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referring to obvious conflict and less obvious conflict as "direct conflict scenarios"
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NO. 1:00-CV-749
August 27, 2002
Donald E. Sample, Sample and Sample, Beaumont, TX, for plaintiff Fred W. Augustine.
Steven MacArthur Mason, Asst. U.S. Attorney, U.S. Attorney's Office, Tyler, TX, for defendant Commissioner of Social Security.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGEThis case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law.
See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. Nature of the Case
Plaintiff seeks an award of Social Security disability benefits ("DIB"). Plaintiff's alleged disability stems from knee injury, reflex sympathetic dystrophy, degenerative disc disease, and chronic pain with an onset date of February 24, 1998. Tr. 84.In administrative proceedings, the Commissioner found plaintiff not disabled within the meaning of Social Security laws, and denied his application for benefits. Plaintiff now contests the Commissioner's decision by asserting that the Administrative Law Judge ("ALJ") erred in finding him not disabled. Jurisdiction is invoked pursuant to 42 U.S.C. § 405(g), which authorizes United States district courts to conduct judicial review of the Commissioner's final decisions regarding applications for Social Security benefits.
Plaintiff exhausted all available administrative remedies before filing suit. Suit in federal district court was instituted on November 2, 2000, within the 60-day period established by statute for bringing actions for judicial review. 42 U.S.C. § 405(g).
Plaintiff applied for DIB benefits on October 7, 1998. Initial determination of non-disability was issued on November 24, 1998. Tr. 48-49. On December 22, 1998, plaintiff timely requested reconsideration, but the initial determination was affirmed on February 8, 1999. Tr. 56-60. On April 8, 1999, plaintiff timely requested hearing before an administrative law judge, which resulted in hearing on October 19, 1999. The ALJ determined that plaintiff is not disabled (Tr.21) and, on February 7, 2000, plaintiff requested review of hearing decision by Appeals Council (Tr. 8). Appeals Council refused to review hearing decision. Tr. 5-6.
II. Judicial Review
A United States district court has "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The court's role is to determine (A) whether the Commissioner applied the proper legal standards, and (B) whether the decision is supported by substantial evidence. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001), citingHarris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). The court must affirm the Commissioner's decision unless the ALJ applied an incorrect legal standard, or the ALJ's determination is not supported by substantial evidence. Boyd v. Apfel, 239 F.3d at 704.
To determine whether substantial evidence exists to support the ALJ's findings, the entire record must be scrutinized carefully. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994); Ransom v. Heckler, 715 F.2d 989, 992 (5th Cir. 1983). The court, in reviewing the record, may not reweigh the evidence or review the ALJ's decision de novo. Haywood v. Sullivan, 888 F.2d 1462, 1466 (5th Cir. 1989); Neal v. Brown, 829 F.2d 528, 530 (5th Cir. 1987). Rather, it is for the Commissioner to weigh the evidence and to resolve any conflicts. See Anthony v. Sullivan, 954 F.2d at 295;Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir 1990).
If based upon correct legal standards and supported by substantial evidence, the Commissioner's findings are conclusive and must be affirmed. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 2 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co., 305 U.S. at 230, 59 S.Ct. at 217); see also, Title 42 U.S.C. § 405(g). If the Commissioner's findings are not supported by substantial evidence, Title 42 U.S.C. § 405(g) permits the court to modify or reverse the Commissioner's decision, with or without remanding the cause for rehearing.
III. Eligibility Standards
Eligibility for DIB requires proof of disability. A qualifying disability is inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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), 1382c(3)(A). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A), 1382c(3)(B).
IV. Administrative Sequential Evaluation Process
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).
A. Five-Step Evaluation
The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. See 20 C.F.R. § 404.1520. This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity . If so, a finding of non-disability is entered and the inquiry ends.
The Commissioner determines if the applicant's impairment or combination of impairments is severe , that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. If not, the inquiry ends and a finding of non-disability is entered.
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 . If so, disability is presumed and benefits are awarded.
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment . If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform . If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
B. Commissioner's Burden at Step Five
At the fifth step, the Commissioner's burden is to establish that an applicant can perform available, alternative employment. To meet this obligation, the Commissioner engages in a two-pronged analysis:
First, the Commissioner determines an applicant's residual functional capacity ("RFC"). That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required in various categories of work.
