Ledbetter v. Berryhill

Filing 19

Memorandum Opinion and Order : By consent of the parties and the order of transfer dated December 28, 2017 (doc. 16 ), this case has been transferred for the conduct of all further proceedings and the entry of judgment. Based on the relevant filings, evidence, and applicable law, the Commissioner's decision is AFFIRMED. (Ordered by Magistrate Judge Irma Carrillo Ramirez on 3/6/2019) (ndt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHELLE L.,
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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Civil Action No. 3:17-CV-2796-BH

MEMORANDUM OPINION AND ORDER
By consent of the parties and the order of transfer dated December 28, 2017 (doc. 16), this
case has been transferred for the conduct of all further proceedings and the entry of judgment.
Based on the relevant filings, evidence, and applicable law, the Commissioner’s decision is
AFFIRMED.
I. BACKGROUND
Michelle L. (Plaintiff) seeks judicial review of a final decision by the Commissioner of
Social Security (Commissioner) denying her claim for supplemental security income (SSI) under
Title XVI of the Social Security Act (Act). (See docs. 1; 17.)
A.

Procedural History
On September 3, 2013, Plaintiff filed her application for SSI, alleging disability beginning

on January 20, 2008. (doc. 12-1 at 71.)1 Her claim was denied on April 4, 2014, and upon
reconsideration on November 10, 2014. (Id. at 71, 86.) On December 18, 2014, she requested a

1

Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.

hearing before an Administrative Law Judge (ALJ). (Id. at 101.) She appeared and testified at a
hearing on January 21, 2016. (Id. at 40-57.) On August 11, 2016, the ALJ issued a decision finding
that she was not disabled and denying her claim for benefits. (Id. at 24-33.)
Plaintiff timely appealed the ALJ’s decision to the Appeals Council on August 25, 2016. (Id.
at 149.) The Appeals Council denied her request for review on August 14, 2017, making the ALJ’s
decision the final decision of the Commissioner. (Id. at 5.) Plaintiff timely appealed the
Commissioner’s decision under 42 U.S.C. § 405(g). (See doc. 1.)
B.

Factual History
1.

Age, Education, and Work Experience

Plaintiff was born on November 28, 1969, and was 46 years old at the time of the hearing.
(doc. 12-1 at 32, 46.) She had at least a high school education and could communicate in English.
(Id. at 32.) She had no past relevant work experience. (Id.)
2.

Medical Evidence

On September 10, 2013, Plaintiff went to the emergency room at the Baylor Medical Center
at Garland with complaints of abdominal pain and chest pain. (Id. at 254.) She underwent a chest
x-ray which showed no acute pulmonary abnormality. (Id. at 262.) An abdominal ultrasound was
also performed, which showed that her gallbladder was not well distended, and there was sludge and
small stones. (Id. at 274.)
On October 18, 2013, Plaintiff met with Brian Weber, P.A., in order to establish a primary
care physician and refill her medications. (Id. at 454.) Plaintiff reported that she had two strokes
in the previous year, and her memory, eyesight, and hearing had been affected. (Id.) Following an
assessment, Mr. Weber found that she had benign essential hypertension, multiple sclerosis, and
stroke syndrome. (Id.)
2

