Davis v. Social Security, Commissioner of

Filing 17

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S 14 REPORT AND RECOMMENDATION. Granting in Part 9 Motion for Summary Judgment filed by Anntionette Lynn Davis and Denying 12 Motion for Summary Judgment filed by Commissioner of Social Security. Signed by District Judge Gerald E. Rosen. (RGun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANNTOINETTE LYNN DAVIS,
Plaintiff,
Case No. 10-14518
Hon. Gerald E. Rosen
Magistrate Judge R. Steven Whalen

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
_______________________________/

OPINION AND ORDER ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
February 16, 2012
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
On October 27, 2011, Magistrate Judge R. Steven Whalen issued a Report and
Recommendation (“R & R”) recommending that the Court grant in part Plaintiff
Anntoinette Lynn Davis’s motion for summary judgment, deny the Defendant
Commissioner of Social Security’s motion for summary judgment, and remand this case
for further administrative proceedings. Defendant filed objections to the R & R on
November 10, 2011, and Plaintiff filed a response to these objections on November 15,
2011. Having reviewed the R & R, Defendant’s objections, Plaintiff’s response, the
parties’ underlying summary judgment motions, and the administrative record, the Court

overrules Defendant’s objections and adopts the R & R in its entirety.
In his objections to the R & R, the Defendant Commissioner does not take issue
with the Magistrate Judge’s finding that the Administrative Law Judge (“ALJ”) erred in
relying on the testimony of a vocational expert that was inconsistent, at least to some
extent, with the ALJ’s apparent determination that Plaintiff was limited to unskilled work.
Given the ALJ’s decision to “afford[] great weight” to the opinion of a state agency
physician, Dr. Leonard Balunas, (Admin. Record at 42), and given this physician’s
finding that Plaintiff was “able to perform unskilled work involving 1 and 2 step
instructions with limited need for sustained concentration, minimal contact with the
general public and only occasional, minor changes in the work setting,” (id. at 620),
Defendant concedes that it was error for the ALJ to nonetheless conclude that Plaintiff
could perform the semi-skilled jobs of file clerk and clerk typist cited in the vocational
expert’s testimony at the administrative hearing. Despite this error, however, Defendant
argues that a remand is unnecessary because a third job referenced in the testimony of the
vocational expert — the position of mail clerk — is unskilled, and therefore would
accommodate Plaintiff’s restrictions as determined by the ALJ.
The Court cannot agree that the error and ambiguity in the ALJ’s decision are so
readily excised through the simple elimination of two of the positions identified by the
vocational expert. First, and as observed by the Magistrate Judge, there is an undeniable
tension in the ALJ’s statements (i) on the one hand, that the report of Dr. Balunas was
entitled to “great weight” as “supported by the bulk of the medical evidence of record”
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and consistent with Plaintiff’s own self-reports of her limitations, (Admin. Record at 42),
and (ii) on the other hand, that Plaintiff was capable of performing “[a]ll” of the jobs
identified by the vocational expert, which the ALJ characterized as “semi-skilled”
positions, (id. at 43).1 Under this record, it is impossible to say whether the ALJ meant to
adopt Dr. Balunas’s finding that Plaintiff was limited to unskilled work, but then failed to
convey this limitation in his hypothetical questions to the vocational expert, or whether
the ALJ instead determined, despite Dr. Balunas’s findings, that Plaintiff was capable of
performing semi-skilled work.
Defendant suggests, however, that this ambiguity need not be resolved, because
even if the ALJ’s findings are construed as limiting Plaintiff to unskilled work, the mail
clerk position referenced in the testimony of the vocational expert would remain available
and consistent with this limitation. Under these circumstances, Defendant argues that a
“remand will not change the outcome of the case, whether the ALJ chooses to add a
limitation to unskilled work or not.” (Defendant’s Objections at 4.) In either event,
Defendant contends that the testimony of the vocational expert would remain accurate
and unchallenged as to the availability of at least one class of job that Plaintiff would be
capable of performing despite her limitations, and the ALJ, in turn, would be entitled to
rely on this aspect of the vocational expert’s testimony.
The Court declines Defendant’s invitation to, in effect, take on a task that lies