Next, the Commissioner consults the "Medical Vocational Guidelines," commonly called "the grids."
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other impairments.See 20 C.F.R. § 404.1545(a).
The Medical-Vocational Guidelines consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000).
The grids are a matrix of general findings, established by rule, as to whether work exists in the national economy that a person can perform, taking into account age, education, work experience, and residual functional capacity. When individual factors for a particular applicant are compared to the general findings in the grids, the Commissioner determines whether alternative work that the particular applicant can perform exists in the national economy.
When a claimant suffers only from exertional impairments and an ALJ's findings of residual functional capacity, age, education, and previous work experience coincide with the grids, the Commissioner may rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform. 20 C.F.R. § 404.1569a(b). If the grids produce a finding that substantial jobs are not available, the application for benefits is approved. Conversely, if the grids produce a finding that such jobs are available, the application is denied. Use of the grids does not violate the Social Security Act and is judicially approved as a fair and just method of determining disability.See Heckler v. Campbell, 461 U.S. at 468 (concluding that the use of occupational grids is not violative of the Social Security Act and stating that "[t]his type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing").
Exertional impairments "affect only . . . ability to meet strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b).
C. Use of Grids to Evaluate Non-exertional Impairments
While the grids serve desirable purposes of promoting uniformity and efficiency, their application is not appropriate in all circumstances. The grids only establish whether there are available unskilled jobs in the national economy for claimants with exertional impairments and who fit the criteria of the rule at various functional levels. They do not purport to establish jobs that exist in the national economy at various functional levels when a claimant has a solely non-exertional impairment (or does not meet criteria of the rule for other reasons). 20 C.F.R. § 404.1569a(c)(2). See also Sykes v. Apfel, 228 F.3d 259, 269 (3d Cir. 2000). Consequently, when an ALJ determines that a claimant suffers from a non-exertional impairment that prevents performance of the claimant's past work, the Commissioner generally must produce "expert vocational testimony or other similar evidence" to establish that jobs exist in the national economy that the applicant can perform. See Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985); Dellolio v. Heckler, 705 F.2d 123, 127-28 (5th Cir. 1983).
Non-exertional impairments are those which do "not result in [strength] limitations, e.g. certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental limitations." 20 C.F.R. Pt. 404, Subpt. P, 200(e) (2000).
There are two exceptions to these general precepts. First, even when a claimant has a non-exertional impairment, the Commissioner may nevertheless rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform if (a) the ALJ determines that the non-exertional impairment does not significantly affect the claimant's RFC, and (b) substantial evidence supports that determination. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000), citingFraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Second, even when a claimant's RFC is so significantly affected by a non-exertional impairment as to preclude resort to the grids for a disability determination, the grids may nevertheless be consulted as a "framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the non-exertional limitations." 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(§ e)(2) (2001).
V. Administrative Law Judge's Decision
An administrative law judge conducted a hearing on October 19, 1999, and issued a decision on January 27, 2000. At the October, 1999, hearing the ALJ received and considered evidence regarding physical impairments from doctors including Alvin Larkins, M.D.; Jack McNeill, M.D.; Brent Mainwaring, M.D.; and Lois Miller, D.O. The ALJ further heard plaintiff's own testimony regarding physical impairments compounded by anxiety and panic attacks. This evidence, collectively, showed that plaintiff experiences physical complications from a workplace injury sustained to his right knee, complicated by degenerative disc disease, reflex sympathetic dystrophy, and chronic pain syndrome which, in combination, constitute severe impairments preventing plaintiff from engaging in his regular previous employment.
Dr. Larkins treated plaintiff with epidural steroid injections in January, 1996. Tr. 128-31. Dr. McNeill performed arthroscopy of right knee on February 13, 1996. Tr. 123-24. On December 11, 1996, Dr. Mainwaring performed MRI of lumbar spine and diagnosed degenerative disc disease at L4-L5. Tr. 154. From June 24, 1996, to December 3, 1998, Dr. Miller supervised plaintiff's pain management with prescription medications. Tr. 179-94.
