IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LESA MAXINE ROBBERTS, 

Plaintiff, 

 Civil Action 2:18-cv-00541 

 v. Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

OPINION AND ORDER

Plaintiff, Lesa Maxine Robberts (“Plaintiff”), 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 Social Security Disability Insurance benefits (“SSDI”) and Supplemental 

Security Income benefits (“SSI”). This matter is before the Court for consideration of Plaintiff’s 

Statement of Errors (ECF No. 15), the Commissioner’s Memorandum in Opposition (ECF No. 

20), Plaintiff’s Reply (ECF No. 21), and the administrative record (ECF No. 10). For the 

following reasons, Plaintiff’s Statement of Errors is OVERRULED and the Commissioner’s 

decision is AFFIRMED. 

I. BACKGROUND 

Plaintiff applied for disability benefits and supplemental security income in November 

2014. (R. at 230-40.) Plaintiff’s claim was denied initially and upon reconsideration. (R. at 11.) 

Upon request, a hearing was held on March 29, 2017, in which Plaintiff, represented by counsel, 

appeared and testified. (R. at 56–92.) A vocational expert also appeared and testified at the 
2 

hearing. (Id.) On July 18, 2017, Administrative Law Judge Jeffrey Hartranft (“the ALJ”) issued 

a decision finding that Plaintiff was not disabled at any time after January 15, 2014, the alleged 

onset date. (R. at 11–32.) On April 5, 2018, the Appeals Council denied Plaintiff’s request for 

review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1–4.) 

Plaintiff then timely commenced the instant action. (ECF No. 5.) 

II. RELEVANT HEARING TESTIMONY1

Lynne Kaufman testified as the vocational expert (“VE”) at the March 2017 hearing. (R. 

at 82–92.) Plaintiff’s attorney stipulated to the VE’s qualifications. (R. at 82–83.) The VE 

described Plaintiff’s past work as a phlebotomist under the Dictionary of Occupational Titles 

(“DOT”) code 079.364-022. (R. at 83.) She testified that it is considered a light job and semiskilled with a specific vocational preparation of three (3). (Id.) The VE further testified that 

Plaintiff had one job where she had to lift patients, which the VE estimated to be “heavy to very 

heavy.” (R. at 83–84.) The VE testified that Plaintiff described another job at the blood bank 

which would be heavy and semi-skilled, specific vocational preparation of four (4), DOT 

022.387-058, in the medium strength range. (R. at 84.) As to Plaintiff’s past work as an 

inspector/packer, the VE testified the DOT considers that as a light job and unskilled, specific 

vocational preparation of two (2), under DOT code 559.687-074. (Id.) 

The VE testified that for Plaintiff’s work as a stock clerk the job would be considered 

heavy strength, semi-skilled, specific vocational preparation of four (4), DOT code 299.367-014, 

but estimated Plaintiff’s performance as light. (Id.) The VE indicated that Plaintiff worked as a 

warehouse worker, which would be “under laborer, stores” and is considered a medium strength 

 1

 Given Plaintiff’s single contention of error that the ALJ erred in relying on the VE’s testimony 

to fulfill his Step 5 burden without fully addressing Plaintiff’s post-hearing objections to the 

testimony, only the VE’s testimony from the hearing is relevant to the Court’s analysis. 
3 

job and unskilled, specific vocational preparation of two (2), DOT code 922.687-058. (R. at 84–

85.) The VE also indicated that Plaintiff did a lot of temp jobs in that category including one that 

would be categorized under “clerk, typist,” which is a sedentary job, semi-skilled, specific 

vocational preparation of four (4), DOT code 214.382-014. (R. at 85.) 

The ALJ asked the VE to assume Plaintiff is capable of working at the light exertional 

level, that she could frequently climb ramps and stairs, could occasionally climb ladders, ropes, 

or scaffolds, would be capable of frequent stooping, kneeling, crouching, and crawling, would 

need to avoid workplace hazards such as uncontrolled heights and machinery, would be capable 

of simple, routine, and repetitive tasks involving only simple work-related decisions and few if 

any workplace changes, and would be capable of occasional interaction with the general public, 

coworkers, and supervisors. (Id.) Assuming those limitations, the VE testified that Plaintiff 

could perform her past work of “inspector, packer” but not the other jobs, which would be semiskilled, because of the simple, repetitive limitation. (Id.) 

The ALJ asked the VE to assume a hypothetical individual with Plaintiff’s educational 

and vocational background, along with the previously described restrictions. (R. at 85–86.) 

Assuming those limitations, the VE testified the individual could perform work in light packing 

jobs, for example DOT code 920.687-166, which she estimated had about 8,000 options in Ohio 

and about 175,000 options nationally. (R. at 86.) The VE also testified that the individual could 

perform work in some sorting positions, for example DOT code 222.687-014, which she 

estimated had about 6,000 options in Ohio and about 120,000 options nationally. (Id.) The VE 

further testified that the individual could perform work in some marker jobs, for example DOT 

code 209.587-034, which she estimated had about 4,000 options in Ohio and about 90,000 

options nationally. (Id.) 
4 

The ALJ then asked the VE to add the limitation that the hypothetical could work in 

positions that do not require strict production quotas or fast-paced work such as on an assembly 

line. (Id.) The VE testified that with that limitation Plaintiff’s past work would be eliminated. 

