McCarley v. COLVIN

Filing 24

ORDER Adopting Magistrate Judge Patti's 20 Report and Recommendation. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SueAnn McCarley,
Plaintiff,
v.

Case No. 16-cv-14036
Judith E. Levy
United States District Judge

Nancy A. Berryhill, Acting
Commissioner of Social Security

Mag. Judge Anthony P. Patti

Defendant.
________________________________/
ORDER ADOPTING MAGISTRATE JUDGE PATTI’S
REPORT AND RECOMMENDATION [20]
On February 12, 2018, Magistrate Judge Anthony P. Patti issued
a Report and Recommendation recommending the Court deny plaintiff’s
motion for summary judgment (Dkt. 14), grant defendant’s motion for
summary judgment (Dkt. 18), and affirm the Commissioner’s decision to
deny plaintiff benefits under the Social Security Act. (Dkt. 20.)
Plaintiff

filed

a

timely

objection

to

the

Report

and

Recommendation on February 26, 2018. Where a magistrate judge has
submitted a Report and Recommendation and a party has timely filed
objections to some or all of the Report and Recommendation, the Court

reviews de novo those parts of the Report and Recommendation to
which the party has objected. 28 U.S.C. § 636(b)(1).
I.

Background

The Court adopts by reference the background set forth in the
Report and Recommendation, having reviewed it and found it to be
accurate and thorough. (Dkt. 20 at 2-6.)
II.

Analysis

The Court’s review of a determination of the Commissioner of
Social Security “is limited to determining whether it is supported by
substantial evidence and was made pursuant to proper legal
standards.” Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir.2007). “Substantial evidence is less than a preponderance but more
than a scintilla; it refers to relevant evidence that a reasonable mind
might accept as adequate to support a conclusion.” Gentry v. Comm'r of
Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014) (citing Rogers, 486 F.3d at
241).
Plaintiff

filed

a

single

objection

to

the

Report

and

Recommendation, arguing that the Magistrate Judge erred when he
upheld the Administrative Law Judge’s (“ALJ”) determination that
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plaintiff could work as a surveillance system monitor given her residual
functional capacity (“RFC”). Under plaintiff’s theory, the ALJ failed to
discharge his duty requiring him to resolve a conflict between two
sources of information: a vocational expert and the Dictionary of
Occupational Titles (“DOT”). (Dkt. 21 at 1.) Plaintiff argues that she
cannot complete the tasks required of a surveillance system monitor as
described in the DOT, and the ALJ erred by relying, instead, on the
vocational expert’s testimony indicating that she could perform those
tasks. (Id.) Specifically, plaintiff points the Court to the fact that the
job of surveillance system monitor requires “frequent” talking and
“significant” interaction with people.

(Id. at 2.)

Additionally, a

surveillance system monitor must be able to handle more than “simple”
tasks. (Id. at 4.)
Defendant counterargues that plaintiff has waived these claims,
because they are either raised for the first time as objections or cannot
be relitigated at the objection stage when they were litigated before the
magistrate judge. Alternatively, defendant argues that plaintiff cannot
now allege that the vocational expert’s testimony conflicts with the DOT

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because she failed to cross examine the vocational expert about such
conflicts at the time of the testimony.
A. Waiver of Argument
Defendant’s

primary

argument

against

granting

plaintiff’s

objection is a procedural one. The Commissioner argues that plaintiff
waived her arguments in three different ways. First, plaintiff may not
“re-hash her prior complaints with the ALJ’s decision.” (Dkt. 22 at 3.)
Second, plaintiff raises her argument that the duties of surveillance
system monitor are inconsistent with her “RFC limitation to ‘few, if any,
workplace changes’” for the first time at this stage of the litigation. (Id.
at 6). Third, plaintiff cannot now claim that the vocational expert’s
testimony is inconsistent with the DOT because she did not crossexamine the vocational expert in the administrative hearing on this
issue. (Id. at 3.)
Defendant’s first two arguments are not persuasive because they
are logically inconsistent. Defendant essentially argues that plaintiff
cannot assert her claims because she already argued them, but also she
cannot assert her claims because she did not previously raise them.

