Engles v. Commissioner of Social Security

Filing 20

OPINION AND ORDER overruling 11 Statement of Specific Errors. The Commissioner's decision denying benefits is affirmed. Signed by Magistrate Judge Terence P. Kemp on 6/30/2017. (kdp)

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

Angela J. Engles,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:16-cv-0352

Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

Plaintiff, Angela J. Engles, 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 January 25, 2013, and alleged that
Plaintiff became disabled on January 1, 2003, which date was
later amended to January 25, 2013, the date the application was
filed.

She had filed two prior applications for benefits as

well, both of which were denied at the Administrative Law Judge
level.
After initial administrative denials of her claim,
Plaintiff was given a hearing before an Administrative Law Judge
on August 5, 2014.
denied benefits.

In a decision dated October 6, 2014, the ALJ

That became the Commissioner’s final decision

on February 17, 2016, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on June 27, 2016.

Plaintiff filed a

statement of specific errors on August 11, 2016, to which the
Commissioner responded on November 23, 2016.

Plaintiff did not

file a reply brief, and the case is now ready to decide.

It is

before the Magistrate Judge for decision based on the consent of

the parties and the issuance of an order of reference under 28
U.S.C. §636(c).
II.

Plaintiff’s Testimony at the Administrative Hearing

Ms. Engles was 38 years old when the administrative hearing
was held.

She has an eleventh grade education.

She testified to

the following at the administrative hearing (see Tr. 49-64).
First, Plaintiff was asked about her work history.

She said

she had worked for several years as an assistant manager at a
Papa John’s pizza restaurant, but left the job due to anxiety and
panic attacks.

She also worked at a Wal-Mart and as a

telemarketer.
Plaintiff lived with her two daughters, one of whom was an
infant.

She and her older daughter cared for the younger one.

Plaintiff’s older daughter is home-schooled.

Plaintiff was able

to care for her own personal needs, fixed meals occasionally, and
drove to the store or to appointments.
Next, Plaintiff testified about her medications.

She took

Xanax, Vicodin, Trazodone, and ibuprofen for panic attacks,
agoraphobia, fibromyalgia, and depression.
her tired.

Her medications made

She took only the Xanax while she was pregnant.

Plaintiff said she could not work because she could not
leave the house without her daughter and because she had panic
attacks and chronic pain.

She would not be able to keep a job if

she had to leave work due to a panic attack.
made her extremely nervous.

Being around people

Her panic attacks happened multiple

times per day.
From a physical standpoint, Plaintiff said she could walk
for five minutes, stand for five to ten minutes, and sit for half
an hour or 45 minutes.
down.

Her most comfortable position was lying

She could not concentrate for long periods of time.
III.

The Medical Records

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

The Court will summarize those

records which pertain to Plaintiff’s statements of error.
The Court begins its review with a progress note from Six
County, Inc. dated July 24, 2012.

Plaintiff’s complaints to that

agency included lack of sleep, back pain, and, perhaps,
obstructive sleep apnea.

The examiner commented that Plaintiff

did not look tired, however.

Plaintiff was encouraged to work up

to being away from her daughter for longer periods of time.

Her

diagnoses included generalized anxiety disorder with panic
attacks and probable sleep apnea.

(Tr. 325-26).

There is one

follow-up note from 2013 indicating that Plaintiff was “bright
and reactive” at that time and that her anxiety was being
controlled by medication.
(Tr. 689).

However, her GAF was 40 at that time.

Another series of notes showed that she reported

increased anxiety in 2014.
Next, there are a series of treatment notes from Dr. Daou
from 2012 indicating that Plaintiff suffered from fibromyalgia
with pain all over and that she had been prescribed Vicodin and
ibuprofen.

Those notes also indicate that Plaintiff suffered

from depression, anxiety, and panic attacks.

(Tr. 327-41).

Treatment notes from 2013 and 2014 are similar and indicate that
Plaintiff reported fatigue and pain as well as psychological
impairments and that she was treated with medication for anxiety
and panic attacks, although her mood and affect were generally
described as normal.

(Tr. 366-80, 408-16).

The notes also

indicate that Plaintiff gave birth on April 25, 2014.
On April 22, 2013, Dr. Weaver performed a consultative
physical examination.

