Perraut v. Commissioner of Social Security

Filing 16

ORDER adopting Report and Recommendations re 12 Report and Recommendation affirming the decision by the Commissioner. Signed by Judge Michael R. Barrett on 3/26/14. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

LEWIS PERRAUT,

CASE NO.: 1:12cv934

Plaintiff,

Barrett, J.
Bowman, M.J.

v.
COMMISIONER OF SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
This matter is before the Court on the Magistrate Judge's Report and Recommendation
("Report") recommending that the final decision of Defendant Commissioner of Social Security
to deny disability insurance benefits and supplemental security income to Plaintiff Lewis Perraut
be affirmed. (Doc. 12). Notice was given to the parties under 28 U.S.C. § 636(b)(1)(c). (Doc.
12, p. 16). Plaintiff Lewis Perraut filed timely objections to the Report and Recommendation.
(Doc. 15). This matter is now ripe for review.
I.

BACKGROUND
The procedural background and the pertinent facts have been adequately summarized in

the Report and Recommendation (see Doc. 12), and thus, will not be repeated here. Where
necessary in addressing the objections, the Court will identify the background or evidence that is
relevant to its decision.
II.

STANDARDS OF REVIEW
When objections to a magistrate judge's report and recommendation are received on a

dispositive matter, the assigned district judge "must determine de novo any part of the magistrate
judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). After review,
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the district judge "may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions." Id.; see also 28 U.S.C.
§ 636(b)(1). General objections are insufficient to preserve any issues for review: "[a] general
objection to the entirety of the magistrate[ judge]’s report has the same effects as would a failure
to object." Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Only
specific objections are entitled to de novo review under the Magistrate Judge's Act, 28 U.S.C. §
636. Id.; see also Fairfield v. Wacha, No. 1:07-cv-948, 2008 U.S. Dist. LEXIS 15119, at *4-5
(W.D. Mich. Feb. 28, 2008) (citing Ferguson v. Comm'r of Soc. Sec. Admin., No. 1:07-cv-247,
2008 U.S. Dist. LEXIS 5965 (W.D. Mich. Jan. 28, 2008); Westbrook v. O'Brien, No. 1:07-cv937, 2008 U.S. Dist. LEXIS 5965 (W.D. Mich. Nov. 15, 2007); Mira v. Marshall, 806 F.2d 636,
637 (6th Cir. 1986)). The reason for that requirement is that:
[t]he district court’s attention is not focused on any specific issues for
review, thereby making the initial reference to the magistrate useless. The
functions of the district court are effectively duplicated as both the
magistrate and the district court perform identical tasks. This duplication of
time and effort wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrates Act.
Howard, 932 F.2d at 509. Each objection to the magistrate judge’s recommendation should
include how the analysis is wrong, why it was wrong, and how de novo review will obtain a
different result on that particular issue. Id. Merely restating arguments previously presented,
stating a disagreement with a magistrate judge's suggested resolution, or simply summarizing
what has been presented before is not a specific objection that alerts the district court to the
alleged errors on the part of the magistrate judge. Id. at 508-09; see also Neuman v. Rivers, 125
F.3d 315, 323 (6th Cir. 1997), cert. denied, 522 U.S. 1030, 118 S. Ct. 631, 139 L. Ed. 610
(1997).

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In reviewing the Commissioner's denial of benefits, the Court must determine whether
the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In conducting this
review, the court should consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362
(6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, then that finding
must be affirmed, even if substantial evidence also exists in the record to support a finding of
disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
III.

ANALYSIS
Having reviewed the Magistrate Judge's recommended disposition de novo in light of

Plaintiff's objections, the Court concludes that the Administrative Law Judge ("ALJ") did not
commit reversible error and that the decision of the Commissioner should be affirmed.
A. First Objection
Plaintiff's first objection concerns the Magistrate Judge's conclusion that substantial
evidence supports the ALJ's reliance on the VE's testimony in response to the hypothetical
question that accurately portrays claimant's impairments. (Doc. 15, p. 1). Specifically, Plaintiff
contends that contrary to the Magistrate Judge's opinion, the ALJ's hypothetical presented
limitations that are "more consistent" with the DOT Reasoning Level 1 than the DOT Reasoning
Levels 2 or 3 such that the ALJ's reliance on the VE's testimony that presented two out of three
alternative jobs at the DOT Reasoning Levels 2 and 3 constituted reversible error. (Doc. 15, pp.
1-2).
Having reviewed the issue de novo in light of the objections, the Court finds no error by
the Magistrate Judge. The Magistrate Judge correctly recognized that the Sixth Circuit has held

