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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION 

KATHRYN SOMMERS-TREON, Case No. 1:18-CV-605 

Plaintiff, Black, J. 

 Bowman, M.J. 

 v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

MEMORANDUM OF OPINION AND DECISION

 Plaintiff Kathryn Sommers-Treon seeks judicial review of the agency’s final 

decision that she was not disabled, and therefore not entitled to Disability Insurance 

Benefits (DIB) and Supplemental Security Income (SSI). Proceeding through counsel, 

Plaintiff presents one claim of error, which the Defendant disputes. For the reasons 

explained below, I conclude that the ALJ’s finding of non-disability should be VACATED, 

because it is not supported by substantial evidence in the administrative record. 

I. Summary of Administrative Record 

 On August 4, 2015, Plaintiff filed an application for DIB and SSI. In both 

applications, Plaintiff alleged disability beginning January 1, 2011. Plaintiff’s applications 

were denied initially on January 5, 2016, and upon reconsideration on March 25, 2016. 

Thereafter Plaintiff filed a written request for a hearing on April 8, 2016. On November 8, 

2017, Administrative Law Judge (ALJ) Reuben Sheperd held a video hearing. Plaintiff 

appeared with counsel in Dayton, Ohio, and the ALJ presided over the hearing from 

Akron, Ohio. Bruce Holderead, an impartial vocational expert, appeared via telephone at 

the hearing, without objection. As of her alleged disability onset, Plaintiff was a younger 
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individual (under age 50); however, prior to the ALJ’s decision, she changed age 

categories to an individual “closely approaching advanced age” (age 50-54). The ALJ 

denied Plaintiff’s claims on February 15, 2018. Plaintiff now seeks judicial review of the 

denial of her application for benefits. 

 Plaintiff was 53 years old on the date of the ALJ’s decision (Tr. 45). Plaintiff testified 

that she is a college graduate and has past relevant work as a still photographer (Tr. 28, 

50). Plaintiff testified that she is divorced and her special needs son that is 22 years old 

lives with her (Tr. 49). 

 Based upon the record and testimony presented at the hearing, the ALJ found that 

Plaintiff had the following severe impairments: “cataracts; degenerative disc disease of 

the lumbar spine with stenosis; degenerative disc disease of the cervical spine with 

stenosis; fibromyalgia; depressive disorder; personality disorder; post-traumatic stress 

disorder; attention deficit disorder” (Tr. 18). The ALJ concluded that none of Plaintiff’s 

impairments alone or in combination met or medically equaled a listed impairment in 20 

C.F.R. Part 404, Subp. P, Appendix 1. The ALJ determined Plaintiff retains the following 

residual functional capacity (“RFC”) to perform light work with the following limitations: 

[T]he claimant may frequently stoop, kneel, crouch, crawl, climb ramps and stairs, 

but may never climb ladders, ropes or scaffolds; the claimant must avoid all 

exposure to workplace hazards, including unprotected heights, moving mechanical 

parts and commercial driving, and must avoid more than moderate noise levels 

[consistent with an office setting]; the claimant is limited to the performance of 

simple, routine tasks and the making of no more than simple, work-related 

decisions, undertaken in a work setting that is routine, in that it contemplates few 

changes in workplace tasks or duties, which setting requires no more than frequent 

interaction with co-workers, supervisors or the public. 

(Tr. 21) 

 Based upon the record as a whole including testimony from the vocational expert, 

and given Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that 
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Plaintiff is unable to perform her past relevant work. Nonetheless, there are jobs that exist 

in significant numbers in the national economy that she can perform, including such jobs 

as a housekeeper, sales attendant, and marker (Tr. 29). Accordingly, the ALJ determined 

that Plaintiff was not under disability from January 1, 2011, through the date of decision, 

as defined in the Social Security Regulations, and is not entitled to DIB. Id. 

