Sarvino v. Commissioner of Social Security
REPORT AND RECOMMENDATION that the Court REVERSE the Commissioner's nondisability finding and REMAND this case to the Commissioner and Administrative Law Judge under Sentence Four of §405(g). Objections to R&R due by 4/21/2017. Signed by Magistrate Judge Kimberly A. Jolson on 4/7/2017. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
MARY J. SARVINO,
Civil Action 2:16-cv-792
Judge James L. Graham
Magistrate Judge Jolson
COMMISSIONER OF SOCIAL
REPORT AND RECOMMENDATION
Plaintiff, Mary J. Sarvino, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
her application for a period of disability and disability insurance benefits (“DIB”). For the
reasons that follow, it is RECOMMENDED that the Court REVERSE the Commissioner’s
nondisability finding and REMAND this case to the Commissioner and Administrative Law
Judge (“ALJ”) under Sentence Four of § 405(g).
Plaintiff applied for a period of disability and DIB on March 5, 2013, alleging disability
beginning January 16, 2013 at the age of fifty-six, due to numerous physical and mental
impairments. (Doc. 11-2, Tr. 13 at PAGEID #: 54). Her application was denied initially on
September 23, 2013, and upon reconsideration on December 10, 2013. (Id.). An Administrative
Law Judge (the “ALJ”) held a hearing on March 10, 2015, after which she denied benefits in a
written decision on May 14, 2015. (Id.). That decision became final when the Appeals Council
denied review on June 22, 2016. (Id., Tr. 2, PAGEID #: 43). Plaintiff filed this case on August
16, 2016 (Doc. 1), and the Commissioner filed the administrative record on November 21, 2016
(Doc. 11). Plaintiff filed a Statement of Specific Errors on January 5, 2017, and requested oral
argument. (Doc. 12). The Commissioner responded on February 21, 2017 (Doc. 13), and
Plaintiff replied on March 7, 2017 (Doc. 14). In response to Plaintiff’s request, the Court held
oral argument on March 28, 2017. (See Doc. 20).
Relevant Hearing Testimony
During the hearing before the ALJ, Plaintiff testified that she had worked as a “heavy
handler of packages. . . .” (Doc. 11-2, Tr. 47 at PAGEID #: 89). She indicated that “[m]ost of
[her] jobs were labor-like jobs,” which involved dealing with trays of mail, pulling carts, and
However, for three years, she worked at a “sit-down job” doing
“correspondence-type work.” (Id., Tr. 48 at PAGEID #: 90). As to her mental health, Plaintiff
testified that she has difficulty with her memory, which has worsened over time. (Id., Tr. 61 at
PAGEID #: 103).
Dr. Richard Oestreich testified as the vocational expert (“VE”). (Id., Tr. 69 at PAGEID
#: 111). He stated that Plaintiff had past relevant work as a shipping and receiving clerk (SVP 5,
skilled and medium), and as a mail sorter (SVP 2, sedentary and unskilled). (Id., Tr. 70–71 at
PAGEID #: 112–13).
When first asked if an individual with Plaintiff’s residual functional capacity (“RFC”)
could perform past relevant work as a shipping and receiving clerk or as a mail sorter, he
responded “I don’t think so.” (Id., Tr. 72 at PAGEID #: 114). He elaborated that she could not
perform such work because “there’s too much verbal in both . . . it’s about understanding the
words and being able to find out from someone else what the words might mean.” (Id.).
However, when the ALJ clarified that the communication limitation she proposed related to “the
ability to actually speak,” the VE changed his testimony, stating “[t]hen I think she can do that
work, your honor.” (Id.). But the VE equivocated, testifying that if the mail sorter job had
production quotas, Plaintiff “certainly couldn’t do it.” (Id., Tr. 73 at PAGEID #: 115).
The ALJ then asked the VE if a hypothetical individual with Plaintiff’s RFC and age,
education, and work history could perform other work. (Id., Tr. 74 at PAGEID #: 116). The VE
testified that she could and provided the following examples:
First would be cleaner, 381.687-014, it’s medium and unskilled, there’d be about
500 in her area that she could do, that’s central Ohio, about 20,000 in the state,
and 200,000 nationally. Inspector, 589.686-038, about 450 in her area, 18,000 in
the state, and 250,000 nationally. Hand packager, 920.587-018, 600 in her area,
16,000 in the state, and 150,000 nationally.