The ALJ also received opinion testimony of vocational expert, Norman Hooge, with respect to whether other work exists in the national economy that plaintiff can perform. Hooge testified in response to a hypothetical question. The parameters of the question included plaintiff's age and educational level and also his physical and psychological limitations and impairments that the ALJ determined to exist from the medical evidence and plaintiff's testimony. Collectively, these impairments limited plaintiff's residual functional capacity to a limited range of sedentary work. Hooge than opined that plaintiff can work as an order clerk in the food industry, as a cubicle cashier, specifically filling station cashier or parking lot cashier, or as an optical assembler. Tr. 44-45.
Vocational Experts (VE) are utilized to "assess whether jobs exist for a person with the claimant's precise abilities." Gilliam v. Califano, 620 F.2d 691 (8th Cir. 1980). The VE's testimony must: (1) assess the effect of any limitation on the range of work at issue; (2) advise whether the impaired person's residual functional capacity permits him or her to perform substantial numbers of occupations within the range of work at issue; and, (3) identify jobs if they exist and provide a statement of the incidence of such jobs in the region in which the person lives. See Ellison v. Sullivan, 921 F.2d 816 (8th Cir. 1990).
Social Security regulations define sedentary work as "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a).
Dictionary of Occupational Titles defines sedentary work as "(e)xerting up to 10 pounds of force occasionally . . . and/or a negligible amount of force frequently . . . to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met." Dictionary of Occupational Titles, Vol. II, App. C (1991).
Following the hearing, the ALJ — employing the sequential step analysis described earlier — issued a written decision denying benefits, and making the following determinations:
Step 1: Plaintiff has not engaged in substantial gainful activity since February 24, 1998. Tr. 19
Step 2: Plaintiff has severe impairments of degenerative disc disease, chronic pain syndrome, and reflex sympathetic dystrophy. Tr. 19.
Step 3: Plaintiff's impairments do not meet or equal the criteria of any of the impairments listed in Appendix 1 to Subpart P of Regulations No. 4. Tr. 19.
Step 4: Plaintiff is unable to perform his past relevant work. Tr. 20.
Step 5: (a) Plaintiff has residual functional capacity for a limited range of sedentary work. Plaintiff's capacity for sedentary work is diminished by his need to alternate sitting and standing, never climb, only occasionally bend or stoop, have no unplanned or unscheduled events due to work stress, and perform only simple, repetitive tasks with simple instructions. Tr. 20, Finding 7.
(b) Plaintiff can adjust to work which exists in significant numbers in the national economy. Tr. 20, Finding 12. Consequently, a finding of "not disabled" is reached within the framework of Section 404.1569 and Rules 202.28, Table 2, Appendix 2, Subpart P, Regulations No. 4. Tr. 20 Findings 11 and 12.
At Step 5, the Commissioner engages in a two-pronged analysis. See discussion in Section IV. B., above.
VI. Points of Error
By local orders, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking appellate review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is then ordered to file a brief in response. Thereafter, the court limits scope of its judicial review to points argued in the briefs.Through his original brief and reply brief, plaintiff raises numerous points of error. These points are lengthy and tedious, and are stated verbatim in the Appendix. After examining them all, as well as the Commissioner's response, the undersigned concludes that for present purposes, it is necessary to cite and analyze only one. That point, restated so as to permit clear analysis, is as follows:
The ALJ's decision is not supported by substantial evidence because it is based on facially unreliable expert vocational testimony.
Plaintiff contends that the jobs cited by the vocational expert as being available and within plaintiff's ability to perform require a higher exertional or skill level than persons with limitations posed in the ALJ's hypothetical question can perform. Specifically, plaintiff alleges that the vocational expert cited jobs requiring residual functional capacity for light work, whereas plaintiff's residual functional capacity is for only a limited range of sedentary work. Plaintiff supports this argument by referring to the Dictionary of Occupational Titles (DOT) which, according to plaintiff, classifies the jobs listed by the vocational expert as light work rather than sedentary work. Pl.'s Reply Br. at III.
Social Security regulations define light work as "lifting no more than 20 pounds at a time with frequent lifting and carrying of objects up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
Dictionary of Occupational Titles defines light work as "exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly . . . to move objects. . . . Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible." Dictionary of Occupational Titles, Vol. II, App. C (1991).