On January 17, 2014, Plaintiff had a book-in medical screening at the Collin County
Sheriff’s Office. (Id. at 466.) Based on self-reports, Plaintiff had early indications of possible
mental illness. (Id. at 467.) She reported monthly methamphetamine use and had last used that
week. (Id. at 471.) She was disorganized and could not recall what month it was, but she was alert
to herself and place. (Id. at 472.) She often stared into space and struggled to answer questions
without having them repeated. (Id.) It was noted that further assessment was necessary in order to
determine if her symptoms were from the residual effects of substance use or indicative of another
diagnosis. (Id.) She was diagnosed with methamphetamine dependence, and it was noted that she
had previously been diagnosed with depression and anxiety. (Id.)
On February 24, 2014, Plaintiff saw Mr. Weber after she was involved in a motor vehicle
accident. (Id. at 496-97.) She reported that she was diagnosed with strains/sprains in her neck,
back, shoulder, and hip. (Id. at 497.) She claimed that work activities were restricted due to the
accident, and that she occasionally had numbness in either of her legs that went up to her groin,
causing her to fall. (Id.)
On March 6, 2014, Linda S. Ludden, Ed.D., completed a clinical interview and mental status
examination for Plaintiff. (Id. at 485.) Plaintiff’s posture and gait appeared normal, her hygiene was
good, and her grooming was average. (Id.) She appeared alert throughout the interview and was
cooperative in answering questions and tasks. (Id.) She reported that she had lupus, multiple
sclerosis, kidney problems, endometriosis, “locked” bowels, two prior strokes, high blood pressure,
and high cholesterol. (Id. at 485-86.) Her walking had been affected by her conditions. (Id. at 486.)
She reported psychiatric inpatient hospitalizations, but could not provide specific dates or concrete
reasons why she was hospitalized, and mental health symptoms of bipolar disorder, cognitive
disorder, and anxiety. (Id. at 486-88.) Her thought process was logical and goal-directed, and she
3

denied having delusional thoughts, paranoid thoughts, hallucinations, suicidal ideation, or homicidal
ideation. (Id. at 490.) Her mood was anxious and affect was appropriate to speech content. (Id.)
She was oriented times 4, appeared to work from an adequate fund of knowledge, and her
intelligence was estimated to be average. (Id.) Her remote memory and immediate memory were
satisfactory, and her short-term memory was fair. (Id. at 491.) She had some difficulty with
concentration but could spell “world” forward and backward, her insight was adequate, and her
judgment was satisfactory. (Id.) Dr. Ludden diagnosed her with bipolar disorder, most recent
episode manic; anxiety due to lupus, multiple sclerosis, and strokes; cognitive disorder, not
otherwise specified; and nicotine dependence. (Id.) She had a Global Assessment of Functioning
(GAF) score of 50, and her prognosis was guarded due to her apparent cognitive decline from her
health conditions. (Id.) Dr. Ludden opined that Plaintiff would need assistance to be able to manage
benefits on her own, but she did understand the meaning of filing for benefits. (Id. at 492.)
On March 8, 2014, Robert Evans Heithaus Jr., M.D., created a medical report for Plaintiff
showing that she alleged disability due to stroke, multiple sclerosis, and lupus. (Id. at 477-83.) She
reported a stroke in 2008, which primarily affected her right side and speech. (Id. at 477.) She did
not have physical therapy following the stroke, and her symptoms included hearing problems,
stiffness in her lower right extremity, and memory problems. (Id.) She claimed that it affected her
ability to work, secondary to her difficulty standing, walking, and bending. (Id.) She also had a
history of hypertension that was generally well controlled, and multiple sclerosis that caused her
balance problems and pain. (Id.) Her symptoms from the multiple sclerosis were exacerbated by
standing and walking and improved with sitting, and her pain was at about a 7-8 out of 10 on most
days. (Id.) It affected her ability to work, secondary to difficulty grasping, standing, and walking.
(Id.) She also reported a history of lupus which caused pain, swelling, weakness, and memory loss,
4

and her pain was at a 7-8 out of 10 on most days. (Id.) It affected her ability to work, secondary to
difficulty standing and walking. (Id.) Plaintiff reported functional limitations of sitting 60 minutes,
standing 10 minutes, walking short distances, and lifting and carrying 4 pounds frequently and 5
pounds occasionally due to pain. (Id. at 478-79.) Dr. Heithaus found that Plaintiff had bilateral
lower extremity edema, an essentially normal neurologic exam, intact cranial nerves, good strength
in her upper and lower extremities, intact proprioception and sensation to light touch, no concerning
cerebellar symptomatology, and minimal difficulty performing gait exam maneuvers. (Id. at 482.)
She provided her best effort during the examination. (Id.) Dr. Heithaus opined that Plaintiff could
be expected to sit, stand, and walk normally in an 8-hour workday with normal breaks; she did not
need an assistive device with regards to short and long distances and uneven terrain; she did not
have significant limitations with lifting and/or carrying weight; she had no limitations on bending,
stooping, crouching, or squatting and could perform them frequently; she had no manipulative
limitations on reaching, handling, feeling, grasping, or fingering and could perform them frequently;
she had no relative communicative or workplace environmental limitations; and she had some
relevant visual limitations due to decreased visual acuity bilaterally without corrective lenses. (Id.
at 482-83.)
On April 9, 2014, April 28, 2014, May 2, 2014, and May 8, 2014, Plaintiff met with Mr.
Weber. (Id. at 552, 554, 557, 561.) At her first appointment, she complained that her lupus was
flaring up, she had been falling more due to multiple sclerosis, and she had nasal congestion and
cough. (Id. at 561.) She was assessed with asthma and systemic lupus erythematosus and was
provided a cane. (Id. at 562.) Her second appointment was for a follow-up, and she complained of
headaches and getting lost sometimes. (Id. at 557.) She was assessed with a urinary tract infection
and headache syndromes. (Id. at 558.) She complained of ear pain bilaterally, requested to discuss
5

