United States District Court, E.D. Michigan, Southern Division
Rhonda J. Verdone, Plaintiff,
Commissioner of Social Security, Defendant.
Stephanie Dawkins Davis, United States Magistrate Judge
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDTION
[#13] DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
[#11] AND GRANTING DEFEDANT'S MOTION FOR SUMMARY
Gershwin A. Drain United States District Court Judge
matter is before the Court on Plaintiff's appeal of the
social security commissioner's decision to deny her
social security disability benefits. Plaintiff filed an
application for social security disability benefits on
November 18, 2011. Dkt. No. 11, pg. 7 (Pg. ID 728). The
administrative law judge (ALJ) denied her application on
October 12, 2012. Id. At Plaintiff's hearing,
the ALJ found that Plaintiff's residual functional
capacity limited her to work that requires occasional
handling. Id. at pg. 8 (Pg. ID 729). The vocational
expert (VE) who testified at the hearing stated that
Plaintiff could perform jobs such as greeter/information
clerk, lobby attendant/ticket taker, and visual inspector.
Id. The dictionary of occupational titles (DOT)
describes these jobs as requiring frequent handling. However,
the VE testified that in his experience, greeter jobs only
require occasional handling. Id. Therefore, the ALJ
found that Plaintiff could perform a significant number of
jobs in the economy and denied her benefits. Dkt. No. 13, Pg.
4 (Pg. ID 759). Plaintiff filed an appeal, and the appeals
council remanded the claim on February 7, 2014. Dkt. No. 11,
pg. 7 (Pg. ID 728). In its remand, the appeals council
instructed the ALJ to identify and resolve any conflicts
between the occupational evidence the vocational expert
provided and the DOT. Id. at pg. 8 (Pg. ID 729).
different ALJ conducted a new hearing on December 9, 2014.
Id. at pg. 14 (Pg. ID 735). The ALJ concluded that
Plaintiff could perform light work with occasional handling,
needed close proximity to a bathroom, and needed a sit/stand
option at will not to exceed thirty minutes at a time.
Id. The ALJ posed a hypothetical question to the VE
in which she asked about jobs in which Plaintiff would have a
sit/stand option not exceeding ten minutes at a time. Dkt.
No. 13, pg. 10 (Pg. ID 765). The ALJ then found that claimant
was not disabled. The appeals council granted review of the
decision on April 29, 2016 and affirmed the decision of the
ALJ. Id. at pg. 9 (Pg. ID 730).
appealed the decision to this Court on November 29, 2016.
Dkt. No. 1. On November 29, 2016, this Court referred the
case to Magistrate Judge Stephanie Dawkins Davis. Dkt. No. 3.
On February 25, 2017, Plaintiff filed her Motion for Summary
Judgment. Dkt. No. 11. Plaintiff's Motion alleged that
the hypothetical posed by the ALJ to the VE was flawed
because it did not accurately describe her condition.
Id. at pg. 12 (Pg. ID 733). Plaintiff also alleged
that the testimony given by the VE was not sufficient to
resolve the discrepancy between the VE, the DOT, and the
Selected Characteristics of Occupations (SCO). Id.
at pg. 15 (Pg. ID 736). On April 4, 2017, Defendant filed her
Motion for Summary Judgment. Dkt. No. 12. In her Motion,
Defendant stated that the decision to deny benefits was
supported by substantial evidence in the record. Id.
at pg. 1 (Pg. ID 742). On February 20, 2018, Magistrate Judge
Dawkins Davis issued a Report and Recommendation recommending
that this Court deny Plaintiff's Motion for Summary
Judgment and grant Defendant's Motion for Summary
Judgment. Dkt. No. 13. On February 28, 2018, Plaintiff filed
an objection to the Report and Recommendation, again stating
that the testimony of the VE was not sufficient for the ALJ
to rely on. Dkt. No. 14. Defendant filed a response to
Plaintiff's objection on March 2, 2018. Dkt. No. 15.
Court employs “a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636 (b)(1)(C). This Court “may accept, reject or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Id. However,
when objections are “merely perfunctory responses . . .
rehashing . . . the same arguments set forth in the original
petition, reviewing courts should review [a Report and
Recommendation] for clear error.” Ramirez v.
U.S., 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012).
Plaintiff makes one objection to the Magistrate Judge's
Report and Recommendation. Plaintiff contests the validity of
the VE's testimony. Plaintiff states that it is
impossible to judge the validity of the VE's testimony
“without numbers to quantify the placement of worker[s]
in the local market or specific account and numbers of his
observance of [greeter and lobby attendant] positions.”
Dkt. No. 14, pg. 5 (Pg. ID 782). Plaintiff also states that
the VE did not provide testimony from any other type of
reliable publications to corroborate his testimony.
objection rehashes the same argument made in her Motion for
Summary Judgment. See Dkt. No. 11, pg. 16-17 (Pg. ID
737-38). In her Motion for Summary Judgment, Plaintiff
“[t]he VE did not provide testimony regarding the
number of greeter positions that he observed . . . and he did
not provide the number of greeter positions in which he
placed people . . . that only required occasional handling.
It is unknown if the VE placed numerous individuals into
greeter positions that involved occasional handling or did he
place only one or two individuals. It is unknown if the
greeter positions that were observed by the VE were rarities
. . . it is not known if the greeter positions observed by
the VE were at one location for one employer or were they
observed at multiple locations with numerous employers. The
VE did not testify that his opinion . . . was based upon
other publications, professional journals or other
Dkt. No. 11, pg. 16-17 (Pg. ID 737-38). Both Plaintiff's
Motion and her objection argue that the VE did not adequately
lend support to his testimony. Plaintiff does not articulate
a new argument to the Magistrate Judge's Report and
Recommendation. Therefore, Plaintiff's objection states
the same arguments that she raised in her Motion such that
this Court will review the Report and Recommendation for
Report and Recommendation states that Plaintiff has not
pointed to any authority that the ALJ erred in his findings
based on the VE's testimony. Dkt. No. 13, pg. 19 (Pg. ID
774). The Report states that neither the ALJ nor the VE have
to rely on the DOT. Id. (citing Wright v.
Massanari, 321 F.3d 611, 616 (6th Cir. 2003)). And if
there is a discrepancy between the VE and the DOT, the ALJ
must obtain a reasonable explanation for the conflict.
Id. (citing SSR 00-4p, 2000 WL 1898704, at *4). The
Magistrate Judge concluded that the ALJ fully complied with
the law when he asked the VE about the discrepancies between
his opinions and the DOT. Id. (citing Johnson v.
Comm'r of Soc. Sec., 535 F. App'x 498, 508 (6th
Cir. 2013). Upon review of Sixth Circuit precedent and other