IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

URSULA N. SMITH, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-534 

 Judge Graham 

 Magistrate Judge King 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

 

 This is an action instituted under the provisions of 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s application for supplemental security 

income. This matter is now before the Court on Plaintiff’s Statement 

of Errors, Doc. No. 14, Defendant’s Memorandum in Opposition 

(“Commissioner’s Response”), Doc. No. 17, and Plaintiff’s Reply, Doc. 

No. 18. 

 Plaintiff Ursula N. Smith filed her current application for 

benefits on September 15, 2008, alleging that she has been disabled 

since May 2, 2003.1

 The application was denied initially and upon 

reconsideration, and plaintiff requested a de novo hearing before an 

administrative law judge. 

 An administrative hearing was held on August 9, 2010, at which 

plaintiff, represented by counsel, appeared and testified, as did 

Hermona C. Robinson, who testified as a vocational expert. PAGEID 78, 

 

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 Plaintiff filed an earlier application for supplemental security income on 

December 19, 2003, alleging that she had been disabled since August 1, 2003. 

PAGEID 118. That application was denied on May 7, 2008, after a hearing 

before an administrative law judge. PAGEID 118-38. 

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108. In a decision dated September 24, 2010, the administrative law 

judge concluded that plaintiff “has not been under a disability . . . 

since July 31, 2008[sic], the date the application was filed.” PAGEID 

75. That decision became the final decision of the Commissioner of 

Social Security when the Appeals Council declined review on February 

13, 2012. PAGEID 55. 

 Plaintiff was 34 years of age on the date of the administrative 

law judge’s decision. See PAGEID 74-75. She has a limited education 

and is able to communicate in English. PAGEID 74. She has past 

relevant work experience as a cashier. PAGEID 109. She has not 

engaged in substantial gainful activity since July 31, 2008. PAGEID 

69. 

I. The Administrative Hearing2

The vocational expert testified at the administrative hearing 

that plaintiff’s past relevant work as a cashier was light and 

unskilled. PAGEID 109. The vocational expert was asked to assume a 

claimant with plaintiff’s vocational profile who could lift 

20 pounds occasionally and 10 pounds frequently. She could 

stand for 30 to 40 minutes at a time for a total of three 

hours in an eight hour workday, walk for about 15 minutes 

at a time for a total of one hour in an eight hour workday. 

She could sit for about 30 minutes at a time for [a] total 

of six hours out of an eight hour workday. She should have 

a sit-stand option with alternating intervals of about 30 

minutes. . . . She can occasionally climb stairs, but can 

never squat, crawl, use unprotected heights, operate 

automotive equipment, move around – work around moving 

machinery. She cannot be exposed to marked changes of 

temperature or humidity, or be exposed to fumes, gas or 

 

2 Plaintiff’s Statement of Errors challenges only the administrative law 

judge’s alleged failure to inquire whether there were conflicts between the 

vocational expert’s testimony and the Dictionary of Occupational Titles

(“DOT”). The Court will therefore limit its discussion to that issue. 

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dusts. She can use arm and leg controls to push and pull. 

She can use her hands and arms for grasping, holding and 

turning objects. Additionally, she’s limited to one and 

two step instructional repetitive work and work not 

requiring frequent contact with the public.” 

PAGEID 109-10. The vocational expert responded that such a claimant 

could not perform plaintiff’s past relevant work, but could perform 

jobs at the sedentary and light exertional levels. PAGEID 110-11. 

The vocational expert specifically identified “janitor/cleaner job 

with limited contact or no contact with the public” (DOT 382.664-010, 

150,000 positions nationally) and hand-picker (DOT 521.687-098, 80,000 

positions nationally) at the light exertional level and laundry-folder 

(DOT 369.687-010, 90,000 positions nationally) at the sedentary level. 

PAGEID 111. 

 The transcript of the administrative law judge’s questioning of 

the vocational expert continues as follows: 

Q Mm-hm. Okay. 

A That rules out [INAUDIBLE]. All right. Well, I’ll 

stick with those two examples. Are all those examples 

consistent with the Dictionary of Occupational Titles? 

You’ve been given what is about to become Exhibit 19F, 

which is an RFC completed by Dr. Ratliff [PHONETIC]. Have 

you had a chance to look it over? 

A Yes, I did. 

PAGEID 113. 

II. The Administrative Decision

 In his decision, the administrative law judge found that 

plaintiff’s severe impairments consist of “obesity; post traumatic 

anterior cruciate ligament (ACL) insufficiency; chondromalacia of the 

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left knee; chronic obstructive pulmonary disease; gastroesophageal 

reflux disease; poly-pharmacy; depression; and anxiety.”3

 PAGEID 69. 

