Smith v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KIMBERLY M. SMITH,
Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
CASE NO. 1:25-cv-1085
DISTRICT JUDGE
CHARLES ESQUE FLEMING
MAGISTRATE JUDGE
JAMES E. GRIMES JR.
REPORT &
RECOMMENDATION
Plaintiff Kimberly Smith filed a Complaint against the Commissioner of
Social Security seeking judicial review of the Commissioner’s decision denying
supplemental security income. This Court has jurisdiction under 42 U.S.C. §§
405(g) and 1383(c). The Court referred this matter to a Magistrate Judge under
Local Rule 72.2(b)(1) for the preparation of a Report and Recommendation.
Following review, and for the reasons stated below, I recommend that the
District Court affirm the Commissioner’s decision.
Procedural history
In October 2022, Smith filed an application for supplemental security
income, alleging a disability onset date of August 27, 2021.1 Tr. 17. In her
application, Smith claimed disability due to autism spectrum, depression, and
1 	“Once a finding of disability is made, the [agency] must determine the
onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x
422, 425 (6th Cir. 2006).
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anxiety. 	Tr. 	308. 	The 	Social 	Security 	Administration 	denied 	Smith’s
application and her motion for reconsideration. Tr. 139, 148. Smith then
requested a hearing before an Administrative Law Judge (ALJ). Tr. 174.
In November 2023 and April 2024, an ALJ held hearings, during which
Smith and a vocational expert testified. Tr. 35–79. In May 2024, the ALJ issued
a written decision finding that Smith was not disabled. Tr. 17–29. The ALJ’s
decision became final on April 17, 2025, when the Social Security Appeals
Council declined further review. Tr. 1–3; see 20 C.F.R. § 404.981.
Smith filed this action on May 28, 2025. Doc. 1. She asserts the following
assignments of error:
1. Did the ALJ err by creating an RFC that is not
supported by substantial evidence and thereafter
finding plaintiff not disabled?
2. Did the ALJ err by overruling plaintiff’s objections
to VE Lee, failing to properly review VE Heartsill’s
opinion, 	and 	failing 	to 	resolve 	all 	vocational
conflicts?
Doc. 9, at 1.
Evidence
Personal and vocational evidence
Smith was 28 years old on her disability application date. Tr. 27. She
graduated from high school, and at the time of the administrative hearings she
was performing part-time work at a YMCA. Tr. 40, 60–61.
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Relevant medical evidence2
Smith saw Licensed Professional Clinical Counselor and Supervisor
Victoria Gutbrod, MA, for regular counseling sessions. Tr. 23, 26. In November
2023, Gutbrod completed a questionnaire on behalf of Smith. Tr. 583–84.
Gutbrod opined, in relevant part, that if Smith were working full time, her
mental impairments or treatment would cause her to be absent from work 10–
15 hours a week. Tr. 584.
State agency opinions3
In December 2022, David Deitz, Ph.D., reviewed Smith’s record. Tr.
143–45. Regarding Smith’s mental residual functional capacity (RFC),4 Dr.
Deitz found that Smith can perform simple, routine, repetitive tasks in a
2 	Smith primarily challenges the ALJ’s treatment of vocational expert
testimony. 	Doc. 	9. 	I 	have 	therefore 	only 	included 	in 	this 	report 	and
recommendation a brief discussion of relevant opinion evidence and vocational
expert testimony.
3 	When a claimant applies for disability benefits, the State Agency creates
a record. The record includes the claimant’s medical evidence. A State Agency
disability examiner and a State Agency physician or psychologist review the
claimant’s record and determine whether and to what extent the claimant’s
condition affects his or her ability to work. If the State Agency denies the
claimant’s 	application, 	the 	claimant 	can 	ask 	for 	reconsideration. 	On
reconsideration, the State Agency updates the record and a second disability
examiner and doctor review the file and make a new determination. See, e.g.,
20 C.F.R. § 404.1615.
4 	An RFC is an “‘assessment of’” a claimant’s ability to work, taking his or
her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002) (quoting 20 C.F.R. § 416.945). Essentially, it’s the SSA’s
“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).
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setting “free of production-rate pace (as is found in assembly line work).” Tr.
