REPORT AND RECOMMENDATION

DAVID A. RUIZ, Magistrate Judge.

Plaintiff, Laurie E. Dawson (hereinafter "Plaintiff"), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter "Commissioner"), denying her application for Supplemental Security Income ("SSI") under Titles XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be REVERSED and REMANDED for proceedings consistent with this opinion.

I. Procedural History

Prior to the current disability application, Plaintiff had a previous application for SSI denied following a hearing on April 4, 2013. (Transcript ("Tr." 150). Thereafter, on February 24, 2014, Plaintiff filed her current application for SSI, alleging a disability onset date of April 9, 2011. (Tr. 215). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 136-137). Plaintiff participated in the hearing on May 4, 2016, was represented by counsel, and testified. (Tr. 67-100). A vocational expert ("VE") also participated and testified. Id. On May 26, 2016, the ALJ found Plaintiff not disabled. (Tr. 22). On August 23, 2017, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-6). On October 5, 2017, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 12 & 13).

Plaintiff asserts the following assignments of error: (1) whether the ALJ erred in applying the doctrine of res judicata when she found no new and material mental health evidence since the previous decision, and (2) whether the ALJ improperly relied upon the VE's testimony where there was a conflict between said testimony and the Dictionary of Occupational Titles ("DOT"). (R. 12, PageID# 689).1

II. Disability Standard

A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered disabled when she cannot perform "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." 20 C.F.R. §§ 404.1505(a) and 416.905(a); 404.1509 and 416.909(a).

The Commissioner determines whether a claimant is disabled by way of a five-stage process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate that she is not currently engaged in "substantial gainful activity" at the time she seeks disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant must show that she suffers from a medically determinable "severe impairment" or combination of impairments in order to warrant a finding of disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A "severe impairment" is one that "significantly limits . . . physical or mental ability to do basic work activities." Abbott, 905 F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a severe impairment (or combination of impairments) that is expected to last for at least twelve months, and the impairment(s) meets a listed impairment, the claimant is presumed to be disabled regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d). Fourth, if the claimant's impairment(s) does not prevent her from doing past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and 416.920(e)-(f). For the fifth and final step, even if the claimant's impairment(s) does prevent her from doing past relevant work, if other work exists in the national economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g) and 416.920(g), 404.1560(c).

III. Summary of the ALJ's Decision

The ALJ made the following findings of fact and conclusions of law:

(Tr. 13-22).

IV. Law and Analysis

A. Standard of Review

Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in the record to determine if the ALJ's decision is supported by substantial evidence, regardless of whether it has actually been cited by the ALJ. (Id.) However, the court does not review the evidence de novo, make credibility determinations, or weigh the evidence. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989).

The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by substantial evidence will not be overturned even though substantial evidence supports the opposite conclusion. Ealy, 594 F.3d at 512.

B. Plaintiff's Assignments of Error

1. Alleged Conflict with the DOT

In the second assignment of error, Plaintiff asserts the ALJ relied upon the testimony of the VE, which allegedly conflicted with the DOT, without inquiring about the existence of any conflict or resolving said conflict. (R. 12, PageID# 701-704). Specifically, Plaintiff points to the component of the RFC that limited her to occupations that do not require more than occasional handling, fingering, and feeling with the right (dominant) hand. Id.

In the present case, the ALJ relied upon the VE's testimony that Plaintiff could perform the jobs of a table worker, final assembler, and bonder, even if she was limited to only occasional handling, fingering, and feeling with the right (dominant) hand. (Tr. 21-22). In her brief, Plaintiff asserts that these jobs all require frequent handling, fingering, and feeling as set forth in the DOT and its companion the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles ("SCO"). (R. 12, PageID# 703-704). Furthermore, Plaintiff argues that the ALJ was obligated to resolve this conflict, but failed to do so. Id.

Pursuant to the SCO, a table worker, DOT 739.687-1822(§ 06.03.02), a final assembler, DOT 713.687-0183 (§ 06.04.23), and a bonder, DOT 726.685-066 (§ 06.04.09), must all be able to handle and finger frequently (feeling is not present).

