJ found
ischemic heart disease, depression, anxiety, degenerative disc disease, avascular necrosis of the
left hip, and degenerative joint disease to be severe impairments (Tr. 19). Chinn argues the ALJ
should have also have considered his avascular necrosis of the right shoulder as a severe
impairment (DN PageID # 3127). However, it is unnecessary to determine if the ALJ erred in
failing to find the avascular necrosis a severe impairment. Even if Chinn could show the ALJ’s
finding was not supported by substantial evidence, that error alone is insufficient to reverse and
remand the ALJ’s decision. See Maziarz v. Sec’y of Health & Human Servs., 87 F.2d 240, 244
(6th Cir. 1987). If an Administrative Law Judge finds that other impairments are severe and
considers all of a claimant’s impairments in the remaining steps, the error is harmless. Maziarz,
837 F. 2d at 244. The ALJ found Chinn had several severe impairments and continued with the
sequential evaluation process. Thus, the undersigned must determine whether the ALJ adequately
considered Chinn’s avascular necrosis of the right shoulder in the remaining steps in the evaluation
process, most importantly during the residual functional capacity analysis.

7

The ALJ did address Chinn’s shoulder pain in her RFC analysis. She mentioned that Chinn
crushed his right shoulder after falling down the stairs “several years ago” and that it was
“repaired” in 2015 but reported minimal improvement and continued pain and limited mobility
(Tr. 22). The ALJ noted that Chinn first reported experiencing shoulder pain in September 2015
(Tr. 24).

An MRI at that time showed severe glenohumeral joint degenerative arthritis.

Superimposed local humeral head avascular necrosis was suspected (Tr. 24, 2217). Chinn
underwent steroid injections and experienced little improvement. A second MRI revealed
advanced degenerative changes with ischemic necrosis in the humeral head. Chinn underwent
surgery to repair his shoulder in October but entered cardiac arrest during the procedure (Tr 24,
2138). A second attempt was made just weeks later and was successful (Tr. 24, 2140).
Chinn is arguing that these shoulder issues amounted to a severe impairment and rendered
him disabled prior to October 12, 2015—the date the ALJ determined he became disabled.
Unfortunately, Chinn has not offered a date he believes his shoulder issues became so severe that
he was unable to work. Ostensibly, that date is September 5, 2013—the date Chinn alleged he
became disabled on his application for Social security benefits—but Chinn was unaware of this
disability at that time. Chinn included a “crushed right shoulder” as a reason for his disability on
his original application. However, he has not cited, nor has the undersigned discovered, any
medical records that connect Chinn’s crushed right shoulder with his subsequent diagnosis of
advanced degenerative ischemic necrosis. Chinn offers nothing but his own testimony that his
hand sometimes went numb and the assertion that “this did not happen overnight, but overtime to
support his claim” (DN 17-1 PageID# 3127).

8

Without more, the undersigned cannot reverse the ALJ’s decision. The plaintiff has the
burden of providing sufficient medical evidence to enable the Administrative Law Judge to make
a determination. Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986);
20 C.F.R. §§ 404.1512(c), 404.1513(d) 416.912(c), 416.913(d). Chinn points to Dr. Passo’s
opinion to support his claim (DN 17-1 PageID # 3127, Tr. 2600-2612). Dr. Passo is a cardiologist.
His opinion is based on his knowledge of Chinn’s heart condition, not his shoulder. Chinn claims
that Dr. Passo’s opinion was “vocationally preclusive” (Id.) But, Dr. Passo’s recommendations
are consistent with the finding that Chinn is capable of sedentary work. Sedentary work involves
lifting no more than 10 pounds at a time and occasionally lifting light objects. The work involves
sitting, walking, and standing occasionally. 20 C.F.R. § 404.1527. Dr. Passo opined that Chinn
can lift no more than 10 pounds occasionally and has the ability to reach, handle, finger, feel, push
or pull (Tr. 2600-2612).
The ALJ afforded some weight to Dr Passo’s opinion because it was issued before Chinn’s
shoulder surgery that resulted in cardiac arrest on October 15, 2015 (Tr. 26). The ALJ found Chinn
became disabled on that date. Nothing in Dr. Passo’s records indicate that Chinn could not perform
sedentary work prior to that date. The medical records show that Chinn first reported shoulder
pain in September 2015 (Tr. 24). He was being treated by an orthopedist for hip issues for at least
one year prior to that date and never reported shoulder pain (Tr. 24). This severely undercuts
Chinn’s claim that his ischemic necrosis was a severe impairment that rendered him disabled. The
diagnosis and subsequent surgery do not in and of themselves provide proof of disability. Chinn
has provided no medical evidence clarifying when exactly he began feeling symptoms of the