her medications, and appeared very fidgety at her third appointment. (Id. at 554.) Following
examination, she was assessed with allergic rhinitis. (Id. at 555.) Her fourth appointment was a
follow-up due to her prior systemic lupus erythematosus flare up. (Id. at 552.) She had previously
gone to the emergency room because she was weak, could not move, and was hurting. (Id.)
Physical findings were unremarkable, and she was assessed with systemic lupus erythematosus.
On July 24, 2014, Plaintiff went to Live Oak Professional Center (Live Oak) with complaints
of swelling in her lower extremity, primarily in her right hip. (Id. at 549.) She was found to be
overweight, agitated, speaking quickly, and fidgety. (Id. at 550.) She also had bilateral pedal and
pretibial edema that was non-pitting. (Id.) She was prescribed medication for systemic lupus
erythematosus. (Id.)
On August 11, 2014 and September 8, 2014, Plaintiff again met with Mr. Weber. (Id. at 540,
546.) She initially complained of left hip pain since the previous day. (Id. at 546.) She had hip
tenderness on the right and was diagnosed with a hip sprain. (Id. at 547.) At her second
appointment, she complained that she was emotional because she had been taken off of
Hydrocodone and Xanax. (Id. at 540.) Physical findings were unremarkable, and she was assessed
with chronic pain and depression. (Id. at 541.)
On August 25, 2014, Plaintiff returned to Live Oakcomplaining that she was not feeling
well, not sleeping well at night, and feeling depressed. (Id. at 543.) She was assessed with
hypertension, systemic lupus erythematosus, manic episode, and depression. (Id. at 544.)
On June 29, 2015, July 29, 2015, October 22, 2015, and November 23, 2015, Plaintiff met
with Mr. Weber for treatment. (Id. at 619-26.) She initially complained of weight loss and a lack
of appetite. (Id. at 624.) She had been arrested for possession of methamphetamine and fighting
with her sister, and went to a homeless shelter. (Id.) She was “[w]orking on some type of rehab,”
6

still losing weight, had no abdominal pain, had trouble sleeping, and just sat at home and did not
leave. (Id.) She was in a depressed mood and not talking much. (Id.) Following examination, she
was assessed with depression. (Id. at 625.) At her follow-up in July, Plaintiff was doing better,
more talkative, and reported that she would leave the house with her mother to go to the store. (Id.
at 622.) She was assessed with severe recurrent major depression. (Id. at 623.) In October, it was
noted that her active problems included multiple sclerosis and systemic lupus erythematosus. (Id.
at 621.) At her follow-up in November, she was smiling more, but reported that she was still staying
in bed most of the time. (Id. at 619.) Although she stayed in bed most of the time, she would get
out of the house for short periods. (Id.) She had trouble falling asleep and sleeping most nights, and
was taking Mirtazapine right at bed time. (Id.) She was again assessed with severe recurrent major
depression. (Id. at 620.)
On January 11, 2016, Darrell Horton, Ph.D., completed a psychological evaluation for
Plaintiff. (Id. at 678.) Dr. Horton noted that unless otherwise stated, all historical information in
the report was based on self-reports from Plaintiff. (Id.) Her medications included an antidepressant that was prescribed by Mr. Weber. (Id.) Plaintiff presented to her appointment in a quiet
and withdrawn manner, and she was thin in stature and wore loose fitting clothing. (Id.) She often
appeared sad or confused, but she was respectful to the examiner and cooperated within her
capabilities. (Id. at 678-79.) Her affect was blunted and congruent with a dysphoric mood, speech
was impoverished, and she frequently sat and stared off. (Id. at 679.) She related that she was
scared to go out but she did not know why. (Id.) Dr. Horton found that Plaintiff was severely
depressed and showed some cognitive slippage, particularly in regard to emotional and interpersonal
matters. (Id. at 683-84.) He opined that her periodic estrangement from others could cause her to
lose touch with reality on occasion. (Id. at 684.) Her social communication was often tangential,
7

