APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA. D.C. No. 97-CV-35-S
Page 1086
Paul F.
McTighe, Jr. and Gayle L. Troutman, Tulsa, Oklahoma, for Plaintiff-Appellant.
Bruce Green,
United States Attorney; Tina M. Waddell, Chief Counsel, Region VI; and Mary F.
Lin, Assistant Regional Counsel, Office of the General Counsel, Social Security
Administration, Dallas, Texas, for Defendant-Appellee.
Before Baldock,
Ebel, and Murphy, Circuit Judges.**
Ebel,
Circuit Judge.
If a
disability claimant shows that he can no longer perform any of his past jobs,
he is disabled unless the administrative law Judge (ALJ) finds that he can do
some other kind of work. In this case, the ALJ found that claimant retained the
residual functional capacity (RFC) only for sedentary work that would allow him
to alternate sitting and standing and that was, at most, semi-skilled. In
response to the ALJ's hypothetical question including these restrictions, a
vocational expert (VE) summarily identified four jobs claimant ostensibly
Page 1087
could perform. The Dictionary of Occupational Titles, which
was not discussed at the hearing, indicates that these jobs generally require
greater exertional capacity than the ALJ found this claimant to have. We hold
that before an ALJ may rely on expert vocational evidence as substantial
evidence to support a determination of non-disability, 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.1
Disability
Claim
Robert
Haddock was born on January 6, 1942. He completed ten years of school. His past
jobs included lead carpenter, school bus driver, school janitor, and lift-dump
operator. He filed his claim for disability benefits on January 19, 1995,
alleging that he became disabled in November 1992 due to hip problems,
shortness of breath related to heart and lung problems, lack of strength, and
residual chest pains resulting from a heart attack in May 1992.
The ALJ
denied Mr. Haddock's claim at step five of the evaluation sequence. See generally
Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). He decided at step
four that Mr. Haddock did not have the residual functional capacity (RFC) to
return to either of his relevant past jobs-the skilled, heavy job of lead
carpenter or the unskilled, medium job of school janitor. At step five, the ALJ
found that Mr. Haddock nevertheless retained the RFC to perform sedentary work
if he could alternate sitting and standing. He further found that Mr. Haddock
had skills transferable to semi-skilled work, had a limited or less education,
and was closely approaching advanced age (as Mr. Haddock was just over fifty
years old at the time his insured status expired). The VE testified that Mr.
Haddock could perform four jobs: payroll clerk, parts clerk, materials lister,
and inventory clerk. The VE did not volunteer the source of his information,
nor did anyone at the hearing ask him to identify or discuss it. Lumping all
four jobs together, the VE said that there were many thousands of these jobs in
the regional and national economies. The ALJ decided that Mr. Haddock was not
disabled in light of this expert vocational testimony and Rule 201.11 from the
medical-vocational guidelines (the "grids"), 20 C.F.R. pt. 404,
subpt. P, app. 2. The Appeals Council denied review, making the ALJ's denial of
benefits the final agency decision. Mr. Haddock then brought this suit. The
district court adopted the magistrate Judge's recommendation to uphold the
agency's decision. Mr. Haddock passed away on December 2, 1997. Mrs. Haddock
appeals from the denial of his claim for disability benefits.