9

necrosis—offering only that it occurred “over time.” Chinn has failed to demonstrate a reversible
error by the ALJ. Her finding was supported by substantial evidence available in the record.
2. Step Four – ALJ Bias
Chinn’s next argument is that substantial evidence does not support the ALJ’s RFC finding
at Step Four in the sequential evaluation process. He claims that the ALJ demonstrated “clear bias
in the post-hearing process” that indicates the ALJ predetermined her assessment in order to deny
Chinn benefits based on personal animus (DN 17-1 PageID# 3128). The Commissioner responds
that the Court must presume that the ALJ exercised her authority with “honesty and integrity” and
Chinn has not overcome this burden to demonstrate bias (DN 22 PageID # 3149).
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 record1, the
claimant=s credibility2, the claimant=s residual functional capacity, the physical and mental
demands of the claimant=s past relevant work, and the claimant=s ability to return to the past
relevant work. See 20 C.F.R. §§ 404.1520(e), 416.920(e). 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),

1

20 C.F.R. §§ 404.1527(c), 416.927(c).

In assessing a claimant=s residual functional capacity the Administrative Law Judge must
necessarily consider the subjective allegations of the claimant and make credibility findings. 20
C.F.R. §§ 404.1529, 416.929; Social Security Ruling 96-7p.
2

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404.1546, 416.929, 416.945(a), 416.946; Social Security Ruling 96-5p; Social Security Ruling 967p.
Chinn claims that despite issuing a partial favorable ruling and recognizing his cardiac
condition (as of October 12, 2015), his hip condition, back pain, anxiety, and depression as severe
impairments, the ALJ failed to fully consider the resulting limitations from these conditions before
October 12, 2015 and failed to at all consider his shoulder condition (DN 17-1 PageID # 3128).
Chinn attributes this apparent failure to “clear bias” against him personally (Id.). Chinn’s claim is
unsupported by the record and without merit.
First, the ALJ did consider the resulting limitations of Chinn’s disabilities prior to October
15, 2015. The ALJ conducted a thorough analysis of Chinn’s condition after his first heart attack
in 2013 (Tr. 23). She noted that he was advised not to work for four weeks. He developed a
pulmonary embolism following surgery, but this was resolved with medication. Despite Chinn’s
reported chest pain, x-rays showed only mild effusion, and pain medication was prescribed. By
October 2013, Chinn was considered stable from a cardiac standpoint, to the point where he was
able to exercise three times a week (Tr. 23). By November 2014, Chinn reported being active and
had no complaints of chest pain (Tr. 23).
Similarly, the ALJ considered Chinn’s hip and back pain before the disability date of
October 12, 2015. The ALJ considered Chinn’s reports of pain with left hip movement but noted
no signs of numbness. She noted that it was recommended he walk with a cane and by September
18, 2015 x-rays showed a normal left hip. The ALJ also discussed Chinn’s claims of back pain in
July 2014 and noted he underwent no significant treatment for his condition (Tr. 24). Regarding
Chinn’s shoulder issue, it has already been noted that the issue was diagnosed only a month before
11