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that an ALJ may rely on VE testimony even if there is an apparent conflict between the VE's
testimony and the DOT. (Doc. 12, p. 5) (citing Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601,
606 (6th Cir. 2009)). Under Social Security Ruling 00-4p, the ALJ has a duty to develop the
record and ensure there is consistency between the VE's testimony and the DOT, which includes
inquiring on the record as to whether or not such consistency exists. SSR 00-4p, 2000 SSR
LEXIS 8. Where the ALJ questions the VE and the VE testifies that no conflict exists with the
DOT, the Sixth Circuit has held that the ALJ has no obligation to further interrogate the VE,
especially when the plaintiff is afforded the opportunity to fully cross-examine the VE. See
Lindsley, 560 F.3d at 606; see also Martin v. Comm'r of Soc. Sec., 170 F. App'x 369, 374 (6th
Cir. 2006) ("Nothing in S.S.R. 00-4p places an affirmative duty on the ALJ to conduct an
independent investigation into the testimony of witnesses to determine if they are correct."). The
ALJ must develop the record further only when the conflict between the DOT and the VE's
testimony is apparent. Lindsley, 560 F.3d at 606; see also SSR 00-4p, 2000 SSR LEXIS 8.
After reviewing the transcript of the VE's testimony, the Court agrees with the Magistrate
Judge that the VE was asked and unequivocally confirmed that no conflict existed between his
testimony and the job descriptions listed in the DOT. (Tr. 66-72). The VE also was subject to
cross-examination by Plaintiff's counsel and no conflict was discerned from the testimony. (Tr.
72). The ALJ thus did not err by relying on the VE's testimony in determining other jobs
plaintiff could perform.
Furthermore, the Sixth Circuit has indicated that the reasoning development requirements
in the DOT are merely advisory, and has rejected arguments that the Commissioner must align
DOT reasoning levels with RFC classifications. Monateri v. Comm'r of Soc. Sec., 436 F. App'x
434, 446 (6th Cir. 2011); Matelski v. Comm'r of Soc. Sec., No. 97-3366, 1998 U.S. App. LEXIS

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14722, at *17 (6th Cir. 1998). Thus, even to the extent some variances exist between the DOT
reasoning levels and the hypothetical presented to the VE, the Court still finds the ALJ did not
commit reversible error.
Two other points also are worth making here. First, the ALJ did not expressly limit
Plaintiff in the hypothetical presented to the VE to only jobs that could be performed at a DOT
Reasoning Level 1. Instead, the hypothetical limited Plaintiff to:
work that involves simple, routine, and repetitive tasks performed in a lowstress environment, defined as free of fast paced production requirements,
involving only simple work-related decisions. Few, if any, workplace
changes. No interaction with the general public. And only occasional
interaction with coworkers and supervisors.
(Tr. 69). The VE testified that based upon those limitations, Plaintiff could perform the jobs
identified. (Tr. 69-72). Notably, 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 SSR LEXIS 8. In other words, not all jobs listed at DOT
Reasoning Levels 2 or 3 will have requirements that are identical to or as rigorous as those listed
in the DOT. See SSR 00-4p, 2000 SSR LEXIS 8; Hall v. Chater, 109 F.3d 1255, 1259 (5th Cir.
1997); French v. Astrue, No. 2:080-cv-15, 2009 U.S. Dist. LEXIS 4043 (E.D. Ky. Jan. 2009).
Plaintiff thus would not plainly be precluded from all positions at Reasoning Levels 2 or 3.
Accordingly, any discrepancy that exists between the VE's testimony and the DOT does not
preclude the ALJ from reasonably relying on the VE's testimony that Plaintiff could perform the
jobs identified.
Second, as the Magistrate Judge correctly recognized (Doc. 12, p. 7), even if two of the
three alternative jobs were precluded, the job of freight stock clerk would remain. As the VE
identified 402 jobs that exist locally and 47,000 jobs that exist nationally (Tr. 70), a significant
number of jobs may still exist in the economy that Plaintiff is able to perform. See Martin, 170
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F. App'x at 374-75 (finding even if two positions with alleged inconsistencies were excluded,
ALJ could reasonable found significant number of jobs based upon third position with 870 jobs
in the local geographic region); Stewart v. Sullivan, 904 F.2d 708 (6th Cir. 1990) (125 in local
geographic area is significant number of jobs); Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988)
(determination of what constitutes a significant number of jobs is case-specific).
For the foregoing reasons, the ALJ's decision on this basis is substantially supported, and
Plaintiff's first objection is overruled.
B. Second Objection
Plaintiff's second objection is a disagreement with the Magistrate Judge's conclusion that
the VE properly relied on the DOT to support his testimony regarding the jobs that the
hypothetical claimant can perform. (Doc. 15, p. 2). He claims that the ALJ should have relied on
the O*NET, which is a more recent and updated source. (Doc. 15, p. 2). He claims the Court
should, contrary to the Magistrate Judge's position, adopt the holding of the Sixth Circuit in
Cunningham v. Comm'r of Soc. Sec., 360 F. App'x 606 (6th Cir. 2010). (Doc. 15, p. 2).
After de novo review, the Court reaches the same conclusion as the Magistrate Judge. In
Cunningham, 360 F. App'x at 615, a divided panel of the Sixth Circuit explained that some of the
information listed in the DOT was outdated. The circuit court remanded because the "VE's
dependence on the DOT listings alone does not warrant a presumption of reliability." Id. at 616.
The issue there was whether substantial evidence supported the conclusion that certain jobs
existed in substantial numbers in the national economy, and the circuit court's holding suggested
that the particular DOT job descriptions at issue – document preparer and security camera
monitor – may have been obsolete. Id. at 614-15.