We have
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the
agency's decision on the whole record to determine only whether the factual
findings are supported by substantial evidence and the correct legal standards
were applied. See Goatcher v. United States Dep't of Health & Human Servs.,
52 F.3d 288, 289 (10th Cir. 1995).
Issue on
Appeal
Mrs. Haddock
argues on appeal that, of the four jobs identified by the VE, only payroll
clerk is described in the Dictionary of Occupational Titles as a sedentary,
semi-skilled job to match the exertional and skill restrictions the ALJ found
Mr. Haddock to have. See Dictionary of Occupational Titles 215.382-014. She
alleges that parts clerk jobs are described in the Dictionary as either light
and skilled, or heavy and semi-skilled. See id. 222.367-042, 249.367-058,
279.357-062. She asserts that inventory clerk and materials lister
Page 1088
jobs are described as light and skilled, or medium and
semi-skilled. See id. 219.387-030, 222.387-026. Mrs. Haddock contends that the
VE's testimony that Mr. Haddock could perform the jobs of parts clerk,
inventory clerk, and materials lister does not constitute substantial evidence
because of the contradiction between the Dictionary's description of the
exertional and skill requirements of these three jobs and the restrictions the
VE was obliged to assume (because the ALJ presented them to the VE in his
hypothetical question). She maintains that the lone job that was accurately
identified-that of payroll clerk--does not salvage the ALJ's denial of benefits
because the ALJ failed to ask the VE to specify how many of that particular job
exists, and the evidence as to that type of job was therefore insufficiently
developed to constitute substantial evidence to support the ALJ's decision that
Mr. Haddock was not disabled.
Discussion
It is
axiomatic that all of the ALJ's required findings must be supported by substantial
evidence. See 42 U.S.C. § 405(g). Substantial evidence is "`such relevant
evidence as a reasonable mind might accept as adequate to support a
Conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). At steps four and
five, the ALJ is required to make a number of findings.
At step
four, the ALJ must "`assess the nature and extent of [the claimant's]
physical limitations and then determine [the claimant's] residual functional
capacity for work activity on a regular and continuing basis.'" Winfrey v.
Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (quoting 20 C.F.R. § 404.1545(b)).
If the ALJ concludes that the claimant cannot perform any of his past work with
his remaining RFC, the ALJ bears the burden at step five to show that there are
jobs in the regional or national economies that the claimant can perform with
the limitations the ALJ has found him to have. See, e.g., Thompson v. Sullivan,
987 F.2d 1482, 1487 (10th Cir. 1993) (citing, inter alia, 42 U.S.C. §
423(d)(2)(A)). It is not the claimant's burden to produce or develop vocational
evidence at step five. See id. at 1491.
When a
claimant's exertional level, age, education, and skill level (i.e., work
experience) fit precisely within the criteria of a grid rule, an ALJ may base a
determination of non-disability conclusively on the grids. See Trimiar v.
Sullivan, 966 F.2d 1326, 1332 (10th Cir. 1992); see also 20 C.F.R. pt. 404,
subpt. P, app. 2, § 200.00(a) & Table No. 1; Social Security Ruling 82-41,
1982 WL 31389, at *1. When a requirement to alternate sitting and standing
limits a claimant's ability to do the full range of sedentary work, as in this
case, an ALJ may not rely on this shortcut method. See Thompson, 987 F.2d at
1488; 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e). In a case like this
one, the ALJ "must cite examples of occupations or jobs the individual can
do and provide a statement of the incidence of such work in the region where
the individual lives or in several regions of the country." Social
Security Ruling 96-9p, 1996 WL 374185, at *5; see also Social Security Ruling
83-14, 1983 WL 31254, at *6; Social Security Ruling 83-12, 1983 WL 31253, at
*5. The requirement to identify specific jobs the claimant can perform with the
limitations the ALJ has found him to have also pertains when the ALJ finds that
the claimant has acquired skills which will transfer to other work, as in this
case. See Social Security Ruling 96-9p, 1996 WL 374185, at *4; Social Security
Ruling 82-41, 1982 WL 31389, at *7. Identified jobs must be shown to exist in
"significant numbers" in the regional or national economies. 42
U.S.C. § 423(d)(2)(A). To summarize, in a case like this one, the ALJ must find
that the claimant retains a particular exertional capacity, decide whether the
claimant has acquired transferable skills, identify specific
Page 1089
jobs that the claimant can perform with the restrictions the
ALJ has found the claimant to have, and verify that the jobs the claimant can
do exist in significant numbers in the regional or national economies. All of
these findings must be supported by substantial evidence.
What the
agency's regulations and rulings require an ALJ to do, or even allow an ALJ to
do, to produce substantial vocational evidence at step five is not clear. 20
C.F.R. § 404.1566(d)(1) states that "[w]hen [the agency] determines that
unskilled, sedentary, light, and medium jobs exist in the national economy...,
[the agency] will take administrative notice of reliable job information
available from various governmental and other publications[, including the]
Dictionary of Occupational Titles." This subsection suggests that an ALJ,
since he or she has the burden at step five, must correlate a VE's testimony in
an individual case with vocational information provided in the Dictionary of
Occupational Titles or other reliable publications. We have previously
indicated such an understanding of § 404.1566(d)(1) in dicta in Campbell v.
Bowen, 822 F.2d 1518, 1523 & n.3 (10th Cir. 1987).
Subsection
404.1566(e), however, allows an ALJ to use a vocational expert "[i]f the
issue in determining whether [the claimant is] disabled is whether [the
claimant's] 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." The
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.
At this
point, we narrow our focus. Although Mrs. Haddock complains that the VE's
testimony conflicted with the Dictionary of Occupational Titles as to both the
exertional and skill requirements of the jobs the VE identified, we hold that
the ALJ did not elicit enough evidence with regard to skills for us to assess
whether there is a conflict between the Dictionary and the VE's testimony on
that job characteristic. By the same token, we cannot say that the ALJ's
Conclusion that the identified jobs met the semi-skilled restriction he found
the claimant to have is supported by substantial evidence.
The
Dictionary uses a different and considerably more extensive classification
scheme for skill requirements than the agency's regulations. Compare Dictionary
at xv & App. C, ¶¶ II, III with 20 C.F.R. § 404.1568. Section 404.1568
indicates that an ALJ should use information provided by the Dictionary to
assess occupational skill requirements, but it is evident that the Dictionary's
information about skills must be massaged, if you will, into the agency's three
classifications (unskilled, semi-skilled, skilled). The ALJ did not ask the VE
to explain his thought process, but settled for a summary Conclusion. We
therefore limit the rest of our Discussion to exertional requirements.
Both the
Dictionary and the agency's regulations use the same designations--sedentary,
light, etc.--for exertional requirements. See 20 C.F.R. § 404.1567. We
therefore can assess whether the VE's testimony, limited as it was to sedentary
jobs by the ALJ's hypothetical, conflicts with the Dictionary as to the
exertional requirements of the jobs of parts clerk, materials lister, and
inventory clerk. There is a conflict here, and we find it unnecessary to parse
the regulations and rulings to reach the Conclusion that the ALJ should have
asked the expert how his testimony as to the exertional requirement of these
three jobs corresponded with the Dictionary of Occupational Titles, and
elicited a reasonable explanation for the discrepancy on this point, before he
relied on the expert's opinion that claimant could perform these three jobs.
The agency
uses the Dictionary, among other publications listed in § 1566(d), as source
material when it formulates the grids for use at step five. See Social Security
Page 1090
Ruling 83-10, 1983 WL 31251, at *3 (citing 20 C.F.R. §
404.1566(d)); see also 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(b). The
agency has also stated in a number of its rulings that an ALJ may use the
Dictionary or other "authoritative" publications, rather than an
expert, to provide vocational evidence at step five in some cases in which the
grids may not be employed. Social Security Ruling 96-9p, 1996 WL 374185, at *9;
see also Social Security Ruling 85-15, 1985 WL 56857, at *3; Social Security
Ruling 83-14, 1983 WL 31254, at *4; Social Security Ruling 83-12, 1983 WL
31253, at *2; Social Security Ruling 82-41, 1982 WL 31389, at *2, *7. Most
importantly, the agency accepts the Dictionary's definitions as reliable
evidence at step four of "the functional demands and job duties" of a
claimant's past job "as it is usually performed in the national
economy." Social Security Ruling 82-61, 1982 WL 31387, at *2; see also
Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1051 (10th
Cir. 1993). Determining "the functional demands and job duties" of
specific jobs and matching those requirements to a claimant's limitations is
the very task the ALJ must undertake at step five. It would be anomalous to
read the agency's regulations to allow an ALJ to disregard the Dictionary at
step five--where the ALJ bears the burden-when the ALJ is allowed to rely
conclusively on essentially the same information from the Dictionary at step
four.
To relieve
the ALJ of the burden to thoroughly develop the vocational evidence at step
five would shift the burden to the claimant in the form of a requirement to
cross-examine the vocational expert. To do so would contravene basic principles
of social security law, however. First, "[i]t is not [the claimant's]
burden to prove [h]e cannot work at any level lower than h[is] past relevant
work; it is the [agency's] burden to prove that [h]e can." Thompson, 987
F.2d at 1491. To allow an ALJ to elicit and rely on summary Conclusions given
by a VE, in the absence of contrary testimony elicited by the claimant through
cross-examination, would amount to shifting the burden to produce and develop
vocational evidence back to the claimant. Cf. id. ("The ALJ's reliance on
an omission [in the record] effectively shifts the burden back to the
claimant.")
Second,
"[i]t is well established that a Social Security disability hearing is a
non-adversarial proceeding." Id. (quotation omitted); see also, e.g.,
Heckler v. Campbell, 461 U.S. 458, 471 (1983) (Brennan, J., Concurring).
Claimants have a right to cross-examine vocational experts as a part of
procedural due process. See Glass v. Shalala, 43 F.3d 1392, 1396 (10th Cir.
1994) (citing Perales, 402 U.S. at 402, 410). Cross-examination is nevertheless
an adversarial procedure. See, e.g., Cooks v. Ward, 165 F.3d 1283, 1296 (10th
Cir. 1998) (citing United States v. Cronic, 466 U.S. 648, 659 (1984)), cert.
denied, 1999 WL 319436 (U.S. Oct. 4, 1999) (No. 98-9420). Social security
claimants may be unrepresented or represented by someone who is unfamiliar with
social security law. But cross-examining a vocational expert with a publication
such as the Dictionary of Occupational Titles is clearly a matter for someone
well versed in social security law, not a layman. For these reasons, we believe
the role of cross-examination in disability proceedings should remain limited.2
Cf. Hodge v. West, 155 F.3d 1356,
Page 1091
1362-63 (Fed. Cir. 1998) ("In such a beneficial structure
[as the non-adversarial system of awarding veterans' benefits] there is no room
for such adversarial concepts as cross examination, best evidence rule, hearsay
evidence exclusion, or strict adherence to burden of proof." (quotation
omitted)).
Third,
regardless of what step is under evaluation, an ALJ has a duty to fully develop
the record--even when the claimant is represented by an attorney, as in this
case. See Thompson, 987 F.2d at 1492. 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 this duty. Our
holding as much at step five is consistent with the requirement at steps three
and four that an ALJ establish the predicate facts for his Conclusions. See
Winfrey, 92 F.3d at 1024 (step four case); Clifton v. Chater, 79 F.3d 1007,
1009-10 (10th Cir. 1996) (step three case).
Finally, we
note that our decision on this issue is consistent with the majority of
circuits to have considered it. See Porch v. Chater, 115 F.3d 567, 571-72 (8th
Cir. 1997); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); English v.
Shalala, 10 F.3d 1080, 1085 (4th Cir. 1993); Tom v. Heckler, 779 F.2d 1250,
1255-56 (7th Cir. 1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).
The Eleventh Circuit has held that a vocational expert's testimony
"trumps" the Dictionary of Occupational Titles in the event of a
conflict, but it did so in the context of a claim in which there was no
conflict. Jones v. Apfel, No. 98-6797, 1999 WL 770701, at *5-*6 (11th Cir.
