The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
LUCY R. BROWN, CASE NO. 3:22 CV 1258
Plaintiff,
v. JUDGE JAMES R. KNEPP II
COMMISSIONER OF SOCIAL SECURITY,
Defendant. MEMORANDUM OPINION AND
ORDER
INTRODUCTION
Plaintiff Lucy R. Brown seeks judicial review of an adverse Social Security benefits
decision under 42 U.S.C. § 405(g). This case was referred to Magistrate Judge Carmen E.
Henderson for a Report and Recommendation (“R&R”) under Local Civil Rule 72.2(b)(2).
Judge Henderson recommends this Court affirm the Commissioner’s final decision. (Doc. 12).
Plaintiff filed objections to the R&R (Doc. 13), and the Commissioner filed a response thereto
(Doc. 14). For the reasons set forth below, the Court overrules Plaintiff’s objections, adopts the
R&R, and affirms the Commissioner’s decision.
PROCEDURAL BACKGROUND
Plaintiff filed for disability insurance benefits in 2019, alleging a disability onset date of
April 13, 2019. See Tr. 15. Following the administrative process, an administrative law judge
(“ALJ”) issued a written decision on April 6, 2021, finding Plaintiff not disabled. (Tr. 12-29). This
appeal ultimately followed. (Doc. 1).
Plaintiff raised one argument regarding the ALJ’s decision. She argues the ALJ
“improperly relied on the vocational witness’ testimony to conclude that [Plaintiff] could perform
other work within the national economy that existed in significant numbers.” (Doc. 8, at 2).
Plaintiff also characterizes the vocational expert’s (“VE”) testimony as “grossly inaccurate.” Id. at
6.
In her R&R, Judge Henderson concluded, in agreement with the ALJ, that (1) Plaintiff
waived her right to challenge the VE’s testimony on appeal, as she failed to raise her objection to
the VE during the hearing, and (2) even if the objection had been properly preserved, she did not
establish the VE’s testimony was invalid or that the residual functional capacity (“RFC”)
determined by the ALJ precluded Plaintiff from performing the jobs identified by the VE. (Doc.
12, at 9). She recommends the Court affirm the Commissioner’s decision. See Doc. 12.
STANDARD OF REVIEW
Under the relevant statute:
Within fourteen days of being served with a copy [of a Magistrate Judge’s R&R],
any party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court. A judge of the court shall make 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); see also FED. R. CIV. P. 72(b)(2)-(3).
In Social Security cases, the Court “must affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the correct legal standards or has made
findings of fact unsupported by substantial evidence in the record.” Walters v. Comm’r of Soc.
Sec., 127 F.3d 525, 528 (6th Cir. 1997); see also 42 U.S.C. § 405(g). “Substantial evidence is
defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007) (quoting Heston v. Comm’r
of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001)). If the Commissioner’s findings of fact are
supported by substantial evidence, those findings are conclusive. McClanahan v. Comm’r of Soc.
Sec., 474 F.3d 830, 833 (6th Cir. 2006).
DISCUSSION1
Plaintiff raises one objection to the R&R. Her objection, largely a restatement of her
argument on the merits, asserts the ALJ erroneously relied on the VE’s testimony and that “the
subsequent dismissal of [her] timely objection to that testimony significantly prejudiced” her
claim. (Doc. 13, at 2). Plaintiff does not make a specific objection to Judge Henderson’s R&R. A
“general objection to the entirety of a magistrate’s report, without specifying a single issue of
contention, fails to satisfy” the standard for de novo review by the district court. Howard v. Sec’y
of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991). Nevertheless, this Court has
reviewed the issue de novo and agrees with Judge Henderson’s conclusions.
