Anderson v. Commissioner Social Security Administration

Filing 16

REPORT AND RECOMMENDATION that Statement of Errors be overruled and judgment be entered for Defendant - Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 10/27/2015. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Twila Anderson,

:

Plaintiff,

:

v.

:Case No.

2:14-cv-1840

:CHIEF JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kemp
:

Commissioner of Social
Security,
Defendant.

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Twila Anderson, filed this action seeking review
of a decision of the Commissioner of Social Security denying her
application for supplemental security income.

That application

was filed on December 26, 2011, and alleged that Plaintiff became
disabled on January 1, 2008.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on March 5, 2013.
ALJ denied benefits.

In a decision dated April 16, 2013, the

That became the Commissioner’s final

decision on August 11, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on December 22, 2014.

Plaintiff filed her

statement of specific errors on February 25, 2015, to which the
Commissioner responded on April 17, 2015.

No reply brief was

filed, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 46 years old at the time of the
administrative hearing and who is a high school graduate and has
a paralegal certificate, testified as follows.

Her testimony

appears at pages 68-90 of the administrative record.
Plaintiff first testified that she last worked a few years
prior to the hearing.

She stopped working because she could not

stand being around people.

She then attempted to go back to

school but quit after three weeks due to panic attacks and
depression.

She said she had worked as a paralegal for six

months to a year, and had done factory work, collections work,
telemarketing, restaurant work, and work as a cashier as well,
but did not hold any of those jobs for more than three months.
The primary reason Plaintiff did not think she could work
was her discomfort in being around people.

She also experienced

unpredictable panic attacks and day-long nausea.

Plaintiff was

also depressed, especially since the break-up of her marriage,
and cried frequently.

She also slept 18 or 19 hours per day.

She could help her son with homework and go to parent-teacher
conferences, but could go grocery shopping only with assistance
from her mother.
During a typical day, Plaintiff watched television and did
some microwave cooking.

Her mother helped her do the dishes and

she also had help with cleaning.

She had no outside activities.

She took medication but it did not help her symptoms.

Plaintiff

also described frequent nightmares and daily mood swings.

Her

memory and focus were poor.
At the time of the hearing, Plaintiff was waiting for
approval for knee replacement surgery.

She experienced shortness

of breath even without exertion and had pain even from climbing
one flight of steps.

She could walk a quarter of a mile, stand

for five minutes before getting dizzy, and sit for 15 or 20
minutes at a time.

She could not lift a gallon of milk and had

problems using her hands for more than 20 minutes without a rest
period.

Finally, she had migraine headaches on a daily basis.

She also used inhalers and a breathing machine for asthma.
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Plaintiff testified that she had gone to Florida for a month
about a year before the hearing.

She mostly stayed in her room

and watched television although she did go to the beach a few
times.

Her boyfriend had driven her there.
III.

The Medical Records

The medical records in this case are found beginning on page
409 of the administrative record.

Because Plaintiff’s sole

assignment of error does not require the review of any of the
medical records, the Court omits a summary of those documents.
IV.

The Vocational Testimony

Catherine Bradford was the vocational expert in this case.
Her testimony begins on page 91 of the administrative record.
Ms. Bradford first testified about Plaintiff’s past work.
The various jobs she held ranged from the medium to the sedentary
exertional levels, and from unskilled to skilled.
Ms. Bradford was then asked some questions about a
hypothetical person of Plaintiff’s age, education, and work
experience who could work at the light exertional level.

The

person could occasionally climb ramps and stairs and occasionally
stoop, kneel, crouch, and crawl.

The person could not climb

ladders, ropes, and scaffolds and had to avoid concentrated
exposure to extremes of temperature, humidity, and wetness, as
well as fumes, odors, dust, gases, and poor ventilation.

That

person was also limited to the performance of simple, routine
tasks in a relatively static environment with clear expectations,
few changes, and no fast production pace.

