Poll v. Commissioner of Social Security
Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 8/30/17. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
CASE NO. 3:16CV2061
GEORGE J. LIMBERT
Plaintiff Mary Poll (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying her applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1.
In her brief on the merits, filed on November 21, 2016, Plaintiff asserts that the administrative
law judge (“ALJ”) erred by: (1) finding that she did not meet the requirements of Listing
12.05C; and (2) relying on vocational expert (“VE”) testimony that was inconsistent with the
Dictionary of Occupational Titles (“DOT”). ECF Dkt. #15. Defendant filed a response brief on
January 18, 2017. ECF Dkt. #17. On February 1, 2017, Plaintiff filed a reply brief. ECF Dkt.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
Plaintiff filed her applications for DIB and SSI in May 2013. ECF Dkt. #12 (“Tr.”) at
225-35.2 The claims were denied initially and upon reconsideration. Id. Following the denial,
On January 23, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
All citations to the Transcript refer to the page numbers assigned when the Transcript was filed as
a .PDF, rather that the page numbers assigned by the CM/ECF system. When the Transcript was filed the
.PDF included an index, with the indexed pages differentiated from the numerical pages. Accordingly, the
page number assigned in the .PDF mirrors the page number printed on each page of the Transcript, rather than
the page number assigned when the Transcript was filed in the CM/ECF system.
Plaintiff requested a hearing before an ALJ, which was held on March 16, 2015. Id. at 40. On
April 15, 2015, the ALJ denied Plaintiff’s applications for DIB and SSI. Id. at 14.
Subsequently, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision.
Id. at 1. Accordingly, the decision issued by the ALJ on April 15, 2015, stands as the final
On August 17, 2016, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. Plaintiff filed a brief on the merits on November 21, 2016. ECF Dkt. #15.
Defendant filed a response brief on January 18, 2017. ECF Dkt. #17. On February 1, 2017,
Plaintiff filed a reply brief. ECF Dkt. #18.
SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
In the decision issued on April 15, 2015, the ALJ found that Plaintiff met the insured
status requirements of the Social Security Act through December 31, 2016. Tr. at 20.
Continuing, the ALJ determined that Plaintiff had not engaged in substantial gainful activity
since April 1, 2011, the alleged onset date. Id. The ALJ then stated that Plaintiff had the
following severe impairments: osteoarthritis of the bilateral knees with a history of bilateral knee
arthroscopies; diabetes mellitus; hypertension; hyperlipidemia; bilateral carpal tunnel syndrome
with a history of bilateral carpal tunnel release procedures; obesity; attention deficit
disorder/attention deficit hyperactivity disorder (“ADD/ADHD”); dysthymic disorder; major
depression; borderline intellectual functioning/mild mental retardation; reading disorder; and
mathematics disorder. Id.
Next, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1. Tr. at 21. When making this finding, the ALJ
discussed Listing 12.05C, stating that Plaintiff did not meet the criteria of Listing 12.05C
because she did not have a valid verbal, performance, or full scale IQ of sixty through seventy
and a physical or other mental impairment imposing an additional and significant work-related
limitation of function. Id. at 24. The ALJ indicated that although Plaintiff demonstrated a verbal
IQ score of sixty-eight and a full scale IQ score of sixty-five, along with additional impairments,
she did not meet the requirements of Listing 12.05C for a number of reasons. Id. First, the ALJ
stated that the preamble of Listing 12.05C required that evidence must support a finding that
there were intellectual deficits prior to the age of twenty-two. Id. The ALJ then indicated that
the IQ scores were obtained when Plaintiff was forty-nine years old. Id. Additionally, the ALJ
determined that Plaintiff did not meet the requirement of deficits in adaptive functioning, as she
was able to: obtain a driver’s license; maintain income above substantial gainful activity levels
for approximately fifteen years; raise two children; maintain her home independently; manage
her finances; and use the Internet. Id. For these reasons, the ALJ found that Plaintiff did not
meet the requirements of Listing 12.05C. Id.
