UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

TRACY LITTLEJOHN, 

 

 Plaintiff, 

 Case No. 2:18-cv-530 

 v. JUDGE JAMES L. GRAHAM 

 Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

 

REPORT AND RECOMMENDATION 

 Plaintiff, Tracy Littlejohn, brings this action under 42 U.S.C. § 405(g) for review of a 

final decision of the Commissioner of Social Security (“Commissioner”) denying her application 

for disability insurance benefits. This matter is before the United States Magistrate Judge for a 

Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 15), the 

Commissioner’s Memorandum in Opposition (ECF No. 20), and the administrative record (ECF 

No. 8). Plaintiff did not file a Reply. For the reasons that follow, it is RECOMMENDED that 

Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision be 

AFFIRMED. 

I. BACKGROUND

 In June 2013, Plaintiff filed applications for disability insurance benefits, alleging that 

she had been disabled since March 7, 2012. (R. at 263–66.) Plaintiff’s application was denied 

initially and upon reconsideration. (R. at 167–70, 173–79.) Plaintiff sought a de novo hearing 

before an administrative law judge. (R. at 181–82.) Administrative Law Judge (“ALJ”) Thomas 
2 

L. Wang held a hearing on July 1, 2015, at which Plaintiff, who was represented by counsel, 

appeared and testified. (R. at 48–64.) On August 11, 2015, the ALJ issued a partially favorable 

decision. (R. at 141–53.) On December 19, 2016, the Appeals Council vacated the ALJ’s 

decision, including the parts favorable to Plaintiff, and remanded the case to the ALJ for 

resolution of certain issues. (R. at 163–65.) The Appeals Council specifically instructed the ALJ 

to obtain additional evidence concerning Plaintiff’s impairments; give further consideration to 

Plaintiff’s residual functional capacity (“RFC”) and, in doing so, evaluate the treating and nontreating source opinions as well as non-examining source opinions and explain the weight given 

to such opinion evidence; and obtain supplemental evidence from a vocational expert to clarify 

the effect of the assessed limitations on Plaintiff’s occupational base with the instruction that the 

hypothetical questions should reflect the specific capacity/limitations established by the record as 

a whole. (R. at 164.) 

 Following remand, the ALJ held a hearing on June 28, 2017, at which Plaintiff, who was 

represented by counsel, appeared and testified. (R. at 78–91.) Eric Pruitt testified as a 

vocational expert (“VE”) at the hearing. (R. at 91– 104.) Following the hearing on June 28, 

2017, the ALJ issued two sets of interrogatories to the VE in order to comply with the Appeals 

Council directive on the issue of Plaintiff’s RFC. (R. at 15, 373–77, 386.) The VE provided 

written responses to these interrogatories. (R. at 15, 379–82, 387–88.) Although these 

interrogatories and VE responses were proffered to Plaintiff’s counsel, thereby giving Plaintiff 

the opportunity to submit a written statement as to the evidence or request a supplemental 

hearing (R. at 15, 383–84, 389–90), her counsel did not respond or seek a supplemental hearing. 

(R. at 15.) 
3 

 On September 18, 2017, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 15–31.) On April 24, 2018, the Appeals 

Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the 

Commissioner’s final decision. (R. at 1–5.) Plaintiff then timely commenced the instant action. 

II. ADMINISTRATIVE DECISIONS & ADDITIONAL VOCATIONAL EVIDENCE 

A. ALJ Decision Dated August 11, 2015 

 On August 11, 2015, the ALJ issued his first decision. (R. at 140–53.) The ALJ found 

that Plaintiff met the insured status requirements of the Social Security Act through September 

30, 2017. (R. at 143.) At step one of the sequential evaluation process,1

 the ALJ found that 

Plaintiff had not engaged in substantially gainful activity since her alleged onset date. (R. at 

143.) 

 At step two, the ALJ concluded that Plaintiff had the following severe impairments: 

depression, rotator cuff tear bilaterally, obstructive sleep apnea, congestive heart failure, 

 

1

 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
4 

impingement and acromioclavicular joint arthrosis bilaterally, osteoarthritis, hypertension, and 

obesity. (R. at 143.) 