Through the date of the administrative law judge’s decision, however, 

plaintiff’s impairments neither met nor equaled any listed impairment. 

PAGEID 70. The administrative law judge went on to find that 

plaintiff has the residual functional capacity (“RFC”) to 

perform light work as defined in 20 CFR 416.967(b) with the 

following abilities and limitations: (1) able to lift 20 

pounds occasionally and 10 pounds frequently; (2) able to 

stand 30-40 minutes at a time for a total of 3 hours in an 

8-hour workday; (3) able to walk 15 minutes at a time for a 

total of 1 hour in an 8-hour workday; (4) able to sit 30 

minutes at a time for a total of 6 hours in an 8-hour 

workday; (5) must have a sit/stand option with alternating 

intervals of 30 minutes; (6) able to climb occasionally; 

(7) unable to squat, crawl, use unprotected heights, 

operate automotive equipment, or work around moving 

machinery; (8) must avoid exposure to fumes, dust, gases, 

and marked changes of temperature or humidity; (9) able to 

use arm and leg controls to push and pull; (10) able to use 

her hands and arms for grasping, holding and turning 

objects; and (11) limited mentally to one-to-two step 

instructional repetitive work and work not requiring 

frequent contact to the public. 

PAGEID 72. 

 Relying on the testimony of the vocational expert, the 

administrative law judge found that plaintiff’s RFC precluded the 

performance by her of her past relevant work as a cashier, but would 

 

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 The administrative law judge applied Acquiescence Rulings 98-3(6) and 98-

4(6) to plaintiff’s claim because it represents “a subsequent disability 

claim with respect to an unadjudicated period [] that [] arises under the 

same title of the Social Security Act as [plaintiff’s] prior claim on which 

there has been a final decision by an Administrative Law Judge.” PAGEID 68-

69. In doing so, the administrative law judge first addressed whether there 

was new and material evidence (or a change in the law, regulations, or 

rulings affecting the finding or method for arriving at the finding) relating 

to a particular finding. See id. Where there was no such evidence or 

change, the administrative law judge adopted the finding of the prior 

administrative law judge. See id. See generally Drummond v. Comm’r. of 

Soc. Sec., 126 F.3d 837, 840 (6th Cir. 1997). 

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permit the performance of a significant number of jobs in the national 

economy. PAGEID 74-75. The administrative law judge also expressly 

stated that, “[p]ursuant to SSR 00-4p, [] the vocational expert’s 

testimony [was] consistent with the information contained in the 

Dictionary of Occupational Titles.” PAGEID 74. Accordingly, the 

administrative law judge concluded that plaintiff was not disabled 

within the meaning of the Social Security Act. PAGEID 74-75. 

III. Discussion

 Pursuant to 42 U.S.C. § 405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is 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. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. Kirk, 667 

F.2d at 536. If the Commissioner's decision is supported by 

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substantial evidence, it must be affirmed even if this Court would 

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

 Plaintiff argues that the administrative law judge failed to 

satisfy his affirmative responsibility to inquire about whether there 

were any conflicts between the vocational expert’s testimony and the 

DOT. Statement of Errors, pp. 1-7. This Court agrees. 

Administrative law judges have an “affirmative responsibility” to 

ask a vocational expert if the expert’s testimony conflicts with the 

information provided in the DOT. SSR 00-4p, 2000 WL 1898704, at *4. 

Administrative law judges must also “obtain a reasonable explanation 

for . . . apparent conflict[s]” if the vocational expert’s testimony 

“appears to conflict with the DOT.” Id. 

 In the case presently before the Court, the parties agree that 

the administrative law judge asked the vocational expert if the jobs 

identified by her as falling with plaintiff’s RFC were “consistent 

with the Dictionary of Occupational Titles.” See Statement of Errors, 

p. 14; Commissioner’s Response, p. 2. The parties disagree, however, 

as to whether the administrative law judge fulfilled his duty under 

SSR 00-4p because, according to the hearing transcript, the vocational 

expert never answered the question. Plaintiff argues that the 

administrative law judge has a duty, not only to pose the required 

question, but also to obtain an answer to that question. Statement of 

Errors, p. 6. The Commissioner argues that the administrative law 

judge fulfilled his duty by making the inquiry or, alternatively, that 

any error was harmless because the hand-picker and laundry folder jobs 

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identified by the vocational expert are consistent with plaintiff’s 

RFC and they exist in significant numbers in the national economy. 

Commissioner’s Response, p. 3. 

 The Court notes, initially, that the transcript of the 

administrative hearing is not as clear as the parties suggest. The 

transcript actually indicates that it was the vocational expert, not 

the administrative law judge, who posed the relevant question. In any 

event, the question was immediately followed by a second, unrelated 

question before a response to the first question was given. 