Plaintiff told him that she had been

diagnosed with fibromyalgia in 2012 and was taking various
medications.

She was frequently achy, stiff, and in pain, and

also had muscle spasms in her neck, back, arms, and legs.
had been having low back pain since 2004.
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She

Plaintiff told Dr.

Weaver that she could sit, stand, and walk for only fifteen
minutes at a time and could not lift more than ten pounds.

The

physical examination showed that Plaintiff walked with a stiff
gait and a slight limp.

She had multiple trigger points in her

arms and legs as well as her back and she showed some restriction
in the range of motion of her shoulders, neck, and back.
difficulty squatting.
right.

She had

Straight leg raising was positive on the

Her affect and mood were pleasant and appropriate.

Dr.

Weaver diagnosed probable chronic low back and radicular right
lower leg pain and probable fibromyalgia syndrome.

He thought

that Plaintiff would be limited in the performance of physical
activities involving sustained sitting, standing, walking,
reaching, climbing, squatting, stooping, crouching, kneeling,
crawling, lifting, and carrying.

(Tr. 348-56).

Plaintiff also underwent a psychological evaluation, which
was performed by Dr. Spindler.

She told Dr. Spindler that she

suffered from fibromyalgia, chronic back pain, sleep apnea,
anxiety, and panic attacks.

She said she had left several jobs

due to panic attacks and had been given poor job performance
ratings, in addition to not getting along with co-workers and
supervisors.

She became upset when questioned about her

relationship with her daughter.

She had no problem focusing

during the evaluation but her mood appeared to be depressed and
she seemed angry and irritable.

Plaintiff reported life-long

anxiety and said she did not leave the house unless her daughter
went with her.

She was also depressed every day.

Dr. Spindler

diagnosed generalized anxiety disorder, panic disorder with
agoraphobia, and depressive disorder, and rated Plaintiff’s
overall GAF at 45.

He thought that she was functioning in the

low average range of intelligence, could understand job
instructions (although “with her mental problems it seem (sic)
unlikely that she would be able to sustain her job for very
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long”), could not sustain a proper working pace and level of
attention and concentration, did not get along with others, and
could not handle routine job stress.

(Tr. 359-64).

State agency reviewers also expressed opinions about
Plaintiff’s residual functional capacity.

Dr. Prosperi concluded

that Plaintiff could do a reduced range of light work with a
number of postural and non-exertional restrictions, adopting a
prior ALJ decision on that issue.
Richardson, at Tr. 100,

(Tr. 98-100).

Similarly, Dr.

adopted the prior ALJ decision as to

mental residual functional capacity.

That decision, Tr. 73-86,

found that Plaintiff was limited to less than occasional contact
with the public and frequent incidental contact with co-workers
and supervisors, with no teamwork, no fast-paced work, and no
strict production quotas.

The reviewers at the reconsideration

level, Drs. Torello and Terry, agreed.
IV.

(Tr. 111-13).

The Vocational Testimony

Amanda Ortman was the vocational expert in this case.

Her

testimony begins at page 64 of the administrative record.
Ms. Ortman first testified that Plaintiff’s past relevant
work as a restaurant assistant manager was a light job with an
SVP of six.

That was her only past relevant work.

Mr. Breen was then asked to testify about a hypothetical
individual with Plaintiff’s age, education, and work experience.
The person could work at the light exertional level except that
she required a sit and stand option every hour.

She could

occasionally climb ramps and stairs, balance, stoop, and crouch,
and could never kneel, crawl, or climb ladders, ropes, and
scaffolds.

Also, the individual had to avoid concentrated

exposure to extreme cold, heat, and vibrations, and all exposure
to heights and machinery.

Lastly, that person could have no more

than occasional contact with the public and no more than frequent
incidental contact with co-workers and supervisors and could have

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no teamwork, no fast-paced work, and no strict production quotas.
Ms. Ortman said that such a person could not do Plaintiff’s past
job, but someone so limited could perform light unskilled jobs
like packager, shipping and routing clerk, and office helper.
She gave numbers for such jobs in the regional and national
economies.

She also identified unskilled sedentary jobs

consistent with that residual functional capacity minus the sitstand option, but said that no such sedentary jobs would be
available to someone who had to change positions on an hourly
basis.