 The Appeals Council denied Plaintiff’s request for review. Therefore, the ALJ’s 

decision stands as the Defendant’s final determination. On appeal to this Court, Plaintiff 

argues that the ALJ erred by relying upon jobs identified by the vocational expert to fulfill 

his step 5 burden without properly addressing Plaintiff’s objections and rebuttal evidence 

regarding that testimony. Upon close analysis, I conclude that Plaintiff’s assertion is welltaken. 

 II. Analysis 

 A. Judicial Standard of Review 

 To be eligible for SSI or DIB a claimant must be under a “disability” within the 

definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition 

of the term “disability” is essentially the same for both DIB and SSI. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory meaning, a 

“disability” includes only physical or mental impairments that are both “medically 

determinable” and severe enough to prevent the applicant from (1) performing his or her 

past job and (2) engaging in “substantial gainful activity” that is available in the regional 

or national economies. See Bowen, 476 U.S. at 469-70 (1986). 

 When a court is asked to review the Commissioner’s denial of benefits, the court’s 

first inquiry is to determine whether the ALJ’s non-disability finding is supported by 
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substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation 

omitted). In conducting this review, the court should consider the record as a whole. 

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports 

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial 

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained: 

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion . 

. . . The substantial evidence standard presupposes that there is a ‘zone of 

choice’ within which the Secretary may proceed without interference from 

the courts. If the Secretary’s decision is supported by substantial evidence, 

a reviewing court must affirm. 

Id. (citations omitted). 

 In considering an application for disability benefits, the Social Security Agency is 

guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if 

the claimant is still performing substantial gainful activity; at Step 2, the Commissioner 

determines if one or more of the claimant’s impairments are “severe;” at Step 3, the 

Commissioner analyzes whether the claimant’s impairments, singly or in combination, 

meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner 

determines whether or not the claimant can still perform his or her past relevant work; 

and finally, at Step 5, if it is established that claimant can no longer perform his or her 

past relevant work, the burden of proof shifts to the agency to determine whether a 

significant number of other jobs which the claimant can perform exist in the national 
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economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 

20 C.F.R. §§404.1520, 416.920. 

 A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she 

is entitled to disability benefits. 20 C.F.R. § 404.1512(a). Thus, a plaintiff seeking benefits 

must present sufficient evidence to show that, during the relevant time period, he or she 

suffered impairment, or combination of impairments, expected to last at least twelve 

months, that left him or her unable to perform any job in the national economy. 42 U.S.C. 

§ 423(d)(1)(A). 

 II. The ALJ’s Decision is Supported by Substantial Evidence 

 On appeal to this Court, Plaintiff argues that the ALJ’s step five determination is 

not supported by substantial evidence. Namely, Plaintiff argues that the ALJ erred by 

relying upon jobs identified by the vocational expert to fulfill his step 5 burden without 

properly addressing Plaintiff’s objections and rebuttal evidence regarding that testimony.

 Here, the ALJ determined that Plaintiff was unable to perform any past relevant 

work. Thereafter, the ALJ proceeded to step-five in the sequential evaluation. At step 

five, the burden shifted to the ALJ to establish that there is other work in the economy 

that Plaintiff can perform despite her RFC and “vocational factors” of age, education and 

prior work experience. 20 C.F.R. §§ 404.1520, 404.1560(c)(1)-(2), 404.1566(d); Howard 

v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002); Varley v. Sec’y of Health and 

Human Servs., 820 F.2d 777, 779 (6th Cir. 1987). An ALJ may rely on VE testimony to 

meet this burden provided that such evidence is up to date and reliable. 20 C.F.R. §§ 

404.1566; 404.1560(c)(2); SSR 00-4p; Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 

603 (6th Cir. 2009). 
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 Here, at the administrative hearing, the ALJ asked the VE to consider whether 

there were any jobs that an individual with Plaintiff’s vocational profile and RFC could 

perform. (Tr. 92). The VE testified that an individual with the specified characteristics was 

able to perform unskilled jobs at the light exertional level with a specific vocational 

preparation (SVP) factor two, that exist in the national economy, such as housekeeper 

(Dictionary of Occupational Titles (DOT) No. 323.687-014), with 500,00 jobs in the 

national economy; sales attendant (DOT 299.677-010), with 215,000 jobs in the national 

economy; and marker (DOT 209.587-034), with 300,000 jobs in the national economy. 