 At step three of the sequential process, the ALJ concluded that that Plaintiff did not have 

an impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 144.) At step four, 

the ALJ assessed Plaintiff’s RFC as follows: 

After careful consideration of the entire record, the undersigned finds that since 

March 7, 2012, the claimant has the residual functional capacity to perform 

sedentary work as defined in 20 CFR 404.1567(a) except the claimant could lift 

and or carry 10 pounds occasionally. The claimant can stand and or walk 6 hours 

out of an 8 hour work day. The claimant can sit for 6 hours of an 8 hour work day. 

The claimant can occasionally push or pull. The claimant can never climb ladders, 

ropes, or scaffolds and can never crawl. The claimant can occasionally kneel. The 

claimant can never reach overhead, except incidentally. The claimant can 

unlimitedly reach forward and to the sides. The claimant can do no commercial 

driving. The claimant is limited to no more than occasional exposure to extreme 

cold. The claimant can never use heavy machinery and can have no exposure to 

unprotected heights. Goal based production is measured by end result, not pace 

work. The claimant is limited to simple, routine, and repetitive tasks. The claimant 

would be off task 5 percent of the workday. The claimant would work in a low 

stress job, defined as only occasional changes in the work setting. 

(R. at 145.) 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff was unable to perform 

any past relevant work. (R. at 150.) The ALJ determined that, prior to the established disability 

onset date, Plaintiff was a younger individual age 45–49 but on December 29, 2014, her age 

category changed to an individual closely approaching advanced age. (R. at 151.) The ALJ 

went on to find that, prior to December 29, 2014, transferability of job skills was not material to 

the determination of disability because using the Medical-Vocational Rules (also known as “the 

Grid”) as a framework supports a finding that Plaintiff is “not disabled” whether or not she has 

transferable job skills. (R. at 151.) The ALJ determined that, beginning on December 29, 2014, 
5 

Plaintiff had not been able to transfer job skills to other occupations. (Id.) He also determined 

that, prior to that date, Plaintiff’s age category changed, considering Plaintiff’s age, education, 

work experience, and residual functional capacity, there were jobs that existed in significant 

numbers in the national economy that Plaintiff could have performed. (Id.) However, the ALJ 

went on to find that, beginning on December 29, 2014, when Plaintiff’s age category changed, 

considering her age, education, work experience, and residual functional capacity, there were no 

jobs that exist in significant numbers in the national economy that she could perform. (R. at 

152.) He therefore concluded that Plaintiff was not disabled prior to December 29, 2014, but 

became disabled on that date and had continued to be disabled through the date of the decision. 

(Id.) 

B. Remand Order of the Appeals Council 

 On December 19, 2016, the Appeals Council vacated the ALJ’s decision dated August 

11, 2015, including the parts favorable to Plaintiff, and remanded the case to the ALJ for 

resolution of certain issues. (R. at 163–65.) In doing so, the Appeals Council noted that the 

ALJ’s articulated RFC “falls between two medical-vocational rules that direct opposite 

conclusions as of the date the claimant’s age category changed” and that “it is not a foregone 

conclusion that a sedentary medical-vocational rule applies in this case.” (R. at 163.) The 

Appeals Council also identified problems with the ALJ’s assessment of the opinion evidence, 

requiring further evaluation. (R. at 163–64.) Accordingly, the Appeals Council specifically 

directed, upon remand, the ALJ to do the following: 

• Obtain additional evidence concerning the claimant’s impairments in order to 

complete the administrative record in accordance with the regulatory standards 

regarding consultative examinations and existing medical evidence (20 CFR 

404.1512-1513). 
6 

• Give further consideration to the claimant’s maximum residual functional 

capacity during the entire period at issue and provide rationale with specific 

references to evidence of record in support of assessed limitations (Social Security 

Ruling 96-8p). In so doing, evaluate the treating and non-treating source opinions 

pursuant to the provisions of 20 CFR 404.1527 and Social Security Rulings 96-2p 

and 96-5p and non-examining source opinions in accordance with the provisions of 

20 CFR 404.1527(e) and Social Security Ruling 96-6p, and explain the weight 

given to such opinion evidence. 

• Obtain supplemental evidence from a vocational expect to clarify the effect of 

the assessed limitations on the claimant’s occupational base (Social Security 

Rulings 83-12 and 83-14). The hypothetical questions should reflect the specific 

capacity/limitations established by the record as a whole. The Administrative Law 

Judge will ask the vocational expert to identify examples of appropriate jobs and to 

state the incidence of such jobs in the national economy (20 CFR 404.1566). 