145. Smith could have no interaction with the general public and occasional
interaction with coworkers and supervisors. Tr. 145. She could work in a
routine setting that “contemplates few changes in workplace tasks and duties.”
Tr. 145.
In March 2023, Nicole Sampson, Ph.D., reviewed Smith’s record and
adopted Dr. Deitz’s findings. Tr. 153–54.
Hearing testimony
Smith, who was represented by counsel, and a vocational expert testified
at both telephonic administrative hearings. After the November 2023 hearing,
Smith’s counsel filed a brief objecting to the vocational expert’s testimony and
requesting a supplemental hearing with a different vocational expert. Tr. 375.
The ALJ granted Smith’s request, and in April 2024 held a supplemental
hearing with Deborah Lee, who was a different vocational expert. Tr. 37, 40.
The 	ALJ 	asked 	vocational 	expert 	Lee 	to 	determine 	whether 	a
hypothetical individual with Smith’s age, education, and work experience
could perform work if the individual had the limitations assessed in the ALJ’s
RFC determination, described below. Tr. 47–48. Lee answered that such an
individual could perform the following jobs: cleaner, kitchen helper, and
laundry laborer. Tr. 48. When asked about workplace absenteeism, Lee said
that arriving late or leaving early at times amounted to being absent, and
stated that a worker could not be absent more than once a month. Tr. 51–52.
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The ALJ and Smith’s attorney asked follow-up questions, which I discuss more
fully below.
After the hearing, Smith filed a post-hearing brief objecting to Lee’s
testimony and offering a vocational report authored by C. Kimball Heartsill.
Tr. 378–80. The ALJ ultimately rejected Heartsill’s report, overruled Smith’s
objection, and adopted Lee’s testimony. Tr. 26–28.
The ALJ’s Decision
The ALJ made the following findings of fact and conclusions of law:
1. The claimant has not engaged in substantial
gainful 	activity 	since 	October 	4, 	2022, 	the
application date (20 CFR 416.971 et seq.). Except
that this finding recites the application date for the
present claim, it adheres to that of the previous
decision.
2. 	The 	claimant 	has 	the 	following 	severe
impairments: depressive disorder, anxiety disorder,
dysthymic 	disorder, 	mood 	disorder,
autism/Asperger’s 	disorder 	(20 	CFR 	416.920(c)).
This 	finding 	departs 	from 	that 	of 	the 	previous
decision, 	reflective 	of 	new 	or 	additional
psychological diagnoses.
3. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
416.920(d), 	416.925 	and 	416.926). 	This 	finding
adheres to that of the previous decision.
4. After careful consideration of the entire record,
the undersigned finds that the claimant has the
residual functional capacity to perform a full range
of work at all exertional levels but with the following
nonexertional limitations: the claimant is limited to
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the performance of simple, routine tasks, conducted
in 	a 	work 	setting 	free 	of 	fast-paced 	production
requirements 	or 	strict 	production 	quotas, 	which
setting 	is 	routine, 	in 	that 	it 	contemplates 	few
changes in workplace tasks or duties, which setting
contemplates occasional interaction with co-workers
and supervisors, but no contact with the public. This
finding adheres to that of the previous decision.
5. The claimant has no past relevant work (20 CFR
416.965). 	This 	finding 	adheres 	to 	that 	of 	the
previous decision.
6. The claimant was … 28 years old, which is defined
as a younger individual age 18–49, on the date the
application was filed (20 CFR 416.963). Except that
this finding recites the claimant’s chronological age
at the filing of the application, it adheres to that of
the previous decision.
7. The claimant has at least a high school education
(20 CFR 416.964). This finding adheres to that of the
previous decision.
8. Transferability of job skills is not an issue because
the claimant does not have past relevant work (20
CFR 416.968). This finding adheres to that of the
previous decision
9. Considering the claimant’s age, education, work
experience and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20
CFR 416.969 and 416.969a). This finding adheres to
that of the previous decision.
10. The claimant has not been under a disability, as
defined in the Social Security Act, since October 4,
2022, the date the application was filed (20 CFR
416.920(g)). 	Except that 	this 	finding 	recites 	the
application date for the current claim, it adheres to
that of the previous decision.
Tr. 19–29.
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Standard for Disability
Eligibility for social security benefit payments depends on the existence
of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the
“inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.