VII. Discussion and Analysis
Plaintiff's argument that the vocational expert's testimony is facially invalid is premised on the contention that jobs identified by the vocational expert have exertional requirements beyond those established by ALJ's RFC findings. Plaintiff relies on DOT to show exertional requirements of jobs identified by the vocational expert. Consequently, logical analysis should first clarify what DOT is, and identify its relationship to Social Security proceedings. Next, case law establishing rules for dealing with conflicts between DOT and expert vocational testimony should be surveyed. Next, the analysis should consider whether the conflict alleged by plaintiff exists. Finally, and if the claimed conflict exists, the analysis should apply applicable rules.
A. Dictionary of Occupational Titles
The Dictionary of Occupational Titles, published by the United States Department of Labor, is a comprehensive listing of job titles in the United States. Detailed descriptions of requirements for each job include assessments of exertional level and reasoning ability necessary for satisfactory performance of the work. For Social Security proceedings, the Commissioner routinely takes administrative notice of job information contained in DOT when determining whether work exists in significant numbers in the national economy. Sykes v. Apfel, 228 F.3d at 269; Gibson v. Heckler, 762 F.2d 1516, 1518 n. 2 (11th Cir. 1985); see 20 C.F.R. § 404.1566(d)(1); see also Social Security Ruling 00-4p (2000).
B. Circuit Precedent
The Court of Appeals for the Fifth Circuit recently considered an issue that arises when an unsuccessful claimant complains that expert vocational testimony conflicts with DOT's listings. See Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000). There, the court instructed lower courts confronted with somewhat amorphous situations, wherein expert vocational testimony may implicitly or obliquely conflict with DOT, to apply the following rule when engaged in judicial review:
"To the extent that there is any implied or indirect conflict between the vocational expert's testimony and the DOT . . . the ALJ may rely upon the vocational expert's testimony provided that the record reflects an adequate basis for doing so."Id, at 146 (italics added).
Plainly, claimants seeking judicial review cannot secure automatic reversals of the Commissioner's decisions merely by establishing tangential conflicts. Reviewing federal district courts can brush aside semantical quibbling and look directly at the evidentiary record. If substantial evidence supports the vocational expert's opinion, the court may affirm the Commissioner, irrespective of the claimed conflict between the DOT descriptions and the vocational expert's specific testimony.
The Fifth Circuit has not yet addressed squarely the related but separate question of whether the Commissioner's decision denying benefits lacks substantial evidentiary support if based on vocational testimony that directly and obviously conflicts with DOT's description of exertional and skill levels required for particular jobs. Moreover, inCarey v. Apfel, the Fifth Circuit carefully distinguished the indirect conflict involved there from direct and obvious conflicts. The Fifth Circuit identified the latter as existing
"when the vocational expert's characterization of the exertional or skill level required for a particular job is facially different from the exertional or skill level provided for that job in the DOT."
and, to a less obvious extent,
"when the vocational expert's testimony creates a conflict or discrepancy between the ALJ's determination of the claimant's residual functional capacity and the DOT job descriptions.'Id. at 146.
Because the Fifth Circuit so carefully distanced the rule it established in Carey v. Apfel from situations involving direct conflicts, logic permits an inference that a more stringent, less deferential rule might apply. Thus, vocational expert testimony directly and obviously conflicting with DOT descriptions would not constitute substantial evidence sufficient to carry the Commissioner's burden to show at Step 5 of the sequential evaluation process that plaintiff can perform available work.
C. Other Precedent
The Court of Appeals for the Eight Circuit is the only federal appellate court to squarely address the effect of a direct and obvious conflict between a vocational expert's testimony and DOT job descriptions. In Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995), the court held that in such circumstances, DOT prevails, and conflicting vocational expert testimony does not constitute substantial evidence sufficient to empower the court to affirm the Commissioner's decision. However, that holding was later relaxed so as to permit the ALJ and Commissioner to rely on conflicting VE testimony if the witness acknowledges the conflict and credibly explains how a job listed by DOT in a higher exertional category, e.g., light work, can be performed at a lower exertional level, e.g., sedentary work. Young v. Apfel, 221 F.3d 1065, 1070 (8th Cir. 2000).