(Id.) She further testified that as far as the other jobs, she would give about a 25% reduction on 

the numbers for this restriction. (Id.) The ALJ then asked the VE to assume, for either of the 

first two hypotheticals, that the hypothetical individual would need to be able to use a cane for 

prolonged ambulation but could carry up to the exertional levels in the hand not using the cane. 

(R. at 86–87.) The VE testified that with this restriction she would put Plaintiff in a more 

sedentary strength range, and examples of sedentary jobs that she could perform would be some 

inspector positions such as DOT code 726.684-110, which she estimated would have about 2,500 

options in Ohio and about 25,000 options nationally. (R. at 87.) The VE also testified that there 

would be some table worker positions available to Plaintiff, for example DOT code 739.687-182, 

which she estimated had about 2,000 options in Ohio and about 35,000 options nationally. (Id.) 

Furthermore, the VE testified that Plaintiff could look at some assembler work, such as DOT 

code 713.687-018, which she estimated had about 2,500 options in Ohio and about 60,000 

options nationally. (Id.) 

The ALJ then added to any of the previous hypotheticals the limitation that because of 

pain, anxiety, side effects of medication, or any other reason, the hypothetical individual would 

be off-task 10% of the workday in addition to the normal breaks on an ongoing basis. (Id.) The 

VE testified that this limitation, in combination with the other restrictions, would be work 

preclusive. (R. at 88.) The ALJ then added to the first three hypotheticals the restriction that the 

individual’s supervisor or lead worker would need to check every hour to see if the individual 

was properly performing their job and on-task. (Id.) The VE testified that this restriction “really 
5 

exceeds customary tolerances in the sense of close supervision, so [she did not] think it’s really 

reflective of competitive work.” (Id.) Regarding the tolerance for absenteeism in unskilled 

work, the VE testified that she uses the standard of not more than one day per month if ongoing 

or repetitive, and anything in excess would be work preclusive. (Id.) 

Plaintiff’s counsel asked the VE if frequent redirection would be considered the same 

thing as checking in every hour. (Id.) The VE testified that “it could be included as part of 

that[.]” (Id.) Plaintiff’s counsel then asked the VE if a requirement of frequent redirection 

would be prohibitive of work to which VE responded that “I think that’s again not reflective of 

competitive. It’s more like a supported employment or you know situation.” (R. at 89.) 

Plaintiff’s counsel asked the VE if a restriction was added to any of the hypotheticals that the 

individual would be unable to carry out detailed written and oral instructions, would the 

restriction preclude the individual from work or change any of the potential positions. (Id.) The 

VE testified that she “would tend to put the ability to handle detailed written or oral instructions 

at least in a more semi-skilled rather than unskilled” and that “once it gets to detailed then I think 

you know you’re moving to a more skilled job.” (Id.) 

The VE testified that she reviewed the “E exhibits” in preparing for her testimony, that 

her job numbers were current job numbers, and that she considered Plaintiff’s testimony in 

identifying the past work. (R. at 89–90.) The VE further testified that in drawing conclusions 

for making adjustments for the reduced numbers of jobs available she used a variety of 

resources, including information from the US Department of Labor Bureau of Labor Statistics 

Occupational Outlook Handbook, her own research on all the Ohio labor market information, 

and SkillTRAN. (R. at 90.) The VE also testified that she believed her testimony was consistent 
6 

with the DOT but there were several issues not addressed in the DOT so she looked to other 

resources to develop an answer. (R. at 90–91.) 

III. RELEVANT RECORD EVIDENCE 

On April 12, 2017, prior to the ALJ’s administrative decision, Plaintiff submitted a PostHearing Memorandum of Law and Objections to the Vocational Witness’ Testimony and 

supporting exhibits to the ALJ. (R. at 324–84.) In the memorandum, Plaintiff asserts that “a 

number of inconsistencies arose during the vocational testimony, and must be resolved pursuant 

to SSR 00-4p.” (R. at 324.) Plaintiff indicated several objections: 

We object: to any purported expert testimony from Ms. Kaufman regarding job 

incidence in the local, regional or national economy as the record in this matter on 

its face fails to show any qualifications through training, education or experience 

that would establish the necessary expertise to give opinions on the number of jobs 

that exist in the local, regional or national economy. 

We object: to the vocational witness’ testimony regarding job incidence in that said 

testimony is unfounded, unsupported, unreliable and conjured from whole cloth. 

. . . 

We object: to the vocational witness’ testimony as the jobs offered at hearing are 

no longer performed at the unskilled level pursuant to current labor market data. 

. . . 

We object: to the positions offered by the vocational witness in response to the 

hypothetical residual functional capacity assessment, as this opinion is not reliable 

and is not supported by substantial evidence because current labor market research 

and reliable sources of job information dictate that these positions would require 

more than occasional interaction with coworkers and supervisors. 

. . . 