§ 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a
disability determination:
1. 	Is the claimant engaged in substantial gainful
activity? If so, the claimant is not disabled.
2. 	Does 	the 	claimant 	have 	a 	medically
determinable impairment, or a combination of
impairments, 	that 	is 	“severe”? 	If 	not, 	the
claimant is not disabled.
3. 	Does the claimant’s impairment meet or equal
one of the listed impairments and meet the
duration requirement? If so, the claimant is
disabled. If not, the ALJ proceeds to the next
step.
4. 	What is the claimant’s residual functional
capacity and can the claimant perform past
relevant 	work? 	If 	so, 	the 	claimant 	is 	not
disabled. If not, the ALJ proceeds to the next
step.
5. 	Can 	the 	claimant 	do 	any 	other 	work
considering the claimant’s residual functional
capacity, 	age, 	education, 	and 	work
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experience? If so, the claimant is not disabled.
If not, the claimant is disabled.
20 C.F.R. §§ 404.1520, 416.920. see Jordan v. Comm’r of Soc. Sec., 548 F.3d
417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the
burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden
shifts to the Commissioner at step five “to prove the availability of jobs in the
national economy that the claimant is capable of performing.” Id. “The
claimant, however, retains the burden of proving her lack of residual functional
capacity.” Id. If a claimant satisfies each element of the analysis and meets the
duration requirements, the claimant is determined to be disabled. Walters
Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
Standard of review
A reviewing court must affirm the Commissioner’s conclusions unless it
determines “that the ALJ has failed to apply the correct legal standards or has
made findings of fact unsupported by substantial evidence in the record.”
Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which
“a court … asks whether” the “existing administrative record … contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek
v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial
evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than
a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable
mind might 	accept 	as 	adequate 	to 	support 	a 	conclusion.’” 	Id. 	(citations
omitted). The Commissioner’s “findings … as to any fact if supported by
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substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at
99.
A court may “not try the case de novo, resolve conflicts in evidence, or
decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
2007). Even if substantial evidence or a preponderance of the evidence
supports 	a 	claimant’s 	position, 	a 	reviewing 	court 	cannot 	overturn 	the
Commissioner’s decision “so long as substantial evidence also supports the
conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,
477 (6th Cir. 2003). This is so because there is a “zone of choice within which”
the Commissioner can act, without fear of judicial “interference.” Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.
Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).
Discussion
1. 	Smith 	has 	not 	shown 	that 	the 	ALJ’s 	RFC 	is 	unsupported 	by
substantial evidence
Smith argues that the ALJ erred because her RFC assessment does not
contain an absenteeism limitation. Doc. 9, at 1, 8–9.
The only medical opinion that arguably contained an absenteeism
limitation was that of Smith’s counselor, Victoria Gutbrod.5 Tr. 584. The ALJ
evaluated Gutbrod’s opinion and found it only partially persuasive. Tr. 26. As
5 	It’s not clear that Gutbrod assessed an absenteeism limitation. See Tr.
584. Nevertheless, the ALJ assumed that Gutbrod had, Tr. 26, and therefore,
so do I.
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a result, the ALJ did not adopt any absenteeism limitations in the RFC. Tr. 22,
26. Smith doesn’t challenge the ALJ’s evaluation of Gutbrod’s opinion and in
fact claims that the ALJ’s evaluation of Gutbrod’s opinion “does not matter in
this case.” Doc. 12, at 4. Nevertheless, I note that the ALJ evaluated Gutbrod’s
opinion, 	including 	Gutbrod’s 	assumed 	absenteeism 	finding; 	rejected 	this
portion of Gutbrod’s opinion; and assessed an RFC with no absenteeism
limitations. Tr. 22, 26. Smith has not challenged this aspect of the ALJ’s
decision or any other portion of the ALJ’s decision discussing and evaluating
the medical evidence in the record. The ALJ’s decision thus addresses the issue
of absenteeism, and her RFC assessment omitting such a restriction is
supported by substantial evidence.
Smith argues that an absenteeism restriction derives from vocational
expert Lee’s testimony. Doc. 9, at 8. Smith cites Lee’s testimony that a typical
employee could have no more than one work absence per month, id. (citing Tr.