Cases from remaining circuits address conflicts that were either not as clear, direct and obvious as those involved in Eight Circuit cases, or involved other extrinsic factors that also influenced the decisions. However, the Third and Tenth circuits appear generally in accord with the Eighth by permitting reliance on conflicting VE testimony when the ALJ specifically addresses the inconsistencies, articulates a plausible reason for finding the VE testimony credible notwithstanding the conflict, and the VE testimony itself has evidentiary support. Zilliot v. Massanari, 29 Fed. Appx. 828, 2002 WL 393017 (3rd Cir. (Pa.)) (unpublished);Young v. Apfel, 221 F.3d at 1070; Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999). The Sixth, Ninth, and Eleventh Circuits appear even more deferential. They allow the ALJ and Commissioner to rely on conflicting VE testimony if the evidentiary record provides a basis for the vocational testimony, irrespective of whether the conflict is acknowledged and addressed by either the witness or ALJ. Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999); Johnson v. Shalala 60 F.3d 1428, 1434-35 (9th Cir. 1995); Conn v. Secretary of Health and Human Services, 51 F.3d 607, 609 (6th Cir. 1995). Finally, the Seventh Circuit, and at least one district court in the Fifth Circuit, will sustain the Commissioner's decision notwithstanding conflicting VE testimony if claimant was represented by counsel at the administrative hearing, and claimant's counsel failed to point out the conflict and rebut the VE's testimony during cross-examination. Donahue v. Barnhart, 279 F.3d 441, 445-46 (7th Cir. 2002); Mercer v. Halter, No. 4:00cv1257-BE, 2001 WL 257842 at *7 (N.D.Tex. Mar. 7, 2001).
This case is not precedential. See 3rd Cir.R. 28.3(a).
D. Application 1. Plaintiff's RFC and ALJ's hypothetical question
The ALJ eventually determined that plaintiff retains the residual functional capacity to perform only a limited range of sedentary work. Moreover, the ALJ could not rely on Medical-Vocational Guidelines to determine that work exists in significant numbers in local and national economy which plaintiff is capable of performing because plaintiff suffers from non-exertional impairments. Tr. 18. Therefore, the ALJ was required to elicit testimony from a vocational expert.
The ALJ's hypothetical question posed to Norman Hooge incorporated only elements for a limited range of sedentary work. These parameters were consistent with the ALJ's residual functional capacity assessment. Specifically, the ALJ asked Mr. Hooge to express an opinion as to whether jobs are available for persons of plaintiff's age and educational level and who have ability to:
sit for 30 minutes at a time, for a total of 6 hours;
stand for 15 minutes at a time, for a total of 1 hour;
walk for 20 minutes at a time, for a total of 1 hour;
lift and/or carry maximum of 10 pounds occasionally and less than 10 pounds frequently;
occasionally bend or stoop, but cannot climb stairs or ladders;
cannot work in an environment that involves unplanned or unscheduled events; and
are limited to simple, repetitive tasks requiring simple instructions.
Tr. 43.
2. Vocational Expert's Testimony Compared with DOT
Mr. Hooge testified that plaintiff can perform the following jobs available in the national economy: (a) cashier, specifically "cubicle cashiering, like filling station cashiering . . . or parking lot cashier;" (b) optical assembly work; (c) order clerk in restaurant. Tr. 44-45. He also testified that all of these jobs are performed at the sedentary level, and that the order clerk and cashier positions are unskilled in nature. Id.
The Dictionary of Occupational Titles lists nine cashier jobs, most being classified as light work rather than sedentary. The specific cashier positions proffered by Mr. Hooge, i.e., filling station cashier and parking lot cashier, are listed as light work. Similarly, DOT lists eight optical assembly jobs, and again, most are classified as light work. Mr. Hooge did not specify any particular optical assembly jobs he used as a basis for his opinion.
The DOT lists the following cashier jobs and their exertional levels:
DOT description: DOT number:
Exertional level:
Cashier-checker (retail trade) 211.462-014
light
Filling station, parking lot 211.467-010
light
Cashier II (clerical) 211.462-010 light
Fast foods worker (cashier) 311.472-010 light
Ticket seller (clerical) 211.467-030 light
Pari-mutuel ticket cashier 211.462-018 light
Cashier I; cash accounting clerk 211.362-010 sedentary
Cashier — gambling 211.462-022 sedentary
Cashier — tube room 211.482-010 sedentary
Dictionary of Occupational Titles (1991).