She also testified that the normal tolerance for being

off task for those jobs would be ten percent of the workday, and
for being absent, it would be less than one day per month, or six
to eight days per year at most.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 2034 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 January 25, 2013.
Going to the next step of the sequential evaluation process,
the ALJ determined that Plaintiff had severe impairments
including degenerative disc disease of the lumbar spine,
fibromyalgia, morbid obesity, generalized anxiety disorder, panic
disorder, social phobia, agoraphobia, and depression.

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 light exertional level except that she
required a sit and stand option every hour.

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She could

occasionally climb ramps and stairs, stoop, and crouch, and could
never kneel, crawl, or climb ladders, ropes, and scaffolds.
Also, he had to avoid concentrated exposure to extreme cold,
heat, and vibrations, and all exposure to heights and machinery.
Lastly, she could have no more than occasional contact with the
public and no more than frequent contact with co-workers and
supervisors and could have no teamwork or fast-paced or strict
production quotas.
The ALJ next concluded that Plaintiff, with these
limitations, could not do any of her past relevant work.
However, Plaintiff could do a number of light jobs such as
packager, shipping and receiving clerk, and office helper.

The

ALJ further found that these jobs existed in significant numbers
in the regional and national economies.

Consequently, the ALJ

concluded that Plaintiff was not entitled to benefits.
It is important to note that, under Drummond v. Comm’r of
Social Security, 126 F.3d 837 (6th Cir. 1997) and Acquiescence
Ruling 98-4(6), the ALJ also found that the evidence presented in
connection with the current application did not support a more
restrictive residual functional capacity finding than the one
made by the prior ALJ.

Consequently, the ALJ here adopted that

RFC finding.
VI.

Plaintiff’s Statement of Specific Errors

Plaintiff raises five issues in her statement of errors: (1)
the ALJ did not give proper reasons for rejecting the opinion of
consultative psychological examiner Dr. Spindler; (2) the ALJ
erred by not seeking clarification from consultative examiner Dr.
Weaver; (3) the ALJ’s credibility assessment is not supported by
substantial evidence; (4) the ALJ improperly applied Acquiescence
Ruling 98-4(6); and (5) the ALJ did not sustain her burden of
proof with respect to the existence of jobs which Plaintiff could
perform.

Each of these contentions is reviewed under the

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following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the
Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

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) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Dr. Spindler

Plaintiff’s first argument is that the ALJ provided no sound
reason for rejecting the opinion of Dr. Spindler, the
consultative psychological examiner.

She asserts that there was

no evidence in the record to contradict his findings and that the
reasons given by the ALJ for assigning only little weight to his
opinion are inadequate.

The Commissioner argues that the ALJ

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provided sufficient reasons to assign only little weight to that
opinion and was justified in giving greater weight to the
opinions of the state agency reviewers, both of whom found that
there had been no significant change in Plaintiff’s mental
condition since the prior ALJ decision.
Although an ALJ need not provide the same level of
articulation when discounting the opinion of a consultative
examiner as that of a treating source, the ALJ must still use the
factors set forth in 20 C.F.R. §404.1527(c) in evaluating such
opinions and must provide sufficient reasoning so that the Court
may conduct a reasoned review of the ALJ’s decision.

That

regulation requires an ALJ to evaluate every medical opinion and
sets forth a list of factors to be considered, including whether
the source of the opinion examined or did not examine the
claimant, see §404.1527(c)(1), and other factors such as the
supportability of the opinion, its consistency with the record,
the specialization of the source, and “other factors.”
§404.1527(c)(3)-(6).

See

Further, the ALJ must not only evaluate

consultative opinions under §404.1527(c) but provide something in
the way of analysis.

Thus, “[a]lthough this explanatory

requirement [the one which applies to treating sources] does not
apply to opinions from physicians who...have examined but not
treated a claimant...the ALJ's decision still must say enough ‘to
allow the appellate court to trace the path of his reasoning.’”
Stacey v. Comm'r of Social Security, 451 Fed.Appx. 517, 519 (6th
Cir. Dec. 19, 2011), quoting Diaz v. Chater, 55 F.3d 300, 307
(7th Cir. 1995).
Here, in discussing Dr. Spindler’s opinion, the ALJ (after
accurately summarizing his findings), concluded that this opinion
was based “primarily on the claimant’s subjective complaints from
a one-time evaluation that are unsupported by any psychological
testing.”

