Anders v. Berryhill , 688 F. App'x 514 ( 2017 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 18, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARK G. ANDERS,
Plaintiff - Appellant,
v. No. 15-4181
(D.C. No. 2:14-CV-00610-EJF)
NANCY A. BERRYHILL, (D. Utah)
Acting Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before MATHESON, McKAY and O’BRIEN, Circuit Judges.
_________________________________
Mark Anders appeals from the district court’s judgment affirming the
Commissioner’s denial of his application for disability insurance benefits.
Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the Acting
Commissioner of the Social Security Administration.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. BACKGROUND
Anders claimed he was disabled due to fibromyalgia, diabetes, degeneration in
both eyes, hepatitis C, chronic back pain, and nerve damage in his neck. His
amended, alleged onset date was the date he turned 50 in March 2011. His claim was
ultimately denied by an administrative law judge (ALJ) at step five of the familiar
five-step sequential evaluation set forth in 20 C.F.R. § 404.1520(a)(4). The ALJ
found that although Anders had several severe impairments (diabetes mellitus and
degenerative disc and joint disease of the cervical, lumber, and thoracic spine), they
did not meet or medically equal one of the impairments listed in 20 C.F.R. Pt. 404,
Subpart P, Appendix 1, that are so severe as to preclude employment. As relevant to
this appeal, the ALJ found Anders had the residual functional capacity (RFC) to
perform a reduced range of unskilled, light work limited to (1) lifting 8.5 pounds
occasionally and up to 5 pounds more than occasionally; (2) standing and walking no
more than 15 minutes at a time and no more than 6 total hours in an 8-hour workday,
with the option to use a cane; (3) sitting no more than 60 minutes at a time and no
more than 6 total hours in an 8-hour workday; and (4) work involving no more than
frequent near-acuity vision. In addition, the ALJ found Anders needed an option to
sit or stand. Given these limitations, the ALJ determined Anders could not return to
his past relevant work as a welder.
Because of Anders’s RFC, age, and eleventh-grade education, the ALJ
concluded she could not rely on the Medical-Vocational Guidelines (commonly
referred to as the “grids”) to direct a disability determination but instead had to use
2
the grids as a framework. To that end, the ALJ consulted a vocational expert (VE),
who opined that with his RFC, Anders could perform several unskilled jobs in the
light-exertion category: (1) gluer, (2) cleaner/polisher, and (3) inspector and hand
packager. The VE stated there were approximately 50,000 of each job in the national
economy, but based on her “experience and study of the jobs,” she reduced the
number to 10,000 of each job to account for Anders’s RFC. Aplt. App., Vol. I at 71.1
Accepting the cumulative 30,000 jobs in the national economy as a significant
number, the ALJ found Anders not disabled at step five. Anders submitted additional
evidence to the Appeals Council relating to the numbers of available jobs. The
Council determined the evidence would not have changed the outcome and denied his
request for review. The district court affirmed, and Anders appeals.
II. DISCUSSION
Our task in this appeal is limited to determining whether substantial evidence
supports the agency’s factual findings and whether the agency applied the correct
legal standards. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (internal quotation marks omitted). We cannot “reweigh
the evidence” or “substitute our judgment for that of the agency.” Id. (internal
quotation marks omitted).
1
We cite to the agency transcript page number in our citations to Volumes I
through V of the appendix. We cite to Volumes VI and VII of the appendix by the
pagination convention adopted in those volumes.
3
A. Deviations from the DOT and the OOH.
1. Cleaner/polisher job not viable.
Anders first argues the ALJ erred in relying on the cleaner/polisher job
because, according to the Dictionary of Occupational Titles (DOT), that job requires
constant near-acuity vision whereas the ALJ limited Anders to jobs requiring not
more than frequent near-acuity vision, and the ALJ did not question the VE about the
deviation from the DOT requirement. The Commissioner concedes error but
contends the ALJ properly relied on the other two jobs the VE identified.
Accordingly, we turn to Anders’s arguments regarding those other jobs.
2. No deviation from Occupational Outlook Handbook’s educational
requirement for inspector/hand packagers requiring explanation.