We object: to the vocational testimony that the jobs of Table Worker (DOT: 

739.687-182) and Final Assembler (DOT: 713.687-018) could be performed within 

the hypothetical residual functional capacity assessment. 

. . . 
7 

We object: to an unfavorable decision being issued in the instant matter prior to 

affording the claimant the opportunity to address the aforementioned evidentiary 

and vocational inconsistencies at a supplemental hearing. (See HALLEX I-2-6-

56). 

(R. at 324, 329–31.) 

IV. ADMINISTRATIVE DECISION 

On July 18, 2017, the ALJ issued his decision. (R. at 11–32.) At step one of the 

sequential evaluation process,2

 the ALJ found that Plaintiff had not engaged in substantial 

gainful activity since January 15, 2014, the alleged onset date. (R. at 17.) The ALJ found that 

Plaintiff has the following severe impairments: degenerative disc disease of the spine; coronary 

artery disease (“CAD”); a depressive disorder; an anxiety disorder; and a history of substance 

abuse. (Id.) The ALJ further found that Plaintiff did not have an impairment or combination of 

impairments that meets or medically equals the severity of one of the listed impairments in 20 

C.F.R. Part 404, Subpart P, Appendix 1. (R. at 18.) 

 2

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

sequential evaluation of the evidence. See 20 C.F.R. §416.920(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. §416.920(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). 
8 

At step four of the sequential process, the ALJ set forth Plaintiff’s residual functional 

capacity (“RFC”) as follows: 

[Plaintiff] has the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b) except [Plaintiff] could frequently climb 

ramps and stairs and occasionally climb ladders, ropes, and scaffolds. [Plaintiff] 

could frequently stoop, kneel, crouch, and crawl. She should avoid workplace 

hazards, such as unprotected heights and machinery. [Plaintiff] would be capable 

of performing simple, routine, repetitive tasks, involving only simple work related 

decisions, and with few, if any workplace changes. She could have occasional 

interaction with the general public, coworkers, and supervisors. Further, [Plaintiff] 

could work in a setting without strict production quotas, such as on an assembly 

line. 

(R. at 19.) 

The ALJ concluded that Plaintiff is unable to perform any past relevant work. (R. at 30.) 

The ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there are 

jobs that exist in significant numbers in the national economy that Plaintiff can perform. (R. at 

31.) He therefore concluded that Plaintiff was not disabled under the Social Security Act from 

January 15, 2014, through the date of the administrative decision. (R. at 32.) 

V. 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 

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)). 
9 

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 [Social Security Administration] 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)).

VI. ANALYSIS 

Plaintiff asserts one contention of error. Plaintiff contends that the ALJ erred in relying 

on vocational expert testimony to fulfill his Step 5 burden without fully addressing the objections 

to the vocational expert’s testimony. (ECF No. 15, at pg. 1.) Specifically, Plaintiff focuses on 

two objections that she asserts the ALJ failed to properly address: “(1) the ALJ’s stated 

limitations (in the hypothetical assumption and in his ultimate RFC finding) that Plaintiff can 

occasionally interact with supervisors and coworkers is work preclusive, and (2) that up-to-date 

and reliable (and administratively noticed) vocational sources demonstrate that the jobs 

identified by the vocational expert, while correctly described as unskilled jobs in the DOT, which 

was last updated over 30 years ago are no longer unskilled jobs.” (Id. at pg. 4.) 
10 

The ALJ made the following findings regarding Plaintiff’s post-hearing memorandum 

and objections: 

The undersigned, at hearing, at the request of the claimant’s attorney, held the 

record open for 2 weeks for additional post hearing evidence and discussion. The 

undersigned read and considered the post hearing brief evidenced at Exhibit B14E. 

Within the brief, the attorney objected to the testimony from the vocational expert 

regarding job incidence in the local, regional, or national economy; objects to the 

vocational testimony of the job incidence, as she alleges the expert’s testimony is 

unfounded, unreliable, and unsupported; objects to the testimony as to the jobs 

offered at hearing, reporting they are no longer performed at the level assessed; 

objects to the positions offered by the vocational expert in response to the 

hypothetical residual functional capacity assessment; objects to the notion that the 

jobs of Table Worker and Final Assembler could be performed within the assessed 

hypothetical; and objects to an unfavorable decision. Here, for the reasons 

discussed below the undersigned overrules the objections contained in the brief. 

First, despite the arguments made within this post-hearing documents, it should be 

noted, the attorney, on the record at the claimant’s hearing, stipulated to Ms. 

Kaufman’s qualifications. The attorney found no reason to assert Ms. Kaufman 

was not qualified as a vocational expert. Secondly, the undersigned finds the 

attorney’s posed argument is unfounded as Ms. Kaufman is a certified rehabilitation 

counselor (CRC); professional counselor (PC); and a certified case manager (CCM) 

(Exhibit B11E). Further, Ms. Kaufman has experienced [sic] as a qualified 

rehabilitation provider for the Bureau of Worker’s Compensation and was a 

certified rehabilitation counselor for the Department of Labor (Exhibit B11E). 