The person also could

tolerate only occasional and superficial contact with others.
According to Ms. Bradford, someone with those limitations could
not perform any of Plaintiff’s past jobs but could still work as
an assembler, inspector, or grader sorter.

If the person were

limited to sedentary work and could push or pull with the right
leg only occasionally, there would be other jobs available,
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including general production worker, assembler, and inspector.
Ms. Bradford was then asked if someone who would be off task
for 15 per cent of the time could work.

She said no.

The same

would be true for someone who would miss more than one or two
days per month and for a person who had to be retrained after
completing a probationary period.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 4356 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
had not engaged in substantial gainful activity since her
application date of December 26, 2011.
Going to the second step of the sequential evaluation
process, the ALJ determined that Plaintiff had severe impairments
including chondromalacia of the right knee, aortic valve
stenosis, asthma, adjustment disorder with mixed anxiety and
depressed mood, and panic disorder without agoraphobia.

The ALJ

also found that these impairments did not, at any time, meet or
equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level but she could
only push or pull occasionally with the right leg.

She could

occasionally climb ramps and stairs and occasionally stoop,
kneel, crouch, and crawl, could not climb ladders, ropes, and
scaffolds, and had to avoid concentrated exposure to extremes of
temperature, humidity, and wetness, as well as fumes, odors,
dust, gases, and poor ventilation.

Additionally, Plaintiff was

limited to the performance of simple, routine tasks in a
relatively static environment with clear expectations, few
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changes, and no fast production pace.

She also worked better

with things than with people but could have occasional and
superficial interaction with others.
The ALJ found that, with these restrictions, Plaintiff could
not do her past relevant work.

However, she could do the three

sedentary jobs identified by the vocational expert - general
production worker, assembler, and inspector.

The ALJ further

found that such jobs existed in significant numbers in the State
and national economies.

Consequently, the ALJ concluded that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises a
single issue.

She argues that the ALJ erred by not asking the

vocational expert if her testimony conflicted with information
provided in the Dictionary of Occupational Titles.

The

Commissioner responds that any error in this regard is harmless.
Social Security Ruling (SSR) 00-4p says, among other things,
that “before relying on [vocational] evidence to support a
disability determination” the ALJ “must ... identify and obtain a
reasonable explanation for any conflicts between occupational
evidence provided by a [vocational expert] and information in the
Dictionary of Occupational Titles” and also must “[e]xplain in
the determination or decision how any conflict that has been
identified was resolved.”

The Commissioner appears to concede

that this Ruling was not literally followed in this case, and the
record bears that out.

The ALJ did not ask the vocational expert

if her testimony was consistent with the DOT (although he did
find, in the administrative decision, that “the undersigned has
determined that the vocational expert’s testimony is not
inconsistent with the information contained in the Dictionary of
Occupational Titles”).

(Tr. 56).

The vocational expert did

provide, during the course of her testimony, DOT numbers for the

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three sedentary jobs she identified.

(Tr. 95).

The question raised by the ALJ’s failure to make the
required inquiry is whether the error was harmless given the
facts of this particular case.

As the court observed in Stull v.

Astrue, 2011 WL 830633 , *8 (N.D. Ohio Jan. 18, 2011), “courts
have held that where there is no conflict between the DOT and the
VE's testimony, any error in failing to comply with the
requirements of SSR 00–4p is harmless....”
endorsed that principle.

This Court has

See Prince v. Astrue, 2011 WL 1124989,

*9 (S.D. Ohio Jan. 11, 2011)(“Where no actual conflict is
identified ... courts have consistently held that an ALJ's
failure to comply with SSR 00–4p's inquiry requirement is
harmless error”).