Further, before relying on the vocational expert evidence the Administrative Law 

Judge will identify and resolve any conflicts between the occupational evidence 

provided by the vocational expert and information in the Dictionary of 

Occupational Titles and its companion publication, the Selected Characteristics of 

Occupations (Social Security Ruling 00-4p). 

(R. at 164.) The Appeals Council directed the ALJ, in compliance with the above, to offer 

Plaintiff an opportunity for hearing, take “any further action needed to complete the 

administrative record[,]” and issue a new decision. (R. at 165.) 

C. Additional Vocational Evidence 

 Following remand, the ALJ held a second administrative hearing on June 28, 2017, at 

which the VE testified. (R. at 75–103.) After the second hearing and in accordance with remand 

order of the Appeals Council, the ALJ issued a first set of written interrogatories to the VE on 

July 10, 2017. (R. at 15, 373–77.) The VE provided written responses to these interrogatories. 

(R. at 15, 379–82.) In response to a question whether there was sufficient evidence to allow him 

to form an opinion of Plaintiff’s vocational status, the VE answered in the affirmative. (R. at 

379.) The ALJ then asked the VE to assume a hypothetical individual (“the hypothetical 

individual”) with the following limitations: 
7 

7. Assume a hypothetical individual who was born on December 30, 1964, has at 

least a high school education and is able to communicate in English as defined in 

20 CFR 404.1564 and 416.964, and has work experience as described in #6 above 

[social service aide, which is a light and skilled position]. Assume further that this 

individual has the residual functional capacity (RFC) to: lift and/or carry 10 pounds 

occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday; and 

stand and/or walk for 6 hours in an 8-hour workday. The claimant can occasionally 

push and/or pull, kneel, reach overhead, and work in environments where the 

temperatures are less than 40 degrees Fahrenheit. The claimant can never climb 

ladders, ropes, or scaffolds, crawl, drive commercially, use heavy machinery, or 

work at unprotected heights. The claimant can perform goal-based production I 

work measured by end result (not pace work) and can perform simple, routine, and 

repetitive tasks. The claimant would be off task 5 percent of the workday and could 

work in a low stress job (defined in the claimant’s case as occasional changes in 

the work setting). 

(R. at 380.) The VE responded that the hypothetical individual could not perform Plaintiff’s past 

job because “work activities are more complex than ‘simple, routine, and repetitive.’” (Id.) In 

so responding, the VE identified that there was a conflict between the occupational evidence 

provided in that response and the occupational evidence in the Dictionary of Occupational Titles 

(“DOT”) and/or the Selected Characteristics of Occupations (“SCO”). (Id.) The VE explained 

that on task behavior is not the DOT and that his testimony is based on his work experience. (R. 

at 381.) The VE also responded that the hypothetical individual would not have skills acquired 

from past work that are readily transferable to semi-skilled or skilled work within the RFC 

because the “RFC is for unskilled work only. Transferrable work skills cannot transfer to 

unskilled work.” (Id.) However, the VE responded that the hypothetical individual could 

perform unskilled jobs that exist in the national economy, including film touch-up inspector, 

document preparer, and printed circuit board touch-up screener. (Id.) According to the VE, any 

of the individual following limitations would, if added to the hypothetical individual’s RFC 

would, render that RFC work-preclusive: four 15-minute breaks in addition to regularly 

scheduled breaks, or off task 10 percent of the workday, or frequent supervision. (R. at 382.) 
8 

The VE explained that most employers consider unacceptable being off task at a rate of ten 

percent or above for unskilled work. (Id.) He also explained that frequent supervision on an 

ongoing basis is not consistent with competitive employment but would be consistent with 

sheltered employment. (Id.) 

 On July 25, 2017, the ALJ asked the VE the following additional question: “For that 

RFC [identified above for the hypothetical individual], are there any light jobs and if so, please 

give details, including national numbers. In addition, please give the cumulative numbers for 

that RFC.” (R. at 386–87.) On August 8, 2017, the VE responded in writing that examples of 

light unskilled occupations consistent with that RFC include labeler (approximately 66,000 in the 

national economy), tacking machine tender (approximately 51,400 in the national economy), and 

label coder (approximately 47,800 in the national economy). (R. at 388.) The VE went on to 

note that these positions are representative examples and that “there are other occupations that 

are consistent with the limitations” set in the hypothetical individual’s RFC. (Id.) The VE 

estimated that the cumulative number is approximately 932,000. (Id.) 