After considering the record, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform less than a full range of light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b), with the following additional limitations: occasional postural
activities such as crouching, crawling, stooping, kneeling, and climbing; limited to
understanding, remembering, and carrying out simple, routine, and repetitive tasks; instructions
should be verbally explained and work should not require reading, writing, or more than basic
mathematics; pace and productivity should not be dictated by an external source over which she
had no control, such as an assembly line or conveyor belt; the ability to make judgments on
simple work and respond appropriately to usual work situations and changes in a routine work
setting that was repetitive from day to day with few and expected changes; and no contact with
the public, but she may have occasional interactions with supervisors and coworkers. Tr. at 25.
After discussing Plaintiff’s RFC, the ALJ indicated that Plaintiff was unable to perform
any past relevant work. Tr. at 31. The ALJ noted that Plaintiff was a younger individual on the
alleged disability onset date, and subsequently changed age category to closely approaching
advanced age. Id. Continuing, the ALJ stated that Plaintiff had a limited education, was able to
communicate in English, and that the transferability of job skills was not an issue because
Plaintiff’s past relevant work was unskilled. Id. at 32. Considering Plaintiff’s age, education,
work experience, and RFC, the ALJ determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform. Id. Accordingly, the ALJ found
that Plaintiff had not been under a disability, as defined in the Social Security Act, from April 1,
2011, the alleged disability onset date, through the date of the decision. Id. at 33.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to
social security benefits. These steps are:
An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20
C.F.R. §§ 404.1520(b) and 416.920(b) (1992));
An individual who does not have a “severe impairment” will not be found
to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
If an individual’s impairment is so severe as to preclude the performance
of the kind of work he or she has done in the past, other factors including
age, education, past work experience and residual functional capacity
must be considered to determine if other work can be performed (20
C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and
makes a determination of disability. This Court’s review of such a determination is limited in
scope by §205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g).
Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct
legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937 (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)) (internal citation omitted). Substantial evidence is defined as
“more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ’s
denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists
in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence
standard creates a “‘zone of choice’ within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). However, an ALJ’s failure to
follow agency rules and regulations “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Cole, supra (citing Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)) (internal citations omitted).
Plaintiff asserts that the ALJ erred in finding that she did not meet Listing 12.05C. ECF
Dkt. #15 at 8-12. The portion of 20 C.F.R. Part 404, Subpart P, Appendix 1, setting forth Listing
Intellectual disability refers to significantly sub-average general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports the onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements in A,
B, C, or D are satisfied.
A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and
significant work-related limitation of function.
Specifically, Plaintiff takes issue with the ALJ’s finding that she did not meet Listing 12.05C
because the evidence did not show adaptive deficits prior to age twenty-two. ECF Dkt. #15 at 78.
First, Plaintiff asserts that the ALJ recognized that she met the IQ score requirement of
Listing 12.05C. ECF Dkt. #15 at 8 (citing Tr. at 24). Plaintiff claims that despite
acknowledging her IQ scores, the ALJ reasoned that the scores did not provide evidence of
intellectual deficits prior to age twenty-two since the scores were obtained when Plaintiff was
forty-nine.3 Id. at 8-9. Continuing, Plaintiff avers that a diagnosis of mental retardation is not a
prerequisite to establishing disability pursuant to Listing 12.05C. Id. at 9-10. Plaintiff then
states that Richard Litwin, Ph.D.:
Diagnosed [her] with mild mental retardation (as well as reading disorder,
mathematics disorder, ADHD, and major depression) which is by definition Dr.
Litwin’s opinion that, in fact, Plaintiff has adaptive deficits and that they are
sufficient to support a diagnosis of mental retardation. The ALJ neither
acknowledged or addressed Dr. Litwin’s opinion in this respect.
ECF Dkt. #15 at 10.
Continuing, Plaintiff argues that she has demonstrated adaptive deficits prior to age
twenty-two “by any definition,” noting that the Social Security Administration (“SSA”) had
declined to endorse any particular definition. ECF Dkt. #15 at 10. Plaintiff, following the
American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders,
states that a finding of adaptive deficits requires:
[S]ignificant limitations in at least two of the following domains: communication,
self-care, home living, social and interpersonal skills, use of community resources,
self-direction, functional academic skills, work, leisure, health, and safety.