(Id.). The VE testified that the job numbers he provided were “usually from the Bureau of Labor
Statistics or derivatives of that.” (Id., Tr. 81 at PAGEID #: 123).
Relevant Medical Background
The relevant medical evidence consists of reports from consultative examiner Dr. Kent
Rowland, Ph.D. and evaluating neurologist Philip Rick Whatley, Ph.D.
In a Disability
Assessment Report, Dr. Rowland stated that Plaintiff obtained a Full-Scale IQ score of 79, which
placed her in the eighth percentile and in the borderline range. (Doc. 11-7, Tr. 397 at PAGEID
#: 445). He compared Plaintiff’s borderline IQ score to her average Wechsler Memory ScaleFourth Edition (“WMS”) scores, noting that her “WMS scores were significantly higher than
would be expected given her Full Scale IQ score of 79.” (Id., Tr. 398 at PAGEID #: 446). Dr.
Rowland concluded that the disparity between Plaintiff’s IQ score and her WMS scores is
suggestive of a cognitive impairment of a general type, which is “impacting . . . her general
abilities to reason and calculate.” (Id.). Noting that Plaintiff “evidenced significant difficulties
focusing attention and concentration throughout the interview and testing,” Dr. Rowland opined
that she “can be expected to struggle to understand and apply instructions in a work setting” and
“may have periodic and erratic performance on multi-step tasks.” (Id., Tr. 399 at PAGEID #:
447; see also id. (finding also that Plaintiff may have “limitations in her ability to conform to
social expectations in a work setting” based on her “depressed mood”).
Consistent with Dr. Rowland’s findings, Dr. Whatley found Plaintiff’s Full-Scale IQ
score was in the borderline range and her WMS scores were in the average range. (Id., Tr. 540–
41 at PAGEID #: 588–89). Dr. Whatley speculated initially that Plaintiff’s memory loss was
“secondary to her psychiatric/psychological/stress factors,” but he conducted a comprehensive
neuropsychological evaluation consisting of sixteen tests to obtain additional information. (Id.,
Tr. 538, 545–46 at PAGEID #: 586, 593–94). Dr. Whatley’s impression upon testing was that
Plaintiff’s “protocol is most consistent with pseudodementia secondary to severe psychiatric
illness.” (Id., Tr. 546 at PAGEID #: 594; see also id. (noting Plaintiff’s poor performance on
measures of symptom validity/effort was likely due to “psychiatric factors rather than
malingering per se”)). Among other recommendations, Dr. Whatley found that Plaintiff “is
likely going to need to apply for long-term disability. She shows signs of severe psychiatric
illness. She does not appear to be a candidate for the work force.” (Id., Tr. 547 at PAGED #:
The ALJ’s Decision
The ALJ found that Plaintiff meets the Social Security Act’s insured status requirements
through December 31, 2018, and that she has not engaged in substantial gainful activity since the
alleged onset date of January 16, 2013. (Doc. 11-2, Tr. 14 at PAGEID #: 56). The ALJ likewise
determined that that Plaintiff suffers from numerous physical impairments and mental
impairments that include affective disorders, borderline intellectual functioning, and cognitive
disorder not otherwise specified, but she does not have an impairment or combination of
impairments that meets or equals a listed impairment. (Id., Tr. 14–16 at PAGEID #: 56–58).
The ALJ determined Plaintiff has the RFC to:
perform medium work as defined in 20 CFR 404.1567(c), except that the claimant
can never climb ladders, ropes, or scaffolds. She can perform jobs that do not
expose her to workplace hazards, such as unprotected heights or dangerous
machinery. She can perform jobs that do not require her to administer verbal
instructions regarding safety concerns and she can communicate through talking
on an occasional basis. From a mental standpoint, the claimant can perform
simple, routine, repetitive tasks without a fast pace, thus precluding assembly line
work, work with strict production quotas, and piecework. The claimant can
perform jobs that do not require contact with the public but can interact
occasionally and on a superficial basis with coworkers and supervisors, where
superficial means that the claimant can respond to requests involving the exercise
of simple judgment only. The claimant can adapt to changes in work duties after
the initial training period but instructions may need to be repeated once or twice.
(Id., Tr. 18–19 at PAGEID #: 60–61).