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As the Magistrate Judge recognized, Cunningham has not been widely adopted. (Doc.
12, p. 8). Moreover, the Social Security regulations list the DOT as a relevant government
publication from which an ALJ may take administrative notice of the job data. 20 C.F.R §
404.1566(d)(1). In any event, Cunningham does not mandate the use of O*NET or any other
more current job data, except possibly where the VE testifies only to jobs that no longer exist.
Here, the VE's testimony is not undermined by the fact he did not rely on the job
descriptions in O*NET, as it still is supported by substantial evidence. The VE testified that
given the hypothetical RFC and limitations, the hypothetical claimant could perform work as a
freight stocker, security monitor, or general office clerk.

Although Cunningham may suggest

that the job of security monitor in the DOT as identified by the VE is obsolete, it does not
indicate that the other two jobs – freight stock or general office clerk – also are obsolete. Nor
does Plaintiff demonstrate that such jobs are obsolete. The fact that one of the listed examples
may be obsolete does not make it unreasonable to rely on the VE's testimony as a whole about
other work opportunities available to the claimant. That is particularly true considering the ALJ
does not have a duty to interrogate a VE to determine if his testimony is correct, and the claimant
had the opportunity to fully cross-examine the VE as to his use of the DOT but did not raise the
issue at that time. See Lindsley, 560 F.3d at 606. Accordingly, Cunningham is not persuasive on
the record presented here, and Plaintiff's second objection is overruled.
C. Third Objection
Plaintiff's third objection presents a disagreement with the Magistrate Judge's conclusion
that the ALJ did not err by relying on the medical opinions of Dr. Leisgang and Dr. Le who did
not review any of the medical evidence submitted after the dates of their reviews or opinions.
(Doc. 15, pp. 2-3). Specifically, he claims that they could not provide a credible opinion about

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Plaintiff's impairments and limitations because they did not review the additional medical
evidence. (Doc. 15, p. 3).
After de novo review, the Court reaches the same conclusion as the Magistrate Judge.
Plaintiff does not dispute the Magistrate Judge's conclusion that the additional records did not
discredit or undermine the opinions of Dr. Leisgang and Dr. Le. (Doc. 12, pp. 13-14). Plaintiff
instead argues only that the ALJ could not rely on medical opinions of professionals who did not
review all of the relevant medical evidence. However, Plaintiff's argument ignores the Social
Security regulations that require the ALJ to consider medical opinions together with the rest of
the relevant evidence. 20 C.F.R. § 404.1527(b) ("In determining whether you are disabled, we
will always consider the medical opinions in your case record together with the rest of the
relevant evidence we receive."); 20 C.F.R. § 404.1520b ("After we review all of the evidence
relevant to your claim, including medical opinions (see § 404.1527), we make findings about
what the evidence shows."); 20 C.F.R. § 404.1520b(b) ("If any of the evidence in your case
record, including any medical opinion(s), is inconsistent, we will weigh the relevant evidence
and see whether we can determine whether you are disabled based on the evidence we have.");
20 C.F.R. § 404.1546(c) ("If your case is at the administrative law judge hearing level . . ., the
administrative law judge . . . is responsible for assessing your residual functional capacity."). As
the Sixth Circuit has recognized, "the ALJ is charged with the responsibility of evaluating the
medical evidence and the claimant's testimony to form an assessment of [the claimant's] residual
functional capacity." Coldiron v. Comm'r of Soc. Sec., 391 F. App'x 435, 439 (6th Cir. 2010)
(internal citations and quotations omitted) (citing Webb v. Comm'r of Soc. Sec., 368 F.3d 629,
633 (6th Cir. 2004)). Additionally, the Sixth Circuit has held that the ALJ may rely on opinions
of medical professionals who did not have complete access to the record at the time of their