The DOT lists the following optical assembly jobs and their exertional levels:
DOT description DOT number
Exertional level
Assembler, clip-on sunglasses 713.684-010 light
Assembler, gold frame 713.384-010 light
Assembler, molded frame 713.684-014 light
Frame assembler 713.684-014 light
Optical instrument assembler 711.381-010 light
Final assembler 713.687-018 sedentary
Multifocal-button assembler 713.684-034 sedentary
Multi-focal lens assembler 713.684-034 sedentary
Dictionary of Occupational Titles (1991).
The Dictionary of Occupational Titles designates the position of order clerk in food and beverage industry as sedentary work from an exertional standpoint. Dictionary of Occupational Titles, Listing 209.567-014 (1991). However, DOT further specifies that food and beverage order clerks must have reasoning ability sufficient to "(a)pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form (and) (d)eal with problems involving several concrete variables in or from standardized situations." Dictionary of Occupational Titles, App. C, Scale of General Education Development 3 (1991).
3. Analysis and Conclusion
The ALJ's decision denying plaintiff's application for disability benefits was based on vocational expert testimony that jobs are available in the national economy for persons with residual functional capacity for a limited range of sedentary work due to both exertional and non-exertional impairments.
a. VE Testimony Directly Conflicted with DOT and ALJ
The specific cashiering jobs that the vocational expert opined that plaintiff can perform are light work jobs, not limited-range sedentary jobs according to DOT. The optical assembly jobs mentioned by the vocational expert are not specific. However, most optical assembly jobs are also light work jobs, not limited-range sedentary jobs, according to DOT. The restaurant order clerk job, while sedentary from an exertional standpoint, involves both unplanned and unscheduled events and requires more than simple, repetitive tasks requiring only simple instructions.
This, therefore, is a case involving a direct or obvious conflict between DOT job descriptions and a vocational expert's testimony. Indeed, both of the direct conflict scenarios mentioned in — but excluded from the rule of — Carey v. Apfel are here. First, Mr. Hooge's characterization of the exertional or skill level required for particular jobs he identified as sedentary is facially different from the exertional or skill level provided for those jobs in DOT. Second, Mr. Hooge's testimony creates a conflict or discrepancy between the ALJ's determination of the claimant's residual functional capacity and DOT's job descriptions.
b. Standard for Assessing Effect of Conflicts
As earlier noted, there is no governing circuit precedent directly on point. Further, cases from other circuits, to the extent analogous, suggest various approaches. Nevertheless, it seems fair to conclude generally that the majority view is that neither DOT nor VE evidence automatically trumps the other. Generally, DOT evidence prevails over conflicting VE testimony that is only conclusory and unsupported. However, when (1) there is good reason to find conflicting VE testimony credible, (2) that good reason is articulated so that it is susceptible to meaningful judicial review, and (3) substantial evidence supports the VE testimony, the Commissioner's decision based thereon may be affirmed as having substantial evidentiary support.
This distillation of the case law is supported by the Commissioner's current policy and interpretation of Social Security law. Social Security Ruling 00-4p, December 4, 2000, now requires an ALJ to specifically ask vocational experts whether their testimony conflicts with the DOT and, if so, to resolve the conflict before relying on the VE evidence to support a determination that the claimant is or is not disabled. The ruling applies to any hearing on remand. Social Security Ruling 00-4p (2000), at *4.
c. Substantial Evidence does not Support the Commissioner's Decision
Irrespective of whether the rule of decision eventually established in this circuit will be stringent or deferential, this is not an appropriate case to affirm the Commissioner's decision. The vocational expert's testimony characterizing as sedentary certain jobs listed as light work by DOT directly conflicts with DOT and the ALJ's residual functional capacity determination. Hence, if a stringent rule governs, the court would conclude automatically that the Commissioner's decision, based on directly and obviously conflicting vocational testimony, is not supported by substantial evidence.