Consequently, the Court’s task here is limited

to determining whether an actual conflict exists between the DOT
and Ms. Bradford’s testimony.
Plaintiff argues that such a conflict exists for these
reasons: (1) the job of general production worker, the first one
identified by the vocational expert, does not exist under the DOT
number provided (DOT 739.687-182); (2) the jobs under that number
involve work performed on a conveyor belt, which is usually done
at a fast pace; (3) the job of assembler also does not exist
under the DOT number given (DOT 685.687-026); that job is a
“topper” which involves work with a knitting machine and is also
fast-paced; and (4) the inspector job does not exist in the DOT
at all.
The fact that two of these three jobs do not appear to exist
in the DOT is not fatal to the ALJ’s decision.

In fact, that

argument appears to be foreclosed by the Court of Appeals’
decision in Lindsley v. Comm’r of Social Security, 560 F.3d 601
(6th Cir. 2010).

There, as here, the plaintiff argued that

because a particular job identified by a vocational expert did
not appear in the DOT (the job there was “production inspector”),

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there was an unresolved conflict between the vocational testimony
and the DOT.

The court rejected that reasoning, instead noting

that the plaintiff “failed ... to cite any authority establishing
that a conflict between the DOT and a VE's testimony exists
simply because an occupation described by the VE does not
specifically appear in the DOT.”

Id. at 605.

In fact, as the

Court of Appeals also noted, “neither the Commissioner nor the VE
has an obligation to employ the DOT.”

Monateri v. Comm’r of

Social Security, 436 Fed.Appx. 434, 446 (6th Cir. Aug. 11, 2011).
Since no conflict exists as to those jobs, and they would be
numerous enough to constitute substantial gainful employment (800
in Ohio and 39,000 nationally), a strong argument can be made
that any additional issues about the vocational expert’s
testimony are moot.

See, e.g., Martin v. Comm’r of Social

Security, 170 Fed.Appx. 369 (6th Cir. March 1, 2006)(recognizing
the principle that if “sufficient positions existed in the
national economy to constitute a significant number of jobs even
if all of the disputed jobs were eliminated,” any error occurring
with respect to the vocational testimony was harmless).
However, as to the remainder of Plaintiff’s argument, as the
court commented in Carey v. Apfel, 230 F.3d 131, 145-46 (5th Cir
2000), there are cases in which the testimony of a vocational
expert will directly conflict with the DOT on matters like
exertional or skill level for particular jobs, and there are more
indirect or tangential conflicts.
the latter category.

This case clearly falls into

In order to find a conflict here, Plaintiff

first posits that the vocational expert meant to equate the
production worker jobs she identified with the job listed under
the DOT number she gave.

If that were true, that job - table

worker, or spotter - is described as requiring the examination of
“squares (tiles) of felt-based linoleum material passing along on
conveyor and replac[ing] missing and substandard tiles.”

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Is that

a fast-paced production job?

The DOT does not say so.

The

inference Plaintiff draws - that it must be such a job due to the
reference to a conveyor - is too weak to establish the kind of
direct conflict which, absent any other information, would likely
require a remand.

The same is true for the assembler job.

If

the vocational expert really meant to describe the “topper” job
listed in the DOT, the mere fact that a knitting machine is
involved in the job does not necessarily mean it is fast-paced.
Again, the DOT contains no description of the pace at which the
knitting machine works or how the worker interacts with it, apart
from a general description of job duties (“Loops stitches of
ribbed garments on points of transfer bar to facilitate transfer
of garment part to needles of knotting machine.

Cuts several

stitches by hand to unravel rows of surplus fabric between points
and edge of fabric.
to doff machine”).

May assist KNITTER, FULL-FASHIONED GARMENT
Could this be a fast-paced job?

Perhaps.

But it is the Plaintiff’s burden to demonstrate an actual
conflict here, and the Court finds, taking all of the evidence
into account, Plaintiff has not shown a reversible error.

Thus,

while it would certainly have been better for the ALJ to ask the
pertinent question to Ms. Bradford while she was testifying, the
failure to do so here did not materially influence the outcome of
the case and is therefore harmless error.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection

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is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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