 On August 10, 2017, the ALJ advised Plaintiff’s counsel in writing that he had secured 

additional evidence that he proposes to enter into the record and directed counsel how to view 

the new proposed exhibits. (R. at 389.) The VE further advised that Plaintiff could submit a 

written statement or request a supplemental hearing. (R. at 389–90.) The ALJ specifically 

advised that if he did not hear from counsel within ten days, he will assume that Plaintiff did not 

wish to submit any written statement and did not wish to request a supplemental hearing or to 

orally question the author of the new evidence and would enter the new evidence into the record 

and issue his decision. (R. at 390.) No response or request for a supplemental hearing was 

received. (R. at 15.) 
9 

D. ALJ Decision Dated September 18, 2017 

 On September 18, 2017 the ALJ issued his second decision. (R. at 15–31.) The ALJ 

found that Plaintiff met the insured status requirements of the Social Security Act through 

September 30, 2017. (R. at 18.) At step one of the sequential evaluation process, the ALJ found 

that Plaintiff had not engaged in substantially gainful activity since her alleged onset date of 

March 7, 2012. (Id.) 

 At step two, the ALJ concluded that Plaintiff had the following severe impairments: 

bilateral rotator cuff tear; impingement and acromioclavicular joint arthrosis; osteoarthritis; 

congestive heart failure; obesity; obstructive sleep apnea; hypertension; and depression. (Id.) 

 At step three of the sequential process, the ALJ concluded that that Plaintiff did not have 

an impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) At step four, the ALJ 

assessed Plaintiff’s RFC as follows: 

After careful consideration of the entire record, the undersigned finds that the 

claimant has the residual functional capacity to lift and/or carry 10 pounds 

occasionally and 10 pounds frequently; sit for 6 hours in an 8-hour workday; and 

stand and/or walk for 6 hours in an 8-hour workday. The claimant can occasionally 

push and/or pull, kneel, reach overhead, and work in environments where the 

temperatures are less than 40 degrees Fahrenheit. The claimant can never climb 

ladders, ropes, or scaffolds, crawl, drive commercially, use heavy machinery, or 

work at unprotected heights. The claimant can perform goal-based production/ 

work measured by end result (not pace work), and can perform simple, routine, and 

repetitive tasks. The claimant would be off task 5 percent of the workday and could 

work in a low stress job (defined in the claimant’s case as occasional changes in 

the work setting). 

(R. at 21.) 

 Relying on the VE’s testimony, the ALJ concluded that Plaintiff is unable to perform any 

past relevant work. (R. at 29.) The ALJ noted that Plaintiff was born on December 30, 1964, 

and was 47 years old, which is defined as a younger individual age 18–49, on the alleged onset 
10 

date but that Plaintiff subsequently changed age category to closely approaching advanced age. 

(Id.) The ALJ determined that considering Plaintiff’s age, education, work experience, and 

residual functional capacity, there were jobs that exist in significant numbers in the national 

economy that she could perform. (R. at 30.) In so finding, the ALJ explained as follows: 

If the claimant had the residual functional capacity to perform the full range of light 

work, a finding of “not disabled” would be directed by Medical-Vocational Rule 

202.21 and Rule 202. 14. However, the claimant’s ability to perform all or 

substantially all of the requirements of this level of work has been impeded by 

additional limitations. As directed by the Appeals Council, and to determine the 

extent to which these limitations erode the unskilled light occupational base, the 

Administrative Law Judge asked the vocational expert whether jobs exist in the 

national economy for an individual with the claimant’s age, education, work 

experience, and residual functional capacity. The vocational expert testified that 

given all of these factors the individual would be able to perform the requirements 

of representative occupations such as: 

 1. Labeler (DOT No. 920.687-126) (66,000 jobs nationally) 

 2. Tacking machine tender (DOT No. 786.685-034) (51,400 jobs nationally) 

 3. Label coder (DOT No. 920.587-014) (47,800 jobs nationally) 

The vocational expert’s analysis is accepted as it is not contradicted and his sources 

of data are considered reliable. His testimony was consistent with the Dictionary of 

Occupational Titles and the Selected Characteristics of Occupations (SCO) defined 

in the revised DOT (SSR 00-4p) and accurately identified the types and 

approximate number of jobs that the claimant can perform. The jobs identified 

exist in several industries and are not of an isolated nature. 

(Id.) The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. 

(R. at 31.) 