If, instead, the eventual rule of decision is more relaxed and deferential, the same conclusion is compelled. No circumstance identified by other courts as warranting an exception to the general rule is present. Neither the vocational expert nor the ALJ recognized and discussed the conflict between the VE testimony and DOT. Neither articulated plausible reasons for finding the VE testimony more credible under the circumstances. Independent review of the administrative record discloses no substantial evidence supporting the VE testimony that plaintiff can perform jobs requiring residual functional capacity for light work. Finally, plaintiff was not represented by counsel at the administrative hearing, thus mooting any suggestion that he should be penalized for not bringing the conflict to light earlier.
Consequently, the Commissioner did not carry her burden at Step 5 of the sequential evaluation process to show by substantial evidence that plaintiff is capable of performing gainful employment that exists in substantial numbers in the national economy. Therefore, remand is appropriate. Montgomery v. Chater, 69 F.3d 273, 277 (8th Cir. 1995).
Remand would be appropriate even were the court able to discern record evidence that arguably supports the conflicting VE testimony that plaintiff can perform at the exertional and psychological level required for light work. A United States district court simply does not have authority to make de novo determinations of Social Security disability claims. If this court were to evaluate that evidence and then grant or deny plaintiff's claim based on it, that is exactly what the court would be doing. This initial determination is the exclusive prerogative of the Commissioner. The district court should await a proper administrative decision, and then conduct limited and deferential judicial review of the administrative decision should it again be appealed.
VIII. RECOMMENDATION
The Commissioner's decision should be reversed and the case remanded pursuant to 42 U.S.C. § 405, sentence four, for further proceedings consistent with applicable law, including (a) clarification of the vocational testimony, (b) resolution of conflicts between that testimony and job descriptions listed in the Dictionary of Occupational Titles, and (c) consideration of new evidence now proffered by plaintiff, if appropriate.IX. OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).
APPENDIX
Plaintiff's alleged points of error, and the Commissioner's responses are listed in this appendix.
Plaintiff's Points of Error
In plaintiff's original brief, plaintiff argued three points, with sub-parts as follows:
A. Substantial evidence does not support the decision because:
Plaintiff suffers disabling pain, but the ALJ improperly applied the regulations, dismissing plaintiff's complaints.
The plaintiff's conditions meet or equal the listing of impairments.
The hypothetical question did not comprehensively describe plaintiff's limitations, and by its own terms so limits his activities that he is disabled.
Good cause exists for remand because Commissioner recognized a representative who did not have the required skill, knowledge, and preparation to give plaintiff competent assistance. Plaintiff was harmed, and when the representative's inadequacy became clear, the ALJ's duty to conduct a fair hearing rose to the level of a special duty to fully develop the record.
Good cause for remand exists because there is additional, relevant medical (sic) which demonstrates significant, disabling pain. There is good cause for the failure to earlier present such evidence because plaintiff's attorney suffered severe illness.
In a reply brief, plaintiff added two additional points as follows:
The vocational expert's assessment of jobs which plaintiff could perform is essentially flawed, in that VE identified jobs categorized as light work instead of sedentary, and ALJ found plaintiff capable of only a limited range of sedentary work. Pl.'s Reply Br. at 6-9.
Because plaintiff was inadequately represented by a registered nurse at the evidentiary hearing, and because the ALJ did not fulfill a special duty to develop the record fully, prejudice resulted. Had the representative questioned VE about exertional levels of jobs he identified, a different outcome would likely have resulted.
Commissioner's Responses
The Commissioner responded to points of error contained in plaintiff's original brief as follows: First, the ALJ found plaintiff's statements regarding pain to be not credible in light of medical evidence and plaintiff's testimony, and the ALJ properly considered plaintiff's demeanor. Second, medical evidence does not include findings equivalent in severity to any listed impairment. Third, the ALJ's hypothetical question incorporated all impairments which he recognized plaintiff to have. Fourth, the ALJ was under no duty to test non-attorney representative's qualifications before permitting the representative to participate in the hearing, and plaintiff has not established prejudice from inadequate representation.Finally, plaintiff's proposed new evidence is not relevant to the time period for which benefits were denied. The Commissioner did not respond to point in plaintiff's reply brief which argued that prejudice resulted from failure of representative to cross-examine the VE about his testimony which conflicted with DOT.