(Tr. 31).

The ALJ also noted that Plaintiff did not

appear to exhibit any psychological symptoms during the
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examination conducted by Dr. Weaver.

Finally, she explained that

she gave great weight to the opinions of Drs. Richardson and
Terry to the effect that Plaintiff’s residual functional capacity
had not changed since the prior decision because those opinions
were well-supported by the evidence, and because Plaintiff was
able to maintain her personal care, make meals, do chores, drive,
shop, and take care of a young child.

(Tr. 31-32).

According to Plaintiff, this analysis is flawed because,
first, the observations made by Dr. Spindler at the evaluation
session - that Plaintiff was depressed, angry, and irritable support his opinion apart from any subjective reports made by
Plaintiff.

Second, Plaintiff contends that the fact that Dr.

Spindler was an examining source favors crediting his opinion
over that of the state agency reviewers, who never examined
Plaintiff.
While the latter observation is true, it does not mean that
the ALJ could not prefer those opinions over Dr. Spindler’s.

It

is important to keep in mind that one of the questions addressed
by the state agency reviewers, but not by Dr. Spindler, was
whether the evidence showed a change in Plaintiff’s mental
condition since the prior ALJ decision.

There is little evidence

in the record to support such a finding.

Plaintiff was treated

for her mental condition primarily by her regular physician, who
prescribed medication but also noted that Plaintiff’s
psychological presentation was generally normal.

There is little

evidence that Plaintiff sought or obtained counseling after the
prior denial of her claim.

Clearly, Dr. Spindler relied heavily

on Plaintiff’s own description of symptoms, since the few
observations he made during his evaluation do not seem to support
such extreme mental limitations.

Overall, the ALJ complied with

the applicable law by citing to factors contained in 20 C.F.R.
§404.1527(c) and explaining why she did not give much weight to
Dr. Spindler’s opinion.

The Court finds no error in her decision
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to give it little weight or to credit the views of the state
agency reviewers adopting the prior ALJ decision on the issue of
mental residual functional capacity.
B.

Dr. Weaver

Plaintiff presents a somewhat different argument concerning
Dr. Weaver’s physical evaluation.

She does not disagree with the

ALJ’s decision to give great weight to Dr. Weaver’s opinion.
However, Plaintiff contends that it was not clear that Dr. Weaver
believed that she could do light work because, as the ALJ noted,
he did not indicate for how long Plaintiff could perform the
various activities he described in his report.

She asks that the

case be remanded for clarification on this point.

In response,

the Commissioner argues that no matter what opinions are
expressed about a claimant’s residual functional capacity, the
final decision on that issue is reserved to the ALJ, and that, as
with the mental residual functional capacity finding, the ALJ was
permitted to adopt the findings of the state agency reviewers,
who did not find any significant change in Plaintiff’s condition
since the prior ALJ decision.
The real issue here is whether the ALJ developed the record
sufficiently to make a decision, or whether further development,
such as asking Dr. Weaver to clarify his views, was necessary.
The case law is clear that an ALJ has no duty even to order a
first consultative examination if “the record contained
sufficient information for the ALJ to make a determination.”
Monroe v. Comm’r of Social Security, 2016 WL 7971330, *5
(N.D.N.Y. Dec. 29, 2016).

Even when the alleged lack of clarity

is found in a treating source opinion, and ALJ need not obtain
further clarification from such a source “unless a crucial issue
is undeveloped.”
2004).

Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.

In that case, because the record did contain sufficient

information about the claimant’s limitations based on clinical
data and observations, the ALJ had no obligation to seek
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additional information about that subject.
Here, the ALJ noted that Dr. Weaver provided diagnoses of
several physical impairments and made findings and observations
that were used by the state agency physicians to formulate their
opinions.

Again, those physicians were looking for evidence that

Plaintiff’s condition had changed since the prior ALJ decision,
and they did not find such evidence in either Dr. Weaver’s report
or in the other evidence of record.

The ALJ considered their

opinions as well as the evidence developed after they expressed
them and concluded the opinions were consistent with the record
as a whole.