III. STANDARD OF REVIEW 

 When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 
11 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 

270, 273 (6th Cir. 1997)). Finally, even if the ALJ’s decision meets 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, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 

F.3d 742, 746 (6th Cir. 2007)). 

IV. ANALYSIS 

Plaintiff advances two contentions of error. Plaintiff first asserts that the ALJ’s step five 

finding that she can perform jobs that exist in significant numbers in the national economy is 

legally erroneous and not based on substantial evidence. Plaintiff next contends that the ALJ’s 

RFC appears to be a limitation to sedentary work, which should have directed a finding of 

disability as of Plaintiff’s 50th birthday. These contentions of error are addressed in turn. 
12 

A. Step Five Finding 

As set forth above, Social Security Regulations require ALJs to resolve a disability claim 

through a five-step sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). 

Although a dispositive finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 

475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and 

answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). “Through step four, the claimant bears the 

burden of proving the existence and severity of limitations caused by her impairments and the 

fact that she is precluded from performing her past relevant work.” Jones v. Comm’r of Soc. 

Sec., 336 F.3d 469, 474 (6th Cir. 2003). “At step five, the burden shifts to the Commissioner to 

show that other jobs in significant numbers exist in the national economy that the claimant could 

perform given her residual functional capacity and considering other relevant vocational factors.” 

Tucker v. Comm’r of Soc. Sec., No. 18-2300, 2019 WL 2418995, at *2 (6th Cir. June 10, 2019) 

(citing Jones, 336 F.3d at 474). 

Here, Plaintiff contends that the ALJ’s finding at step five is legally erroneous because 

“the vocational expert never identified the jobs of tacking machine tender and label coder, and 

only identified the job of labeler in response to a hypothetical question that was not consistent 
13 

with the ALJ’s assessed RFC.” (ECF No. 15 at 30 (emphasis added); see also id. (“Plaintiff’s 

counsel can find no mention, in either expert’s testimony, or in the interrogatories, of the jobs 

‘tacking machine tender,’ or ‘label coder,’ not any reference to the DOT codes cited by the 

ALJ.”).) Plaintiff goes on to assert that “[t]he only elicited testimony as to the specific RFC 

adopted in this case on one occasion: via the vocational expert interrogatories[,]” which 

identified film touchup inspector, document preparer, and printed circuit board touch-up 

screener. (Id. at 31 (citing R. at 379–82.).) Plaintiff therefore asserts that the ALJ “never offered 

testimony supporting a finding that” the jobs of labeler, tacking machine tender, and label coder 

could be performed within the RFC assessed by the ALJ and that this error was not harmless. 

(Id. at 31–34.) 

Plaintiff’s arguments are not well taken. Plaintiff apparently overlooked the ALJ’s 

additional interrogatory issued on July 25, 2017, to which the VE responded on August 8, 2017. 

(R. at 386–88.) As detailed above, the VE specifically identified the occupations of labeler, 

tacking machine tender, and label coder as consistent with the ALJ’s articulated RFC. (R. at 

380, 386–88.) The ALJ issued this interrogatory, along with other interrogatories, in accordance 

with the remand order of the Appeals Council. (R. at 164–65.) The ALJ therefore did not err in 

relying on the VE’s interrogatory response, which provides substantial evidence to the ALJ’s 

step five finding. See Dyer v. Soc. Sec. Admin., 568 F. App’x 422, 428–29 (6th Cir. 2014) (“A 

vocational expert’s testimony in response to an accurate hypothetical represents substantial 

evidence that the claimant has the vocational qualifications to perform specific jobs.”) (citations 

omitted); McCraney v. Comm’r of Soc. Sec., 68 F. App’x 570, 573 (6th Cir. 2003) (“This 

response [from a vocational expert in response to the ALJ’s interrogatories] satisfied the 

Commissioner’s burden of showing that a significant number of jobs were available to [the 
14 

plaintiff], despite her impairments.”); Marritt v. Comm’r of Soc. Sec., No. 3:18-cv-119, 2019 

U.S. Dist. LEXIS 1085, at *26–27 (N.D. Ohio Jan. 3, 2019)2

 (stating that the plaintiff’s 

“argument that the ALJ’s decision at Step Five was not supported by substantial evidence lacks 

merit, because the ALJ was permitted to rely upon the VE’s response to a post-hearing 

interrogatory”) (citing McCraney, 68 F. App’x at 573). 

