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Thompson v. Berryhill

United States District Court, D. Utah, Central Division

March 29, 2018

Sonya K. Thompson Plaintiff,
Nancy A. Berryhill, Defendant.


          Brooke C. Wells United States Magistrate Judge

         Plaintiff, Sonya K. Thompson, filed for disability insurance benefits and supplemental security income on November 15, 2013.[1] She claims disability due to bilateral knee replacements, hypertension depression, and a pelvic fracture.[2] Her applications were denied. On March 29, 2018, the court heard oral argument on Ms. Thompson's appeal. Karl Osterhout appeared for Plaintiff and James Burgess appeared for Defendant. Prior to the hearing, counsel for each party submitted supplemental authority that the court considered.[3] After careful review of the record, the parties' briefs, arguments presented at the hearing, and the supplemental authority, the court concludes the Commissioner's decision is supported by substantial evidence and is free of harmful legal error. The Commissioner's decision is therefore affirmed.

         Ms. Thompson raises two issues on appeal. First, she alleges the “ALJ erred in relying on vocational expert testimony to fulfill his step 5 burden without addressing post-hearing objections to the vocational expert's testimony.”[4] Second, Ms. Thompson argues the ALJ's analysis of the medical opinion evidence is “contrary to law and not supported by substantial evidence.”[5]

         I. Any error in not addressing the post hearing objections was harmless.

         Following the hearing before the Administrative Law Judge (ALJ), Plaintiff filed a post-hearing memorandum and objection to the vocational witness' testimony.[6] Specifically, Plaintiff “objected to the jobs named by the vocational expert as fitting the ALJ's hypothetical assumption, given up to date and reliable information obtained from the U.S. Department of Labor.”[7] The ALJ did not rule on these objections and Plaintiff argues this was a violation of the Hearings, Appeals, and Litigation Law Manual (HALLEX). The HALLEX is the Social Security Agency's internal guidelines for processing and deciding claims under the Social Security Act.[8] The HALLEX provides that an ALJ must on the record, ask a claimant and their representative whether they have any objections to the vocational expert testifying and rule on any objections. “The ALJ may address the objection(s) on the record during the hearing, in narrative form as a separate exhibit, or in the body of his or her decision.”[9] Here there were no objections to the vocational expert testifying, [10] but the ALJ did not rule on the post-hearing objections.

         In Butterick v. Astrue, [11] the Tenth Circuit relied on authority from the Fifth Circuit, [12] in assuming without deciding, that relief may be granted for prejudicial violations of the HALLEX.[13] Plaintiff's alleged prejudice centers on the use of the dictionary of occupational titles (DOT) that is “outdated” and should not be the “gold standard” used by the Social Security Administration. Plaintiff urges the use of O*NET, rather than the DOT, which is “an obsolete and static database that is no longer being developed or enhanced by the United States Department of Labor.”[14] These alleged errors are magnified by the fact that they were made at step five of the sequential evaluation process.[15]

         At step five, there is a shift in the burden to the Commissioner to demonstrate that other work exists in significant numbers in the national economy that a claimant can perform.[16] To meet this burden of production an ALJ may rely on the testimony of a vocational expert.[17] The Social Security Agency's regulations provide that when determining whether “unskilled, sedentary, light, and medium jobs exist in the national economy”[18] in significant numbers, administrative notice will be taken from various governmental and other publications. These include:

(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.[19]

         Thus the use of the DOT is specifically permissible by the regulations. Further, the Tenth Circuit has recognized the use of the DOT by an ALJ in reaching decisions as proper.[20] The undersigned finds the vocational expert did not err in using the DOT.

         In the Tenth Circuit an ALJ need not discuss all the evidence when rendering a decision.[21] Any failure by the ALJ here to discuss objections to the reliance on the DOT, which is allowable under the regulations, is inconsequential and at most harmless error.[22]

         During oral argument Plaintiff's counsel expressed additional concerns of Constitutional due process violations on account of the ALJ's failure to address Plaintiff's objections to the vocational expert. But, there is no due process violation where, as here, the alleged violation stems from the use of a governmental publication that is authorized by regulation.

         II. The ALJ did not err in the analysis of ...

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