Morales Rivera v. Commissioner of Social Security
Order: I adopt the Magistrate's May 21, 2014 Report and Recommendation (Doc. No. 18), as the order of this Court. The Commissioner's decision is affirmed. re 18 . Judge Jeffrey J. Helmick on 9/30/2014. (S,AL)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Yaritza Morales Rivera,
Case No. 3:13 cv 772
Commissioner of Social Security,
This matter is before me on the May 21, 2014 Report and Recommendation (“R & R”) of
Magistrate Judge James R. Knepp, II as well as the objections by the Plaintiff and the
Commissioner’s1 response. What follows is a de novo review of the Magistrate Judge’s findings to
which the Plaintiff presents multiple objections. The Commissioner’s response characterizes the
Plaintiff’s objections as nothing different than what she presented in the initial briefing.
The Magistrate’s thirty-two page R & R is a thorough and comprehensive discussion of the
issues presented. Given the extensive background and administrative record in this case and the
absence of objections on that issue, that portion of the R & R (Doc. No. 18 at pp. 2-13) is
incorporated by reference.
For the reasons stated below, I adopt the Magistrate Judge’s recommendations as set forth in
the R & R and affirm the Commissioner’s decision.
On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security.
A district court must conduct a de novo review of “any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject or modify the
recommended disposition, receive further evidence, or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3); see also Norman v. Astrue, 694 F.Supp.2d 738, 740 (N.D. Ohio
The district judge “must affirm the Commissioner’s conclusions absent a determination that
the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528
(6th Cir. 1997); see also 42 U.S.C. § 405(g). “Substantial evidence is defined as ‘such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.’” Colvin v. Barnhart, 475 F.3d
727, 730 (6th Cir. 2007) (quoting Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001)). If the
Commissioner’s findings of fact are supported by substantial evidence, those findings are conclusive.
McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).
Plaintiff’s objections generally center upon the ALJ’s determination that she had a marginal
education, the status of her literacy and the step five determination. She takes issue with the ALJ’s
failure to find or to further inquire on the issue of literacy. Also contained within her objections, the
Plaintiff takes issue with the downgrading of her educational level, the credibility of the Vocational
Expert, interpretation and utilization of DOT2 trailers, and the competency of the VE’s testimony.
Specifically, Plaintiff takes issue the ALJ’s determination that she had a marginal education
and contends she should have been deemed illiterate based upon the “combination of functional
performance and the fact that all of her education was in Puerto Rico in Spanish, her first language.”
United States Department of Labor, Dictionary of Occupational Titles.
(Doc. No. 19 at p. 1). She further contends that “[w]hile illiteracy is not dispositive on disability, it
is nonetheless a large impediment which must be factored among other evidence and considerations
of decision.” The ALJ’s “downgrading” of Plaintiff’s educational level is also challenged as having
no support as she argues that the “ALJ[‘s] analysis throughout the decision, the absence of full
acknowledgement of claimant’s language barrier and its impact on work, is what is critical.” The
Plaintiff also objects to the ALJ’s decision in finding her educational level as marginal, characterizing
it as arbitrary and not based upon substantial evidence. The Plaintiff also challenges the competency
of the VE as not understanding the DOT trailers, the definitions or understanding the factors which
undermine the VE’s credibility and require remand for clarification of his testimony which raised
inconsistencies. All of these arguments were presented in the initial briefing to the Magistrate.
Interspersed between her arguments are specific objections to the analysis of the Magistrate.
I now turn to those specific objections by Plaintiff to the Magistrate’s R & R and address each one
The Magistrate’s Reliance on Motin
In his analysis of the ALJ’s determination of literacy, the Magistrate cited to Motin v. Comm’r
of Soc. Sec., 2010 WL 1754821 (E.D. Mich. 2010), for the proposition that “the presence of a
translator does not automatically raise an illiteracy argument.” Id. at *4.
Citing to Motin, the
Magistrate noted “‘[E]ven if the presence of a translator could ‘tacitly’ raise an argument, it would be
based on an ability to communicate in English,’ which the ALJ in this case considered.” (R & R at
p. 16). The Magistrate further noted the ALJ took into account Plaintiff’s employment history
which included jobs as a tortilla packer, food preparer, a server, cashier, and a cook. (Id.)