No treating source rendered a contrary opinion, and

Plaintiff has not pointed to any treatment notes, findings, or
tests which suggested that her condition did worsen or that the
state agency reviewers did not have substantial support for their
conclusions.

Again, given the entirety of the record, the Court

concludes that the ALJ had enough evidence upon which to
formulate a physical residual functional capacity finding, and
this alleged error does not provide a basis for reversal or
remand.
C. Credibility
Plaintiff’s third statement of error is that the ALJ did not
properly evaluate her credibility.

She asserts that the ALJ

applied the wrong legal standard when determining that she was
not fully credible and that she also selectively interpreted the
record, citing to matters which do not support the credibility
finding which was made.

The Commissioner responds that the ALJ

provided numerous reasons for discounting Plaintiff’s testimony
and that these reasons are amply supported in the record.
A social security ALJ is not permitted to reject allegations
of disabling symptoms, including pain, solely because objective
medical evidence is lacking.

Rather, the ALJ must consider other

evidence, including the claimant's daily activities, the
duration, frequency, and intensity of the symptoms, precipitating
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and aggravating factors, medication (including side effects),
treatment or therapy, and any other pertinent factors.
§404.1529(c)(3).

20 C.F.R.

Although the ALJ is given wide latitude to make

determinations about a claimant’s credibility, the ALJ is still
required to provide an explanation of the reasons why a claimant
is not considered to be entirely credible, and the Court may
overturn the ALJ’s credibility determination if the reasons given
do not

have substantial support in the record.

See, e.g.

Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).
Taking Plaintiff’s arguments on the credibility issue in
order, the Court first finds no evidence that the ALJ applied an
incorrect legal standard.

The ALJ recited the appropriate two-

step standard at Tr. 27, a standard which is consistent with both
20 C.F.R. §404.1529 and the Court of Appeals’ decision in Duncan
v. Secretary of H.H.S., 801 F.2d 847, 853 (6th Cir. 1986).
Plaintiff’s argument lies more with the way in which the ALJ
applied this standard, so the Court now turns to that question.
The ALJ provided these reasons for not accepting, in whole,
Plaintiff’s testimony about disabling symptoms: (1) the medical
records do not support a finding of total disability; (2)
Plaintiff’s medical problems were of a long-standing nature with
little evidence that they had worsened since she was working; (3)
she had a poor work history; (4) her activities of daily living
were inconsistent with total disability; (5) she did not
consistently take her medications or follow up with recommended
treatment; and (6) when she was medication-compliant, her
symptoms were well-controlled.

(Tr. 28-32).

The ALJ’s

credibility determination was accompanied by a lengthy discussion
of the medical records, including the fact that there were few
severe objective findings at physical examinations and that her
mood, affect, and judgment were generally described as normal.
The ALJ also pointed out that, on a daily basis, Plaintiff was
able to dress, shower, prepare meals, clean, drive, pay bills,
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and care for an infant.
According to Plaintiff, the ALJ was not entitled to rely on
these factors and failed to take into account other relevant
factors.

In support of that argument, Plaintiff asserts that the

ALJ did not consider the entire checklist of factors which appear
in the Felisky decision (although she does not state specifically
which factors were omitted from the ALJ’s decision), and that the
ALJ erred by not taking into account the fact that any noncompliance with treatment may have related to Plaintiff’s mental
impairments; that a conservative course of treatment does not, by
itself, negate the possibility that a claimant is disabled; and
that limited daily activities do not equate to the ability to
work on a sustained basis.
The Commissioner clearly has the better of this argument.
As this Court said in Swett v. Comm’r of Social Security, 886
F.Supp.2d 656, 671 (S.D. Ohio 2012)(Newman, M.J.), “Felisky does
not require the ALJ to engage in such an extensive analysis in
every decision.... Instead, Felisky requires only that the ALJ
consider non-medical factors in addition to the objective medical
evidence” (internal citation omitted).
Further, the various factors cited by the ALJ are all
appropriate considerations to be used in evaluating a claimant’s
credibility, and Plaintiff does not argue that the ALJ misstated
the evidence upon which she relied.

Essentially, Plaintiff

argues that the ALJ should not have weighed these factors in the
way that she did.

However, this Court may not re-weigh the

evidence and reach a different conclusion as to credibility if
the ALJ (as occurred here) applies the correct legal standard,
cites appropriate factors, and reaches a conclusion that a
reasonable person could have reached based on the evidence in the
case.