In making the RFC determination, the ALJ gave “partial weight” to Dr. Rowland’s
functional assessment because she found that it understated Plaintiff’s limitations. (Id., Tr. 23 at
PAGEID #: 65). The ALJ noted Dr. Rowland’s observation that Plaintiff was tangential and
difficult to follow, but she also found that Plaintiff did not evidence extreme or aberrant
behavior. (Id.). The ALJ likewise acknowledged Dr. Rowland’s observation that Plaintiff had
difficulty comprehending directions and had to have tasks explained to her on multiple
occasions, but she also noted that Plaintiff was observed to have focused attention and was
cooperative. (See id.).
Similarly, the ALJ gave “partial weight” to Dr. Whatley’s opinion only “to the extent that
the assessment supports a greater restriction in the claimant’s mental functioning than what was
found by Dr. Rowland.” (Id., Tr. 24 at PAGEID #: 66). However, the ALJ gave “no weight” to
his opinion that Plaintiff was unable to work due to her psychological limitations, finding it
inconsistent with other record evidence. (Id.).
The ALJ looked to the hearing testimony of the VE and determined that Plaintiff is
capable of performing past relevant work. (Id., Tr. 26 at PAGEID #: 68). However, she found
alternatively that there are other jobs in the national economy that Plaintiff is able to perform,
considering Plaintiff’s RFC and the relevant vocational factors. (Id.). The ALJ determined that
the VE’s testimony concerning the existence of jobs was consistent with the Dictionary of
Occupational Titles (“DOT”). (Id., Tr. 27 at PAGEID #: 69). Based upon the foregoing, the
ALJ determined that Plaintiff has not been under a disability as defined in the Social Security
Act from January 16, 2013 to the date of the decision, and the ALJ denied benefits. (Id., Tr. 28
at PAGEID #: 70).
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), “[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . .” “[S]ubstantial 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 v. Comm’r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th
Cir. 1994)). The Commissioner’s findings of fact must also be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must “take into
account whatever in the record fairly detracts from [the] weight” of the Commissioner’s
decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D.
Ohio Aug. 17, 2015).
Even if the ALJ’s decision satisfies 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 substantial right.”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). “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 v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting
Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir. 2009)).
In her Statement of Specific Errors, Plaintiff argues that the ALJ failed to properly
consider the opinions of consultative examiner Dr. Rowland and evaluating neurologist Dr.
Whatley. (Doc. 12 at 8, PAGEID #: 761). Plaintiff argues further that, even if that error is
excused, the ALJ also erred in failing to address the inconsistencies between the VE’s testimony
and the DOT. (Id.).
Consideration Of Expert Opinions
In formulating the RFC, the ALJ must consider all relevant evidence, including medical
opinions, which relate to the severity of a plaintiff’s impairments. 20 C.F.R. § 404.1527(c). The
weight given to a medical opinion depends upon a variety of factors. For example, “the more
consistent a medical opinion is with the record as a whole, the more weight” it is given. 20
C.F.R. § 404.1527(c)(4). Further, an examining physician’s opinion is entitled to more weight
than a non-examining physician’s opinion, 20 C.F.R. § 404.1527(c)(1), and a specialist’s opinion
regarding issues related to the specialty is entitled to more weight than a non-specialist’s opinion,
20 C.F.R. § 404.1527(c)(5). See, e.g., Hamilton v. Comm’r of Soc. Sec., No. 2:14-cv-2784, 2015
WL 5118140, at *3 (S.D. Ohio Sept. 1, 2015) (“In evaluating the opinion of a nontreating source,
an administrative law judge should consider such factors as ‘the evidence that the physician
offered in support of her opinion, how consistent the opinion is with the record as a whole, and
whether the physician was practicing in her specialty.’” (quoting Ealy v. Comm’r of Soc. Sec.,
594 F.3d 504, 514 (6th Cir. 2010)).
As set forth above, the ALJ found that “[f]rom a mental standpoint,” Plaintiff’s RFC
included the ability to:
perform simple, routine, repetitive tasks without a fast pace, thus precluding
assembly line work, work with strict production quotas, and piecework. The
claimant can perform jobs that do not require contact with the public but can
interact occasionally and on a superficial basis with coworkers and supervisors,
where superficial means that the claimant can respond to requests involving the
exercise of simple judgment only. The claimant can adapt to changes in work
duties after the initial training period but instructions may need to be repeated
once or twice.