1

As noted by the Magistrate Judge, this characterization was erroneous, because the mail
clerk position is unskilled. (See R & R at 15.)
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uniquely within the competence of the vocational expert — namely, to opine “whether,
given a claimant’s age, experience, and education, along with the ALJ’s assessment of
what she can and cannot do, there exist a significant number of employment opportunities
for her in the regional and national economies.” Webb v. Commissioner of Social
Security, 368 F.3d 629, 633 (6th Cir. 2004) (internal quotation marks omitted).
Regardless of how one resolves the unskilled/semi-skilled ambiguity in the ALJ’s
decision, a question would remain as to whether the ALJ accurately portrayed Plaintiff’s
capabilities and limitations in his hypothetical questions to the vocational expert, where
these questions referenced the need for a “set, predictable routine with little need to adapt
to substantial changes,” (Admin. Record at 24), but did not include the limitation to
“unskilled work involving 1 and 2 step instructions” as set forth in Dr. Balunas’s report,
(id. at 620). It is also unclear whether the inclusion of this latter limitation would have
affected the vocational expert’s testimony, where the vocational expert identified
“predictable activities” and “a routine that’s very consistent” as features common to all
three of the jobs referenced in his testimony, (id. at 24-25), but he made no effort to
address any possible distinctions among these jobs as to the complexity of their
predictable activities and consistent routines.2 There was no need, after all, to distinguish
2

As Plaintiff points out in her response to Defendant’s objections, the Dictionary of
Occupational Titles classifies the position of mail clerk as having a “reasoning level” of 3. In
contrast, the capacity to carry out only one- or two-step instructions is considered indicative of a
“reasoning level” of 1. (See Plaintiff’s Response at 4.) While Defendant cites the vocational
expert’s testimony that the position of mail clerk is “relatively simple,” (Admin. Record at 26),
this statement was made in response to a hypothetical question addressing an individual who
suffered from “considerable delays in learning new, detailed, and complex information,” (id.
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among the three jobs on this ground, because the questions to the vocational expert did
not incorporate a limitation to one- or two-step instructions.
Under this record, the Court is unwilling to speculate as to how the vocational
expert might have testified in response to hypothetical questions that reflected the full
extent of the limitations identified in Dr. Balunas’s report. Contrary to Defendant’s
suggestion, this is not a matter of simply disregarding the vocational expert’s references
to semi-skilled positions. Rather, the Court agrees with the Magistrate Judge that this
case should be remanded for further administrative proceedings, so that the ALJ may
more precisely articulate the nature and extent of Plaintiff’s limitations, and so that the
vocational expert may be given an opportunity to consider and respond to hypothetical
questions that more accurately reflect these limitations as found by the ALJ.
Accordingly, for these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s objections to
the Magistrate Judge’s October 27, 2011 Report and Recommendation are
OVERRULED. IT IS FURTHER ORDERED that the Magistrate Judge’s Report and
Recommendation is ADOPTED in its entirety, as supplemented by the rulings in this
opinion and order. Finally, IT IS FURTHER ORDERED that, for the reasons set forth
above and in the Magistrate Judge’s Report and Recommendation, Plaintiff’s February 4,

(emphasis added)), and not an individual who was wholly unable to follow detailed or complex
instructions. It is not within the province or expertise of this Court to determine whether the
position of mail clerk can be performed by individuals having either of these limitations.
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2011 motion for summary judgment (docket #9) is GRANTED IN PART, Defendant’s
April 6, 2011 motion for summary judgment (docket #12) is DENIED, and this case is
REMANDED to the Defendant Commissioner for further administrative proceedings.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: February 16, 2012
I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 16, 2012, by electronic and/or ordinary mail.
s/Ruth A. Gunther
Case Manager

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