52), and then points out that Smith at times during the relevant period had
two medical appointments per month, id. From these facts, Smith reasons that
“[b]ecause a medical appointment would occur during the work hour, …
absenteeism is a limit in the ability to perform work; therefore medical
appointment(s) equal relevancy for a step four (4) RFC finding.” Id. at 9.
As already noted, the ALJ rejected the only opinion in the record finding
that Smith would have absenteeism limitations and Smith doesn’t challenge
this finding.
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Smith’s argument that the ALJ should have nevertheless included an
absenteeism restriction in her RFC assessment fails. Smith has provided no
evidence—legal, vocational, or otherwise—to support her statement that a
“medical appointment would occur during the work hour.” This dooms Smith’s
argument from the start. While Smith asserts that many of her appointments
in the record occurred during “the typical 8:00am-5:00pm time-frame,” Doc. 12,
at 4, she hasn’t shown that Smith would have to work an eight-to-five schedule
or that appointments outside this time-frame were or would be unavailable.
Indeed, Smith admits that she twice had appointments “outside” the “typical
8:00am-5:00pm time-frame,” id., which indicates that such appointments were
available if Smith had requested them. As another unit of this court has
explained:
there is no[] evidence that these appointments could
not be scheduled around work hours…. As the Tenth
Circuit 	has 	explained: 	“[P]laintiff’s 	current
extrapolation of how many days she must have
missed from work based on her medical record is
faulty ... in that it assumes she was required to miss
entire days of work for each appointment.” Barnett
v. Apfel, 231 F.3d 687, 691 (10th Cir. 2000); see also
Pryor v. Comm’r of Soc. Sec., 2015 WL 12683977, at
*7 (E.D. Mich.) (“Pryor has not established any
reason to think that he is unable to attend physical
therapy 	sessions 	after 	work, 	on 	the 	weekends,
during lunch, or on some other schedule.”), report
and recommendation adopted, 2015 WL 6735336;
Leaverton v. Colvin, 2013 WL 1316901, at *3 (N.D.
Okla.) (“Plaintiff added up the number of doctor
visits and phone calls to his doctor he made over the
pendency of this case and argues that number of
absences would preclude employment. Nothing in
the record suggests an entire day off is necessary for
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each appointment or that appointments could not be
scheduled around hours of employment.”); Brock v.
Astrue, 	2008 	WL 	4104551, 	at 	*16 	(W.D. 	Mo.)
(“Further, the fact that a claimant must attend
regular 	healthcare 	appointments 	does 	not
necessarily indicate that she cannot work; there is
nothing in the record to indicate that Brock could not
schedule 	her 	appointments 	around 	her 	work
schedule.”).
Chaney v. Comm’r of Soc. Sec., No. 5:18-cv-2769, 2020 WL 789189, at *9 (N.D.
Ohio Feb. 18, 2020).
Next, Smith’s argument that the ALJ should have sua sponte (1)
calculated the number of days that Smith had medical appointments during
some undetermined “work hour,” and (2) evaluated whether she could still
perform full-time work, is a non-starter for additional reasons. First, Smith
has not cited legal authority stating that vocational expert’s testimony on a
general issue such as workplace absenteeism creates a claimant-specific RFC
limitation that the ALJ must adopt. Nor has she cited legal authority that an
ALJ is required to sua sponte connect medical appointments in the record and
compare 	them 	with 	general 	vocational 	expert 	testimony. 	Rather, 	legal
authority indicates otherwise. See Chaney, 2020 WL 789189, at *9 (rejecting
an argument that the number of medical appointments a claimant has
translates into an absenteeism limitation tied to vocational expert testimony
on generally accepted workplace-absenteeism practices).6
6 	In Chaney, the court rejected the claimant’s argument regarding the
ALJ’s evaluation of a medical provider’s opinion that the claimant would be
absent due to medical treatment. 2020 WL 789189, at *9. Here, Smith has not
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Second, at no time at either hearing did Smith’s attorney—the same