Prior to posing any hypothetical questions to the VE, the ALJ requested the VE to advise her if any of his testimony contradicts the DOT. (Tr. 94). The VE indicated that he would do so. Id. The ALJ proceeded to pose the following hypothetical question to the VE:

(Tr. 95). The VE testified that "with the sit stand option I'm going to have to go to sedentary work. I know you said light but with the sit stand option at will, only sedentary jobs would fit within the rest of this hypothetical." (R. 95). The VE proceeded to identify the following sedentary and unskilled jobs as examples of jobs that such an individual could perform: table worker, DOT 739.687-182 (54,000 jobs nationally); final assembler, DOT [7]13.687-018 (90,000 jobs nationally); and bonder, DOT 726.685-066 (40,000 jobs nationally). (Tr. 96). The VE clarified that while his testimony was consistent with the DOT, the DOT does not give job numbers, which the VE based on his personal experience and data from the Department of Labor. Id.

Plaintiff's counsel also posed a hypothetical to the VE, asking him to maintain the first hypothetical but adding a restriction limiting an individual to only "occasional handling, fingering and grasping with the dominant upper extremity."4(Tr. 97). The VE responded as follows: "The jobs I gave would still remain, and the reason I say that is because if there's no limitation at all with the other hand or fingers, occasional handling, fingering and gripping would still be feasible with — you know, if it's just limited to the one hand. But with just that, I would still give you the same jobs with the same numbers."5Id. The VE did not articulate in any clear or meaningful manner that these jobs required frequent handling and fingering pursuant to the DOT or otherwise alert the ALJ that a potential conflict existed with the DOT. The ALJ did not inquire whether a conflict existed. (Tr. 96-100).

Pursuant to Social Security Ruling ("SSR") 00-4p, 2000 WL 1898704 (Dec. 4, 2000), when a VE "provides evidence about the requirements of a job or occupation," the ALJ "has an affirmative responsibility to ask about any possible conflict between that VE . . . evidence and information provided in the DOT."6

SSR 00-4p at *2. First, the ALJ must ask the VE "if the evidence he or she has provided conflicts" with the DOT. Id. at *4. Second, if the VE's evidence "appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict." Id.

Other court decisions within this Circuit have found that a remand is necessary where: (1) the ALJ fails to develop the record by not inquiring whether the VE's testimony was consistent with the DOT; and (2) the failure to inquire is not harmless because an actual conflict exists between the VE's testimony and the DOT. See, e.g, Lancaster v. Comm'r of Soc. Sec., 228 Fed. App'x 563, 575 (6th Cir. 2007) (finding a remand was necessary where the ALJ failed to inquire about inconsistencies between the VE's testimony and the DOT, and "an inconsistency with the DOT clearly exists"); accord Stine v. Comm'r of Soc. Sec., No. 07-12301, 2008 WL 1837357 at *4 (E.D. Mich. Apr. 23, 2008); Goulette v. Comm'r of Soc. Sec., No. 12-11353, 2013 WL 2371695, at *11 (E.D. Mich. May 30, 2013) ("Following Lancaster, the courts in this circuit have generally concluded that the ALJ's failure to inquire about consistency with the DOT is not reversible error unless a potential conflict actually exists . . ."); cf. Joyce v. Comm'r of Soc. Sec., 662 Fed. App'x 430, 436-37 (6th Cir. 2016) (stating that an "ALJ might reversibly err by failing to inquire about or resolve a conflict between the DOT reasoning levels and a simple-tasks limitation," but affirming based on harmless error under the facts of the case); Kerr v. Comm'r of Soc. Sec., No. 2:13-CV-457, 2014 WL 4243771, at *3 (S.D. Ohio Aug. 26, 2014) ("where the Plaintiff fails to demonstrate an actual conflict, courts have consistently held that an ALJ's failure to comply with SSR 00-4p's inquiry requirement constitutes harmless error").

