MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR ORDER REVERSING THE DECISION OF THE COMMISSIONER (#13) AND DEFENDANT'S MOTION FOR ORDER AFFIRMING COMMISSIONER, ETC. (# 16)

COLLINGS, United States Magistrate Judge.

I. Introduction

On April 23, 2010, plaintiff Jason Szumylo ("Szumylo") filed a complaint (# 1) pursuant to 42 U.S.C. § 405(g) against defendant Michael J. Astrue, Commissioner of the Social Security Administration ("the Commissioner"), appealing the denial of his claim for Social Security Disability Income ("SSDI") benefits. On August 31, 2010, the Commissioner filed an answer to the complaint (# 9) and on October 4, 2010, the administrative record. (# 12) The parties have filed cross-motions to resolve the plaintiff's claim, respectively seeking an order to reverse the Commissioner's decision (# 13) and an order to affirm the Commissioner's decision. (# 16) The motions have been fully briefed (## 14, 17) and stand ready for decision.

II. Procedural Background

On March 17, 2008, Szumylo filed for Social Security disability insurance benefits alleging a disability onset date of March 23, 2007. (TR2 at 7) His application was denied both initially on June 12, 2008 (TR at 7) and on reconsideration in October of 2008 (TR at 7). Szumylo requested a hearing before an administrative law judge ("ALJ"). (TR at 7) That hearing was held on September 22, 2009, with the plaintiff, his attorney and a vocational expert in attendance. (TR at 20-84) A medical expert participated in the hearing via telephone. (TR at 22)

On October 3, 2009, the ALJ issued a decision wherein she found as follows: Szumylo met the insured status requirements through December 31, 2011; Szumylo has not engaged in substantial employment since March 23, 2007; Szumylo has the following severe impairments— status post-left knee meniscus tear, early osteoarthritis in the right knee, obesity, degenerative disc disease of the thoracolumbar spine, bipolar disorder, and personality disorder with anti-social traits; Szumylo does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; Szumylo has the residual functional capacity to perform light work in that he is able to lift and carry 20 pounds occasionally and 10 pounds frequently, stand/walk two hours in the workday, sit six hours in the workday, push or pull without restriction and occasionally climb, balance, stoop, kneel, crouch and crawl, he has some difficulty reading, he cannot work at a production-level pace, he can do goal-oriented work, simple, routine tasks requiring only occasional decision-making and work entailing occasional interaction with supervisors and co-workers and no interaction with the public; Szumylo is unable to perform any past relevant work; considering his age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Szumylo can perform; and Szumylo has not been under a disability from March 23, 2007. (TR 7-19) With the Disability Review Board having failed to complete its review within ninety days of the ALJ's decision, that decision became to final decision of the Commissioner. (TR at 1-3)

III. The Standard of Review

Szumylo is seeking review of the Commissioner's final decision pursuant to the Social Security Act § 205(g), 42 U.S.C. § 405(g) (the "Act"). The Act provides, in relevant part:

Title 42 U.S.C. § 405(g) (emphasis added).

The Court's role in reviewing a decision of the Commissioner under this statute is circumscribed:

Manso-Pizarro v. Secretary of Health and Human Services, 76 F.3d 15, 16 (1 Cir., 1996); see also Reyes Robles v. Finch, 409 F.2d 84, 86 (1 Cir., 1969) ("And as to the scope of court review, `substantial evidence' is a stringent limitation.").

The Supreme Court has defined "substantial evidence" to mean "`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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)); Irlanda Ortiz v. Secretary of Health & Human Services, 955 F.2d 765, 769 (1 Cir., 1991). It has been explained that:

Lizotte v. Secretary of Health and Human Services, 654 F.2d 127, 128 (1 Cir., 1981) (quoting Rodriguez v. Secretary of Health and Human Services, 647 F.2d 218, 222 (1 Cir., 1981)); Geoffroy v. Secretary of Health and Human Services, 663 F.2d 315, 319 (1 Cir., 1981) ("In any event, whatever label the parties or the court ascribe to the procedure used to review the Secretary's decision, statute and long established case law make clear that the court's function is a narrow one limited to determining whether there is substantial evidence to support the Secretary's findings and whether the decision conformed to statutory requirements." (citations omitted)).

In other words, if supported by substantial evidence, the Commissioner's decision must be upheld even if the evidence could also arguably admit to a different interpretation and result. Ward v. Commissioner of Social Security, 211 F.3d 652, 655 (1 Cir., 2000); see also Nguyen v. Chater, 172 F.3d 31, 35 (1 Cir., 1999) (per curiam).

Lastly,

Musto v. Halter, 135 F.Supp.2d 220, 225 (D.Mass., 2001).