odd, strained, and self-conscious, which further alienated her from others. (Id.) Her hesitation to
express affect could have stemmed from an intrinsic inability to experience pleasure, and she seemed
to have some cognitive interference, such as persistent intrusion of distracting and disruptive
thoughts. (Id.) Her irrelevant and digressive ideation upset effective social communication. (Id.)
Dr. Horton found that her prognosis for competitive employment was poor, and that she was not able
to make reasonable adjustments in every day living, much less in a job situation. (Id.)
On April 18, 2016, Levi Armstrong, Psy. D., completed a Medical Source Statement of
Ability to do Work-Related Activities (Mental) for Plaintiff. (Id. at 685-87.) He found that she had
no limitations in her abilities to understand and remember simple instructions or complex
instructions; mild limitations in her abilities to carry out simple instructions, complex instructions,
or to make judgments on complex work-related decisions; and moderate limitations in her ability
to make judgments on simple work-related decisions. (Id. at 685.) He found that Plaintiff had
moderate limitations in her abilities to act appropriately with supervisors, coworkers, and the public,
as well as respond to changes in a routine work setting. (Id. at 686.) He opined that Plaintiff’s
schizoaffective disorder, mood instability, and intermittent psychosis would likely preclude her from
consistently interacting with people in an effective manner. (Id.) She would also have difficulty
tolerating the normal pressures of a competitive work environment. (Id.) He determined that
Plaintiff could manage benefits in her own best interest. (Id. at 687.)
3.

Hearing Testimony

On January 21, 2016, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ. (Id. at 40-57.) Plaintiff was represented by an attorney. (Id. at 42.)
a.

Plaintiff’s Testimony

Plaintiff testified that she was 46 years old, had completed 10th grade, and was living with
8

her mom and step-dad. (Id. at 44.) There was not a particular reason why she did not live alone,
but she did not think she could live alone because of her inability to do most things due to her mental
and physical issues. (Id. at 45-46.) She thought that she probably had trouble with being able to
process things that she needed to do from a mental standpoint. (Id. at 46.) Her mother usually kept
“up with things” for her because she usually did not remember. (Id.) She prepared meals with her
mother and helped to set the table and put dishes away. (Id. at 46-47.) Her mother also took her to
doctor’s appointments. (Id. at 50.)
She met with Mr. Weber about every 3 months, and although he had her on medication, she
was still having problems doing “most things.” (Id. at 47.) She was only on one medication, which
was for depression, at the time of the hearing. (Id. at 49.) She also had problems from a physical
standpoint; physical things were hurting her, but she did not really know what they were. (Id. at 48.)
She did not go out shopping alone or go to the grocery store alone, but sometimes she went with her
mom. (Id.) She did not think that she would be able to keep a job. (Id. at 49-50.) She did not
remember if she had strokes in the past, but trusted the doctor’s report that said they had happened.
(Id. at 50.) She had last worked in 1999, but could not work anymore because she was sick a lot due
to lupus or multiple sclerosis, and she also had emotional problems. (Id. at 50-51.) She was arrested
in June of the previous year due to an argument with her sister, but she stated that she did not have
any drugs when she was arrested, and she did not think she had any charges pending. (Id. at 52.)
b.