(Doc. 11-2, Tr. 18–19 at PAGEID #: 60–61). Plaintiff concedes that the ALJ’s RFC “is fairly
detailed,” but she claims it is flawed in several respects. (Doc. 12 at 10, PAGEID #: 763). In
Plaintiff’s view, the most fundamental flaw is that the ALJ considered the opinions of Dr.
Rowland and Dr. Whatley “in isolation from each other without considering that they
consistently described Plaintiff as more limited than the ALJ’s RFC describes, particularly with
regard to her ability to meet the basic mental demands of competitive employment.” (Id. at 11–
12, PAGEID #: 763–64 (emphasis in original)). Plaintiff also argues that the ALJ failed to
assign appropriate weight to those opinions, given Dr. Rowland’s specialty in psychology and
Dr. Whatley’s specialty in neurology. (Id. at 12, PAGEID #: 764).
Although not entirely clear, the ALJ’s decision seems to suggest that she accepted Dr.
Rowland’s opinion but imposed additional limitations in her RFC beyond those he provided.
(Doc. 11-2, Tr. 23–24 at PAGEID #: 65–66) (“The limitations noted by Dr. Rowland have been
considered and incorporated into the residual functional capacity, set forth above, with additional
limitations noted.”). Specifically, the ALJ gave “partial weight” to Dr. Rowland’s functional
assessment because it “that it somewhat understate[d] the claimant’s limitations in light of her
presentation as well as other evidence in the medical record.” (Id., Tr. 23 at PAGEID #: 65).
However, the ALJ’s characterization of the weight she assigned to Dr. Rowland’s opinion is
inconsistent with the decision’s plain language—which disregards Dr. Rowland’s determinations
concerning Plaintiff’s ability to stay on task and perform relative to simple instructions. (See,
e.g., id. (“Although she tended to be a bit tangential and difficult to follow, she did not evidence
extreme or aberrant behavior.”); see also id. (“It was noted that she had some difficulty
comprehending some directions and two tasks had to be explained to her on multiple occasions.
However, she also showed focused attention and appeared cooperative.”)). Indeed, the ALJ
acknowledged Dr. Rowland’s opinion that Plaintiff “could be expected to struggle to understand
and apply instructions in a work setting” and “may have periodic and erratic performance on
multi-step tasks,” but restricted the impact of that limitation to Plaintiff’s ability to “adapt to
changes in work duties after the initial training period. . . .” (Id., Tr. 19, 23 at PAGEID #: 61,
The ALJ made a similar finding concerning Dr. Whatley’s opinion. Again, she assigned
“partial weight” only “to the extent that the assessment supports a greater restriction in the
claimant’s mental functioning than what was found by Dr. Rowland.” (Id., Tr. 24 at PAGEID #:
66). However, the ALJ gave “no weight” to Dr. Whatley’s opinion that Plaintiff was unable to
work due to her psychological limitations, finding it “wholly inconsistent with the claimant’s
presentation during other evaluations, including Dr. Rowland’s evaluation examination and
treatment notes from the claimant’s primary care physician.” (Id.).
Here, Dr. Rowland and Dr. Whatley reached similar conclusions concerning Plaintiff’s
psychological functioning. Both Dr. Rowland and Dr. Whatley found Plaintiff had a borderline
IQ and average WMS scores, which were indicative of a cognitive impairment. (See Doc. 11-7,
Tr. 397–98, 540–41 at PAGEID #: 445–46, 588–89). Dr. Rowland and Dr. Whatley likewise
reached similar conclusions relevant to Plaintiff’s ability to understand, remember, and execute
simple instructions in light of her impairment. (See, e.g., id., Tr. 399 at PAGEID #: 447 (Dr.