Assuming that there is an error in the transcript and that 

it was actually the administrative law judge who posed the 

question to the vocational expert, it nevertheless cannot be said 

that the testimony of the vocational expert provides substantial 

support for the administrative law judge’s decision. First, even 

if the record is construed to confirm that the vocational expert 

was asked about conflicts, the record also suggests that she was 

not given a chance to respond to the question. See id. The 

record simply contains no evidence that the vocational expert 

testified about conflicts between her testimony and the DOT. 

Certainly, the testimony of the vocational expert, as reflected 

in the administrative record, cannot provide substantial support 

for the administrative law judge’s finding that, “[p]ursuant to 

SSR 00-4p, the vocational expert’s testimony [was] consistent 

with the information contained in the” DOT. See PAGEID 74. As 

discussed supra, administrative law judges have an affirmative 

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duty to ask a vocational expert if the expert’s testimony 

conflicts with the DOT. Lindsley v. Comm’r of Soc. Sec., 560 

F.3d 601, 606 (6th Cir. 2009) (quoting SSR 00-4p, at *4). That 

responsibility cannot be avoided, either intentionally or 

unintentionally, by failing to give the vocational expert an 

opportunity to respond to the inquiry about such conflicts. 

 Second, the record suggests that the expert’s testimony may 

in fact actually conflict with the DOT. According to the DOT, 

the job of janitor may require the tending of a furnace, airconditioner, or boiler to provide heat, cool air, and hot water 

for tenants, the use of hand tools, power tools or lawn care 

machinery, and physical demand requirements in excess of those 

for light work. DOT 382.664-010. However, the administrative 

law judge’s residual functional capacity limits plaintiff to the 

performance of light work and precludes jobs requiring work 

around moving machinery. PAGEID 72. Furthermore, the vocational 

expert represented the janitor position as having a specific 

vocational preparation (“SVP”) level of 2, whereas the DOT 

indicates that the position has an SVP of 3, which corresponds to 

“semi-skilled” work. See SSR 00-4p, at *3. 

 There is also a conflict with the “laundry-folder” position. The 

DOT number for the “laundry-folder” position provided by the 

vocational expert is actually the DOT number for a “flatwork 

finisher.” DOT 363.686-010. That position may require feeding 

laundered flatwork articles, such as sheets, pillowcases, tablecloths, 

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and napkins into machinery or feeder rollers that convey articles into 

machinery. Id. As discussed supra, plaintiff’s residual functional 

capacity precludes jobs involving moving machinery. Similarly, the 

“folder” position, DOT 369.687-018, may also require the use of a 

“button-sewing-machine or button-attaching machine” or unloading a 

tumbler. Id. 

 The only evidence in the record that supports the administrative 

law judge’s conclusion that plaintiff can perform other work is the 

vocational expert’s testimony. See PAGEID 74. The vocational 

expert’s testimony does not constitute substantial evidence because 

that testimony may not be consistent with the DOT and the 

administrative law judge failed to elicit a suitable explanation for 

that inconsistency. The administrative law judge’s failure to comply 

with SSR 00-4p cannot, under the circumstances, be characterized as 

harmless error. See Hensley v. Comm’r of Soc. Sec., No. 11-294-JBC, 

2013 WL 85074, at *3 (E.D. Ky. Jan. 7, 2013) (“Failure to inquire 

about discrepancies with the DOT is not harmless error where the ALJ 

has determined that the claimant is capable only of unskilled work, 

but many of the positions encompassed by the VE's testimony have a 

specific vocational preparation [] level greater than one or two, 

which are classified as ̔unskilled.’”) (citing Poe v. Barnhart, No. 

05–48–JBC, 2006 WL 6908092 (E.D. Ky. Mar. 29, 2006)). See also Lyke 

v. Comm’r of Soc. Sec., No. 3:08-0510, 2011 WL 2601435, at *16 (M.D. 

Tenn. Apr. 25, 2011) (“Thus, if there is no inquiry into whether the 

VE's testimony is consistent with the DOT and there is, in fact, an 

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inconsistency, the ALJ's error is not harmless.”) (citing Lancaster v. 

Comm'r of Soc. Sec., 228 F. App’x 563, 575 (6th Cir. 2007)). 

It is therefore RECOMMENDED that the decision of the Commissioner 

be REVERSED pursuant to Sentence 4 of 42 U.S.C. § 405(g) and that this 

action be REMANDED to the Commissioner of Social Security for further 

proceedings consistent with the foregoing. 

 If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

June 7, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge

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