(Tr. 92-94). The VE also testified that his testimony was consistent with the DOT, except 

where the DOT or the SCO (the DOT’s companion publication) did not address certain 

factors, including overhead reaching, a sit/stand option, time off-task, absenteeism, 

supervisor redirection every hour, and interactions during any training periods. (Tr. 95-

98, 102, 106-07). The VE testified that where the DOT and the SCO did not address 

certain factors, he supplemented the DOT and the SCO based on his training, education, 

experience, knowledge of the labor market, and consultation with colleagues. (Tr. 95-98, 

102, 106-07). 

 During the hearing, Plaintiff’s counsel asked the VE the source of his job numbers 

and the VE testified that he considered several resources, including the U.S. Department 

of Labor Bureau of Labor Statistics, the job browser, U.S. publishing adjustments, and his 

experience, training, labor market information, and consultation with colleagues (Tr. 108-

09). In light of this testimony, the ALJ concluded that Plaintiff was capable of performing 

jobs that exist in significant numbers in the national economy, including housekeeper, 

sales attendant, and marker, based on the VE’s testimony and considering Plaintiff’s age, 
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education, work experience, and RFC. (Tr. 28-29). Thus, given that the VE identified jobs 

that Plaintiff could perform despite her supported limitations, the ALJ found that Plaintiff 

was not disabled within the meaning of the Act. 

 After the vocational expert (VE) presented testimony at the administrative hearing 

in this case, Plaintiff submitted a Post-Hearing Memorandum of Law and Objections to 

the Vocational Witness’ Testimony (objections memorandum), wherein she presented 

specific objections/ challenges to that testimony along with supporting rebuttal evidence. 

See PageID 402-454. Plaintiff argues that the ALJ failed to properly address her posthearing objections and rebuttal evidence to the VE’s testimony, specifically that the jobs 

identified by the VE are no longer unskilled jobs and exceeded the RFC. (Doc. 13, 3-13). 

Notably, the hearing level representative1 had raised five individual objections to the 

vocational expert’s testimony, on appeal to this Court Plaintiff raises only one objection: 

that up-to-date and currently maintained vocational information available from the United 

States Department of Labor (USDOL) casted doubt (at the very least) upon the reliability 

of the vocational expert’s testimony that the three jobs identified met the requirements of 

the RFC to produce only unskilled jobs. 

 Notably, although these positions are described in the Dictionary of Occupational 

Titles (DOT) as unskilled work, Plaintiff argues that they do not appear to be currently 

performed as unskilled jobs based upon up-to-date information provided by the US 

Department of Labor (USDOL). PageID 409. The jobs of cleaner and marker are crosswalked with SOC Codes 37-2012.00 Maids and Housekeeping Cleaners and 43-5081.02 

Marking Clerks, respectively, and, according to O*NET, these jobs are currently 

                                                            

1 Plaintiff’s counsel did not represent Plaintiff during the administrative proceedings in this case.
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performed at the semiskilled to skilled levels, as they require a Specific Vocational 

Preparation (SVP) levels of 4 to < 6.10. This line of analysis also pertains to the job of 

sales attendant, which is cross-walked with SOC Code 41-2031.00 and, according to 

O*NET, this job is also currently performed at the semi-skilled to skilled level. 

 Here, in response to Plaintiff’s objections to the testimony of the vocational expert, 

the ALJ expressly found “no reason to reject the testimony of the vocational expert.” (Tr. 

15-16). However, the ALJ did not specifically mention or address whether the DOT’s 

descriptions were obsolete or whether the distinctions Plaintiff drew in her post-hearing 

memorandum between the DOT jobs the vocational expert identified and how those jobs 

are currently performed. 