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opinion, but it requires some indication that the ALJ considered the subsequent records before
giving greater weight to an opinion that was not based on a review of the complete case record.
Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009) (citing Fisk v. Astrue, 253 F.
App'x 580, 585 (6th Cir. 2007)).
Here, the ALJ evaluated, in accordance with the regulations and his responsibilities
thereunder, the consistency of the medical opinions with the objective medical evidence as a
whole, including the additional medical records. He then gave the most weight in his decision to
the opinions he found to be consistent with the medical evidence as a whole. Indeed, the
Magistrate Judge accurately acknowledged that the additional records are largely consistent with
the medical opinions of Dr. Leisgang and Dr. Le. (Doc. 12, pp. 13-14). Further, none of the
additional records required the ALJ to interpret data beyond his ability in order to determine
consistency with the medical opinions previously rendered. Rudd v. Comm'r of Soc. Sec., 531 F.
App'x 719, 726-27 (6th Cir. 2012). Accordingly, the ALJ did not commit reversible error by
giving "great weight" to the opinions of Dr. Leisgang and Dr. Le, which he determined upon
proper evaluation were consistent as a whole with the medical evidence, including the additional
medical evidence submitted after Dr. Leisgang's and Dr. Le's opinions were rendered.
Accordingly, Plaintiff's third objection is overruled.
D. Fourth Objection
Plaintiff's fourth objection concerns the Magistrate Judge's determination that the ALJ
properly discounted Plaintiff's credibility. (Doc. 15, p. 4). He states simply that it is "clear from
his testimony" that he is disabled and "unable to engage in any sustained work activity due to his
impairments and the limitations that he has as a result of those impairments." (Doc. 15, p. 4).

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He further contends that the ALJ incorrectly determined that Plaintiff's activities of daily living
are inconsistent with someone alleging a disability. (Doc. 15, p. 4).
Having reviewed the credibility determination de novo in light of Plaintiff's objection, the
Court finds no error by the Magistrate Judge. The Magistrate Judge correctly recognized (Doc.
12, p. 9) that "an ALJ is not required to accept a claimant's subjective complaints and may
properly consider the credibility of a claimant when making a determination of disability." Jones
v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). The Magistrate Judge also correctly
stated (Doc. 12, p. 9) that it is proper for an ALJ to discount the claimant's testimony where there
are contradictions among the medical records, his testimony, and other evidence. Warner v.
Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004). An ALJ's credibility assessment should
be afforded great weight and deference, but it must be supported by substantial evidence.
Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Here, the Court agrees with the Magistrate Judge's thorough and accurate description of
the inconsistencies in the record that were noted and considered by the ALJ in discounting
Plaintiff's credibility. (Doc. 12, pp. 9-12). As evidenced by that description, the ALJ did not
dismiss Plaintiff's complaints in a cursory fashion, but instead considered and explained the
many inconsistencies in the records upon which he relied in determining that Plaintiff's
complaints were not fully credible. Further, as the Magistrate Judge recognized (Doc. 12, p. 12),
the ALJ is permitted, and generally required, to consider a claimant's level of daily activities in
assessing his credibility. 20 C.F.R. § 404.1529(c)(3); Warner, 375 F.3d at 392. It therefore was
not error for the ALJ to consider Plaintiff's daily activities as one of many factors in making his
credibility assessment. Although some of Plaintiff's testimony may have been consistent with
disability, or consistent with some medical evidence, the fact that an opposite conclusion could

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have been reached does not warrant reversal where, as here, the ALJ's findings are otherwise
supported by substantial evidence. See Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 857 (6th Cir.
2010).
Accordingly, Plaintiff's fourth objection is overruled.
IV.

CONCLUSION
Consistent with the foregoing, Plaintiff's objections (Doc. 15) are OVERRULED and the

Report and Recommendation (Doc. 12) is ADOPTED in its entirety. The decision of the
Commissioner is hereby AFFIRMED, and this matter shall be CLOSED and TERMINATED
from the docket of this Court.
IT IS SO ORDERED.
s/Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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