NEAL II v. COMMISSIONER OF SOCIAL SECURITY (2020)

ORDER

Hugh O’Neal II, proceeding through counsel, appeals the district court’s judgment affirming the denial of his claim for social security disability insurance benefits (“DIB”). See 42 U.S.C. § 405(g). The vocational expert at O’Neal’s administrative hearing testified that O’Neal was able to work as a surveillance-system monitor and noted that 60,000 surveillance-system monitor jobs existed in the economy based on the U.S. Department of Labor’s Directory of Occupational Titles (“DOT”). Because we find that courts can still rely on the DOT data referenced by vocational experts, the provided information constituted substantial evidence. We affirm.

I.

In July 2014, O’Neal applied for DIB, claiming that he had been disabled since June 2013 due to rheumatoid arthritis. The Social Security Administration (“SSA”) denied O’Neal’s application. After an administrative hearing, an Administrative Law Judge (“ALJ”) found that O’Neal was not disabled. The ALJ found that O’Neal suffered from the following severe impairments: (1) rheumatoid arthritis; (2) left shoulder rotator cuff syndrome; and (3) a history of bilateral carpal tunnel syndrome. The ALJ concluded, however, that O’Neal did not have an impairment or combination of impairments that met or was medically equal to an impairment listed in 20 C.F.R. pt. 404, subpt. P, app. 1. The ALJ made a residual functional capacity (“RFC”) determination, finding that O’Neal could perform all or substantially all the requirements for sedentary work with several specific limitations. The ALJ found that O’Neal could not perform his past relevant work as a picker packer, lawn service worker, and food runner, but, according to a vocational expert’s testimony at the hearing, O’Neal could perform work as a surveillance-system monitor, with 60,000 positions existing in the national economy. Concluding that O’Neal was able to make a successful adjustment to other work that existed in significant numbers in the national economy, the ALJ denied his claim for DIB. This became the final decision of the Commissioner when the Appeals Council denied O’Neal’s request for review. See 20 C.F.R. § 404.981.

O’Neal filed a civil action for judicial review of the Commissioner’s decision. He and the Commissioner filed cross-motions for summary judgment, and a magistrate judge recommended that O’Neal’s motion for summary judgment be granted and that the Commissioner’s motion be denied. Based on this court’s unpublished decision in Cunningham v. Astrue, 360 F. App'x 606 (6th Cir. 2010), the magistrate judge found that the ALJ failed to consider, among other things, the reliability of the vocational expert’s testimony that jobs in the surveillance-system monitor category exist in significant numbers in the national economy. She therefore recommended that the matter be remanded under sentence four of 42 U.S.C. § 405(g) for further consideration of this issue.

The Commissioner filed objections, and the district court rejected the magistrate judge’s report and recommendation. The court found that the ALJ properly relied on the vocational expert’s testimony that O’Neal could perform a significant number of jobs as a surveillance-system monitor and that her testimony was consistent with the DOT. The court explained that, because O’Neal’s counsel never cross-examined the vocational expert about the surveillance-system monitor job, “the ALJ had no reason to probe ‘the availability or accessibility of such positions,’ as suggested by the report and recommendation.”

The issue on appeal is whether the ALJ erred in relying on the vocational expert’s testimony about the DOT surveillance-system monitor job description to find that jobs existed in significant numbers in the national economy that O’Neal could perform. O’Neal argues that “[t]he DOT description of this job is obsolete, and the limited questioning on this topic at the hearing was insufficient to establish that there really are such jobs in significant numbers that are suitable” for his RFC and vocational profile.

II.

We review de novo district court decisions in social security cases. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Our review is limited to determining whether the Commissioner’s findings of fact, as set forth in an ALJ’s decision, are supported by substantial evidence and whether the Commissioner applied the correct legal standards. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). A decision is supported by substantial evidence when “a ‘reasonable mind might accept’ the relevant evidence ‘as adequate to support a conclusion.’ ” Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)). We must defer to an ALJ’s findings if they are supported by substantial evidence, even if substantial evidence also supports the opposite conclusion. Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604-05 (6th Cir. 2009).

III.