Plaintiff appears to take issue with this portion of the R & R noting that it “seems to be
implying that counsel raised the literacy issue based on the presence of a translator at [the] hearing.”
(Doc. No. 19 at p. 1). Plaintiff charges that the Magistrate’s reliance upon Motin is not well-founded.
Plaintiff’s position is without merit. The Magistrate simply cited Motin for a general proposition of
law. The ALJ’s decision expressly recognized that Plaintiff, through her counsel, advocated
illiteracy. (Doc. No. 12 at p. 35).
Accordingly, Plaintiff’s objection on this issue is without merit.
Dr. Layne’s Statements
Next, Plaintiff takes issue with the Magistrate’s reliance upon Dr. Layne’s statements at page
16 of the R & R and the failure of the ALJ to make a finding of illiteracy. Having read the ALJ’s
decision, the briefing before the Magistrate, the R & R, and Plaintiff’s objections, I disagree with
Plaintiff’s characterization of the ALJ and Magistrate’s treatment as to Dr. Layne’s statements.
On the issue of the literacy determination, the Magistrate discussed the ALJ’s determinations
including Dr. Layne’s observations. The Magistrate noted that “Dr. Layne concluded Plaintiff’s only
major problem was that she was not entirely fluid in English. (Tr. 545). However, she ‘spoke
English surprisingly well’ and ‘rarely used the interpreter’. (Tr. 543).” (Doc. No. 18 at p. 11).
In the step five determination, the ALJ recognized that Plaintiff “was limited to occupations
that did not require complex written or verbal communication, frequent verbal communication, or
frequent telephone communication. (Tr. 37).” (Id. at p. 12). In making the determination on
literacy, the ALJ stated: “This [literacy] determination is based upon the record as a whole, including
the claimant’s educational level, past work history and medical records (see, i.e., Exhibit 11B).”
(Doc. No. 12 at p. 31).
As Dr. Layne’s observations were a part of a comprehensive record upon which the ALJ
relied upon, I do not find Plaintiff’s objection well taken.
Educational Level Downgrade
Plaintiff takes issue with the Magistrate’s treatment regarding the downgrading of her
educational level. She contends the Magistrate did not fully appreciate Plaintiff’s arguments on this
issue. Plaintiff also requests clarification on the ALJ’s finding of a marginal education arguing it was
an arbitrary decision and not based upon substantial evidence.
The Plaintiff also criticizes the Magistrate’s treatment of Meijas v. Comm’r of Soc. Sec., 2009
U.S. Dist. LEXIS 22516 (N.D. Ohio 2009), and Skinner v. Sec’y of Health and Human Servs., 902 F.2d
447 (6th Cir. 1990), as being inopposite to the present action. Additionally, Plaintiff contends the
Magistrate articulated conflicting statements regarding maximum and minimum requirements as
related to the DOT. The Plaintiff’s characterizations are incorrect.
The R & R addressed the “downgrading” of Plaintiff’s education level as follows:
Upon review, the ALJ did not expressly say she was
downgrading Plaintiff’s educational level from limited to marginal.
However, the Code does not require such discussion. The ALJ
adequately considered Plaintiff’s limited English-speaking ability and
previous work history. (Tr. 31). Curiously, Plaintiff argues her
education determination should be lower than her numerical grade
level, and also complains the ALJ did not provide sufficient reasons
for making an education determination that is in fact below Plaintiff’s
numerical grade level.
(Doc. No. 18 at p. 18).
The Magistrate correctly distinguished Mejias and Skinner from the Plaintiff’s situation. In so
doing, he noted that the district court in Mejias “construed the DOT educational levels as a
minimum, rather than the maximum required for a particular job.” (Id.) Then later in the R & R, in
the discussion addressing the Step Five analysis and specifically the DOT trailers, Magistrate Knepp
correctly noted that “reliance on the definitional requirements for jobs listed in the DOT is not
binding, the range of requirements is not a minimum, but a maximum range . . . .”3 (Id. at p. 24).
Assuming, arguendo, the ALJ erred on Plaintiff’s education level, the error is harmless as the
hypotheticals posed to the VE during the hearing assumed the Plaintiff to be illiterate. (Id. at p. 19).