The facts before the court are analogous to Miller v. Comm'r of Soc. Sec., No. 4:10 CV 2852, 2012 WL 398650, at *16 (N.D. Ohio Feb. 7, 2012) (Knepp, M.J.), wherein the court found that the ALJ relied on "the VE's incorrect testimony to conclude Plaintiff could perform jobs that, according to the DOT and assuming the RFC the ALJ determined she has, she could not perform." The Miller decision observed that "[t]his is not the kind of harmless error that results from merely not inquiring about conflicts between VE testimony and the DOT." Id. Here too, the court determines that the ALJ's omission was not harmless. The ALJ neither inquired whether a potential conflict existed with respect to the handling and fingering requirements of the jobs provided in the VE's testimony and Plaintiff's dominant-hand limitations nor did the VE's ambiguous testimony alert the ALJ to the presence of any potential conflict. The decision does clarify that the ALJ never actually perceived that any potential conflict existed. This fact is illustrated by the ALJ's inaccurate statement in the decision that the "[VE's] testimony is consistent with information contained in the [DOT]." (R. 21).

The Commissioner argues that the present case presents no conflict with the DOT, a contention the court rejects. (R. 13, PageID# 719-720). The defense's attempt to analogize the conflict in the case at bar to sit/stand options, which are unaccounted for in the DOT, is not well taken. Id. The DOT is not silent on the handling and fingering requirements of the pertinent jobs in this case; rather, it unequivocally states that the requirements are "frequent."7While the ALJ is not obligated to follow the DOT over the contradictory testimony of a VE, the very purpose of SSR 00-4p is to apprise an ALJ of a conflict in order to afford the ALJ the opportunity to resolve the conflict in the decision. SSR 00-4p at *4. Had the ALJ inquired of the VE whether a conflict exists, she may have been alerted to the potential conflict. Instead, the ALJ concluded without sufficient foundation that the VE's testimony was consistent with the DOT.

The Commissioner also argues that the VE gave a reasonable explanation for the conflict. (R. 13, PageID# 720-721). The court disagrees. First, as already stated, the VE's testimony did not clearly alert the ALJ that a conflict existed in the first place and the decision contradicts the conclusion that the ALJ perceived a conflict. Second, the ALJ's decision does not explain that, or how, the VE gave a reasonable explanation for the apparent conflict, rendering the assertion a post hoc argument. SSR 00-4p states that:

Id. at *4. The ALJ's decision provides no explanation identifying or resolving the conflict between the VE's testimony regarding jobs that someone with Plaintiff's limitations could perform and the DOT's requirements for performing such jobs. The defense's conclusory statement that the VE's explanation was reasonable essentially ignores the the ALJ's role as the adjudicator. Similarly, it is also not this court's function to be the first to address whether the VE gave a reasonable explanation for the conflict.8

Therefore, the court finds merit in Plaintiff's second assignment of error and recommends remanding this matter for additional VE testimony and a new decision that complies with SSR 00-4p. A remand, rather than an award of benefits, is appropriate, because the ALJ is not obligated to ascribe greater weight to the DOT or SCO than to the VE's testimony.

2. Application of Res Judicata

In the first assignment of error, Plaintiff argues that there is an inconsistency between the ALJ's finding that there was no new and material evidence of a significant worsening of Plaintiff's mental impairments since the previous decision denying her disability and the ALJ's inclusion of a severe mental impairment at Step Two, generalized anxiety disorder, that was not considered a severe impairment during the prior adjudication. (R. 12, PageID# 698-700). In the interests of judicial economy, the court declines to address whether this apparent inconsistency furnished a basis for remand. Nevertheless, as the court recommends that a remand is necessary, the ALJ should also clarify its findings in this regard.

V. Conclusion

For the foregoing reasons, it is recommended that the Commissioner's final decision be REVERSED and REMANDED for proceedings consistent with this opinion.

OBJECTIONS

Any objections to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (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 waive the right to appeal the district court's order. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986).