attorney representing her in federal court—raise this medical-appointment-
absenteeism issue with the ALJ. Tr. 35–53, 54–79. Smith also failed to mention
the issue in her pre-hearing brief, Tr. 372–73, her post-hearing brief, Tr. 377,
and on appeal to the Appeals Council, Tr. 385–86. So despite numerous
opportunities to do so, Smith has not preserved this issue for review. See
Watson v. Comm’r of the Soc. Sec. Admin., No. 4:25-cv-287, 2025 WL 2458765,
at *7 (N.D. Ohio Aug. 27, 2025) (citing Ramsey v. Comm’r of Soc. Sec., 973 F.3d
537, 545 (6th Cir. 2020) and Maloney v. Comm’r of Soc. Sec., 480 F. App’x 804,
810 (6th Cir. 2012), for the proposition that “[i]t is axiomatic that ‘a court
should not consider an argument that has not been raised in the agency
proceeding that preceded the appeal.’”), report and recommendation adopted,
2025 WL 3440542 (N.D. Ohio Dec. 1, 2025).
In her reply brief, Smith argues that absenteeism is not an RFC issue,
but rather a step-five, vocational-expert issue in which the Commissioner, not
Smith, carries the burden of proof. Doc. 12, at 2. This assertion in Smith’s reply
brief directly contradicts her arguments in her opening brief, in which she
challenged the ALJ’s evaluation of Gutbrod’s opinion and has expressly stated
that she is not challenging the ALJ’s evaluation of Gutbrod’s opinion. Doc. 12,
at 4. So Smith’s position is even weaker than the argument the court in Chaney
rejected. And Smith’s attempts to distinguish Chaney, Doc. 12, at 2, are not
persuasive. She claims that “[t]here is no proof that the VE in Chaney
specifically responded to questions of medical appointments,” Doc. 12, at 2,
which may be true. But the vocational expert in Smith’s case didn’t “specifically
respond to questions of medical appointments” either. Tr. 51–52.
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characterized the absenteeism issue as a “step four (4) RFC” issue.7 Doc. 9, at
9; see also id. at 1, 8 (referencing the ALJ’s RFC finding when discussing
absenteeism). Smith’s attempt to change her argument in her reply brief fails.
See Island Creek Coal Co. v. Wilkerson, 910 F.3d 254, 256 (6th Cir. 2018)
(“Time, time, and time again, we have reminded litigants that we will treat an
argument as forfeited when it was not raised in the opening brief.”) (internal
quotation marks and citation omitted).
Even if the Court were to consider Smith’s new reply-brief argument, it
would fail because Smith hasn’t shown that this is a step-five issue. Smith’s
complaint that the ALJ “had the chance to question either [vocational expert
Lee] or to subpoena [Smith’s vocational expert, Mr. Heartsill], but did not take
further action,” Doc. 12, at 3, fails because the ALJ’s RFC assessment did not
include an absenteeism limitation. Tr. 22, 47–48. The ALJ asked Lee to
consider Smith’s age, education, and work experience and Smith’s RFC, Tr. 47,
which is all the regulations require. See 20 C.F.R. § 416.920(a)(4)(v) (“At the
fifth and last step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if you can make
7 	In fact, the RFC assessment is more like step 3.5 in the five-step
sequential analysis, because an ALJ will use the RFC at steps four and five.
See 20 C.F.R. § 416.920(a)(4) (“Before we go from step three to step four, we
assess your residual functional capacity.… We use this residual functional
capacity assessment at both step four and step five when we evaluate your
claim at these steps.”), (e); see also Rash v. Comm’r of Soc. Sec. Admin., No.
5:22-cv-01053, 2023 WL 4827852, at *7 (N.D. Ohio Mar. 28, 2023), report and
recommendation adopted, 2023 WL 4825676 (N.D. Ohio July 27, 2023).
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an adjustment to other work.”); Casey v. Sec’y of Health & Hum. Servs., 987
F.2d 1230, 1235 (6th Cir. 1993) (“It is well established that an ALJ may pose
hypothetical questions to a vocational expert and is required to incorporate
only those limitations accepted as credible by the finder of fact.”). So Smith has
not shown that the lack of an absenteeism limitation in the ALJ’s RFC is a
step-five issue for which the ALJ had the burden of proof.
2. Smith has not shown that the ALJ erred with respect to the vocational
experts
To recap, the ALJ’s RFC assessment limited Smith, in relevant part, to
unskilled work with no more than occasional contact with supervisors and
coworkers. Tr. 22. At the second hearing, vocational expert Lee testified that a
hypothetical individual described by the ALJ could perform the following
unskilled jobs with the attendant numbers in the national economy: cleaner
(245,000 jobs), kitchen helper (377,000 jobs), and laundry laborer (72,000 jobs).