Based on the foregoing, I find Plaintiff’s objections are without merit.
Credibility of the Vocational Expert
3 “The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a
particular job as it is performed in specific settings.” SSR 00-4P, 2000 WL 1898704 (Dec. 4, 2000).
Plaintiff’s next objection challenges the VE’s credibility and is intertwined with objections on
the minimum and maximums on DOT requirements. Despite the confusion by Plaintiff on the
DOT requirements, the crux of her objections on the VE’s credibility are nothing more than a
reiteration of her position as initially briefed to the Magistrate. I have read the transcript of the
hearing and disagree with Plaintiff’s characterization of the VE’s testimony. The testimony adduced
at the hearing was subject to cross-examination by Plaintiff’s counsel and supports the ALJ’s
determination. Therefore, I agree with the Magistrate’s following determination:
In sum, the VE testified that Plaintiff could work as a
packager or assembler based on a hypothetical person of Plaintiff’s
same age, educational and vocational background, and RFC. The VE
clearly opined that his opinion was consistent with someone who was
unable to read or communicate. (Tr. 87). Plaintiff’s counsel had a
full and fair opportunity to cross-examine the VE. The ALJ
supported her literacy determination with substantial evidence. Thus,
the SLJ’s step five determination was supported by substantial
evidence. C.f., Gonzalez v. Colvin, 2014 U.S. Dist. LEXIS 42126, at
*31-34 (N.D. Ohio) (“As a result of the VE’s uncertain testimony
and the ALJ’s lack of explanation regarding Plaintiff’s language
barrier, it is unclear as to whether substantial evidence supports the
ALJ’s Step Five finding.”).
(Doc. No. 18 at p. 27).
Accordingly, Plaintiff’s objections as to the VE’s credibility are not well taken.
Due Process and Right to Confront the VE
Plaintiff’s final objection contends she was denied the right to cross-examine the VE on
DOT cross-references. Specifically, the ALJ addressed this supplemental information in her
Turning to the next objection. At the hearing the vocational
expert provided job titles, job descriptions, and job totals for
representative positions at the medium exertional level. However,
the vocational expert testified that he would need to provide the
corresponding DOT numbers after the hearing. These DOT
numbers were faxed to claimant’s counsel two days later. (Exhibit
21E) As such, the claimant, through her counsel had the opportunity
to question the vocational expert about job titles, job totals and
corresponding duties for the representative medium exertional level
jobs provided during the hearing. Nevertheless, this issue is moot
with no prejudice to the claimant. As discussed in greater detail
below, the claimant’s residual functional capacity restricts her to light
work, and all vocational testimony regarding light exertional jobs was
elicited at the hearing.
(Doc. No. 12 at p. 35).
In considering the Plaintiff’s objections I find they are precisely the same arguments raised in
the initial briefing to the Magistrate. I also agree with the Magistrate’s analysis as explained in the R
& R as follows:
Plaintiff’s due process rights cannot be violated through
failure to further cross-examine based on subsequently obtained
reference numbers because “there is no requirement that a VE
provide reference numbers for the jobs he/she identifies.” Creque v.
Astrue, 2011 U.S. Dist. LEXIS 102415, at *23 (N.D. Ohio), report and
recommendation adopted, 2011 U.S. Dist. LEXIS 102804. As stated
above, Plaintiff’s attorney had ample opportunity to cross-examine
the VE. Unable to identify an “apparent” conflict between the DOT
and VE, Plaintiff attempted to do so through post-hearing briefing to
the ALJ. However, no such conflict was ever made apparent to the
ALJ. Neither Plaintiff’s brief nor a reading of the record and hearing
transcripts shows any basis to find that Plaintiff’s due process rights
were violated. Thus, Plaintiff’s argument that she was denied due
process rights is without merit.
(Doc. No. 18 at p. 28).
In the absence of a specific objection of the Magistrate’s recommendation on the due
process issue, Plaintiff’s arguments do not carry the day.
Based upon a de novo review as mandated by the Sixth Circuit, I adopt the Magistrate’s May
21, 2014 Report and Recommendation (Doc. No. 18), as the order of this Court. The
Commissioner’s decision is affirmed.
s/ Jeffrey J. Helmick
United States District Judge
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