VE’s testimony

The ALJ asked the VE to consider a hypothetical individual with the same age, education,
and work experience as Plaintiff who suffered from a combination of physical pain as well as
concentration problems from emotional factors, and whose main problem would be focusing on
tasks consistently throughout an entire 8-hour workday for extended periods of time, defined as 2
9

hours at a time. (Id. at 55.) The ALJ asked if the individual would be able to perform any type of
work, and the VE responded that she would not. (Id.)
The ALJ then asked the VE to consider a hypothetical individual who could sit for less than
6 hours in an 8-hour workday, and stand/walk for less than 2 hours out of an 8-hour workday. (Id.)
The ALJ asked if he was correct that this individual would not be able to perform any work because
those numbers were not competitive, and the VE responded that he was correct. (Id.)
The ALJ next asked the VE to consider a hypothetical of the same age, education, and work
history as Plaintiff who could sit for 6 hours out of an 8-hour workday; stand and walk for 2 hours
out of an 8-hour workday; lift 20 pounds occasionally and 10 pounds frequently; perform only
simple 1-2 step work; and concentrate for extended periods of 2 hours at a time with no other mental
limitations. (Id. at 55-56.) The individual would also have “occasional postural limitations.” (Id.
at 56.) The ALJ asked if the individual would be able to perform any type of work. (Id.) The VE
responded that the individual could perform work as a price tagger, DOT 209.587-034 (light, SVP
2), with about 5,700 jobs in Texas and 190,000 jobs nationally; an office cleaner, DOT 323.687-014
(light, SVP 2), with about 11,000 jobs in Texas and 380,000 jobs nationally; and an assembler, DOT
739.687-030 (light, SVP 2), with about 6,800 jobs in Texas and 205,000 jobs nationally. (Id.) The
ALJ did not ask the VE whether her testimony was consistent with the Dictionary of Occupational
Titles (DOT). (See id.)
C.

ALJ’s Findings
The ALJ issued his decision denying benefits on August 11, 2016. (Id. at 24-33.) At step

one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 3,
2013, the application date. (Id. at 26.) At step two, the ALJ found that Plaintiff had the following
severe impairments: lupus, multiple sclerosis, history of strokes, affective disorder, and anxiety10

related disorders. (Id.) Despite those impairments, at step three, the ALJ found that Plaintiff had
no impairments or combination of impairments that met or equaled the severity of one of the
impairments listed in the social security regulations. (Id.)
Next, the ALJ determined that Plaintiff retained the RFC to perform less than the full range
of light work as defined in 20 C.F.R. § 416.967(b), with the following limitations: she could lift
and/or carry 20 pounds occasionally, and 10 pounds frequently; stand and/or walk 2 hours out of an
8-hour workday; sit up to 6 hours in an 8-hour workday; perform simple 1-2 step task work; and
concentrate for 2 hours at a time with no other mental limitations. (Id. at 27-28.) The ALJ also
found that she had “occasional postural limitations.” (Id. at 28.)
At step four, the ALJ determined that Plaintiff had no past relevant work experience. (Id.
at 32.) At step five, the ALJ found that transferability of job skills was not an issue because Plaintiff
did not have any past relevant work, but considering her age, education, work experience, and RFC,
there were jobs that existed in significant numbers in the national economy that she could perform.
(Id.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined by
the Social Security Act, since September 3, 2013, the date the application was filed. (Id. at 33.)
II. LEGAL STANDARDS
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a
scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a
reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,
564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not
11

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding
of no substantial evidence is appropriate only if there is a conspicuous absence of credible
evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson
v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
The scope of judicial review of a decision under the supplemental security income program
is identical to that of a decision under the social security disability program. Davis v. Heckler, 759
F.2d 432, 435 (5th Cir. 1985). The relevant law and regulations governing the determination of
disability under a claim for disability insurance benefits are also identical to those governing the
determination under a claim for supplemental security income. See id. Courts may therefore rely
on decisions in both areas without distinction in reviewing an ALJ’s decision. See id.
To be entitled to social security benefits, a claimant must prove that he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v.
Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant
is disabled:
1.

An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of medical findings.

2.

An individual who does not have a “severe impairment” will not be found to
be disabled.
12

3.

An individual who “meets or equals a listed impairment in Appendix 1” of
the regulations will be considered disabled without consideration of
vocational factors.