Tr. 48. Smith’s attorney asked Lee how long a training period for unskilled jobs
would be. Tr. 49. Lee answered, “two weeks perhaps,” and gave examples of
unskilled jobs that would require even less time. Tr. 49–50. Smith’s attorney
asked Lee if she agreed that during the training period the worker would
“probably” be exposed to more than occasional contact with supervisors or
coworkers. Tr. 50–51. Lee said that she did not agree, and explained that a
worker wouldn’t exceed occasional contact even during the training period. Tr.
51.
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After the hearing, Smith’s attorney filed a brief in which she “object[ed]”
to Lee’s testimony as to the number of occupations available for the jobs Lee
had identified. Tr. 377. Smith attached a “vocational report” by vocational
expert Heartsill, who, counsel explained, “corrects” the job numbers. Tr. 377,
378–80. 	Counsel 	also 	wrote 	that 	Heartsill 	“indicates 	that 	all 	unskilled
occupations 	require 	more 	than 	occasional 	contact 	with 	coworkers 	and
supervisors for training purposes,” which, counsel argued, would mean that
there would be no jobs that an individual described in the ALJ’s RFC
assessment could perform. Tr. 377, 378–80.
In her decision, the ALJ considered and rejected Heartsill’s vocational
opinion as follows:
A vocational rehabilitation counselor, C. Kimball
Heartsill, offered a vocational opinion, but cited only
one of the three jobs described by the vocational
expert. No limitations on speech were included in
the residual functional capacity, rendering much of
his 	analysis 	moot. 	For 	the 	sake 	of 	argument,
acceptance of his figures for public interaction in the
job of commercial cleaner would still leave 132,000
jobs nationally, and acceptance of his figures for
public interaction in the job of kitchen helper would
still leave 301,000 jobs nationally. In both cases,
these would still be significant numbers of jobs. He
indicates that kitchen helper imposes fast pace and
production quotas, citing only anecdotal evidence for
the proposition, while the testimony of Ms. Lee was
to the contrary, and based on the Dictionary of
Occupational Titles. For all of these reasons, this
opinion is not persuasive.
Tr. 26. Later in her decision, the ALJ considered Smith’s objections:
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The claimant’s representative objected to these job
numbers [identified by vocational expert Lee] on the
ground that the vocational expert’s methodology for
determining numbers of jobs is not reliable. The
undersigned overrules this objection. The vocational
expert has professional knowledge and experience in
job placement. Note is made of the objection by the
claimant’s representative to the methodology and
reporting of the numbers of jobs within the national
and regional economies, as related by the vocational
expert. It seems clear that the objection is addressed
to the means selected by the federal government for
gathering and publishing labor statistics, and to the
calculations of the vocational expert at the hearing.
As such, the objection flows both to the relevance of
the statistics themselves and to the interpretation of
those statistics by the vocational expert. It is noted
that the vocational expert has been qualified as such
by the Social Security Administration and that the
very essence of the expert’s appearance at these
hearings is the employment of their professional
experience, 	expertise, 	and 	acumen 	to 	filter 	the
vagaries 	of 	the 	various 	hypothetical 	residual
functional capacities first, through the touchstone of
the Dictionary of Occupational Titles and second,
through 	the 	“lens” 	of 	their 	own 	professional
knowledge. 	Upon 	consideration 	of 	which, 	the
undersigned finds no reason to reject the testimony
of the vocational expert, and no authority to affect
the manner in which the federal government collects
and 	publishes 	labor 	statistics. 	The 	objection 	is
overruled. Accordingly, the vocational expert’s job
information is found to be reliable.
The claimant’s representative also objected to the
jobs described as available, based on greater social
requirements during the training phase of the job.
However, the training phase is necessarily brief and
truncated, particularly for unskilled work, and may
last as little as two weeks [hearing testimony]. As
such, it is as little reflective of the overall work
setting as is the traditional two-week vacation. His
own vocational expert (C19E), indicated only that
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the claimant “may find it difficult” to get through a
training period. This objection is also overruled.
Tr. 28.
