United States District Court, S.D. Indiana, New Albany Division
ROBIN L. EVERHART, Plaintiff,
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF
Baker United States Magistrate Judge
Robin L. Everhart appeals the Commissioner's denial of
her applications for disability insurance benefits and
supplemental security income benefits. Everhart raises two
arguments. First, she contends the Administrative Law Judge
erred in relying on the vocational expert's testimony
without properly addressing her objections to that testimony.
Second, she argues the ALJ failed to properly evaluate the
opinions of her treating physician, George Raque, M.D., and
the consultative examiner, Marc B. Willage, M.D. The Court
finds that the ALJ did not err and affirms the
applied for Social Security benefits, alleging disability
beginning on July 9, 2013. Her claims were denied initially
and upon reconsideration. Everhart, represented by counsel,
testified at a hearing before an ALJ. A vocational expert
also testified. Thereafter, the ALJ issued his decision,
finding Everhart not disabled.
one, the ALJ determined Everhart has not engaged in
substantial gainful activity since July 9, 2013, the alleged
onset date. [Filing No. 13 at ECF p. 27.] At step
two, he found she has severe impairments of disorder of the
cervical and lumbar spine, chronic obstructive pulmonary
disease, anxiety, and affective disorder. [Id.] At
step three, the ALJ concluded Everhart does not have any
impairment or combination of impairments that meets or equals
the severity of a listing. [Id. at 28.]
found Everhart has the residual functional capacity to
perform a limited range of light work. [Filing No. 13 at
ECF p. 31.] At step four, based on this RFC, he decided
Everhart was unable to perform any of her past work.
[Id. at ECF p. 39.] At step five, given her age,
education, work experience, and RFC and the vocational
expert's testimony, the ALJ found Everhart was able to
perform work that exists in significant numbers in the
national economy such as router, mail clerk, and price
marker. [Id. at 40.] Therefore, he concluded she was
not disabled under the Social Security Act. [Id.]
Appeals Council denied review and this appeal followed.
Court reviews the ALJ's decision to determine whether the
ALJ applied the correct legal standard and whether
substantial evidence supports the decision. Summers v.
Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). This
review is deferential; the Court does not reweigh the
evidence or substitute its judgment for that of the ALJ.
first argument is that the ALJ erred in relying on the
vocational expert's testimony without properly addressing
her post-hearing objections to that testimony. When the
ALJ's step-five determination is based on a vocational
expert's testimony, that testimony must be reliable.
Britton v. Astrue, 521 F.3d 799, 803 (7th Cir.
hearing before the ALJ, Everhart's counsel said that
Everhart had no objection to the vocational expert's
qualifications, but he “typically” objects to the
extent the expert testifies about the number of jobs that
exist in the economy because the vocational expert is not
qualified as a numbers expert. [Filing No. 13 at ECF p.
84.] The ALJ posed a hypothetical to the vocational
expert, asking him to assume a person of Everhart's age,
education, work experience, and an RFC for a limited range of
light work and asked if there were any light, unskilled jobs
such a person could perform. [Id. at ECF pp. 80-81.]
The vocational expert answered that jobs existed that such a
person could perform and gave examples of a router position,
a mail clerk, and a price marker. [Id. at ECF p.
81.] The expert stated that in the national economy there
were approximately 145, 000 router positions, 41, 000 mail
clerk positions, and 162, 000 price marker positions.
[Id.] Everhart's counsel did not object to the
testimony about the number of jobs.
inquired of the vocational expert about where he obtained the
job numbers, and the expert identified the Job Browser Pro
program in SkillTRAN in combination with the Bureau of Labor
Statistics, and “SOC codes.” [Id.] Thus,
the vocational expert testified as to the source of his job
numbers. When Everhart's counsel questioned the
vocational expert, he asked how current the job numbers were.
[Id. at ECF p. 88.] The expert stated that he had
updated the numbers within the last six months.
[Id.] Counsel did not question the expert about the
basis for his opinions or challenge their foundation.
the hearing, however, Everhart submitted a memorandum to the
ALJ objecting to the vocational expert's testimony and
challenging the foundation for his opinions, including his
testimony about the number of jobs in the national economy.
[Filing No. 13-1 at ECF pp. 1-6.] The ALJ addressed
the post-hearing memorandum in his decision, noting it
asserted the vocational expert's testimony was
“‘unfounded, unsupported, unreliable and conjured
from whole cloth.'” [Filing No. 13 at ECF p.
24 (quoting Filing No. 13-1 at ECF p. 1).] The
ALJ also referred to counsel's objections to the
vocational expert's qualifications and the expert's
testimony about the number of jobs in the national economy.
[Id.] In his decision, the ALJ wrote that he
“does not find the arguments persuasive, and further
finds the vocational expert's testimony to be qualified
and credible.” [Id.] The ALJ denied the
request for a supplemental hearing for the purpose of
objecting to the expert's testimony. The ALJ determined
that the vocational expert's testimony was consistent
with the information in the Dictionary of Occupational
Titles (the “DOT”) and his
testimony was “based not only on the DOT, but
also on his 25 years of experience in the field, training and
Job Browser Pro/SkillTRAN.” [Filing No. 13 at ECF
contrary to Everhart's assertion, the ALJ did rule on her
post-hearing objections to the vocational expert's
testimony. Importantly, the ALJ rejected her challenge to the