Notably, in Westmoreland v. Berryhill, No. 3:17-cv-00096-SLO, 2018 U.S. Dist. 

LEXIS 52032, at *10-11 (S.D. Ohio Mar. 28, 2018), the court found that that an ALJ’s 

failure to adequately address objections/challenges to vocational testimony (specifically, 

failure to address challenges based on up-to-date and reliable job information) is error 

requiring remand because it critically undermines the ALJ’s step 5 finding that there is 

other work the claimant can do, and effectively precludes meaningful judicial review: 

...Plaintiff correctly contends that the ALJ failed to adequately consider her 

post-hearing objections and evidence. “While the Social Security 

Commissioner does take administrative notice of [the DOT] when 

determining if jobs exist in the national economy, 20 C.F.R. § 

404.1566(d)(1), common sense dictates that when such descriptions 

appear obsolete, a more recent source of information should be consulted.” 

Id. at *10 (quoting Cunningham v. Astrue, 360 F. App’x 606, 615, 2010 WL 22286, at *9 

(6th Cir. 2010)). 
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 The undersigned recognizes that ALJs are permitted to consider “‘reliable job 

information’ available from various publications” as evidence of the claimant’s ability to 

do other work “that exists in the national economy.” S.S.R. 00–4p, 2000 WL 1898704, at 

*2 (S.S.A. Dec. 4, 2000) (citing 20 C.F.R. §§ 404.1566(d) and 416.966(d)). Such 

publications include the DOT, which provides “information about jobs (classified by their 

exertional and skill requirements) that exist in the national economy.” 20 C.F.R. § 416.969 

[and §404.1569]. ALJs are also authorized to consider the testimony of so-called 

“vocational experts” ... as a source of occupational evidence. S.S.R. 00–4p, 2000 WL 

1898704, at *2. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009). When 

a vocational expert’s testimony conflicts with DOT information, “the Social Security 

Administration has imposed an affirmative duty on ALJs to ask the [vocational expert] if 

the evidence that he or she provided conflicts with the information provided in the DOT.” 

Id. (citation and internal punctuation omitted). It is likewise mandatory for ALJs to “obtain 

a reason explanation for ... apparent conflicts if the [vocational expert’s] evidence 

appears to conflict with the DOT.” Id. (citation and internal punctuation omitted). 

 In light of these arguable distinctions between the DOT’s job descriptions and the 

much more recent information compiled in O*NET, the vocational expert’s DOT-based 

testimony is “does not warrant a presumption of reliability.” Cunningham, 360 F. App’x at 

616. A remand is therefore warranted under sentence four of 42 U.S.C. §405(g) for 

consideration of whether the DOT descriptions “were reliable in light of the economy as it 

existed at the time of the hearing before the ALJ.” Id. 
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 III. Conclusion and Recommendation 

 In light of the foregoing, remand under Sentence Four of § 405(g) for further 

proceedings is warranted. A sentence four remand under 42 U.S.C. § 405(g) provides 

the required relief in cases where there is insufficient evidence in the record to support 

the Commissioner's conclusions and further fact-finding is necessary. See Faucher v. 

Secretary of Health and Human Servs., 17 F.3d 171, 174 (6th Cir.1994) (citations 

omitted). In a sentence four remand, the Court makes a final judgment on the 

Commissioner's decision and “may order the Secretary to consider additional evidence 

on remand to remedy a defect in the original proceedings, a defect which caused the 

Secretary's misapplication of the regulations in the first place.” Faucher, 17 F.3d at 175. 

All essential factual issues have not been resolved in this matter, nor does the current 

record adequately establish Plaintiff's entitlement to benefits as of her alleged onset 

date. Faucher, 17 F.3d at 176. 

 For the reasons explained herein, IT IS ORDERED THAT Defendant’s non 

disability finding is VACATED, this matter is REMANDED under sentence four of 42 

U.S.C. § 405(g) consistent with this Opinion; and this case is CLOSED. 

 

 s/Stephanie K. Bowman 

Stephanie K. Bowman 

 United States Magistrate Judge