Smith argues that “the ALJ was completely incorrect in claiming
counsel’s objections ‘flow[] both to the calculations of the vocational expert’ and
that [they were] an attack on the ‘means selected by the federal government
for gathering and publishing labor statistics.’” Doc. 9, at 11. Smith claims that
“[t]o the contrary, Mr. Heartsill’s vocational opinion specifically referenced the
statistical data showing these occupations were not available.” Id. Regardless
of what language the ALJ used to characterize Smith’s objection to Lee’s
testimony, it is clear that the ALJ rejected Smith’s objections to it. Tr. 26, 28.
Smith hasn’t articulated what about her objections she believes the ALJ
misconstrued in the passage above.8
Smith complains that Lee’s testimony “is absent of statistical data” and
is “based plainly upon her basic testimony claiming they were consistent with
the [Dictionary of Occupational Titles (DOT)].” Doc. 9, at 11. But the Dictionary
of Occupational Titles remains “a reliable source of information at step five.”
8 	In fact, in her reply brief, Smith argues that “Heartsill’s assessment
pointed out numerous flaws in [Lee’s] calculations and job availability.” Doc.
12, at 5. This argument is encapsulated by the ALJ’s characterization of Smith
objecting to “the statistics themselves and to the interpretation of those
statistics by the vocational expert.” Tr. 28. Moreover, in his report, Heartsill
wrote that the vocational expert cited an “invalid” DOT number for the
Industrial Cleaner position. Tr. 378. But the DOT number Heartsill cites was
not quoted by either of the vocational experts at the hearings. Tr. 48, 73. So it
is not clear what testimony Heartsill was referencing as to this point.
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O’Neal v. Comm’r of Soc. Sec., 799 F. App’x 313, 317 (6th Cir. 2020) (citing 20
C.F.R. § 404.1566(d)(1)). Smith argues that the ALJ improperly relied on the
fact that “VE Lee has testified before.” Doc. 9, at 12. But that is not what the
ALJ wrote. See Doc. 28 (the ALJ explaining that Lee “has been qualified as [a
vocational expert] by the Social Security Administration”). This was not error.
See Moats v. Comm’r of Soc. Sec., 42 F.4th 558, 562 (6th Cir. 2022) (“[W]hen a
qualified vocational expert testifies that a person with the claimant’s work
experience and physical limitations could perform a significant number of jobs
available in the national economy, the ALJ has a solid basis for denying
disability benefits”) (emphasis added) (citing Biestek v. Berryhill, 587 U.S. 97,
104–08 (2019)). Even if the ALJ had relied on the fact that Lee had testified
before, that would not have been error, either. See Moats, 42 F.4th at 562
(explaining that a qualified expert’s testimony is sufficient evidence to support
the ALJ’s finding “[e]specially so, we note, when the vocational expert is well-
credentialed and ‘has a history of giving sound testimony about job availability
in similar cases.’”) (quoting Biestek, 587 U.S. at 105).
Smith’s additional arguments fail. She points out that in contrast to
Lee’s testimony, Heartsill opined that during the training period for the
identified jobs, a worker would have more than occasional contact with
supervisors or coworkers. Doc. 9, at 13; Tr. 379–80. She criticizes the ALJ for
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evaluating this issue as an “objection” rather than under a different standard.9
Doc. 9, at 13. But this is how Smith herself characterized Heartsill’s report. Tr.