4

Defendant cites Davis v. Caruso, a 2008 Eastern District of
Michigan case, for the proposition that “at this stage of the proceeding,
Plaintiff cannot simply re-hash her prior complaints with the ALJ’s
decision.” (Dkt. 22 at 3.) In Davis, the plaintiff was not given the
benefit of de novo review of the magistrate judge’s decision because his
objection to the Report and Recommendation was untimely, and thus
could not be considered.

Davis v. Caruso, No. 07-10115, 2008 WL

540818, at *2 (E.D. Mich. Feb. 25, 2008). It is true that the court noted
there, in dicta, that the plaintiff “merely rehash[ed] his arguments”
rather than filing a specific objection to the Magistrate Judge’s Report
and Recommendation. Id. But, here, plaintiff does “raise a specific
objection” to the Report and Recommendation by objecting to the
Magistrate Judge’s specific finding that the job of surveillance system
monitor was consistent with her RFC. (Dkt. 21 at 1.) Plaintiff carried
her burden of identifying “specific issues for review,” and did not file a
“general objection to the entirety of the magistrate’s report” such that it
has “the same effect[] as would a failure to object.” See Howard v. Sec’y
of Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991).

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Defendant also cites to Swain v. Commissioner of Social Security,
for her argument that a “claim raised for the first time in objections to a
magistrate judge’s report is deemed waived.” Swain v. Comm’r of Soc.
Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010). It is correct that a “claim
raised for the first time in objections to a magistrate judge’s report is
deemed waived,” but plaintiff does not raise a new claim for the first
time at this stage of the case.

Instead, plaintiff introduces a new

wrinkle to an argument she advanced at each stage of her case.
Plaintiff specifically objected to the Magistrate Judge’s finding that the
job of surveillance system monitor is consistent with her RFC. Her
argument that “the duties of a surveillance system monitor to ‘detect
crimes or disturbances’ are inconsistent” with her RFC’s limitations
arises directly from the Magistrate Judge’s discussion of this issue. In
objecting to the Report and Recommendation, plaintiff raised a specific
argument, and did not raise a new claim “for the first time in objections
to a magistrate judge’s report,” as defendant argues. See Swain, 379 F.
App’x at 517-18 (deeming plaintiff’s argument that the ALJ failed to
consider his psychological disability waived when that argument was
not advanced before the magistrate judge).
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Defendant is correct, however, that a “claimant's failure to object
to testimony offered by a vocational expert, at the time of the
administrative proceeding, waives the claimant's right to raise such
issues in the district court.” Lyon v. Comm'r of Soc. Sec., No. 1:11-CV1104, 2013 WL 1149967, at *4 (W.D. Mich. Mar. 19, 2013) (collecting
cases).

Here, the hearing record does not indicate that plaintiff’s

counsel objected at any time to the vocational expert’s testimony, nor
did plaintiff’s counsel suggest that it conflicted with the DOT.

(See

generally Dkt. 12-2 at 67-77.) In fact, when the ALJ offered plaintiff’s
counsel the opportunity to ask questions of the vocational expert,
counsel declined the opportunity and allowed the ALJ to conclude the
hearing. Plaintiff cannot now raise this claim.
B. Reconciling Conflict between VE Testimony and the DOT
Even if considered on the merits, plaintiff’s objection cannot be
granted.

The heart of plaintiff’s objection to the Report and

Recommendation is that the Magistrate Judge erred when he accepted
the ALJ’s conclusion that plaintiff could perform the job of surveillance
system monitor within her RFC.

The ALJ’s conclusion was wrong,

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plaintiff argues, because he failed to reconcile conflicts between the
testimony he heard from a vocational expert (“VE”) and the DOT.
ALJs may “take administrative notice of reliable job information
available from the Dictionary of Occupational Titles,” but “the Social
Security regulations do not obligate the ALJ and consulting vocational
experts to rely on the Dictionary’s classifications.” Monateri v. Comm’r
of Soc. Sec., 436 F. App’x 434, 446 (6th Cir. 2011) (quoting Wright v.
Massanari, 321 F.3d 611, 616 (6th Cir. 2003) (internal formatting
omitted). That said, ALJs have “an affirmative duty to ask VEs if the
evidence they provide ‘conflicts with the information provided in the
DOT’ and to resolve any ‘apparent conflicts.’” Joyce v. Comm’r of Soc.
Sec., 662 F. App’x 430, 435 (6th Cir. 2016) (quoting SSR 00-4p, 2000 WL
1898704 (Dec. 4, 2000)). The Sixth Circuit has explained that “an ALJ
satisfies her duty to inquire if she asks the VE whether the VE’s
testimony is consistent with the DOT and receives an affirmative
response.” Id.
Here, the ALJ discharged this duty.