As this Court has often said, “[b]ecause an ALJ is charged

with observing a witness's demeanor, [her] findings on
credibility must be accorded great weight and deference,” Baker
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v. Comm'r of Social Security, 2014 WL 3689231, *6 (S.D. Ohio July
24, 2014), and it is simply not this Court's job to re-weigh the
evidence.

The Court therefore finds no merit in Plaintiff’s

third statement of error.
D.

Acquiescence Ruling 98-4(6)

Plaintiff’s next argument is that the ALJ did not properly
apply Acquiescence Ruling (AR) 98-4(6).

That ruling, which is

applicable within the Sixth Circuit, states that the Social
Security Administration “may not make a different finding in
adjudicating a subsequent disability claim with an unadjudicated
period arising under the same title of the Act as the prior claim
unless new and additional evidence or changed circumstances
provide a basis for a different finding of the claimant's
residual functional capacity.”

The ALJ applied the ruling in

this case and adopted the prior ALJ’s residual functional
capacity finding because there was no evidence that Plaintiff’s
circumstances had materially changed since the prior decision was
rendered.

According to Plaintiff, the ALJ erred because the

evidence showed such changed circumstances.
This argument incorporates the prior arguments concerning
the proper interpretation of the consultative examiners’ opinions
and the credibility finding made by the ALJ.

Because it makes no

new arguments, and because the Court has found no merit in those
three claims, Plaintiff’s fourth statement of error provides no
basis for granting relief.
E.

The Vocational Testimony

The final argument contained in Plaintiff’s statement of
specific errors relates to the vocational testimony.

Plaintiff

asserts that the ALJ did not properly evaluate the testimony
about the job of office helper because there is a conflict
between the vocational expert’s testimony and the Dictionary of
Occupational Titles concerning how frequently an office helper
interacts with others.

That, according to Plaintiff, violates
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Social Security Ruling 00-4p and requires a remand.
There are at least two reasons why this argument is
unavailing.

First, as the Commissioner points out, the ALJ asked

the vocational expert whether her testimony was “consistent with
the information found in the [DOT]?” (Tr. 68-69).
“Yes.
69).

She responded,

And it’s also based on my professional experience.”

(Tr.

That testimony was sufficient to allow the ALJ to rely on

her answers, and the question was sufficient to satisfy the duty
imposed by SSR 00-4p, which states that “[a]t the hearings level,
as part of the adjudicator's duty to fully develop the record,
the adjudicator will inquire, on the record, as to whether or not
there is such consistency.”

Further, the Commissioner makes a

cogent argument (although one that the Court need not accept in
order to resolve this issue) that any discrepancy between the
DOT’s description of the duties of an office helper and
Plaintiff’s need to avoid significant interaction with others is
not immediately apparent.

The Court also notes that to the

extent there was a discrepancy, the vocational expert was
entitled to rely on her own experience - SSR 00-4p specifically
states that “[n]either the DOT nor the VE or VS evidence
automatically ‘trumps’ when there is a conflict” - and the ALJ
was entitled to rely on that explanation.
Additionally, office helper was only one of three
representative jobs which the vocational expert identified at the
light exertional level as being within Plaintiff’s physical and
mental capabilities.

If that job were eliminated, the jobs of

packager and shipping and routing clerk remained, and the
vocational expert testified that, together, there were
approximately 300,000 such jobs in the national economy.
Consequently, any error concerning the office helper job is
clearly harmless.

See, e.g., Hannon v. Comm’r of Social

Security, 2013 WL 3568272, *6 (S.D. Ohio July 11, 2013)(Kemp,
M.J.), adopted and affirmed 2013 WL 4434905 (S.D.Ohio Aug. 16,
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2013), finding harmless error when “any error in [the ALJ’s]
decision made no difference in the way she decided the case.”
This issue, like the previous four, provides no basis for
reversal or remand.
VII.

Decision

Based on the above discussion, Plaintiff’s statement of
errors (Doc. 11) is overruled.

The Commissioner’s decision

denying benefits is affirmed.

The Clerk is directed to enter

judgment in favor of Defendant and to terminate this case.

/s/ Terence P. Kemp
United States Magistrate Judge

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