United States District Court, N.D. Indiana, Fort Wayne Division
DIANA L. MORALES, Plaintiff,
Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Morales appeals the denial of her application for
supplemental security income (SSI). For the reasons set forth
in this Opinion and Order, the matter is remanded for further
Plaintiff was born in 1963 and has a ninth grade education.
She has worked in the past as a cashier, deli worker, and
fruit packer. In June 2013, at the age of fifty, the
Plaintiff applied for SSI. She alleged that she was unable to
work due to past cerebral aneurysm, Barrett's esophagus,
chronic back pain, high blood pressure, chronic obstructive
pulmonary disease, depression, and arthritis. The
Commissioner denied her initial application for disability
benefits, and her request for reconsideration. On March 13,
2014, she filed a request for hearing.
conducted a hearing on August 20, 2015. In a decision issued
on September 14, 2015, the ALJ denied her claim. Applying the
five-step analysis used to evaluate disability, see
20 C.F.R. § 404.1520(a)-(g), the ALJ found that: (1) the
Plaintiff had not performed substantial work since the
application date; (2) several of her impairments were severe
under the regulations; (3) the medically determinable
impairments did not equal a listed impairment; (4) she was
unable to perform any of her past work; and (5) she was
“able to perform work existing in significant numbers
in the national economy, ” such as survey worker,
dealer accounts investigator, and bonder. (R. 38.)
September 30, 2015, the Plaintiff requested a review of the
hearing decision with the Appeals Council, which subsequently
affirmed the decision of the ALJ on December 15, 2016. On
January 20, 2017, the Plaintiff filed a complaint for
judicial review pursuant to 42 U.S.C. § 405(g).
decision of the ALJ is the final decision of the Commissioner
when the Appeals Council denies a request for review.
Liskowitz v. Astrue, 559 F.3d 736, 739 (7th Cir.
2009). A court will affirm the Commissioner's findings of
fact and denial of disability benefits if they are supported
by substantial evidence. Craft v. Astrue, 539 F.3d
668, 673 (7th Cir. 2008). 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). It must be
“more than a scintilla but may be less than a
preponderance.” Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007). Even if “reasonable minds
could differ” about the disability status of the
claimant, the court must affirm the Commissioner's
decision as long as it is adequately supported. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Plaintiff asserts that remand is necessary because the ALJ
committed error during step five when she relied on findings
that were inconsistent with and unsupported by the vocational
expert's (VE) testimony, and when she failed to ask the
VE whether any of her testimony conflicted with the
Dictionary of Occupational Titles (DOT). The Defendant
responds that no remand is necessary because, although the
ALJ cited to the wrong VE testimony, this constitutes
harmless error, as does the failure to inquire about
conflicts. The Defendant argues that, because the VE's
testimony provides substantial support for the ALJ's
findings, and because there was no actual or apparent
conflict with the DOT, the ALJ would reach the same result on
Commissioner bears the step-five burden of establishing that
the claimant can, considering her residual functional
capacity (RFC), age, education, and work experience, perform
other work that “exists in significant numbers in the
national economy.” 20 C.F.R. § 414.960(c). In
making the step five determination, the ALJ generally relies
on the DOT for information about the typical characteristics
of jobs as they exist in the economy. An ALJ is required to
take administrative notice of job information contained in
various publications, including the DOT, published by the
Department of Labor. See 20 C.F.R. §
404.1566(d)(1). The ALJ often also relies on testimony from a
VE to “supplement the information provided in the DOT
by providing an impartial assessment of the types of
occupations in which claimants can work and the availability
of positions in such occupations.” Weatherbee v.
Astrue, 649 F.3d 565, 569 (7th Cir. 2011).
Security Ruling (SSR) 00-4p requires an ALJ who takes
testimony from a VE or vocational specialist (VS) to
“[i]dentify and obtain a reasonable explanation for any
conflicts between occupational evidence provided by the VEs
or VSs and information provided in the Dictionary of
Occupational Titles (DOT).” To this end, the Ruling
sets out the ALJ's affirmative duty:
The Responsibility To Ask About Conflicts
When a VE or VS provides evidence about the requirements of a
job or occupation, the adjudicator has an affirmative
responsibility to ask about any possible conflict between
that VE or VS evidence and information provided in the DOT.
In these situations, the adjudicator will:
•Ask the VE or VS if the evidence he or she has provided
conflicts with information ...