377 (Smith’s post-hearing brief characterizing itself as an “objection” to Lee’s
testimony). Regardless, the ALJ did not err. The ALJ explained that the
training period for the unskilled jobs that Lee identified would be “brief and
truncated” and “may last as little as two weeks.” Tr. 28, Tr. 49; see, e.g., Rebecca
L. v. Comm’r of Soc. Sec., 617 F. Supp. 3d 256, 273 (D.N.J. 2022) (noting that
courts in that district “routinely” reject arguments that “an interaction level
during 	a 	probationary 	training 	period 	that 	briefly 	exceeds 	occasional
undermines a plaintiff’s RFC”) (citing Torres v. Comm’r of Soc. Sec., No. 14-cv-
6178, 2015 WL 8328346, at *7 (D.N.J. Dec. 8, 2015); see Cody H. v. Bisignano,
No. 24-cv-3056, 2025 WL 1788474, at *16 (D. Minn. June 11, 2025), report and
recommendation adopted, 2025 WL 1787562 (D. Minn. June 27, 2025). The
ALJ also observed that Heartsill “indicated only that the claimant ‘may find it
difficult’ to get through a training period.” Tr. 28, 380 (emphasis added); see
9 	Smith cites Social Security Ruling 00-4p, 2000 WL 1898704 (December
4, 2000), and suggests that the ALJ failed to comply with it when evaluating
Heartsill’s report. Doc. 9, at 13–14. But on its face, this ruling addresses what
the ALJ must do when faced with a conflict between vocational expert
testimony and the DOT. Soc. Sec. Ruling 00-4p, 2000 WL 1898704, at *1 (“this
ruling emphasizes that before relying on VE … evidence to support a disability
determination or decision, our adjudicators must: Identify and obtain a
reasonable 	explanation 	for 	any 	conflicts 	between 	occupational 	evidence
provided by VEs … and information in the Dictionary of Occupational Titles
(DOT)”). Here, Smith has not identified a conflict between Lee’s testimony and
the DOT, so she has not shown that Ruling 00-4p would apply. Even if Ruling
00-4p would apply, the ALJ complied with it when she discussed Heartsill’s
report in relation to Lee’s testimony and the DOT. Tr. 26, 28.
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Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 481 (6th Cir. 1988) (“if
the [vocational] expert is unable to testify without qualification about the jobs
a claimant can perform, the ALJ may not rely on his opinion”) (citing Hall v.
Bowen, 837 F.2d 272, 274 (6th Cir. 1988)).
Smith relies on Sczepanski v. Saul, 946 F.3d 152, 158–59 (2d Cir. 2020),
in support of her argument. Doc. 9, at 14. In Sczepanski, the court remanded
the ALJ’s decision because the ALJ’s RFC limited the claimant to missing one
day of work per month, but the vocational expert testified that employers
would 	not 	tolerate 	any 	absenteeism 	during 	a 	typical 	90-to-120-day
probationary period. 946 F.3d at 161–62. The ALJ relied on the vocational
expert’s testimony but ignored that expert’s opinion about absences during the
probationary period. Id. at 156. Here, in contrast, the ALJ discussed Heartsill’s
opinion about interaction during the short training period10 and rejected it. Tr.
26, 28. Heartsill didn’t say that Smith could not complete the training period—
only that she “may find it difficult” to complete it. Tr. 28, Tr. 380. Sczepanski
is not binding on this Court, and it is not on point.
Finally, Smith insists that “the facts presented [by Heartsill’s report]
show that the statistical data shows training for the occupations cited by VE
Lee would take multiple days, and would exceed occasional contact.” Doc. 9, at
10 	Heartsill opined that most of the jobs would require a training period of
8.02 days (cleaner), 3.75 days (kitchen helper), and 12.03 days (laundry
laborer). Tr. 379.
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15 (citing Heartsill’s report). But Heartsill’s report did not cite any statistical
data showing that a worker during a training period would exceed occasional
contact. Tr. 379–80. For this finding Heartsill only referenced “[his] vocational
opinion.” Tr. 379. While Heartsill cited statistical data for his numbers
regarding the percentage of workers in which “speaking” would be required11
and the length of the training periods, Tr. 379, he did not link this data to his
opinion regarding the frequency of interaction during the training period. Tr.
379. All told, the ALJ did not err when she rejected Heartsill’s report.
Conclusion
For the reasons explained above, I recommend that the Court affirm the
Commissioner’s decision.
Dated: January 6, 2026
/s/ James E. Grimes Jr.
James E. Grimes Jr.
U.S. Magistrate Judge
OBJECTIONS
Any objections to this Report and Recommendation must be filed with
the Clerk of Court within 14 days after the party objecting has been served
with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure
to file objections within the specified time may forfeit the right to appeal the
District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th
Cir. 2019).
11 	In her reply brief, Smith criticizes the ALJ for rejecting Heartsill’s
report because the ALJ “claimed his opinion was on ‘speech.’” Doc. 12, at 5
(citing 	Tr. 	26). 	But 	this 	is 	true; 	Heartsill’s 	report 	repeatedly 	cited 	the
percentage of workers in the identified jobs who would be required to perform
“speech” and “speaking.” Tr. 379. The ALJ’s characterization was accurate.
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