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Donald H. v. Berryhill

United States District Court, D. Oregon

August 6, 2018

DONALD H., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.

          ORDER

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits.

         Plaintiff asserts disability beginning May 31, 2013 due to: post-traumatic stress disorder, chronic obstructive pulmonary disease, bipolar disorder, sleep apnea, high blood pressure, knee pain, shoulder pain, and hip pain. Tr. 175, 179.

         After a hearing, an administrative law judge (ALJ) determined plaintiff was not disabled. Plaintiff asserts the ALJ erred in relying on vocational expert (VE) testimony without addressing plaintiff's post-hearing objections to the testimony.

         The ALJ found plaintiff has the residual functional capacity (RFC) to perform light exertion work with certain limitations including only occasional contact with the public, coworkers, and supervisors. Tr. 38. The ALJ asked a VE if an individual of plaintiff's age, education, experience, and RFC could perform jobs existing in the national economy. Tr. 43, 73. Based upon the VE's testimony, the ALJ determined that plaintiff could perform the jobs of "Assembler, small products;" "Inspector, electric equipment;" and "Packager." Tr. 43, 73-74. The VE specifically referred to the Dictionary of Occupational Titles (DOT) in expressing her opinion. Tr. 73-74.

         After the hearing, but before the ALJ reached a decision, plaintiff's counsel submitted a post-hearing memorandum and objections to the VE's testimony. Tr. 242-66. Among the objections was the argument that current labor market research and sources of job information dictate the identified jobs require more than superficial interaction with co-workers and supervisors. Tr. 246. Plaintiff offered the expert opinion of Paula Santagati that a person limited to only occasional interaction with coworkers and supervisors would be unable to successfully transition from the training and probationary period of the identified jobs. Tr. 247, 265. Plaintiff also argued the Department of Labor's current tool for assessing occupations is through O*NET given that the DOT has not been updated in decades. Tr. 244-45; see Tr. 262-63. Plaintiff further argued that under the O*NET, the identified jobs no longer appear to be unskilled.

         In the ALJ's decision, she overruled the objections stating:

The VE clearly explained that the jobs cited were SVP 2 unskilled jobs and that her testimony was consistent with the DOT.
...
I accept the VE testimony as to jobs performable with occasional contact with coworkers and supervisors, as well as the general public pursuant to SSR 00-4p. I further note that the representative failed to cross-examine the VE on this issue despite being given the opportunity to do so at the hearing.
In sum, I find the VE testimony reliable, based on substantial evidence, and supportive of a decision based on a preponderance of the evidence. All objections are hereby overruled, and a supplemental hearing is unnecessary as the representative was offered an opportunity to question the VE as to these inconsistencies at the hearing.

Tr. 32.

         SSR 00-04p provides that the Social Security Administration primarily relies on the DOT for information about work requirements and that evidence provided by VEs should be consistent with the DOT. When there is a conflict between the VE and the DOT, an ALJ must elicit reasonable explanation for the conflict before relying on the VE to support a decision about whether a clamant is disabled. See https://www.ssa.gov/OPHome/rulings/di/02/SSR2000-04-di-02.html.[2]

         In this case, the VE who testified at the hearing relied on the DOT and thus her testimony did not conflict with it. Plaintiff's objection was based on the assertion that the DOT is outdated and provided his explanation, though another VE, as to why the conflict should be resolved against the DOT in favor of the O*NET. The ALJ accepted the ...


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