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Morales v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

December 14, 2017

DIANA L. MORALES, Plaintiff,
Acting Commissioner of the Social Security Administration, Defendant.



         Diana 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 proceedings.


         The 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.

         An ALJ 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.)

         On 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).


         The 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).

         The 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 remand.

         The 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).

         Social 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 ...

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