 For these reasons, it is RECOMMENDED that Plaintiff’s first contention of error be 

OVERRULED. 

B. The ALJ’s Assessed RFC 

Plaintiff next argues that the ALJ’s assessed RFC does not describe an exertional 

category and appears to be a limitation of sedentary, which should have directed a finding of 

disability as of Plaintiff’s 50th birthday. (ECF No. 15 at 34–36.) In support, Plaintiff contends 

that the only jobs identified by the VE were film touchup inspector, document preparer, and 

printed circuit board touch up screener, which all fall into the sedentary exertional category, 

warranting a directed verdict. (Id. at 35–36.) 

Plaintiff’s argument is not well taken. As an initial matter, the applicable regulations 

define light work as work that “involves lifting no more than 20 pounds at a time with frequent 

lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). 

Nevertheless, “[e]ven though the weight lifted may be very little, a job is in this category when it 

requires a good deal of walking or standing, or when it involves sitting most of the time with 

some pushing and pulling of arm or leg controls.” Id. In addition, Social Security Ruling 83-10 

 

2 The Westlaw citation to Marritt contains an incomplete copy of the decision. See Marritt v. 

Comm’r of Soc. Sec., No. 3:18-cv-119, 2019 WL 95553, at *9 (N.D. Ohio Jan. 3, 2019) (ending 

final paragraph with an incomplete sentence with “Editor’s Note: Tabular or graphical material 

not displayable at this time”).
15 

provides, inter alia, that “the full range of light work requires standing or walking, off and on, 

for a total of approximately 6 hours of an 8-hour workday.” Here, the RFC fell in the light work 

category because the ALJ determined that Plaintiff that could stand and/or walk for six hours out 

of an eight-hour workday and occasionally push and/or pull. (R. at 21.) See 20 C.F.R. § 

404.1567(b), SSR 83-10. 

Moreover, Plaintiff’s apparent belief that she was limited to sedentary work because the 

ALJ concluded that she could lift and carry only ten pounds is unavailing. (ECF No. 15 at 34–36 

(citing R. at 21).) See Reese v. Comm’r of Soc. Sec., No. 99-4223, 230 F.3d 1359 (Table), 2000 

WL 1434585, at *2 (6th Cir. Sept. 18, 2000) (“Her [the claimant’s] ability to walk and stand for 

six out of eight hours in a normal workday, coupled with her ability to lift ten pound objects with 

some frequency, clearly support the Commissioner’s conclusion that [the claimant’s] abilities 

enable her to do ‘light work’ as defined in the grids and Regulation 83-10.”). 

Finally, Plaintiff appears to base her argument on the erroneous belief that the VE 

identified only three sedentary jobs of film touchup inspector, document preparer, and printed 

circuit board touch up screener. (ECF No. 15 at 35–36.) However, as previously discussed, the 

VE identified the occupations of labeler, tacking machine tender, and label coder, which are 

consistent with the articulated RFC and are representative examples of light unskilled 

occupations. (R. at 21, 380, 386–88.) Despite being afforded the opportunity to do so, Plaintiff 

never issued a written statement challenging this evidence or request a supplemental hearing to 

examine this evidence. (R. at 15, 390.) The ALJ was therefore entitled to rely on this 

uncontroverted evidence, which enjoys substantial support in the record. See Martin v. Comm’r 

of Soc. Sec., 170 F. App’x 369, 375 (6th Cir. 2006) (“The ALJ’s finding that a significant 

number of jobs existed for [the claimant] is also supported by substantial evidence because the 
16 

uncontradicted testimony of the vocational expert identified three potential positions with a 

significant number of jobs available.”); see also Dyer, 568 F. App’x at 428–29; McCraney, 68 F. 

App’x at 573; Marritt, 2019 U.S. Dist. LEXIS 1085, at *26–27. 

Accordingly, it is RECOMMENDED that Plaintiff’s second contention of error be 

OVERRULED. 

V. CONCLUSION

 In sum, from a review of the record as a whole, the Undersigned concludes that 

substantial evidence supports the ALJ’s decision denying benefits. Based on the foregoing, it is 

therefore RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the 

Commissioner’s decision be AFFIRMED. 

VI. PROCEDURE ON OBJECTIONS 

 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 in 

question, as well as the basis for objection. 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. 

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

 The parties are specifically advised that the 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 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 
17 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

Date: August 7, 2019 s/ Elizabeth A. Preston Deavers _______ 

ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE