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finding that a limitation to simple tasks appears more squarely addressed by a job's reasoning level than its SVP level
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No. 03-CV-665-J.
October 15, 2004
ORDER
This Order is entered in accordance with 28 U.S.C. § 636(c) and pursuant to the parties' Consent to Proceed Before United States Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff appeals the decision of the Commissioner denying Social Security benefits. Plaintiff asserts that the Commissioner erred because an unresolved conflict existed between the Dictionary of Occupational Titles ("DOT") and the testimony of the vocational expert and the ALJ failed to determine if a reasonable explanation existed for the conflict. For the reasons discussed below, the Court REVERSES AND REMANDS the Commissioner's decision for further proceedings consistent with this opinion.
Administrative Law Judge Gene M. Kelly (hereafter "ALJ") concluded that Plaintiff was not disabled by decision January 6, 2002. [R. 15-24]. Plaintiff appealed the decision by the ALJ to the Appeals Council. The Appeals Council declined Plaintiff's request for review on August 1, 2003. [R. 5].
I. FACTUAL AND PROCEDURAL HISTORY
Plaintiff was 50 years old at the time of the decision of the ALJ. [R. at 45]. Plaintiff completed the tenth grade and obtained her GED. [R. at 67]. Plaintiff asserts she is unable to work due to a fracture in her spine, a right shoulder fracture, arthritis, a damaged nerve in her right leg, stomach problems, anxiety, depression, and heart problems.
The ALJ found that Plaintiff had the residual functional capacity to perform work at the light exertional level, reduced by limitations on climbing, bending, stooping, squatting, kneeling, crouching, and crawling. The ALJ found Plaintiff could occasionally push and/or pull and occasionally reach overhead. [R. at 23]. Plaintiff was slightly limited in her fingering, feeling and gripping, and was to avoid rough uneven surfaces, unprotected heights, and fast or dangerous machinery. "The claimant is also limited to simple, repetitive and routine tasks; and is slightly limited in the contact with the public, co-workers, and supervisors." [R. at 23].
The ALJ presented the RFC of Plaintiff in a hypothetical question to a vocational expert. Based on the testimony of the vocational expert, the ALJ found that Plaintiff could perform the jobs of surveillance monitor (700 regional and 57,000 nationally), addresser (500 regionally and 46,000 nationally), and envelope stuffer (400 regional and 32,000 nationally).
The transcript of the hearing before the ALJ indicates that the ALJ never questioned the vocational expert about the Dictionary of Occupational Titles.
II. SOCIAL SECURITY LAW AND STANDARD OF REVIEW
The Commissioner has established a five-step process for the evaluation of social security claims. See 20 C.F.R. § 404.1520. Disability under the Social Security Act is defined as the
inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment. . . .42 U.S.C. § 423(d)(1)(A). A claimant is disabled under the Social Security Act 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 in the national economy. . . .42 U.S.C. § 423(d)(2)(A).
Step One requires the claimant to establish that he is not engaged in substantial gainful activity (as defined at 20 C.F.R. §§ 404.1510 and 404.1572). Step Two requires that the claimant demonstrate that he has a medically severe impairment or combination of impairments that significantly limit his ability to do basic work activities. See 20 C.F.R. § 1521. If claimant is engaged in substantial gainful activity (Step One) or if claimant's impairment is not medically severe (Step Two), disability benefits are denied. At Step Three, claimant's impairment is compared with those impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). If a claimant's impairment is equal or medically equivalent to an impairment in the Listings, claimant is presumed disabled. If a Listing is not met, the evaluation proceeds to Step Four, where the claimant must establish that his impairment or the combination of impairments prevents him from performing his past relevant work. A claimant is not disabled if the claimant can perform his past work. If a claimant is unable to perform his previous work, the Commissioner has the burden of proof (Step Five) to establish that the claimant, in light of his age, education, and work history, has the residual functional capacity ("RFC") to perform an alternative work activity in the national economy. If a claimant has the RFC to perform an alternate work activity, disability benefits are denied. See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).
The Commissioner's disability determinations are reviewed to determine (1) if the correct legal principles have been followed, and (2) if the decision is supported by substantial evidence. See 42 U.S.C. § 405(g); Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988); Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988).
The Court, in determining whether the decision of the Commissioner is supported by substantial evidence, does not examine the issues de novo. Sisco v. United States Dept. of Health and Human Services, 10 F.3d 739, 741 (10th Cir. 1993). The Court will not reweigh the evidence or substitute its judgment for that of the Commissioner. Qualls v. Apfel, 206 F.3d 1368 (10th Cir. 2000); Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). The Court will, however, meticulously examine the entire record to determine if the Commissioner's determination is rational. Williams, 844 F.2d at 750; Holloway v. Heckler, 607 F. Supp. 71, 72 (D. Kan. 1985).
"The finding of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). Substantial evidence is that amount and type of evidence that a reasonable mind will accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Williams, 844 F.2d at 750. In terms of traditional burdens of proof, substantial evidence is more than a scintilla, but less than a preponderance. Perales, 402 U.S. at 401. Evidence is not substantial if it is overwhelmed by other evidence in the record. Williams, 844 F.2d at 750.
Effective March 31, 1995, the functions of the Secretary of Health and Human Services ("Secretary") in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. For the purpose of this Order, references in case law to "the Secretary" are interchangeable with "the Commissioner."
This Court must also determine whether the Commissioner applied the correct legal standards. Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The Commissioner's decision will be reversed when he uses the wrong legal standard or fails to clearly demonstrate reliance on the correct legal standards. Glass, 43 F.3d at 1395.
III. REVIEW
Plaintiff asserts, as the sole issue on appeal, that the ALJ erred by not resolving a conflict in the testimony of the vocational expert and the Dictionary of Occupational Titles ("DOT"). The Court agrees and remands the action for the purpose of allowing the resolution of the apparent conflict between the DOT and the testimony of the vocational expert.
The Social Security regulations provide that the Social Security Administration will take administrative notice of job data.
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental and other publications. For example, we will take notice of —
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepare for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
(e) Use of vocational experts and other specialists. If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.
20 C.F.R. Ch. 111 § 404.1566.
In Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999), the Tenth Circuit Court of Appeals addressed an asserted conflict between the testimony of the vocational expert and the DOT.
We hold that before an ALJ may rely on expert vocational evidence as substantial evidence to support a determination of nondisability, the ALJ must ask the expert how his or her testimony as to the exertional requirement of identified jobs corresponds with the Dictionary of Occupational Titles, and elicit a reasonable explanation for any discrepancy on this point.Haddock at 1087. The Court of Appeals noted that "questioning a vocational expert about the source of his opinion and any deviations from a publication recognized as authoritative by the agency's own regulations falls within" the ALJ's duty to fully develop the record. Id. at 1091.
We do not mean by our holding that the Dictionary of Occupational Titles "trumps" a VE's testimony when there is a conflict about the nature of a job. We hold merely that the ALJ must investigate and elicit a reasonable explanation for any conflict between the Dictionary and expert testimony before the ALJ may rely on the expert's testimony as substantial evidence to support a determination of nondisability.Id. The Haddock Court additionally noted, "[t]he relationship between § 404.1566(d) and (e), and how these subsections should be applied to particular cases, is not clarified to any great extent by the agency's other regulations or rulings." Id. at 1089.
In December 2000, the Social Security Administration issued new Social Security Rulings which provide additional guidance on the interaction between the subsections of the regulations. The stated purpose of the ruling is to clarify the "standards for the use of vocational experts (VEs) who provide evidence at hearings before administrative law judges (ALJs), vocational specialists (VSs) who provide evidence to disability determination services (DDS) adjudicators, and other reliable sources of occupational information in the evaluation of disability claims." 65 FR 75759-01, 2000 WL 1765299, SSR 00-4p. With respect to resolving conflicts between the DOT and the VE, the regulation states:
Occupational evidence provided by a VE or VS generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency. Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information.65 FR 75759-01, 2000 WL 1765299, SSR 00-4p. The regulation also clarifies that the ALJ has the duty to question the vocational expert.
The Responsibility To Ask About Conflicts
When a VE or VS provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that VE or VS evidence and information provided in the DOT. In these situations, the adjudicator will:
— Ask the VE or VS if the evidence he or she has provided conflicts with information provided in the DOT; and
— If the VE's or VS's evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.65 FR 75759-01, 2000 WL 1765299, SSR 00-4p.
Plaintiff had identified several apparent conflicts between the testimony of the vocational expert and the DOT. The ALJ found, as part of Plaintiff's residual functional capacity, that Plaintiff was "limited to simple, repetitive and routine tasks; and is slightly limited in the contact with the public, co-workers, and supervisors." [R. at 23]. The vocational expert testified that Plaintiff could perform the jobs of surveillance monitor (700 regional and 57,000 nationally), addresser (500 regionally and 46,000 nationally), and envelope stuffer (400 regional and 32,000 nationally). Plaintiff notes that each of the jobs identified by the vocational expert is listed as having a "reasoning level" of two or three.
A surveillance system monitor is listed as requiring a reasoning level of three. An addresser is listed as requiring a reasoning level of two. Plaintiff notes that "envelope stuffer" is not listed in the DOT, but that a "mail clerk" requires a reasoning level of three.
The DOT defines six levels of Reasoning Development. Level one provides that the person can "apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job." Level two requires the person to "apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations." Level three provides "apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations." The Reasoning Development description for level one appears closest to the ALJ's requirement that Plaintiff be limited to simple, repetitive routines and tasks. Level two requires "detailed but uninvolved" tasks or instructions. This description is not entirely clear as to whether it would be similar to simple and repetitive tasks, or if the tasks which are "detailed but uninvolved" would be more complex. Similarly unclear is whether level three would include complex tasks.
Defendant asserts that Plaintiff has cited no authority to support Plaintiff's contention that the reasoning level of the job is related to the limitation that Plaintiff can perform only simple and repetitive tasks. Defendant suggests that the Specific Vocational Preparation ("SVP") time is more similar to a limitation to the performance of simple tasks. The explanations of SVP in the DOT suggest that the SVP specifies the vocational preparation required to perform a job. The reasoning level, as identified by Plaintiff, appears more similar to whether or not a claimant has a limitation to performing only simple tasks. See Allen v. Barnhart, 90 Soc. Sec. Rep. Serv. 476, 486 (N.D. Cal. 2003) (jobs with GED reasoning level of two presupposes ability to follow detailed and involved instructions, exceeding ALJ's limitation to simple, routine tasks); Hall-Grover v. Barnhart, 2004 WL 1529283 ("Nonetheless, SVP ratings speak to the issue of the level of vocational preparation necessary to perform the job, not directly to the issue of a job's simplicity, which appears to be more squarely addressed by the GED ratings."). The Court concludes that this issue should be addressed by the ALJ and the vocational expert on remand.
In this case, the ALJ relied upon the testimony of the vocational expert to support the ALJ's conclusion that Plaintiff could perform work in the national economy. Plaintiff has identified several apparent conflicts between the testimony of the vocational expert and the DOT. The conflicts were not identified by Plaintiff at the hearing before the ALJ. The record reveals that the ALJ never asked the vocational expert if any conflicts existed between the testimony of the vocational expert and the DOT. The Social Security Ruling clearly places a burden upon the ALJ to ask the vocational expert whether any conflicts exist, and if any conflicts are identified, to reconcile those conflicts. The ALJ did not comply with the Social Security Rulings. See also Burns v. Barnhart, 312 F.3d 113 (3rd Cir. 2002) ("Social Security Ruling 00-4 requires that the ALJ ask the vocational expert whether any possible conflict exists between the vocational expert's testimony and the DOT, and that, if the testimony does appear to conflict with the DOT, to `elicit a reasonable explanation for the apparent conflict.' The Ruling requires that the explanation be made on the record and that the ALJ explain in his decision how the conflict was resolved.").
Defendant asserts that the Social Security Rulings require the ALJ to resolve a conflict only if an "actual unresolved conflict" exists between the DOT and the vocational expert's testimony. Defendant asserts that because no actual unresolved conflict existed at the time of the hearing before the ALJ, the ALJ's opinion is supported by substantial evidence. However, Defendant does not address those portions of the Social Security Ruling which place the duty on the ALJ to inquire if any conflicts are present between the DOT and the testimony of the vocational expert.
Defendant additionally refers the Court to Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000), which noted that "claimants should not be permitted to scan the record for implied or unexplained conflicts between the specific testimony of an expert witness and the voluminous provisions of the DOT, and then present that conflict as reversible error, when the conflict was not deemed sufficient to merit adversarial development in the administrative hearing." Carey was decided before the Social Security Administration issued the 2001 rulings which placed an affirmative duty on the ALJ to inquire about possible contradictions between the vocational expert and the DOT. The Carey Court additionally considered the entire record and the specific testimony of the vocational expert that the claimant could perform the job with one hand, as compared to the asserted contradiction with the DOT which required an assumption that a job requirement of manual dexterity required the use of two hands. Compare Gibbons v. Barnhart, 85 Fed. Appx. 88 (10th Cir. 2003) (citing Carey with approval and noting that the vocational expert identified his source of information as the DOT and that the claimant failed to identify any discrepancies between the DOT and the vocational expert).
This action is reversed and remanded for further proceedings consistent with this Order.