Rowland’s opinion that Plaintiff “can be expected to struggle to understand and apply
instructions in a work setting” and “may have periodic and erratic performance on multi-step
tasks”); id., Tr. 543, 547 at PAGEID #: 591, 595 (Dr. Whatley’s observations that Plaintiff has
“[d]ifficulty concentrating,” “a marked decrease in concentration,” “increased distractibility,”
and is not “a candidate for the work force”). The ALJ should have recognized that consistency
and weighed the opinions accordingly, see 20 C.F.R. § 404.1527(c)(4), but it is not clear that she
did so. Similarly, the ALJ should have considered that they were examining physicians opining
on limitations related to their specialties, see 20 C.F.R. § 404.1527(c)(1), (c)(5), but the Court is
unable to discern if she engaged in that analysis. Because it is unclear if the ALJ engaged in the
required analysis pertaining to consistency and specialty in the related field, remand for further
consideration of the first assignment of error is warranted. See, e.g., Shackelford v. Comm’r of
Soc. Sec., No. 1:10-cv-604, 2011 WL 4351607, at *13 (S.D. Ohio Aug. 24, 2011) (remanding
where the ALJ’s decision did not reflect an analysis of the § 404.1527 factors, including “the
medical specialty of the source” and “how consistent the opinion is with the record as a whole”).
Inconsistencies Between The Vocational Expert’s Testimony And The
Dictionary Of Occupational Titles
Plaintiff’s second assignment of error begins with step four of the sequential evaluation
process, which requires Plaintiff to prove that she is incapable of performing past work. Foster
v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). Plaintiff argues that, even if the RFC is correct, the
ALJ erred at step four in failing to address the inconsistencies between the VE’s testimony and
the DOT as required by Social Security Ruling (“SSR”) 00-4p. (Doc. 12 at 16, PAGEID #: 769).
As the Sixth Circuit has explained:
On occasion, a VE’s testimony conflicts with the information set forth in the
DOT. In an effort to insure that such actual or apparent conflicts are addressed,
the Social Security Administration has imposed an affirmative duty on ALJs to
ask the VE if the evidence that he or she has provided ‘conflicts with [the]
information in the DOT.’ S.S.R. 00-4p, 2000 WL 1898704, at *4. ALJs must also
‘obtain a reasonable explanation for . . . apparent conflict[s]’ if the VE’s evidence
‘appears to conflict with the DOT.’
Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009) (alterations in original).
At the hearing, the VE testified that Plaintiff had past relevant work as a mail sorter,
which he identified as “DOT 521.687-086, sedentary, unskilled SVP 2.” (Doc. 11-2, Tr. 71 at
PAGEID #: 113). There is no dispute that the VE’s testimony and the ALJ’s findings concerning
Plaintiff’s ability to work as a mail sorter are confusing (see, e.g., Doc. 20 at 18, PAGEID #: 830
(defense counsel’s concession during oral argument that “the ALJ’s discussion” on this issue
“could have been more clear”), and that the DOT number for mail sorter provided by VE and
adopted by the ALJ corresponds to the entirely different job of “nut sorter” (see Doc. 12 at 17,
PAGEID #: 770 (citing http://www.occupationalinfo.org/52/521687086.html); Doc. 11-2, Tr. 26
at PAGEID #: 68). Nevertheless, Defendant maintains that, “even if the step four finding was
erroneous,” the ALJ properly made a step five finding by relying on the VE’s testimony that
there are a significant number of jobs that Plaintiff could perform. (Doc. 20 at 18, PAGEID #:
Indeed, the ALJ’s error at step four may constitute harmless error if substantial evidence
supports her conclusion at step five that Plaintiff possesses the vocational qualifications to
perform specific jobs. See Welch v. Astrue, No. 1:10CV1434, 2011 WL 4632922, at *3 (N.D.
Ohio Sept. 30, 2011). At step five, the ALJ had the burden to show that, even if Plaintiff is
unable to perform past work, she can work at jobs within the restrictions of her RFC considering
the vocational factors of age, education, and prior work experience. Id. at *4 (citing Foster, 279
F.3d at 354). During oral argument, Defendant conceded that one of three jobs found suitable by
the VE and the ALJ—the position of cleaner—has a heavy exertional level that exceeds the
medium work specified by the ALJ’s RFC. (Doc. 20 at 18, PAGEID #: 830). Defendant
likewise conceded that a second job found suitable by the VE and the ALJ—the position of
hand-packager—may be inappropriate under the RFC. (Id. (stating that it’s unclear if “that the
specific function of starting, stopping and regulating speed” of the conveyor-belt in this
assembly-line job exceeds the RFC)). Thus, the sole job relied upon by Defendant in arguing
harmless error at step five is the third job found suitable by the VE and the ALJ—the position of
inspector. (Id. at 19, PAGEID #: 831 (“Your Honor, our position is that the step five finding is
entirely clear because there is one job that—at the very least, the one job, the inspector’s job, that
Plaintiff could perform.”).