Id. at 11. Plaintiff then takes issue with the reasons provided by the ALJ for finding that she did
not demonstrate the requisite deficits in adaptive functioning, namely because she: was able to
obtain a driver’s license; maintain income above substantial gainful activity levels for
approximately fifteen years; raise two children; maintain her home; manage her finances; and
use the Internet. Id. (citing Tr. at 24). Plaintiff then cites a memorandum released by the SSA
When making this assertions, Plaintiff incorrectly cites the Supreme Court of the United States when
claiming that an individual’s IQ score is presumed to remain stable over time in the absence of evidence of
a change in intellectual functioning. See ECF Dkt. #15 (citing Heller v. Doe, 509 U.S. 312 (1993).
Defendant correctly points out that the statement cited by Plaintiff was actually from Muncy v. Apfel, 247
F.3d 728, 734 (8th Cir. 2001). There is no Sixth Circuit presumption that an individual’s IQ remains stable
over time. See McMillan v. Comm’r of Soc. Sec., No 1:10-cv-00308, 2012 WL 90264, at *6 (W.D. Mich.
Jan. 11, 2012).
that she claims cautions against the consideration of typical daily activities when evaluating
adaptive functioning in cases within the IQ scores falling within the range contemplated by
Listing 12.05C. Id. (citing ECF Dkt. #18-1).4
Moreover, according to Plaintiff, the medical evidence supports a finding of significant
deficits in her adaptive functioning as she testified that she: cannot count change and relies on
her husband to manage her finances; had problems reading and writing, and was no longer able
to read “longer” words; and could follow a recipe if it was “easy to read.” ECF Dkt. #15 at 12
(citing Tr. at 69-70, 73). Plaintiff also asserts that neurological testing revealed that she had:
third grade reading, word recognition, and math abilities; and significant difficulty with spelling,
reading, comprehension, forming logical arguments and grammatically correct sentences, and
performing multiplication and division. Id. (citing Tr. at 955-56). Plaintiff also indicates that
Dr. Litwin found that her low IQ and aptitude level would make her a poor candidate for GED
certification, that she would need help completing applications and paperwork and that her work
pace would be “very slow.” Id. (citing Tr. at 957). Continuing, Plaintiff states that Dr. Litwin
did not recommend that Plaintiff take a teleworker training program due to her low aptitude
levels and opined that she may need case management help as she “may struggle with decision
making and problem solving on her own.” Id. at 12-13 (citing Tr. at 957). Plaintiff also notes
that she completed a week of work at Goodwill through Ohio Rehabilitation Services, and while
there she was able to perform a simple task adequately, but was unable to organize shelves to
employer standards and exhibited memory problems while attempting to perform this task. Id.
at 13 (citing Tr. at 1049). Continuing, Plaintiff states that her only past relevant work was as an
assembler, an unskilled job, and she was fired from this job due to confusion and difficulty
concentrating. Id. Plaintiff also indicates that towards the end of her employment she had to be
reminded how to perform tasks on a weekly basis. Id.
Plaintiff cites to the memorandum in her brief, however, Defendant apparently had difficulty locating
the memorandum and Plaintiff acknowledged in her reply that it may be difficult to find a copy. ECF Dkt.
#15 at 12; ECF Dkt. #17 at 14-15; EC Dkt. #18 at 6. For the convenience of all parties, the Court cites to the
attachment filed by Plaintiff with her reply brief containing the memorandum. The memorandum is discussed
at greater length below.
Next, Plaintiff asserts that courts have considered the issue of the relevance of a
claimant’s work experience when evaluating disability under Listing 12.05C and have held that
an analysis which precludes disability on the basis of the ability to work in the past improperly
reads an additional requirement into Listing 12.05C. ECF Dkt. #15 at 14. Plaintiff avers that
the fact that a claimant has worked in the past does not preclude the application of Listing
12.05C. Id. Continuing, Plaintiff argues that to the extent the ALJ relies on Plaintiff’s
possession of a driver’s license to discredit her deficits in adaptive functioning, the SSA had
cautioned against using common everyday activities to preclude a diagnosis of intellectual
disability under Listing 12.05C. Id. at 15.