Sept. 29, 1999). Only the Sixth Circuit has held that an ALJ may unreservedly
accept a VE's testimony at step five even if it contradicts the Dictionary of
Occupational Titles. See Conn v. Secretary of Health & Human Servs., 51
F.3d 607, 610 (6th Cir. 1995). We are unpersuaded that the Sixth Circuit's
approach is consistent with the broader principles that govern these
non-adversarial proceedings.
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 non-disability. One reasonable explanation would be that the
job the VE is testifying about is not included in the Dictionary, but is
documented in some other acceptable source. See Johnson, 60 F.3d at 1435
(noting Dictionary states that it is not comprehensive); Wright v. Sullivan,
900 F.2d 675, 683-84 (3d Cir. 1990) (same). Another valid explanation would be
that a specified number or percentage of a particular job is
Page 1092
performed at a lower RFC level than the Dictionary shows the
job generally to require. See, e.g., Fenton v. Apfel, 149 F.3d 907, 911 (8th
Cir. 1998) (explaining that Dictionary gives maximum requirements of job as
generally performed, not range of requirements as job is performed in various
particular settings); Barker v. Shalala, 40 F.3d 789, 795 (6th Cir. 1994)
(same).
In this
case, the ALJ found that Mr. Haddock was limited to sedentary, semi-skilled
work that would allow him to alternate sitting and standing. The case must be
remanded for the ALJ to investigate whether there is a significant number of
specific jobs Mr. Haddock could have done with his limitations.
The judgment
of the United States District Court for the Eastern District of Oklahoma is
REVERSED, and the case is REMANDED with instructions for the district court to
remand to the agency for additional proceedings.
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NOTES:
*. Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is
substituted for John J. Callahan, former Acting Commissioner of Social
Security, as the defendant in this action.
**. After examining the briefs and appellate record, this
panel has determined unanimously to grant the parties' request for a decision
on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
1. Although appellant raises four issues on appeal, we have
determined that this is the only issue that warrants Discussion. Her other
arguments are without merit.
2. It may be argued that we suggested in Gay v. Sullivan
that the claimant bears the burden to cross-examine a vocational expert
concerning information in a publication, because we stated that 20 C.F.R. § 404.1566(d)
and (e) "offer alternative avenues of proof" and that "sources
of expert testimony... may be tested by cross-examination." 986 F.2d 1336,
1340 & n.2 (10th Cir. 1993). The issue in Gay, however, was the legitimacy
of a vocational expert relying on a publication not specifically listed in §
1566(d), not an alleged inconsistency between the VE's Conclusions and
information in a listed publication. Read in context of the issue it decided,
Gay holds that a vocational expert is not limited to the sources named in §
1566(d), but that expert vocational testimony may be used to "reach beyond
matters already established through administrative (or judicial) notice"
of information provided by those recognized publications. 986 F.2d at 1340. In
other words, expert testimony may be used to verify, clarify, and supplement
information available in publications the agency has deemed reliable. The
claimant's failure in that case to cross-examine the vocational expert about
her non-listed source publication made it impossible for this court to assess
on appeal whether the VE's testimony was unreliable. See id. at 1340 & n.2.
Gay has been given a broader interpretation than that in two
cases that dealt with an alleged inconsistency between an expert's testimony
and information in the Dictionary of Occupational Titles. See Adams v. Apfel,
No. 97-5140, 1998 WL 99030, at **2 (10th Cir. Mar. 9, 1998) (order and
judgment); Prince v. Apfel, No. 97-5176, 1998 WL 317525, at **3 (10th Cir. June
11, 1998) (order and judgment). Those cases are unpublished, however, and this
panel is not bound by them. Nothing in Gay precludes us from concluding now
that the ALJ has the burden to investigate whether a vocational expert's
opinion conflicts with information provided in the Dictionary of Occupational
Titles, and elicit an explanation for any inconsistency.
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