IV. Discussion

The plaintiff challenges the Commissioner's decision at step five of the standard five-step evaluation process. To place the issue in context, at step four the ALJ determined, inter alia, that Szumylo could not return to his past relevant work and that his residual functional capacity included non-exertional limitations. Consequent to these non-exertional limitations, the ALJ could not rely solely on the Medical-Vocational Guidelines ("the Grid") to determine disability. Rather, it was incumbent on the ALJ to take testimony from a vocational expert on the question of the plaintiff's ability to perform other jobs. See, e.g., Heggarty v. Sullivan, 947 F.2d 990, 996 (1 Cir., 1991) ("Where a claimant has non-exertional impairments in addition to exertional limits, the Grid may not accurately reflect the availability of jobs such a claimant could perform. The question whether the Secretary may rely on the Grid in these kinds of situations depends on whether claimant's non-exertional impairment significantly affects [a] claimant's ability to perform the full range of jobs at the appropriate strength level. If the occupational base is significantly limited by a non-exertional impairment, the Secretary may not rely on the Grid to carry the burden of proving that there are other jobs a claimant can do. Usually, testimony of a vocational expert is required." (internal citations and quotation marks omitted)). Although a vocational expert did, in fact, testify at Szumylo's administrative hearing, the plaintiff contends that the ALJ was not justified in relying on the vocational expert's testimony to conclude that he was able to perform the jobs of night security guard, DOT 372.667-0103, an inserter, DOT 920.687-062, and a sorter, DOT 920.687-118. As a consequence, Szumylo argues that the ALJ's decision at step five was not supported by substantial evidence.

At the administrative hearing, the ALJ queried the vocational expert whether her "testimony today [would] be consistent with the DOT and its companion publications," to which the vocational expert responded, "[y]es, it will be." Thereafter the ALJ posed hypothetical questions to the vocational expert, one of which was as follows:

TR at 75.

The vocational expert answered that such an individual could perform the jobs she had previously identified, i.e., a night guard, security guard (DOT 372.667-010), an inserter (DOT 920.687-062) and a linen sorter (DOT 920.687-118), albeit the number of jobs would have to be reduced. (TR at 74-75) The vocational expert was thereafter examined by Szumylo's attorney, but during this examination the attorney asked no questions with respect to the phrase "cannot work at a production level pace" as used in the ALJ's hypothetical, what the limitation meant or how it applied in the context of the jobs detailed by the vocational expert. (TR at 76-79)

Szumylo now complains that the vocational expert should have defined the meaning of the phrase "cannot work at a production level pace" because that limitation is not defined in the Commissioner's rulings and regulations.4 (# 14 at 8) Moreover, according to the plaintiff, it was the vocational expert's duty to explain how this limitation "would be compatible with the jobs [she] identified." (# 14 at 8) Because the ALJ did not address the "conflict" between the vocational expert's testimony with respect to Szumylo's inability to "work at a production level pace" and the DOT jobs of inserter and linen sorter identified by the vocational expert, the ALJ is said to have failed to comply with the requirements of Social Security Ruling 00-4p (SSR 00-4p).

The plaintiff's argument is unavailing. SSR 00-4p has as its stated purpose:

SSR 00-4p.

Of particular import for present purposes, the ruling further provides that:

SSR 00-4p.

In this case, however, there is no apparent conflict or inconsistency between the vocational expert's evidence and the DOT.

The vocational expert testified that her evidence would be "consistent with the DOT and its companion publications." The DOT descriptions for the jobs identified by the vocational expert are:

DOT 920.687-062.

DOT 920.687-118.

These DOT descriptions are silent with respect to the pace at which the jobs must be performed, production level or otherwise.

There is no actual conflict between the vocational expert's evidence that Szumylo could perform the jobs of inserter and linen sorter even with the limitation of not at "a production level pace" and the DOT job descriptions. "A direct and obvious conflict exists when the VE's `characterization of the exertional or skill level required for a particular job is facially different from the exertional or skill provided for that job in the DOT.'" Cooper v. Commissioner of Social Sec. Admin., 2011 WL 61613, *7 (N.D.Tex., Jan. 6, 2011) (quoting Carey v. Apfel, 230 F.3d 131, 145 (5 Cir., 2000)). Such is not the case here. The ALJ did not run afoul of her obligations under SSR 00-4p when there was no apparent inconsistency or conflict between the vocational expert's evidence and the DOT to be resolved.5 See, e.g., Teskey v. Astrue, 2011 WL 1636924, *8 (S.D.Ind., Apr. 29, 2011) ("Because the Dictionary of Occupational Titles `does not address the subject of sit/stand options, it is not apparent that the testimony [referencing such an option] conflicts with [it].' Zblewski v. Astrue, 302 Fed.Appx. 488, 494 (7th Cir.2008)6 (upholding denial of benefits). The conflict, if one exists, is a latent one only; therefore, ALJs needn't resolve it at the hearing if no one notices it. Id." (footnote omitted)).

The vocational expert's testimony provided substantial evidence upon which the ALJ could rely in finding that there are jobs that exist in significant numbers in the national economy that Szumylo can perform. The ALJ was justified in relying on that expert testimony. There was no error at step five of the evaluation process.

V. Conclusion

For all the reasons stated it is ORDERED that Plaintiff's Motion For Order Reversing The Decision Of The Commissioner (#13) be, and the same hereby is, DENIED. It is FURTHER ORDERED that Defendant's Motion For Order Affirming Commissioner, Etc. (#16) be, and the same hereby is, ALLOWED. Judgment shall enter for the defendant.

September 30, 2011.