Defendant contends that substantial evidence supports the ALJ’s determination that
Plaintiff’s impairments did not meet or medically equal Listing 12.05C. ECF Dkt. #17 at 7.
Continuing, Defendant asserts that Plaintiff had failed to satisfy the threshold issue of
demonstrating subaverage intellectual functioning with deficits in adaptive functioning initially
manifesting before age twenty-two. Id. at 8. Defendant correctly asserts that the Sixth Circuit
has established the precedent that Listing 12.05 cannot be equaled without evidence of onset
before the age of twenty-two. Id. (citing Hayes v. Comm’r of Soc. Sec., 357 Fed.Appx. 672, 677
(6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001); Burcham v. Astrue, 2012 WL
6094125 (N.D. Ohio Dec. 7, 2012)). Additionally, Defendant acknowledges that a claimant is
not required to produce an IQ score obtained prior to the age of twenty-two, but must introduce
evidence that adaptive deficiencies arose during the developmental period. Id. Next, Defendant
asserts that there is no Sixth Circuit presumption that an IQ remains stable over time. ECF Dkt.
#17 at 9.
Substantial evidence supports the ALJ’s conclusion that Plaintiff has failed to present
evidence supporting a finding that there were intellectual deficits prior to the age of twenty-two.
See Tr. at 24. The IQ scores relied upon by Plaintiff in her attempt to satisfy the criteria of
Listing 12.05C were obtained when she was forty-nine years old. As far as evidence relating
back prior to the date Plaintiff reached twenty-two years of age, Plaintiff relies on the statement
that she “attended school to the 11th grade and was enrolled in Special education services ‘for
every subject’ throughout her academic career.” ECF Dkt. 15 at 8. This assertion by Plaintiff
cites to her hearing testimony, where she indicated that she had been in special education classes
all through her schooling, and statements made during an August 2013 psychological evaluation,
where she stated she had been in special education classes since the sixth grade. Id. (citing Tr. at
48, 736). Plaintiff cites no additional evidence, medical or otherwise, to support a finding that
she had intellectual deficits prior to the age of twenty-two. The Sixth Circuit has “never held
that poor academic performance, in and of itself, is sufficient to warrant a finding of onset of
subaverage intellectual functioning before age twenty-two.” Hayes v. Comm’r of Soc. Sec., 357
Fed.Appx. 672, 677 (6th Cir. 2009) (citing Foster v. Halter, 279 F.3d 348 (6th Cir. 2001) (“The
only evidence in the record pertaining to this issue is that Foster left school after completing
ninth grade, but why Foster did not continue her studies is unclear.”)). Accordingly, Plaintiff’s
sole reliance on her academic record is insufficient to establish the onset of intellectual deficits
prior to the age of twenty-two.
It appears that Plaintiff relied on the proposition that a persons IQ is presumed to remain
stable over time in the absence of evidence of a change in the claimant’s intellectual functioning
to support her position that the onset of her intellectual deficiency occurred prior to age twentytwo by citing the IQ scores obtained when she was forty-nine. See ECF Dkt. #15 at 9. However,
as pointed out by Defendant, the Sixth Circuit has not held that there is a presumption that a
claimant’s IQ remains stable over time. ECF Dkt. #17 at 9 (citing McMillan, 2012 WL 90264 at
*6). In her reply brief, Plaintiff recognizes the error and then restates that a diagnosis of mental
retardation or intellectual disability is not a necessary prerequisite to satisfy Listing 12.05. ECF
Dkt. #18 at 5. Plaintiff’s argument misses the mark. The issue is not one of a diagnosis, of lack
thereof, of mental retardation, but, rather that Plaintiff has failed to show support for the
conclusion that intellectual deficits were present prior to the age of twenty-two.