At the end of the

examination of the VE, the ALJ inquired about the VE’s consistency
with the DOT:
8

Q: Are the jobs that you’ve cited and your testimony consistent
within the scope of the Dictionary of Occupational Titles and its
companion publication Selected Characteristics of Occupations?
A: Yes, it is. However, information as it relates to time of task,
absences and breaks are based upon my 20-plus years of job
placement experience.
(Dkt. 12-2 at 75-76.) This exchange satisfies the standard the Sixth
Circuit set forth. The ALJ in this case “ask[ed] the VE whether the
VE’s testimony [was] consistent with the DOT and receive[d] an
affirmative response.” See Joyce, 662 F. App’x at 435. Plaintiff urges
the Court to view this case as one where the ALJ “reversibly err[ed] by
failing to inquire about or resolve a conflict between the DOT” and the
VE’s testimony, a scenario contemplated by the Joyce court. See id. at
436-37. However, as noted above, the ALJ did inquire about conflicts
between the DOT and the VE’s testimony, and, moreover, explicitly
noted that “[p]ursuant to SSR 00-4p [he] determined that the vocational
expert’s testimony is consistent with the information contained in the
Dictionary of Occupational Titles and its companion publication
Selected Characteristics of Occupations.” (Dkt. 12-2 at 29.) Thus, the
ALJ satisfied the Sixth Circuit’s requirements in this area.

9

What is more, even if a conflict does exist between the DOT and
the VE, “the Social Security regulations do not obligate the ALJ and
consulting vocational experts to rely on the Dictionary’s classifications.”
Monateri, 436 F. App’x at 446. In her brief, plaintiff points to alleged
conflicts between the DOT and the testimony given by the VE, and
urges the Court to remand this case so that the ALJ can apply the
information in the DOT to plaintiff’s claim.

For example, plaintiff

argues the VE’s testimony is inconsistent with the DOT’s description of
surveillance system monitor as “’significant’ for people and ‘frequent’ for
talking.”

(Dkt. 21 at 2.)

Plaintiff takes issue with the Magistrate

Judge’s conclusion that surveillance system monitor “does not involve
interaction with members of the general public.” (Id. (quoting Dkt. 20
at 9-10).)
But, it is within the ALJ’s discretion to weigh the evidence and
decide which source to follow in making his decision “[b]ecause neither
the Commissioner nor the VE has an obligation to employ the DOT.”
See id. Here, the ALJ relied on “the evidence of record, including the
testimony of the vocational expert” to find that plaintiff is capable of
performing the job of surveillance system monitor. (Dkt. 12-2 at 29.)
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The ALJ’s finding that plaintiff can work in this position is consistent
with the VE’s testimony, which indicated that plaintiff could perform
the job of surveillance system monitor even if limited to “occasional
interaction with [the] public and co-workers.”

(Dkt. 12-2 at 73.)

Therefore, the ALJ’s decision was supported by substantial evidence.
(Id. at 73-75.)
Nevertheless, plaintiff argues that “remand is required unless the
Court can conclude that no possible or apparent conflict remains
unresolved.” (Dkt. 21 at 6.) Plaintiff cites no legal authority for this
proposition, and the argument is not persuasive.
For the reasons set forth above, the Court ADOPTS the
Magistrate Judge’s Report and Recommendation (Dkt. 20), plaintiff’s
motion for summary judgment is DENIED (Dkt. 14), defendant’s motion
for summary judgment is GRANTED (Dkt. 18), and the ALJ’s decision
is AFFIRMED.
IT IS SO ORDERED.
Dated: March 27, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on March 27, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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