Additionally, she has further experience as a fellow on the American Board of 

Vocational Experts, as well as prior experience as a vocational and fund evaluator 

for permanent and total disability and disability for the Ohio Police and Fire 

(Exhibit B11E). She has an undergraduate degree from the Queens College, City 

University, as well as a Master’s degree in counseling (Exhibit B11E). Further, she 

completed 90 credit hours and residency toward a Ph.D. in Rehabilitation 

Counseling at the Ohio State University (Exhibit B11E). Ms. Kaufman has 

significant and relevant vocational experience working as a Vocational 

Rehabilitation Counselor; Industrial Rehabilitation Consultant; and a Job 

Placement Specialist since 1979 (Exhibit B11E). 

The brief contained discussion of the use of SkillTran. Regarding such discussion, 

the undersigned finds the Social Security Regulations do not provide an exhaustive 

list of vocational references. Each vocational references [sic] provided in the list 

of administrative notice of job data is merely an example. Precedent supports an 

Administrative Law Judge (ALJ) can rely on evidence such as the testimony of a 

vocational expert and the Dictionary of Occupational Titles. The ALJ is not 

confined to using one sole publication or method and Social Security rules and 

regulations support [that an] ALJ may take administrative notice of reliable job 
11 

information available from various governmental publications such as the DOT, 

published by the Department of Labor. 20 CFR 404.1566(d). Further, valid legal 

precedent contends the ALJ may use the services of a vocational expert to assist in 

determining whether a claimant’s work skills can be used in other work, and, if so, 

the specific occupations in which they can be used. 20 CFR 404.1455(e); Beinlich, 

345 Fed. Appx. At 168. Here, the undersigned has chosen to justly ascertain 

reliable vocational information from more than one source; however, he relies 

heavily upon the vocational expert’s hearing testimony. The undersigned’s actions 

are not in conflict with Social Security rules and regulations or current legal 

precedent. 

In terms of the arguments regarding the provided job numbers[, the] undersigned 

finds the provided numbers are accepted. As found by the United States Sixth 

Circuit Court of Appeals, “[t]his court has held repeatedly that the testimony of a 

vocational expert identifying specific jobs available in the economy that an 

individual with the claimant’s limitation could perform can constitute substantial 

evidence supporting an [Administrative Law Judge’s] finding at step 5 that the 

claimant can perform other work.” (Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 

549 (6th Cir. 2004) citing Wright v. Comm’r Soc. Sec., 321 F.3d 611, 616 (6th Cir. 

2003); Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 481 (6th Cir. 1988)). 

Furthermore, the undersigned can rely on evidence including the testimony of the 

vocational expert and the DOT as “[t]he [Administrative Law Judge] takes 

administrative notice of reliable job information available from various 

governmental publications such as the DOT, published by the Department of 

Labor.” (Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 855(6th Cir. 2010) citing 20 

C.F.R. § 404.l566(d); Beinlich v. Comm’r of Soc Sec., No. 08-4500, 2009 WL 

2877930, at *4, 345 Fed. Appx. 163, 168 (6th Cir. 2009, unpublished)). In light of 

these holdings, the representative’s arguments are without legal merit. Here, the 

vocational expert’s testimony is based not only on the information contained in the 

DOT, but also her vocational rehabilitation education and years of professional 

experience. Therefore, in light of the assessed residual functional capacity, the 

undersigned accepts the vocational expert’s testimony and finds that there is 

substantial evidence to support that there are jobs existing in the national economy 

of significant numbers that the claimant could perform. 

On the record, at hearing, the claimant’s attorney cross-examined the vocational 

expert and thus had the opportunity to obtain more detail or clarification about the 

vocational positions. It was expected the attorney was going to have preconceived 

objection to the vocational expert testimony, as the representative noted in the 

prehearing brief that they wanted to keep the record open for vocational objections 

for 30 days after the hearing. There is reason to assume, the attorney had obtained 

all of the factual information she used in her written post-hearing arguments at the 

time of the hearing. In fact, the submission of the post hearing brief, appears to be 

correlated/associated with other formal appeals, as specific Exhibits A-G were 

formally presented. The attorney objected to job numbers; however, points of 

contention such as the invalidity of the job numbers were never raised on the record 
12 

at hearing. By not making or raising the arguments on the record at hearing, the 

undersigned finds the attorney waived the right to make any farther argument 

regarding the vocational expert’s testimony. This conclusion is supported by the 

Sixth Circuit’s explanation in Beinlich v. Comm’r of Soc. Sec., 345 Fed. Appx. 163 

(6th Cir. 2009), holding “the ALJ is under no obligation to investigate the accuracy 

of the VE’s testimony beyond the inquiry mandated by SSR 00-4p. This obligation 

falls to the plaintiff’s counsel, who had the opportunity to cross-examine the VE 

and bring out any conflicts with the DOT. The fact that plaintiff’s counsel did not 

do so is not grounds for relief.” Id. at 168-69. Here, despite cross-examining the 

vocational expert, the attorney never questioned the expert’s proposed job numbers, 

use of Skilltran, or referenced any inconsistency in job number findings. However, 

even if an inconsistency did exist between plaintiff’s residual functional capacity 

and the occupational requirements of the positions identified by the vocational 

expert, the Sixth Circuit, in the Lindsley decision makes clear, the ALJ is under no 

obligation to investigate the accuracy of the VE’s testimony beyond the inquiry 

mandated by SSR 00-4p. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 606 (6th 

Cir. 2009) (holding that the ALJ fulfilled his duties when he asked the vocational 

expert whether there was any “discrepancy between your opinions and the DOT 

standards,” even if the VE did not disclose a conflict); see also Beinlich, 345 Fed. 

