Handy v. Commissioner of Social Security

Filing 24

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS. Signed by Judge Gregory L. Frost on 10/21/15. (kn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICK L. HANDY,
Plaintiff,
Case No. 2:14-cv-1371
JUDGE GREGORY L. FROST
Magistrate Judge Elizabeth P. Deavers

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

OPINION AND ORDER
This matter is before the Court for consideration of the Magistrate Judge’s July 29, 2015
Report and Recommendation (“R&R”) (ECF No. 21) and Plaintiff’s objections thereto (ECF No.
22). For the reasons that follow, the Court OVERRULES Plaintiff’s objections and AFFIRMS
AND ADOPTS the R&R.
I.

BACKGROUND

Plaintiff applied for disability benefits on March 7, 2011, alleging that he has been
disabled since October 31, 2008. An administrative law judge (“ALJ”) heard Plaintiff’s case on
January 30, 2013. The ALJ found that Plaintiff was not disabled within the meaning of the
Social Security Act (the “Act”). That decision became the Commissioner’s final decision when
the Appeals Council denied review.
Two specific portions of the ALJ’s written decision are relevant to this Opinion and
Order. First, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to “handle
occasional and superficial interaction with supervisors, coworkers, and the public.” (ECF No.
11, at PAGEID # 66.) Second, the ALJ discussed the testimony of a vocational expert (“VE”),
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who was questioned about a hypothetical individual with Plaintiff’s age, education, work history,
and limitations. The VE opined that such an individual could perform the representative jobs of
ticket taker and cashier. When questioned by the ALJ, the VE answered that her testimony was
consistent with the Dictionary of Occupational Titles (“DOT”). The ALJ accepted that
testimony in concluding that Plaintiff was not disabled within the meaning of the Act.
Plaintiff seeks judicial review of the ALJ’s decision. In his Statement of Specific Errors
filed with this Court, Plaintiff argued (in relevant part) that the ALJ erred by relying on the VE’s
testimony without acknowledging that the testimony conflicts with the DOT’s definition of
“occasional.” According to the DOT, “ ‘occasionally’ means occurring from very little up to
one-third of the time.” S.S.R. 83-10 (1983). Plaintiff argued that ticket takers and cashiers
necessarily interact with others during more than one-third of their working time. Plaintiff
concluded that the VE’s conclusion that an individual with plaintiff’s RFC could perform those
jobs conflicts with the DOT.
The Magistrate Judge considered Plaintiff’s Statement of Specific Errors and issued an
R&R recommending that the Court overrule the same. Regarding the vocational expert’s
testimony, the Magistrate Judge “recognize[d] the potential conflict between the VE’s testimony
and the DOT that Plaintiff has raised for the first time in his Statement of Errors.” (ECF No. 21,
at PAGEID # 568.) The Magistrate Judge found, however, that the ALJ did not violate her
affirmative duty to identify conflicts: “ ‘In the Sixth Circuit, the ALJ’s duty is satisfied if he or
she asks the VE whether his or her testimony is consistent with the DOT.’ . . . Here, the ALJ
asked if there was a conflict, and the VE testified that there was not.” (Id. (quoting Johnson v.
Comm’r of Soc. Sec., 535 F. App’x 498, 508 (6th Cir. 2013).) The Magistrate Judge noted that a
claimant’s counsel generally is responsible for cross examining the VE and illuminating any

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potential conflicts between the VE’s testimony and the DOT. Plaintiff’s counsel did not do so;
accordingly, the ALJ committed no reversible error in this regard.
Plaintiff timely objected to the Magistrate Judge’s conclusions. The Court will consider
those objections below.
II.

DISCUSSION
A. Standard of Review

When a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
This standard must be applied consistently with the Court’s standard of review in social
security cases:
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made
pursuant to proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647,
651 (6th Cir. 2009) (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)); see also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of
Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than
a scintilla of evidence but less than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486
F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th
Cir. 1994)). Although the substantial evidence standard is deferential, it is not trivial.
The Court must “‘take into account whatever in the record fairly detracts from [the]
weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th
Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)).
Nevertheless, “if substantial evidence supports the ALJ’s decision, this Court defers
to that finding ‘even if there is substantial evidence in the record that would have
supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the
ALJ’s decision meets the substantial evidence standard, “‘a decision of the
Commissioner will not be upheld where the SSA fails to follow its own regulations
and where that error prejudices a claimant on the merits or deprives the claimant of a
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substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 746 (6th Cir. 2007)).

(ECF No. 21, at PAGEID # 566–67.)
B. Analysis
As an initial matter, Plaintiff purports to incorporate all arguments made in his Statement
of Specific Errors into his objections. Such a statement is akin to arguing that the Magistrate
Judge generally erred by not accepting Plaintiff’s arguments in the first instance, which is of no
legal consequence. See, e.g., Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509
(6th Cir. 1991) (a general statement that the magistrate judge erred “has the same effect as would
a failure to object”). The Court proceeds to consider only those specific portions of the R&R to
which Plaintiff properly objected.
Plaintiff objects to the Magistrate Judge’s conclusion with respect to the ALJ’s duty to
resolve the potential conflict between the VE’s testimony and the DOT. Although Plaintiff does
not dispute that Sixth Circuit authority directly supports the Magistrate Judge’s conclusion on
this point, or offer any authority that refutes the Magistrate Judge’s conclusion, he argues that the
general rule should not apply in this case because “here, even a lay person would question
whether an individual could perform work as a ticket taker or cashier if he were only capable of
social interactions for up to one-third of the work day.” (ECF No. 22, at PAGEID # 576.) This
argument has an obvious hole, however, in that a lay person would not know that the DOT
defines “occasionally” to mean “up to one-third of the work day.” This logical discrepancy
illustrates why this case falls under the general rule cited by the Magistrate Judge: any
discrepancy might seem obvious after the fact once the claimant identifies the relevant DOT
provisions. But the Sixth Circuit has clearly held that the ALJ does not have an affirmative duty
to investigate the relevant DOT provisions and compare those provisions to the VE’s testimony.

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Instead, the ALJ satisfies his or her duty by considering the VE’s testimony on cross examination
after the claimant’s counsel identifies potential discrepancies, and by asking the VE if potential
conflicts exist. The ALJ did not violate this duty in this case and therefore committed no
reversible error.
Moreover, even if the ALJ did have an affirmative duty to identify obvious conflicts, the
Court disagrees that the conflict in this case was as obvious as Plaintiff suggests. It is not
obvious, for example, that a person capable of “occasional and superficial interaction” with the
public cannot perform the job of ticket taker. Although further questioning from Plaintiff’s
counsel would have been helpful on this point, the Court agrees with the Magistrate Judge that
the ALJ committed no reversible error in this regard.
In short, Plaintiff fails to identify any legal support for his argument that the ALJ erred by
accepting the VE’s testimony. Plaintiff therefore fails to identify any portion of the R&R that
should be modified or set aside.
III.

CONCLUSION

Having found that none of Plaintiff’s objections warrant a modification to the R&R, the
Court OVERRULES Plaintiff’s objection (ECF No. 22), AFFIRMS AND ADOPTS the R&R
(ECF No. 21), and AFFIRMS the Commissioner’s decision with respect to Plaintiff’s claim.
The Clerk is DIRECTED to enter judgment accordingly and remove this case from the docket
records of the United States District Court for the Southern District of Ohio, Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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