In determining whether a DIB claimant is disabled under the Social Security Act, the Commissioner uses a five-step sequential evaluation process. 20 C.F.R. § 404.1520. First, the Commissioner determines whether the claimant is engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i). If not, the Commissioner considers whether the claimant has a severe medical impairment. Id. § 404.1520(a)(4)(ii). If the claimant has a severe medical impairment, the Commissioner proceeds to the third step and determines whether the claimant’s impairment meets or equals one of the impairments listed at 20 C.F.R. pt. 404, subpt. P, app. 1. Id. § 404.1520(a)(4)(iii). If the claimant’s impairment does not meet or equal one of the listed impairments, the Commissioner then assesses the claimant’s RFC and determines whether he can perform his past relevant work. Id. § 404.1520(a)(4)(iv). Finally, at the fifth step, if the claimant cannot perform his past relevant work, the Commissioner considers the claimant’s RFC, age, education, and work experience to determine whether he can adjust to other work. Id. § 404.1520(a)(4)(v). Here, the ALJ denied O’Neal’s claim at the fifth step.

At steps one through four of the sequential analysis, the claimant bears the burden of proof, but at step five, “the burden shifts to the Commissioner ․ to show ‘a significant number of jobs in the economy that accommodate the claimant’s residual functional capacity ․ and vocational profile.’ ” Kyle, 609 F.3d at 855 (quoting McGlothin v. Comm’r of Soc. Sec., 299 F. App'x 516, 522 (6th Cir. 2008)). To meet the burden, the Commissioner must prove that the claimant has the vocational qualifications to perform specific jobs and may rely on a vocational expert’s testimony in response to a hypothetical question about the claimant’s impairments and abilities. Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 238 (6th Cir. 2002).

We have explained that the task of determining what constitutes a “significant number” of jobs in the national economy is a difficult one and have identified the following factors that may be considered in making this determination: “the level of claimant’s disability; the reliability of the vocational expert’s testimony; the reliability of the claimant’s testimony; the distance claimant is capable of travelling to engage in the assigned work; the isolated nature of the jobs; the types and availability of such work, and so on.” Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988). But “these factors [a]re suggestions only—the ALJ need not explicitly consider each factor.” Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999).

O’Neal argues that the vocational expert’s testimony was unreliable because it is unlikely that surveillance-system monitor jobs described in the DOT listing currently exist in significant numbers in the national economy. He contends that the DOT listing is obsolete and that “the mere identification of this job is insufficient to satisfy the Commissioner’s burden of proof at step five.” He primarily relies on our unpublished, split decision in Cunningham.

In Cunningham, the claimant challenged the finding that he could perform a document preparer or surveillance-system monitor job and the finding that a significant number of these jobs existed in the national economy. 360 F. App'x at 614-15. The claimant argued that the vocational expert based his testimony on obsolete DOT job descriptions and that his testimony was therefore not reliable. Id. at 615. In a 2-1 decision, a panel of this court found the record insufficient to address Cunningham’s claim and remanded the matter for further consideration. Id. at 615-16. Noting that the DOT was more than a decade old when the ALJ heard Cunningham’s claim, the panel deemed the document preparer and surveillance-system monitor job descriptions “potentially vulnerable” as “obsolete” and explained that “common sense dictates that when such [DOT] descriptions appear obsolete, a more recent source of information should be consulted.” Id. at 615.

The panel noted that, at the time of the hearing before the ALJ, the Department of Labor had adopted a more current database of job descriptions—the Occupational Information Network (“O*NET”)—which did not include the document preparer and surveillance-system monitor descriptions relied on by the vocational expert. Id. at 616. The panel thus concluded that “the [vocational expert]’s dependence on the DOT listings alone does not warrant a presumption of reliability.” Id.

Several lower courts in this circuit have followed Cunningham and remanded matters to the ALJ because the vocational expert’s reliance on potentially obsolete job descriptions from the DOT raised sufficient doubt whether the ALJ’s step five determination was supported by substantial evidence. See, e.g., Wright v. Berryhill, No. 4:18-CV-00021, 2019 WL 498855, at *9 (W.D. Ky. Feb. 8, 2019); Westmoreland v. Berryhill, No. 3:17-cv-00096, 2018 WL 1522118, at *4 (S.D. Ohio Mar. 28, 2018); Rollston v. Comm’r of Soc. Sec., No. 1:16-CV-168, 2016 WL 6436676, at *4 (W.D. Mich. Nov. 1, 2016).