Appx. At 168-69 (“Even if there were an inconsistency, the plaintiff has not pointed 

to any authority that the ALJ erred in his findings based on the VE’s testimony, 

which went unchallenged by the plaintiff until after the ALJ issued his decision.”). 

Here, the ALJ specifically inquired at 12:05:04 PM on the date of the hearing, per 

the hearing transcript whether the expert’s testimony was consistent with the DOT. 

The expert clearly responded in part her testimony was consistent with the DOT, 

but indicated where conflict existed, she looked to other resources and her 

experience to develop her provided answers. It should he noted such process is 

consistent with SSR 00-4p. 

In summary, the ALJ specifically allowed the claimant’s attorney to cross examine 

the vocational expert. It appears, considering both the pre and post hearing briefs 

together, that the attorney had the post hearing objection materials at her disposal 

at the time of the hearing and made a personal choice, opting not to discuss them 

on the record. Thus, she failed to satisfy her requirements under the regulations. 

Further, considering both the pre and post hearing briefs, it appears the attorney 

was prepared to raise her objections on the record, as she expected such vocational 

issues, [at] the hearing onset (Exhibit B12E). The undersigned finds the arguments 

outlined and alleged by the attorney at Exhibit B14E unpersuasive and affords them 

little weight. Further, it should be noted the undersigned finds the post-hearing 

documents were submitted in an attempt to circumvent the established legal 

processes and procedures and the undersigned’s findings are supported by relevant 

Sixth Circuit precedent. 

(R. at 12–14.) 
13 

 Plaintiff argues that the ALJ failed to address some of her objections and invokes a 

provision of the Hearings, Appeals and Litigation Law Manual of the Social Security 

Administration (“HALLEX”) in support of her argument. (ECF No. 15, at pg. 11–12.) This 

argument fails on multiple levels. The ALJ addressed and “overruled” Plaintiff’s post-hearing 

objections. (R. at 12–14.) Importantly, “HALLEX is an internal guidance tool” that does not 

have the force of law. Keehl v. Comm’r of Soc. Sec., No. 1:18-cv-281, 2018 WL 4352155, at *3 

(W.D. Mich. Sept. 12, 2018) (citing Estep v. Astrue, No. 2:11-cv-17, 2013 WL 212643, at *11 

(M.D. Tenn. Jan. 18, 2013). Indeed, “HALLEX does not impose judicially enforceable duties on 

either the ALJ or this [C]ourt.” Morris v. Comm’r of Soc. Sec., No. 1:11-cv-154, 2012 WL 

4953118, at *12 (W.D. Mich. Oct. 17, 2012); see also Smith v. Comm’r of Soc. Sec., No. 17-

12056, 2018 WL 3750971, at *13 (E.D. Mich. July 16, 2018) (“[T]he failure to comply with 

HALLEX, by itself, does not provide grounds for remand by a reviewing court.”). 

 Moreover, Plaintiff has not shown that the ALJ violated a legal obligation set out by 

HALLEX, which, Plaintiff contends, “embodies the principle of procedural due process found in 

the Constitution and the Administrative Procedure Act.” (ECF No. 15, at pg. 12 n .7.) This 

Court has previously addressed the same argument in another case: 

Plaintiff points to HALLEX § I-2-6-74(B) which provides that at the hearing the 

ALJ must ask the claimant’s representative if she has any objections to the VE’s 

testimony and if so, must rule on any objections either “on the record during the 

hearing, in narrative form as a separate exhibit, or in the body of his or her 

decision.” HALLEX § I-2-6-74(B). In this case, Plaintiff did not raise the 

objections to the VE’s testimony until after the hearing. As such, this HALLEX 

provision does not apply. Because Plaintiff did not raise the objections at the 

hearing and because the ALJ specifically addressed her post-hearing objections in 

the body of her written decision, Plaintiff has not shown that the ALJ violated any 

obligations established by HALLEX. See Horner v. Berryhill, No. 17 C 4823, 2018 

WL 1394038, at *2 (N.D. Ill. Mar. 20 2018) (“Because HALLEX does not compel 

an ALJ to rule on objections to VE testimony posed after a hearing has ended, the 

ALJ’s failure to do so in this case was not erroneous.”); Owens v. Berryhill, 17-cv4824, 2018 WL 3303274, at *2 (N.D. Ill. July 5, 2018) (“Here [plaintiff] did not 
14 

raise the relevant objections to the VE’s testimony until after the hearing, so the 

cited HALLEX provision does not apply.”); Rockholt v. Berryhill, 2018 WL 

4462231, at *7 (W.D. Okla., 2018) (collecting cases). 