the ALJ found Chinn to be disabled and Chinn has provided no evidence to support the claim that
it was debilitating prior to that date.
Not only is Chinn’s claim contradicted by the ALJ’s opinion, his accusations of bias are
unsupported by the record. When an ALJ is accused of bias the Court must presume that the ALJ
exercised her decision-making power with “honesty and integrity.” Collier v. Comm’r of Soc Sec.,
108 F. App’x 358, 363-64 (6th Cir. 2004). The burden of overcoming this presumption is on the
party asserting bias, and the presumption can only be overcome with convincing evidence that
actual bias or prejudgment is present. Collier, 108 F. App’x at 364. The evidence must be part of
the record and cannot be based on speculation or inference. Carrelli v. Comm’r of Soc. Sec., 390
F. App’x 429, 436 (6th Cir. 2010). Chinn provides nothing but speculation and inference. He
claims without supporting evidence that the ALJ intentionally prolonged the proceedings by twice
requesting the same interrogatories from a medical expert (DN 17-1 PageID # 3125). Chinn also
claims, without evidence, the ALJ called the same medical expert to testify at the second hearing
specifically to contradict earlier opinions (Id. at 3129). He also takes issue with the ALJ’s
“demeanor and tone” (Id.). This does not overcome the presumption that the ALJ discharged her
duties with “honesty and integrity. See Collier, 108 F. App’x at 364. The ALJ fully engaged with
extensive medical records in her opinion and held two hearings on the matter. There is no evidence
that the ALJ failed to fully develop the record and give Chinn a fair hearing. An objective observer
would not be convinced that the ALJ’s fairness need be questioned. Id. Chinn’s argument fails.
3. Step Four – Opinion Evidence Weight
Chinn’s third argument is that the ALJ erroneously discounted the opinion of Susan Daniel,
APRN when determining Chinn’s RFC. Chinn argues that as a treating source Nurse Daniel’s
12

opinion should have been giving controlling weight, and the ALJ failed to provide “good reasons”
for discounting her opinion (DN 17-1 PageID # 3130). The Commissioner responds that Daniel
is a nurse practitioner, and therefore not an acceptable medical source under the regulations.
Rather, nurse practitioners are considered an “other source” under the regulations and are not
entitled to any special degree of deference (DN 22 PageID # 3151-52).
Under the regulations nurse practitioners are not considered an acceptable medical source.
They are an “other source.” 20 C.F.R. § 404.1513. “Other source” opinions may provide evidence
of a claimant’s impairment, but they cannot establish the existence of a disability. Engebrect v.
Comm’r of Soc. Sec., 572 Fed App’x. 392, 398 (6th Cir. 2014). Other sources are not entitled to
any particular degree of deference, and the ALJ is free to assign it any weight she feels appropriate
based on the evidence in the record. Noto v. Comm’r of Soc. Sec., 632 Fed. App’x 243, 248-49
(6th Cir. 2015). However, the ALJ is required to review all relevant evidence in the record,
including from other sources. The ALJ must explain the weight given to opinions from other
medical sources. SSR 06-03p, 2006 WL 2329939 (Aug. 9, 2006).
Here, the ALJ fully considered Nurse Daniel’s opinion. She opined that Chinn could not
work full time due to his combination of physical and mental impairments (Tr. 27). The ALJ
assigned little weight to this opinion because her own progress notes did not support such a severe
limitation. For example, Nurse Daniel opined that Chinn had debilitating depression, but her
progress notes focus on anxiety and do not indicate that it is as limiting as her statement suggests
and is not supported by other evidence in the record (Tr. 27). The ALJ also noted Nurse Daniel’s
reported debilitating chest pain, but other evidence in the record shows Chinn’s pain was controlled
with medication and would not keep him from working (Tr. 27). The ALJ’s consideration of Nurse
13

Daniel’s testimony was commensurate with Social Security regulation requirements. Her RFC
finding was supported by substantial evidence and therefore cannot be disturbed.
4. Step Five
Chinn’s final argument is that there is not substantial evidence supporting the ALJ’s finding
that jobs existed in the regional or national economy that he was capable of performing (DN 17-1
PageID# 3132). Specifically, Chinn argues that the vocational expert relied on obsolete job
descriptions in the Dictionary of Occupational Titles (DOT) when he testified that Chinn was able
to perform the following jobs: Stuffer, DOT 731.685-014; 2) Hand Packager, DOT 559.687-074;
and 3) Lens Inserter, DOT 713.687-026 (Tr. 28).