Other courts, however, have declined to follow Cunningham and criticized its reasoning. See, e.g., Kidd v. Berryhill, No. 5:17-CV-420-REW, 2018 WL 3040894, at *7-10 (E.D. Ky. June 19, 2018); Montano v. Comm’r of Soc. Sec., No. 1:13-cv-70, 2014 WL 585363, at *15 (S.D. Ohio Feb. 14, 2014); Belew v. Astrue, No. 2:11-107-DCR, 2012 WL 3027114, at *9-10 (E.D. Ky. July 24, 2012); see also Webb v. Comm’r of Soc. Sec., No. 16-11786, 2017 WL 2312827, at *10 (E.D. Mich. Apr. 25, 2017) (describing the “split” among courts in this circuit “as to whether the job ‘surveillance-system monitor’ can furnish, on its own, a significant number of jobs in the national economy”).

Recognizing the apparent confusion among some of the lower courts about whether the DOT continues to be a reliable source of information at step five, we clarify that the DOT data can establish the existence of jobs in the national economy in significant numbers. Although the court remanded to the ALJ in Cunningham for further consideration at step five, the panel did not conclude categorically that the DOT was an obsolete and unreliable source of job information. The current regulation governing this inquiry lists the DOT as a source of “reliable job information.” 20 C.F.R. § 404.1566(d)(1). The regulation does not list O*NET as a reliable source. And, in fact, in 2010, the SSA determined that O*NET in its current form was not suitable for disability claims adjudication. See Occupational Infor. Dev. Advisory Panel, Findings Report: A Review of the National Academy of Sciences Report, Report to the Comm’r of Soc. Sec. 1, 8 (June 28, 2010), https://www.ssa.gov/oidap/Documents/COMPLETE%20FINAL-Findings%20Report%20OIDAP%20062810.pdf.¹

What is more, in Kyle, published after Cunningham, we reiterated that the ALJ can rely on the DOT to establish that work exists in the national economy. 609 F.3d at 855. We follow Kyle here. And we note that no binding post-Cunningham decision from this court has remanded to the Commissioner based on a vocational expert’s reliance on the DOT.

Kyle also noted that the ALJ can rely on vocational expert testimony. Id. All that is required before an ALJ can rely on vocational evidence provided by a vocational expert is that the ALJ either ensure that the evidence does not conflict with the information in the DOT or obtain a reasonable explanation for any conflict. See Lindsley, 560 F.3d at 603 (citing SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000)); see also Gallo v. Comm’r of Soc. Sec. Admin., 449 F. App'x 648, 650 (9th Cir. 2011) (“[Vocational expert] testimony may become unreliable on account of a conflict with the DOT, but not on account of its compliance with the DOT.” (citation omitted)).

The ALJ satisfied this requirement when she asked the vocational expert whether her testimony aligned with the DOT. Contrary to O’Neal’s suggestion, the ALJ was under no duty “to conduct an independent investigation” into the vocational expert’s testimony to determine whether it was correct. Martin v. Comm’r of Soc. Sec., 170 F. App'x 369, 374 (6th Cir. 2006). O’Neal had a chance to cross-examine the vocational expert during the hearing, and he did not. We cannot know if cross-examination would have suggested that the surveillance-system monitor job was in fact obsolete. For example, a cross-examination could have shown that the surveillance-system monitor job requires far more training than it did when the DOT was created.

Because the DOT continues to be recognized as a source of reliable job information and O’Neal did not cross-examine the vocational expert when he had the opportunity, the vocational expert’s testimony constitutes substantial evidence to support the ALJ’s finding that O’Neal was able to perform work that existed in significant numbers in the national economy.

Accordingly, we AFFIRM the district court’s judgment.

FOOTNOTES

1.   The United States Department of Labor replaced the DOT with O*NET. See Dictionary of Occupational Titles (4th Ed., Rev. 1991) — Occupational Group Arrangement, United States Department of Labor, https://www.oalj.dol.gov/PUBLIC/DOT/REFERENCES/DOT03B.HTM (last visited Sept. 12, 2019). But the SSA still declines to use O*NET in disability proceedings. See Benefit Offset National Demonstration, Social Security Administration, https://www.ssa.gov/disabilityresearch/ois_project_faqs.html (last visited Sept. 11, 2019). The SSA recognizes the potential issue with obsolete occupational data and is currently developing its own primary source of occupational information (OIS) to replace the DOT in the disability adjudication process. See id. The SSA expected to complete data collection for OIS in March of this year. Id.