Jones v. Comm’r of Soc. Sec., No. 2:17-cv-1062, 2019 WL 2511111, at *8 (S.D. Ohio June 18, 

2019). 

 In her first objection, Plaintiff maintains that the ALJ’s stated limitations that Plaintiff 

can only occasionally interact with supervisors and coworkers is work preclusive. (ECF No. 15, 

at pg. 4.) Regarding this objection, which Plaintiff asserts the ALJ did not address, the Court 

notes that this is not the first time a plaintiff has lodged the argument that an ALJ failed to 

address a report from Paula Santagati which he or she had included in a post-hearing 

memorandum. Just as other courts have noted about the plaintiffs in their cases, Plaintiff in the 

instant matter failed to cross-examine the VE regarding Ms. Santagati’s opinions. Keehl, 2018 

WL 4352155 at *4 (citing Kidd v. Berryhill, No. 5:17-cv-420, 2018 WL 3040894, at *4 (E.D. 

Ky. June 19, 2018) (Plaintiff “could have extensively cross-examined [the VE] on the topic [s]he 

now raises, but [s]he did not.”). Additionally, ALJs have no duty to convene a second hearing to 

question a VE that the plaintiff could have raised initially. Kidd, 2018 WL 3040894 at *4. The 

Court finds the Keehl and Kidd decisions persuasive and instructive as to many of the issues 

raised by Plaintiff here. 

 As the Keehl court points out “courts have been less than impressed with Ms. Santagati’s 

opinions[.]” 2018 WL 4352155, at *4. Indeed, “[s]everal courts have received reports from 

Santagati containing identical testimony regarding work-preclusive social limitations, and have 

rejected the testimony for its lack of specificity, expertise and knowledge of the case in 

question.” Looney v. Berryhill, No. 3:17-cv-450, 2018 WL 3826778, at *12 (E.D. Va. Aug. 10, 

2018) (citing cases). The Kidd court explicitly found that “Santagati purports to offer her own 
15 

most generalized (and quite radical) ‘vocational opinion’ that, as of October 2015, ‘a limitation 

of occasional interaction with coworkers and supervisors precludes all work as the training and 

probationary period for any job would require more than occasional interaction with co-workers 

and supervisors. . . . Santagati said utterly nothing specific about [plaintiff’s] life, health, ability 

to work, or case.” 2018 WL 3040894 at *4 (emphasis in original).3 The Court here agrees that 

Ms. Santagati’s opinion is less than impressive and unsubstantiated. More importantly, the Court 

finds that Plaintiff waived this objection because she failed to use her opportunity to crossexamine the VE regarding Ms. Santagati’s opinion during the hearing. See Oneal v. Soc. Sec. 

Comm’r, No. 4:17-cv-11380, 2018 WL 5532486, at *4 (E.D. Mich. 2018) (holding that 

“[p]laintiff’s failure to object to the VE’s testimony during the hearing waived her right to raise 

such issues in district court.”) (citation omitted); McKinney v. Astrue, No. 11-293, 2012 WL 

2603659, at *9 (E.D. Ky. July 5, 2012) (finding plaintiff waived his right to cross-exam the VE 

by failing to object to the VE’s testimony or even attempt to cross-examine the VE on the issue) 

(citation omitted). 

 The Kidd court also addressed Plaintiff’s second argument, that the ALJ failed “to 

address challenges based on up-to-date and reliable (and administratively noticed) vocational 

sources demonstrate that the jobs identified by the vocational expert, while correctly described as 

 3

 Other courts have also found Ms. Santagati’s opinions extreme and unfounded. See, e.g., 

Rosado v. Berryhill, NO. B-17-77, 2017 WL 7790109, at *9-10 (S.D. Tex. Dec. 4, 2017) 

(“Santagati identifies no factual basis beyond her own opinion as to why every single job in 

America requires more than occasional interaction with others. As previously noted, 

occasional means up to one-third of a workday. SSR 83-10, 1983 WL 31251, at *5. In 

Santagati’s opinion, every single job that can possibly be imagined requires interaction with 

others for more than 2 hours and 40 minutes in an eight hour workday. Santagati’s opinion is 

not sufficiently supported by any evidence. Furthermore, it does not specifically discuss the 

interactions that can be expected of a car rental delivery driver or road roller operator, the jobs 

actually identified by Johnson and cited by the ALJ.”). 
16 

unskilled jobs in the DOT, which was last updated over 30 years ago are no longer unskilled 

jobs.” (ECF No. 15, at pg. 4); 2018 WL 3040894 at *6. As in the instant case, the plaintiff in 

Kidd would have preferred that the ALJ rely on a particular website, O*NET. (ECF No. 15, at 

pg. 4–5); Kidd, 2018 WL 3040894 at *6. Again, the Court notes that Plaintiff failed to raise this 

issue at the hearing and has therefore waived it. See Harris v. Comm’r of Soc. Sec., No. 1:11-cv1290, 2012 WL 4434078, at *3 (N.D. Ohio Sept. 24, 2012) (“The Sixth Circuit, along with other 

courts across the country, have generally recognized that a claimant’s failure to object to 

testimony offered by a vocational expert, at the time of the administrative proceeding, waives the 

claimant’s right to raise such issues in the district court.”) (citations omitted). “The Sixth 