Moreover, substantial evidence supports the ALJ’s finding that Plaintiff did not meet the
requirement that she show evidence of deficits in adaptive functioning. See Tr. at 24. The ALJ
indicated that Plaintiff was able to obtain a driver’s license, maintain income above substantial
gainful activity levels for approximately fifteen years, raise two children, maintain her home
independently, manage her own finances, and use the Internet. Tr. at 24. Plaintiff contends that
the SSA has warned against using the factors considered by the ALJ, citing the aforementioned
memorandum issued by the SSA for the following proposition:
Use care when looking at the issue of adaptive functioning in cases with
Intelligence Quotient (IQ) scores falling within the range for listing 12.05
Intellectual Disability. The ability to drive, engaging in common everyday
activities, and previous employment do not preclude a diagnosis of Intellectual
Disability, and do not necessarily preclude a finding of disability under listing
ECF Dkt. #15 at 12 (citing ECF Dkt. #18-1 at 2).
The undersigned recognizes that the ALJ cited Plaintiff’s ability to drive, some common
everyday activities, and her previous employment. However, the memorandum relied upon by
Plaintiff does not state that reliance on these factors is improper, but rather states that these
activities “do not preclude a diagnosis of Intellectual Disability” and “do not necessarily
preclude a finding of disability under listing 12.05.” ECF Dkt. #18-1 at 2. The ALJ considered
these factors, and found that Plaintiff was not under an intellectual disability and did not meet the
requirements of Listing 12.05C. As the ALJ cited substantial evidence for the conclusion
reached in the decision regarding Plaintiff’s adaptive functioning, this was not error.
Plaintiff further asserts:
An analysis which precludes consideration of disability pursuant to Listing 12.05C
on the basis of ability to work in past in effect reads (improperly) an additional
requirement into 12.05C that the claimant’s adaptive functioning must be
disabling in and of itself. The truth is even though a claimant has worked in the
past, this fact does not preclude application of Listing 12.05C.
ECF Dkt. #15 at 13-14 (internal citations omitted). The ALJ did not find that Plaintiff did not
meet the requirements of Listing 12.05C because she had worked in the past. Rather, the ALJ
considered the fact that Plaintiff was able to maintain income above substantial gainful activity
levels for fifteen years when addressing her adaptive functioning. This was not error.
Consideration of Plaintiff’s work history is relevant not only to the ALJ’s determination
regarding Plaintive adaptive functioning, as it also provides insight as to whether she had
intellectual deficits prior to age twenty-two.
Plaintiff fails to show that her intellectual deficits were present prior to the age of twentytwo, and thus is unable to meet the requirements of Listing 12.05C. Likewise, Plaintiff fails to
show that the ALJ’s decision is not supported by substantial evidence.
Plaintiff also asserts that the VE testified that her limitation to simple, routine, and
repetitive tasks, as prescribed by the ALJ, precluded the ability to carry out detailed oral or
written instructions. ECF Dkt. #15 at 17. Continuing, Plaintiff states that, according to the
the jobs of folder and gasket inspector, which the VE opined she could perform, are Reasoning
Level 2 jobs. Id. at 17-18. Plaintiff states that Reasoning Level 2 jobs require the ability to
apply commonsense understanding to carry out detailed but uninvolved written or oral
instructions, deal with problems involving few concrete variables in or from standardized
situations. Id. at 18 (citing DOT, Appendix C-1). According to Plaintiff, she could not perform
the jobs of folder or gasket inspector under the ALJ’s RFC finding. Id.
As for the job of cleaner, the third job which the VE found she could perform, Plaintiff
asserts that the job is inconsistent with the ALJ’s RFC finding, which stated that she must have
no contact with the public. ECF Dkt. #15 at 18. Plaintiff argues that the job of cleaner requires
at least some interaction with the public as the tasks associated with the job include “personal
assistance to patrons.” Id. Plaintiff also asserts that since the job of cleaner is performed at
commercial establishments, Plaintiff “would almost certainly come into contact with members of
the general public constantly throughout the workday.” Id.