Chinn contends the VE should have

supplemented his testimony with an up to date reliable source such as O*NET (DN 127-1 PageID
# 3132). The Commissioner responds that it is a plaintiff’s duty to elicit any inconsistencies with
a vocational expert’s testimony and the Dictionary of Occupational Titles (DOT) on cross
examination, because Chinn failed to do this at the hearing he has waived the argument (DN 22
PageID # 3152-54). He adds that even if the argument is not waived, the vocational expert’s
testimony provides substantial evidence for the ALJ’s finding (Id.).
The Court will begin with Defendant’s argument that Plaintiff forfeited this claim by failing
to raise it during the administrative hearing through cross-examination of the vocational expert.
First, Defendant’s reliance on Kepke v. Comm’r of Soc. Sec., 636 F. App’x. 625, 636 (6th Cir.
2016) is misplaced. Kepke’s argument concerned the Administrative Law Judge’s failure to
include a specific physical limitation in the hypothetical questions posed to the vocational expert.3

3

The hypothetical questions to the vocational expert failed to specify the frequency of the claimant’s need to
alternate between sitting and standing. Kepke v. Comm’r of Soc. Sec., 636 F. App’x. 625, 636 (6th Cir. 2016).

14

Id. The Sixth Circuit held “[b]ecause Kepke failed to probe this alleged deficiency at the ALJ
hearing, she forfeited this argument.” Id. Implicit within this holding is the Sixth Circuit’s
recognition that Kepke knew about this physical limitation at the time of the administrative hearing
and, therefore, she could have addressed the purported deficiency through cross-examination of
the vocational expert. Id.
In contrast to the circumstances in Kepke, Plaintiff had no notice that the vocational expert
would identify Stuffer, DOT 731.685-014; Hand Packager, DOT 559.687-074; and Lens Inserter,
DOT 713.687-026 in response to the ALJ’s hypothetical question (Tr. 28).

Prior to the

administrative hearing Plaintiff could not have conducted research about these three jobs on the
DOT and O*NET4. Moreover, because there are literally thousands of jobs identified in the DOT5,
it is unlikely that Plaintiff had sufficient personal knowledge about these job descriptions to
effectively cross-examine the vocational expert “on the fly.” In order to effectively cross-examine
the vocational expert about the three identified jobs, Chinn would have needed to conduct research
on the DOT and O*NET after the vocational expert identified these jobs. However, it would be
impractical to conduct such research during the hearing. This places an unreasonable burden on a
claimant. Therefore, the Commissioner’s waiver argument fails.
Defendant’s attempt to rebut Plaintiff’s argument with Social Security Ruling 00-4p and
cases such as Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 605-06 (6th Cir. 2009) and Isaac v.

4

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. https://www.onetcenter.org/dataCollection.html; and
https://www.oalj.dol.gov/LIBDOT.HTM
5

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

15

Colvin, No. 3:13-cv-125, 2014 WL 2931579, at *12-13 (S.D. Ohio, June 27, 2014) is also
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
Occupational Titles (SCO). SSR 00-4p, 2000 WL 1898704, at *1 (Dec. 4, 2000); Lindsley, 560
F.3d at 606; Martin v. Comm’r of Soc. Sec., 170 F. App’x 369, 374 (6th Cir. 2006). This policy
ruling does not impose a duty on Administrative Law Judges to further interrogate a vocational
expert when he or she testifies that there is no conflict between the vocational opinion and
information in the DOT. See SSR 00-4p; Lindsley, 560 F.3d at 606. Further, when a vocational
expert bases his opinion on the contents of the DOT and the Administrative Law Judge relies on
that testimony, SSR 00-4p does not impose a duty on the Administrative Law Judge to resolve
conflicts between the vocational expert’s testimony and information from a different vocational
publication. See Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 158 (6th Cir. 2009) (the claimant’s
own vocational expert based his opinion on information from the Occupational Outlook
Handbook). As the Ninth Circuit insightfully explained, “[SSR 00–4p] 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.” Lee v. Barnhart, 63 F. App’x. 291, 292–93 (9th
Cir.2003). Because such circumstances do not exist here, SSR 00-4p is inapplicable.
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. Hall v. Bowen, 837
16