Circuit, along with other courts across the county, have generally recognized that a claimant’s 

failure to object to testimony offered by a vocational expert, at the time of the administrative 

proceeding, waives the claimant’s right to raise such issues in the district court.” Kidd, 2018 WL 

3040894 at *6 (citations omitted). Both the Santagati report and O*NET existed at the time of 

the hearing. Plaintiff could have presented her arguments regarding both and cross-examined the 

VE on her theories at that time, but did not. Id. at *7 (“The Santagati report and the DOT each 

existed at the time of the hearing, and [plaintiff] could have presented the theories.”). 

 Plaintiff cites to Cunningham v. Astrue, 360 F. App’x 606 (6th Cir. 2010) in support of 

the proposition that “[n]umerous courts (including recently in this Circuit) have ruled, when 

presented with the issue presented here, that an ALJ’s failure to adequately address, or address at 

all, objections/challenges to vocational testimony (variously, failure to address challenges based 

on up-to-date and reliable job information, objections to non-administratively noticed sources for 

job incidence data, and others) is error requiring remand because it undermines the ALJ’s step 5 
17 

finding that there is other work the claimant can do, and effectively precludes meaningful 

judicial review.” (ECF No. 15, at pg. 12.) The court in Kidd addressed the Cunningham case: 

The Court makes a few observations about Cunningham. First, Cunningham “did 

not hold,” categorically, “that the DOT is an unreliable or out-of-date source.” 

Earls v. Comm’r of Soc. Sec., No. 09 CV 1465, 2011 WL 3652435, at *7 (S.D. 

Ohio Aug. 19, 2011). “Rather, the court [of appeals] acknowledged that pursuant 

to the regulations the DOT is a publication of which the ALJ may take notice.” Id.

Indeed, post-Cunningham, the Sixth Circuit directly held (as stated and described 

above), in a published decision: “To establish that work exists in the national 

economy, the ALJ can rely on evidence such as the testimony of a VE and the 

DOT.” Kyle, 609 F.3d at 855 (labeling the DOT an enduring source of “reliable job 

information”) (emphasis added); see also, e.g., Roberts v. Colvin, 946 F. Supp. 2d 

646, 662 n.6 (S.D. Tex. 2013) (same, rejecting argument that the DOT is “‘obsolete’ 

and not reliable”); Biestek, 880 F.3d at 787 (relying on the DOT as an information 

source); id. at 789-90 (affirming when the VE “based her testimony on the” DOT). 

This is consistent with the Circuit’s pre-Cunningham case law. See, e.g., Lindsley, 

560 F.3d at 603. Accordingly, to the extent Cunningham could be read to imply 

blanket disapproval of the DOT, Lindsley’s unanimous, prior, published guidance, 

as well as Kyle’s unanimous, subsequent, published direction, clearly trump. 

Second, despite “the Department of Labor’s adoption of O*NET, the Social 

Security Administration still relies on the DOT and only requires the vocational 

expert’s testimony to be consistent with the DOT. See SSR 00-4p (“In making 

disability determinations, we rely primarily on the DOT (including its companion 

publication, the SCO) for information about the requirements of work in the 

national economy.”); (“Occupational evidence provided by a VE or VS generally 

should be consistent with the occupational information supplied by the DOT.”).” 

Daniel v. Colvin, No. 1:14-CV-775, 2015 WL 5530210, at *5 n.4 (S.D. Ohio Sept. 

21, 2015); see also, e.g., Purdy v. Berryhill, 887 F.3d 7, 14 n.10 (1st Cir. 2018) 

(Souter, J.) (noting that, despite some criticisms of DOT obsolescence, the SSA 

“continues to treat the DOT as” reliable). ALJ Kittinger made the same point in 

her written decision. R. at 21. Cunningham, further, did not “decide or even 

consider whether the vocational expert was precluded from using the DOT to 

determine the skill level required to perform a certain occupation.” Daniel, 2015 

WL 5530210, at *5 n.4. Instead, Cunningham only addressed using VE testimony 

(and, thus, DOT v. O*NET information) “to determine the number of jobs

available in the economy that the claimant could perform with her RFC.” Id.

(emphasis added); Cunningham, 360 Fed.Appx. at 615 (confining the relevant 

analysis to “whether substantial evidence supports the conclusion that the[ at-issue] 

jobs exist in substantial numbers”); see also Holleran v. Colvin, No. 13-193-GFVT, 

2015 WL 1432966, at *8-9 (E.D. Ky. Mar. 27, 2015) (similarly distinguishing). 

Plainly, focused on the social function components of the representative jobs, Kidd 

raises no issue in this court concerning the discrete job numerosity inquiry. 
18 

Third, many courts have criticized Cunningham’s singular status. See, e.g., Morris 

v. Comm’r of Soc. Sec., No. 1:16-cv-433, 2017 WL 1159809, at *11 (W.D. Mich. 