Defendant contends that Plaintiff’s assertion that the jobs of folder and cleaner are
Reasoning Level 2 jobs, and thus pose requirements inconsistent with the ALJ’s limitation to
“simple, routine, repetitive tasks,” is without legal support. ECF Dkt. #17 at 16. Continuing,
Defendant correctly states that Plaintiff relies on testimony from the VE, who answered
affirmatively when asked if the limitation to simple, routine, repetitive tasks precluded the ability
to carry out detailed oral or written instructions. Id. Defendant then cites to the Sixth Circuit’s
The Social Security regulations do not obligate the ALJ and consulting vocational
experts to rely on the Dictionary’s classifications. Because neither the
Commissioner nor the VE has an obligation to employ the DOT, and there is no
precedent that requires the Commissioner to align DOT “reasoning levels” with
RFC classifications, [the plaintiff’s] argument is without merit.
ECF Dkt. #17 at 16 (quoting Monateri v. Comm’r of Soc. Sec., 436 Fed.Appx. 434, 446 (6th Cir.
2011) (internal citations omitted)).
Further, Defendant notes that this Court has held that a claimant’s limitation to simple
one-or-two step instructions and simple routine tasks was not inconsistent with the ability to
perform jobs with the requirement of Reasoning Level 2. Id. at 17 (citing Russell v. Comm’r of
Soc. Sec., 1:13-cv-291, 2014 WL 1333262 (N.D. Ohio Mar. 31, 2014)). Like the plaintiff in
Russell, Plaintiff attempts to establish that a direct correlation exists between the DOT and the
SSA’s regulations. As the Sixth Circuit explained in Monateri, and this Court found in Russell,
the ALJ and VE were not obligated to employ the DOT and there is no precedent requiring the
Defendant align the DOT reasoning levels with the RFC findings. Accordingly, Plaintiff’s
argument regarding the jobs of folder and gasket inspector is without merit.
Regarding her argument that the job of cleaner is inconsistent with the ALJ’s limitation
of no contact with the public, Plaintiff fails to provide adequate support for her conclusion that
this job requires contact with the public. ECF Dkt. #15 at 18. Plaintiff cites the DOT code
section for cleaner, specifically noting that the job requires that she “[c]lean rooms and halls in
commercial establishments, such as hotels, restaurants, clubs, beauty parlors, and dormitories,”
and “render personal assistance to patrons.” As to whether the occupation of cleaner requires
contact with the public, Plaintiff speculates as to how the job would require contact, and
Defendant speculates as to how the job would not require contact. See ECF Dkt. #15 at 18; ECF
Dkt. #17 at 18. In any event, the Sixth Circuit has held:
The ALJ is under no obligation to investigate the accuracy of the VE’s testimony
beyond the inquiry mandated by SSR 00-04p. This obligation falls to the
plaintiff’s counsel, who had the opportunity to cross-examine the VE and bring
out any conflicts with the DOT. The fact that Plaintiff’s counsel did not do so is
not grounds for relief.
Beinlich v. Comm’r of Soc. Sec., 345 Fed.Appx. 163, 168-69 (6th Cir. 2009). Plaintiff does not
assert that the ALJ failed to investigate the accuracy of the VE’s testimony as to the job of
cleaner as mandated by SSR 00-04p, and a review of the hearing transcript does not reveal any
apparent conflicts between the VE’s testimony and the DOT. See Tr. at 90-98; SSR 00-04p.
Accordingly, the obligation was on Plaintiff’s counsel to cross-examine the VE to bring out any
alleged conflicts between the testimony and the DOT. The fact that Plaintiff’s counsel did not
cross-examine the VE on this matter, and now offers speculative reasons for potential conflict
between the VE’s testimony and the ALJ’s RFC finding, is not grounds for relief. See Beinlich,
345 Fed.Appx. at 168-69. For these reasons, Plaintiff’s argument that the ALJ erred when
relying on the VE’s testimony is without merit.
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
Date: August 30, 2017
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?