Although the VE and the ALJ referred to the relevant job as “inspector,” the associated
DOT number is for a “rug-inspector helper,” which is described as follows:
Assists RUG INSPECTOR (tex. prod., nec) in examination of felt rug pads:
Examines felt and points out imperfections. Straightens material to ensure even
rewinding. Helps lift finished roll to wrapping machine. Places pipe or bar in
winding rack, and starts new roll of padding. Helps RUG INSPECTOR (tex.
prod., nec) cut material to specified length. Performs other duties as described
under HELPER (any industry) Master Title.
See http://www.occupationalinfo.org/58/589686038.html. Thus, in order to find harmless error,
the ALJ must have satisfied her burden of demonstrating that “rug-inspector helper” position
exists in significant number in the local and national economies. Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 548 (6th Cir. 2004) (“At step five, the Commissioner must identify a significant
number of jobs in the economy that accommodate the claimant’s residual functional capacity and
“The determination of what constitutes a significant number of jobs is determined on a
case-by-case basis;” that is, there is no “magic number.” Smathers v. Comm’r of Soc. Sec., No.
2:14-cv-500, 2015 WL 5568324, at *3 (S.D. Ohio Sept. 22, 2015); see also Cunningham v.
Astrue, 360 F. App’x 606, 615 (6th Cir. 2010) (noting that this “determination is a fact-specific
inquiry, guided by common sense”). Plaintiff argues that the number of “rug-inspector helper”
jobs identified by the VE and adopted by the ALJ (450 jobs regionally, 18,000 jobs statewide,
and 250,000 jobs nationally) is “dubious” given that the DOT has not been updated since 1991.
(See Doc. 11-2, Tr. 74 at PAGEID #: 116; id., Tr. 27 at PAGEID #: 69; Doc. 12 at 17, PAGEID
In support of this argument, Plaintiff contrasts the number of jobs identified with a
similar category within the more-recent Standard Occupational Classification (“SOC”) system
used to classify workers within the Department of Labor’s Occupational Information Network
(“O*NET”). (Doc. 12 at 18, PAGEID #: 771). Plaintiff explains that the corresponding SOC
code for the “rug-inspector helper” position is “Helpers—Production Workers, SOC code 519198.00” which “contains within it numerous related occupations, including dishwashers,
landscaping and groundskeeping workers, welders, cutters, and welder fitters, packaging and
filling machine operators, sewing machine operators, meat packers, and molding and casting
The O*Net summary for “Helpers—Production Workers,” shows declining employment,
with 419,000 nationwide employees nationwide and 20,390 employees in Ohio in 2014.
Comparing the VE’s numbers to the O*Net summary numbers for “Helpers—Production
Workers,” 18,000 of the 20,390 people in Ohio working under the corresponding SOC code,
which includes numerous related occupations, would be “rug-inspector helpers.” (Doc. 11-2, Tr.
74 at PAGEID #: 116); see SOC code 51-9198.00—Helpers—Production Workers,
https://www.onetonline.org/link/summary/51-9198.00. According to Plaintiff, this is “patently
absurd, and cannot be substantial evidence supporting the ALJ’s decision to deny benefits.”
(Doc. 12 at 19, PAGEID #: 772). For its part, Defendant “stand[s] by the numbers given by the
VE.” (Doc. 20 at 20, PAGEID #: 832).
The Sixth Circuit has instructed that when information in the DOT appears to be out-ofdate, “common sense dictates” that a more recent source of information should be consulted.
Cunningham, 360 F. App’x at 615. For the reasons raised by Plaintiff, this Court cannot
determine based on the current record whether substantial evidence supports the ALJ’s
conclusion that the “rug-inspector helper” position exists in substantial numbers. Consequently,
the Court finds that remand is appropriate on Plaintiff’s second assignment of error as well.
For the reasons stated, it is RECOMMENDED that the Court REVERSE the
Commissioner’s nondisability finding and REMAND this case to the Commissioner and
Administrative Law Judge (“ALJ”) under Sentence Four of § 405(g).
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 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). 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, 152–53 (1985).
IT IS SO ORDERED.
Date: April 7, 2017
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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