4.

If an individual is capable of performing the work he has done in the past, a
finding of “not disabled” must be made.

5.

If an individual’s impairment precludes him from performing his past work,
other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).
Under the first four steps of the analysis, the burden lies with the claimant to prove disability.
Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any point during
the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies
his or her burden under the first four steps, the burden shifts to the Commissioner at step five to
show that there is other gainful employment available in the national economy that the claimant is
capable of performing. Greenspan, 38 F.3d at 236. This burden may be satisfied either by reference
to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other
similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant
is not disabled at any point in the five-step review is conclusive and terminates the analysis.
Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
III. ISSUES FOR REVIEW
Plaintiff presents one issue for review:
The Administrative Law Judge (ALJ) erred in relying on the vocational
expert’s (VE) testimony to find that there are jobs existing in significant numbers in
the national economy that Plaintiff . . . can perform.
(doc. 17 at 3, 11.)
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A.

Conflict with the DOT
Plaintiff argues that the ALJ erred when he failed to ask the VE if her testimony was

consistent with the DOT. (Id. at 11-12.)
To be considered disabled, a claimant must have a severe impairment that makes her unable
to perform her previous work or any other substantial gainful activity existing in the national
economy. 42 U.S.C. § 423(d)(2); 20 C.F.R. § 404.1505(a). According to the Code of Federal
Regulations, “[w]ork exists in the national economy when there is a significant number of jobs (in
one or more occupations) having requirements [that a claimant is] able to meet with [her] physical
or mental abilities and vocational qualifications.”

20 C.F.R. § 404.1566(b).

It is the

Commissioner’s burden at step five to show that a claimant is capable of performing other gainful
employment in the national economy. 20 C.F.R. § 404.1520(a)(4)(i); Greenspan, 38 F.3d at 236.
Once the Commissioner finds that jobs in the national economy are available to a claimant, the
burden of proof shifts back to the claimant to rebut this finding. See Selders v. Sullivan, 914 F.2d
614, 618 (5th Cir. 1990) (citing Fraga, 810 F.2d at 1302).
The Commissioner may consult several different sources of evidence, including vocational
experts and the DOT,2 to determine when presumptively-disabled claimants can perform alternative
and available work. See Veal v. Soc. Sec. Admin., 618 F. Supp. 2d 600, 608 (E.D. Tex. 2009).
Vocational experts assess whether jobs exist for a person with the claimant’s precise abilities and
help to determine complex issues, such as whether a claimant’s work skills can be used in other

2

The DOT and its supplement, Selected Characteristics of Occupations Defined in the Revised Dictionary of
Occupational Titles (SCO), comprise a comprehensive listing of job titles in the United States, along with detailed
descriptions of requirements for each job, including assessments of exertional levels and reasoning abilities necessary
for satisfactory performance of those jobs. The Commissioner recognizes the DOT/SCO publications as authoritative,
and routinely relies on them “for information about the requirements of work in the national economy.” Soc. Sec. R.
00–4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).

14

work, and the specific occupations in which they can be used. See 20 C.F.R. §§ 404.1566(e),
416.966(e). The ALJ may further rely on the testimony of a VE in response to a hypothetical
question3 or other similar evidence. Newton, 209 F.3d at 458; Bowling, 36 F.3d at 435. Social
Security Ruling 00–4p requires that prior to relying upon evidence from a VE to support a
determination of disability, the ALJ must identify and obtain a reasonable explanation for any
apparent conflicts between occupational evidence provided by a VE and information in the DOT.
See SSR 00-4p, 2000 WL 1898704, at *1–2. As part of his duty to fully develop the record, the ALJ
has an “affirmative responsibility” to inquire of the VE on the record whether or not there is such
an inconsistency. Id. at 4; see Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016) (citations
omitted).
Here, the ALJ determined that Plaintiff had the RFC to perform less than the full range of
light work as defined in 20 C.F.R. § 416.967(b), and relying exclusively on the VE’s testimony,
found at step five that Plaintiff was “capable of making a successful adjustment to other work that
exist[ed] in significant numbers in the national economy,” including jobs like price tagger, office
cleaner, and assembler. (doc. 12-1 at 27-28, 32-33.) The ALJ failed to inquire on the record at the
administrative hearing as to whether the VE’s testimony was consistent or conflicted with the DOT,
however.4 (See id. at 55-57.) This was error. See Graves, 837 F.3d at 592 (holding that it is error
3