Mar. 29, 2017) (dissing Cunningham as a lone outlier—“No subsequent Sixth 

Circuit decision has . . . questioned the ‘reliability’ of VE testimony in a similar 

fashion.”); Belew v. Astrue, No. 2:11-107-DCR, 2012 WL 3027114, at *9 n.5 (E.D. 

Ky. July 24, 2012) (same: “Cunningham is an unpublished decision by a divided 

panel. No subsequent Sixth Circuit opinion has questioned the reliability of VE 

testimony on the grounds of his or her reliance on the DOT.” (citing cases)); 

Cunningham, 360 Fed.Appx. at 616-17 (Ryan, J., dissenting) (panning the panel 

majority for “locat[ing] evidence it thinks ought to have been taken into account by 

a better informed, more thoroughly prepared expert witness, and [for] hold[ing] that 

the expert’s failure to consider this court’s more favored data effectively nullified 

the ‘reliability’ of the expert’s opinion, rendering the entire body of otherwise 

‘substantial evidence’ suddenly insubstantial”); see also Gallo v. Comm’r of Soc. 

Sec., 449 Fed.Appx. 648, 650 (9th Cir. 2011) (holding that reliance on VE’s DOTbased testimony, though it contained “a seemingly antiquated reference to 

typewriters,” was proper: “VE testimony may become unreliable on account of a 

conflict with the DOT . . . but not on account of its compliance with the DOT.”); 

Carrier v. Astrue, No. 10-67-GWU, 2011 WL 2694659, at *5 (E.D. Ky. July 12, 

2011) (rejecting an argument “that the DOT is an obsolete resource”); Ragland v. 

Berryhill, No. 17-C-730, 2018 WL 1757656, at *11 & *11 nn.8-9 (E.D. Wis. Apr. 

12, 2018) (recently rejecting a claimant’s O*NET-based argument, involving the 

same counsel as this case); Moffit v. Berryhill, No. 17-4015-JWL, 2018 WL 

276770, at *6 (D. Kan. Jan. 3, 2018) (same); James v. Colvin, No. 16-470-EWD, 

2017 WL 4185479, at *11-12 (M.D. La. Sept. 21, 2017) (same). 

The Court adds the observation, while continuing to echo the many already-levied 

criticisms, that Cunningham cited no legal authority for its broad musings, instead 

principally relying on the panel majority’s “common sense” to reach its 

conclusions. See 360 Fed.Appx. at 615. This approach, divorced from prior and 

subsequent Sixth Circuit case law, departs from typically deferential, substantialevidence review and empties the force from much of Cunningham’s generalized 

commentary. See also, e.g., Moffit, 2018 WL 276770, at *6 (noting the “first 

finding” of the SSA-commissioned Occupational Information Development 

Advisory Panel that “the O*NET in its current form is not suitable for disability 

adjudication”); see also Occupational Info. Dev. Advisory Panel, Findings Report 

(June 28, 2010), https://www.ssa.gov/oidap/Documents/COMPLETE% 20FINAL-

-Findings% 20Report% 20OIDAP% 20062810.pdf, at 3, 10-11. 

2018 WL 3040894 at *7–8 (emphasis in original). 

 The court in Kidd emphasized that it was not concluding that reliance on O*NET is 

precluded in all instances, “but rather that the SSA still considers the DOT reliable, that there is 

(at least) debate concerning [the utility of O*NET], and that an ALJ has considerable discretion 
19 

when assessing VE testimony (and its underlying bases) for reliability and currency. 2018 WL 

3040894 at *9 (citations omitted). The Court adopts this reasoning here. 

Regardless, the question is whether substantial evidence supports the ALJ’s Step 5 

decision in the instant case. Here, the Court finds that substantial evidence supports the ALJ’s 

Step 5 decision. Even is substantial evidence supported a contrary conclusion, the Court will 

uphold an administrative decision that is supported by substantial evidence. Jones, 336 F.3d at 

475. 

 The ALJ considered Plaintiff’s extensive post-hearing objections to the VE’s testimony. 

(R. at 12–14.) Based on this record, the Court concludes that Plaintiff received a full and fair 

hearing. See Burdine v. Comm’r of Soc. Sec., No. 1:17-cv-1133, 2019 WL 1349486, at *4 (W.D. 

Mich. March 26, 2019) (holding that ALJ considered plaintiff’s post-hearing objections and that 

based on the record plaintiff received a full and fair hearing) (citations omitted). Plaintiff’s 

contention of error is, therefore, OVERRULED. 

VII.CONCLUSION 

For the foregoing reasons, the Court concludes that substantial evidence supports the 

ALJ’s decision denying benefits. Accordingly, Plaintiff’s Statement of Errors is OVERRULED

and the Commissioner’s decision is AFFIRMED. 

 IT IS SO ORDERED 

Date: August 26, 2019 /s/ Elizabeth A. Preston Deavers_________ 

 ELIZABETH A. PRESTON DEAVERS 

CHIEF UNITED STATES MAGISTRATE JUDGE