When a plaintiff neither objects to a VE’s testimony during the administrative hearing nor
obtains permission from the ALJ to allow a post-hearing brief making such an objection, that
plaintiff “waives the right to subsequently object to that testimony and an ALJ has no obligation
to address unsolicited post-hea[r]ing objections to the VE testimony.” Murnahan v. Comm’r of
Soc. Sec., 2020 WL 7024847, at *6 (N.D. Ohio). Plaintiff did not seek or obtain such permission
from the ALJ, and indeed does not assert she did so, yet maintains that by submitting to the ALJ
an unsolicited post-hearing brief, she properly objected to the VE testimony at her hearing. (Doc.
13, at 4). As noted by the ALJ (Tr. 28-29), argued by the Commissioner (Doc. 9, at 1), and properly
concluded by Judge Henderson (Doc. 12, at 9), the law does not permit this. See Zimmerman v.
1. Neither party objects Judge Henderson’s summary of the medical record. Because the Court
incorporates the R&R into this Opinion, it need not repeat Plaintiff’s medical history, which was
thoroughly described by Judge Henderson.
Comm’r of Soc. Sec., 2019 WL 4736267, at *8 (N.D. Ohio) (collecting cases); Wyrock v. Comm’r
of Soc. Sec., 2020 WL 1322846, at *3 (N.D. Ohio); Fitzmaurice v. Comm’r of Soc. Sec., 2021 WL
6052163, at *6 (N.D. Ohio). Plaintiff waived her right to object to the VE’s testimony.
Even if Plaintiff had not waived this argument, she has not established any reason to set
aside the VE’s testimony. Plaintiff argued, in her merits brief as well as her objection to the R&R,
that the VE’s testimony – in relevant part, that Plaintiff could work as an electronic worker (for
which there were 240,000 jobs nationally), mailing clerk (120,000 jobs nationally), or final
inspector (80,000 jobs nationally) – overstated the number of available jobs in each of these
positions and ignored two limitations in Plaintiff’s RFC. (Doc. 8, at 10-13); (Doc. 13, at 5-6). The
Commissioner argues that because Plaintiff relied on sources other than the Dictionary of
Occupational Titles (“DOT”) for her assertions, her arguments fail. (Doc. 9, at 1); (Doc. 14, at 1).
Judge Henderson agreed with the Commissioner (Doc. 12, at 9), and so does this Court.
Plaintiff relied on Occu Collect, a private website which lists U.S. Bureau of Labor
Statistics data, and O*NET, a U.S. Department of Labor website, to argue the VE’s testimony was
incorrect. (Doc. 8, at 10-13). The applicable regulation instructs the ALJ and VE to “take
administrative notice of reliable job information available from various governmental and other
publications,” and lists as reliable sources the DOT (which is prepared by the Department of
Labor), County Business Patterns and Census Reports from the U.S. Bureau of the Census,
Occupational Analyses prepared by the Social Security Administration, and the BLS Occupational
Outlook Handbook. 20 C.F.R. § 404.1566(d).
Plaintiff argues “the VE’s testimony [is not] infallible like a medieval pope, omniscient
like the Oracle of Delphi, or unalterable like the tablets from Sinai.” (Doc. 13, at 4) (quoting Adams
v. Comm’r of Soc. Sec., 2020 WL 13505362, at *4 (N.D. Ohio)). But the regulations do not list
Plaintiff’s sources, Occu Collect and O*NET, as reliable sources, and, “in fact, in 2010, the SSA
determined that O*NET in its current form was not suitable for disability claims adjudication.”
O’Neal v. Comm’r of Soc. Sec., 799 F. App’x 313, 317 (6th Cir. 2020). Plaintiff’s objection to the
ALJ’s allowance of and reliance on the VE’s testimony is based on data the Social Security
Administration does not consider reliable. This Court therefore agrees with Judge Henderson’s
conclusions.
CONCLUSION
For the foregoing reasons, Plaintiff’s objections are OVERRULED, Judge Henderson’s
R&R (Doc. 12) is ADOPTED as the order of this Court, and the Commissioner’s decision is
AFFIRMED.
IT IS SO ORDERED.
s/ James R. Knepp II
UNITED STATES DISTRICT JUDGE