“The ALJ relies on VE testimony in response to a hypothetical question because the VE ‘is familiar with the
specific requirements of a particular occupation, including working conditions and the attributes and skills needed.’”
Benton ex rel. Benton v. Astrue, 3:12-CV-874-D, 2012 WL 5451819, at *7 (N.D. Tex. Nov. 8, 2012) (quoting Carey v.
Apfel, 230 F.3d 131, 145 (5th Cir. 2000)). A hypothetical question posed by an ALJ to a VE must reasonably incorporate
all the claimant’s disabilities recognized by the ALJ and the claimant must be afforded a fair opportunity to correct any
deficiencies in the hypothetical question. Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994).
4

In his written decision, the ALJ concluded that “the vocational expert’s testimony [was] consistent with the
information contained in the Dictionary of Occupational Titles.” (doc. 12-1 at 33.) This finding is insufficient because
“[t]here is no provision in SSR 00–4p for the ALJ to determine on his own if there is a discrepancy between the VE’s
testimony and the DOT; the ALJ must elicit the information from the VE on the record.” Jones v. Colvin, No.
3:11-CV-2818-BH, 2013 WL 1285486, at *21 (N.D. Tex. Mar. 29, 2013) (citing SSR 00–4p, 2000 WL 1898704, at *2).

15

when “the ALJ [does] not ask whether [the VE’s] testimony was consistent with the DOT” even if
“the vocational expert cite[s] the DOT in her testimony”).5
B.

Harmless Error
Plaintiff argues that she was prejudiced by the ALJ’s “failure to inquire at the administrative

hearing whether there was a conflict between the VE’s testimony and the DOT . . . .” (doc. 17 at
12-14.)
The Fifth Circuit has held that “[p]rocedural perfection in administrative proceedings is not
required” and a court “will not vacate a judgment unless the substantial rights of a party are
affected.” Mays v. Bowen, 837 F.2d 1362, 1363–64 (5th Cir. 1988). “[E]rrors are considered
prejudicial when they cast doubt onto the existence of substantial evidence in support of the ALJ’s
decision.” Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). In the Fifth Circuit, harmless error
exists when it is inconceivable that a different administrative conclusion would have been reached
absent the error. Bornette v. Barnhart, 466 F. Supp. 2d 811 (E.D. Tex. Nov. 28, 2006) (citing Frank
v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)). Accordingly, to establish prejudice that warrants
remand, Plaintiff must show that the VE’s testimony was “actually inconsistent with the DOT” and
could have resulted in a different decision.

See Graves, 837 F.3d at 592–93 (applying a

harmless-error standard when the ALJ erred by failing to ask the VE if her testimony was consistent
with the DOT).
Plaintiff contends that the jobs of price tagger, office cleaner, and assembler are performed

5

The Commissioner relies on Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000), to argue that the ALJ properly relied
on the VE’s testimony because it provided additional guidance beyond the information contained in the DOT. (doc. 18
at 3.) In Carey, however, the Fifth Circuit expressed an unwillingness to defer to a VE without explanation, and
determined that “neither the DOT nor the [VE] testimony is per se controlling.” 230 F.3d at 147. The ALJ did not
explain why he deferred to the VE or ask if her testimony was consistent with the DOT, which, as noted, was error. See
Graves, 837 F.3d at 592.

