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Tracy D. v. Commissioner of Social Security Administration

United States District Court, N.D. Texas, Dallas Division

September 27, 2019

TRACY D., [1] Plaintiff,



         Plaintiff seeks judicial review pursuant to 42 U.S.C. § 405(g) of a final adverse decision of the Commissioner of the Social Security Administration. For the reasons explained below, the hearing decision is AFFIRMED.


         Plaintiff alleges that he is disabled due to a variety of physical impairments, including a broken right arm, high blood pressure, diabetes, and high cholesterol. See Administrative Record 165-82, 206 (“A.R.”) (ECF No. 14). After his applications for disability insurance benefits and supplemental security income were denied initially and on reconsideration, Plaintiff requested a hearing before an administrative law judge (“ALJ”). That hearing was held on January 25, 2017. See Id. 17. At the time of the hearing, Plaintiff was 47 years old. See Id. 18. He has a high school education and past work experience as a machinist. See Id. 38, 49.

         The ALJ found that Plaintiff was not disabled and therefore not entitled to disability benefits.[2] Although the medical evidence established that Plaintiff suffered from obesity, diabetes mellitus with neuropathy, hypertension, and right arm dysfunction status post humerus fracture, the ALJ concluded that the severity of those impairments did not meet or equal any impairment listed in the social security regulations. See Id. 20. The ALJ further determined that Plaintiff had the residual functional capacity (“RFC”) to perform a limited range of sedentary work, but could not return to his past work as a machinist. See Id. 21, 24. Relying on the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could work as a callout operator, a patcher, and a table worker-jobs that exist in significant numbers in the national economy. Id. 26. Therefore, the ALJ determined that Plaintiff was not disabled and not entitled to benefits. Id.

         Plaintiff appealed that decision to the Appeals Council. The Council affirmed. Plaintiff then filed this action in federal district court arguing that the ALJ erred in relying on faulty VE testimony, and the VE's testimony does not provide substantial evidence to support the ALJ's decision.

         Legal Standards

         Judicial “review of Social Security disability cases ‘is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard.'” Copeland, 771 F.3d at 923 (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)); see also Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (citation omitted). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation omitted); see also Copeland, 771 F.3d at 923 (“Substantial evidence is ‘more than a mere scintilla and less than a preponderance.'”) (quoting Perez, 415 F.3d at 461). The Commissioner, and not the courts, resolves conflicts in the evidence; thereafter, the Court may not “reweigh the evidence or try the issues de novo.” Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995) (per curiam) (citing Cook v. Heckler, 750 F.2d 391, 392-93 (5th Cir. 1985); Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983) (per curiam)). Accordingly, the Court may not substitute its own judgment for the Commissioner's, and it may affirm only on the grounds that the Commissioner stated to support his decision. Copeland, 771 F.3d at 923 (citing Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002) (per curiam)).


         Although the ALJ found that Plaintiff could not return to his job as a machinist, the ALJ determined Plaintiff was not disabled for purposes of receiving benefits because Plaintiff could perform other work-including the job of callout operator.[3] A.R. 26. In making this determination, the ALJ relied on VE testimony that a hypothetical person of Plaintiff's age, education, work experience, and functional limitations could work as a callout operator. Id. 52-54. Plaintiff argues the ALJ erred in relying on the VE testimony because it is contrary to the requirements for the callout operator job that are reported by the supplement to the Dictionary of Occupational Titles (“DOT”) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (“SCO”).

         The Department of Labor promulgated the DOT to provide “standardized occupational information to support job placement activities.” See Dep't of Labor, D.O.T. at xv (4th ed. 1991). The DOT, along with a companion volume-the SCO, contains descriptions of the requirements for thousands of jobs in the national economy and classifies those jobs based on various factors. According to the DOT and the SCO, the callout operator job requires, among other things, “occasional” reaching. DICOT 237.367-014; SCO 341. Because the ALJ found that Plaintiff could never reach overhead bilaterally, see A.R. 21, Plaintiff argues there is a conflict between the VE's testimony and the applicable DOT job description.

         Occupational evidence provided by a VE generally should be consistent with the occupational information supplied in the DOT. Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). But the DOT does not include every specific skill qualification for a particular job. Carey v. Apfel, 230 F.3d 131, 145 (5th Cir. 2000). And, the Fifth Circuit has warned against giving DOT job descriptions a role that is exclusive of more specific vocational expert testimony with respect to the effect of an individual claimant's limitations on his or her ability to perform a particular job. See Id. A direct conflict between VE testimony and the DOT may arise when the VE's testimony concerning the exertional or skill level of a job is facially different from the description of the job found in the DOT. Id. When a “direct and obvious conflict” exists between the DOT and the VE's testimony, the ALJ must explain or resolve the conflict. Id. If the ALJ does not resolve the conflict, the weight of the VE's testimony is lessened such that reversal and remand for lack of substantial evidence usually follows. Id. at 146. On the other hand, when a conflict is implied or indirect, the ALJ can accept and rely upon the VE's testimony provided the record reflects an adequate basis for doing so. See id. at 146; see also Gaspard v. Soc. Sec. Admin. Comm'r, 609 F.Supp.2d 607, 613 (E.D. Tex. 2009) (affirming Commissioner's decision to rely on VE testimony despite implied conflict where adequate evidence supported VE testimony).

         In this case, there is no direct and obvious conflict between the DOT and the VE‘s testimony. The DOT's narrative description for the callout operator job does not specifically state, or otherwise indicate, that overhead reaching is required. Rather, the DOT describes the relevant job duties to include:

Compiles credit information, such as status of credit accounts, personal references, and bank accounts to fulfill subscribers' requests, using telephone. Copies information onto form to update information for credit record on file, or for computer input. Telephones subscriber to relay requested ...

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