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Everhart v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

January 17, 2018

ROBIN L. EVERHART, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF REMAND

          Tim A. Baker United States Magistrate Judge

         Plaintiff 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 Commissioner's decision.

         I. Background

         Everhart 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.

         At step 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.]

         The ALJ 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.]

         The Appeals Council denied review and this appeal followed.

         II. Discussion

         The 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. Id.

         Everhart's 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. 2008).

         At the 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.

         The ALJ 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.

         After 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 p. 40.]

         Thus, 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 reliability ...


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