16

at the light exertional level, which requires “standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.” (doc. 17 at 13.) She argues that “[a] limitation to
only 2 hours standing and/or walking during an 8-hour workday is a direct conflict with how the jobs
identified by the VE are defined as being performed in the DOT.” (Id.)
During the administrative hearing, the ALJ questioned the VE about a hypothetical
individual who had several limitations, including that she could stand and walk for 2 hours out of
an 8-hour workday. (doc. 12-1 at 56.) In response, the VE testified that despite the limitations, the
hypothetical individual could perform the job requirements necessary for a price tagger, office
cleaner, and assembler. (Id.) The ALJ incorporated this limitation into Plaintiff’s RFC by limiting
her “to standing/walking for a total of 2/8 hours in a total workday.” (Id. at 27-28.) The ALJ relied
upon the VE’s testimony at step five to find that Plaintiff was not disabled and could perform all
requirements necessary for the jobs of price tagger, office cleaner, and assembler. (Id. at 33.)
Plaintiff argues that the limitation for standing and/or walking for 2 hours out of an 8-hour
workday “clearly precludes the jobs identified by the VE in response to the ALJ’s third hypothetical
question.” (doc. 17 at 13.) She also argues that the ALJ’s first hypothetical to the VE was supported
by the record and demonstrated that there was no other work she could perform. (Id. at 14.)
Plaintiff fails to identify any evidence showing that the limitation of standing and/or walking 2 hours
out of an 8-hour workday would preclude her from performing the identified jobs, however, and
none of the identified job descriptions in the DOT directly conflict with the VE’s testimony based
upon Plaintiff’s assigned RFC. See Perez, 415 F.3d at 464 (“where the claimant offers no evidence
contrary to the VE’s testimony, the claimant fails to meet his burden of proof under the fifth step of
the disability analysis”); see also Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012) (“The party
seeking to overturn the Commissioner’s decision has the burden to show that prejudice resulted from
17

an error ... [a] mere allegation that additional beneficial evidence might have been gathered had the
error not occurred is insufficient to meet this burden.”).
Plaintiff has not shown an inconsistency between the VE’s testimony and the DOT and
therefore has failed to establish prejudice from the ALJ’s failure to comply with SSR 00-4p.6 The
ALJ’s error was harmless and does not warrant remand. See Wade v. Berryhill, No. 3:16-CV-1362BH, 2017 WL 4176940, at *11 (N.D. Tex. Sept. 21, 2017) (finding that the ALJ’s error in failing
to ask if the VE’s testimony was consistent with the DOT was harmless).7
IV.

CONCLUSION

The Commissioner’s decision is AFFIRMED.
SO ORDERED, on this 6th day of March, 2019.

___________________________________
IRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE

6

Even assuming the existence of a conflict between the DOT and the VE’s testimony, such a conflict would
not be direct or obvious, and would instead be an implied or indirect conflict. See Ceballos v. Colvin, No. EP-13-CV381-ATB, 2015 WL 474367, at *5 (W.D. Tex. Feb. 3, 2015) (determining that the plaintiff’s “argument relate[d] to an
implied conflict between the VE’s testimony and the DOT” because nothing in the DOT’s job descriptions for the jobs
identified by the VE “indicate[d] that six hours of standing and/or walking [were] required to perform the job[s].”);
Zapata v. Colvin, No. 4:13-CV-340-Y, 2014 WL 4354243, at *11 (N.D. Tex. Sept. 2, 2014) (noting the difference
between direct and implied conflicts with a VE’s testimony). Plaintiff did not identify any conflict at the administrative
hearing, and “[t]he Fifth Circuit has held that claimants should not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT,
and then present the conflict as reversible error when the conflict was not deemed sufficient to merit adversarial
development in the administrative hearing.” Zapata, 2014 WL 4354243, at *11 (citing Carey, 230 F.3d at 142); see also
Ruffin v. Colvin, No. 3:16cv18-DPJ-FKB, 2017 WL 536549, at *6 (S.D. Miss. Feb. 8, 2017) (finding that an
“unexplained” conflict did not require remand because the plaintiff “failed to raise it before the hearing officer.”).
7

Although Plaintiff also appears to argue that the ALJ did not properly evaluate Dr. Horton’s medical opinion,
she did not expressly raise any issue regarding medical opinion evidence, as required by the scheduling order. (See doc.
17 at 16-17; doc. 13 at 2.) Even if the issue had been properly raised, however, it would not provide a basis for remand
because the ALJ specifically discussed Dr. Horton’s report and relied on other medical opinions and medical evidence
of record in determining that Plaintiff could perform other work. (See doc. 12-1 at 31-33.)

18