F.2d 272, 275 (6th Cir. 1988). 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 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, Chinn 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 three job descriptions contained in the DOT,
a document published by the United States Department of Labor (“DOL”) that was last updated in
1991.6 The regulations provide that the Commissioner “will take administrative notice of reliable
job information available from various governmental and other publications.” 20 C.F.R. §§
404.1566(d), 416.966(d); Social Security Ruling 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).
The regulations include the DOT within their non-exhaustive list of examples of sources from
which reliable job information is available. 20 C.F.R. §§ 404.1566(d)(1)-(5), 416.966(d)(1)-(5);
see Wennersten v. Colvin, No. 12-cv-783-bbc, 2013 WL 4821474, at * (W.D. Wis. Sept. 10, 2013)
(“the list is not exclusive”). Thus, a vocational expert may base his testimony on job descriptions

6

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

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in the DOT. However, the Sixth Circuit, albeit in an unpublished opinion, has made the following
cautionary statement: “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) (emphasis added).
According to the DOT, Stuffer and Lens Inserter have not ben updated since 1977. Hand
Packager has not been updated since 1986. When the vocational expert responded to the ALJ’s
hypothetical question his testimony was based on occupational deceptions in the DOT that are 42
and 33 years old, respectively. At the time of Chinn’s administrative hearing, more current
occupational descriptions were available. Specifically, the Department of Labor replaced the DOT
with O*NET, a database that is continually updated based on data collection efforts that began in
2001.7 See Cunningham, 360 F. App’x at 616; Johnson v. Berryhill, No. 4-16-CV-00106-HBB,
2017 WL 245326, *8 (W.D. Ky. June 6, 2017). Like the Sixth Circuit in Cunningham, this Court
will compare the job descriptions in the DOT with those set forth in O*NET to determine whether
the vocational expert based his testimony on obsolete job descriptions.
The vocational expert identified Stuffer (DOT 731.685-014) as a job Chinn is capable of
performing. It has an SVP of 2. The most similar occupation in the O*NET is Packaging and
Filling Machine Operators and Tenders 51-9111. The position requires “arm-hand steadiness” and
“manual dexterity” and has an SVP range of 4-6. The position often requires employees to stand
“continuously or almost continuously”. The DOT lists Hand Packager with an SVP of 2. The
most similar occupational definition in O*NET is 51-9061.00 – Inspectors, Testers, Sorters,

7

https://www.onetcenter.org/dataCollection.html

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Samplers, and Weighers. The SVP range for this position is 4-6. Likewise, for Lens Inserter, the
most similar occupational definition in O*NET is “51-9199.00 – Production Workers, All Other.”8
This is a catch all title that “represents a wide range of characteristics.” There is no specific job
information and no SVP score provided. These positions are either inconsistent with the ALJ’s
RFC assessment or too vague to determine if Chinn is capable of performing them.
The discrepancies between the DOT and O*NET present sufficient doubt as to the
reliability of the vocational expert’s testimony to warrant a conclusion that the ALJ’s step five
determination was not supported by substantial evidence. After all, "[i]f the only jobs that the
applicant is physically and mentally capable of doing no longer exist in the American economy
(such as pin setter, phrenologist, leech collector, milkman, pony express rider, and
daguerreotypist), the applicant is disabled from working, and likewise, as a realistic matter, if there
is an insignificant number of such jobs." Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014).
Notably, however, the undersigned is not concluding that these positions are obsolete, nor that they
do not exist in significant numbers. Rather, this is a recognition that Plaintiff has created sufficient
doubt to merit remand so that a vocational expert can determine whether these positions, as
performed in the modern economy, are still occupations available to Chinn given his age,
experience, education, and residual functional capacity.
Accordingly, 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 were reliable in light of the economy as it existed at

8

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

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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).
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.

March 12, 2019

Copies:

Counsel

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