Anders claims that according to the Occupational Outlook Handbook (OOH),
the work of an inspector and hand packager fits within the generic title of “quality
control inspectors,” and that title requires a high school diploma or equivalent.
Because the ALJ found Anders had only an eleventh-grade education, Anders posits
that in identifying the inspector/hand packager job, the VE erred in deviating from
the OOH without explanation. In support, he notes that by regulation, the agency has
decided to take administrative notice of “reliable job information available from
various governmental and other publications.” 20 C.F.R. § 404.1566(d). The
regulation provides five examples of such publications, including both the DOT and
the OOH. Id. § 404.1566(d)(1), (5). Anders observes that under our ruling in
Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999), and Social Security Ruling
4
(SSR) 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000), an ALJ is required to obtain a
reasonable explanation from a VE for any deviation the VE makes from the DOT.
He therefore asks us to reach the same conclusion with respect to the OOH—that an
ALJ should have to elicit a reasonable explanation for any conflict between the VE’s
testimony and the OOH.
We need not reach the underlying question—whether the agency must (or
should) take notice of the OOH and explain any deviation from its description of
educational requirements for a particular job. Instead, we may assume, for purposes
of this issue only, that the agency must do so because we see no deviation in need of
an explanation. The OOH’s generic title of “quality control inspectors” is not an
obvious equivalent to the description of the inspector/hand packager job the VE
identified from the DOT.
The DOT describes that job as involving the inspection and packaging of
molded plastic products:
Inspects molded plastic products, such as bottle caps or tops, for defects,
and packs inspected products into shipping cartons: Visually examines
molded products for defects, such as scratches, discoloration, and flash, and
discards defective products. Packs inspected product in cartons according
to customer specifications, and carries cartons to storage area. May attach
metal bands to bottle tops prior to packing to form necks for bottles and
measure necks to ensure specified length, using gauge.
DOT 559.687-074, 1991 WL 683797 (emphasis omitted). In contrast, the OOH
describes positions that require testing products: “Although a high school diploma is
enough for the basic testing of products, complex precision-inspecting positions are
typically filled by more experienced workers.” Aplt. App., Vol. VI, at 19-2 000140;
5
see also id. (stating a high school diploma and in-house training are generally
sufficient for quality control inspectors who conduct “simple pass/fail tests of
products,” many of whom “work in medical or pharmaceutical labs”). The DOT
description does not refer to testing any products but only to visual inspection of
simple molded plastics. Id. The OOH also states “[c]andidates for inspector jobs can
improve their chances of finding work by studying industrial trades in high school or
in a postsecondary vocational program,” or by performing “[l]aboratory work in the
natural or biological sciences.” Id. The OOH also describes a number of “Important
Qualities”:
Math skills. Knowledge of basic math and computer skills are important
because measuring, calibrating, and calculating specifications are major
parts of quality control testing.
...
Technical skills. Quality control inspectors must understand blueprints,
technical documents, and manuals, ensuring that products and parts meet
quality standards.
Id.
From these descriptions it is clear that the OOH describes a position requiring
more skills than the DOT job. We fail to see how studying an industrial trade in high
school or a postsecondary program would enhance the chances of employment as an
inspector of molded plastics, and the DOT description does not require any of the
math or technical skills described in the OOH. In fact, the DOT’s inspector/hand
packager reasoning level is only a “2 – Apply commonsense understanding to carry
out detailed but uninvolved written or oral instructions. Deal with problems
6
involving a few concrete variables in or from standardized situations.” DOT
559.687-074, 1991 WL 683797. In sum, there is an insufficient correlation between
the DOT and the OOH for us to say the ALJ was required to elicit a reasonable
explanation from the VE why the DOT job of inspector/hand packager does not
require a high school diploma or equivalent.
3. Deviation from DOT’s lifting requirement for light work
adequately explained.
According to the DOT, the gluer and inspector/hand packager jobs both
require light exertion. Light work is defined by regulation:
Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing 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. To be
considered capable of performing a full or wide range of light work, you
must have the ability to do substantially all of these activities. If someone
can do light work, we determine that he or she can also do sedentary work,
unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.
20 C.F.R. § 404.1567(b). Anders claims the ALJ adduced no persuasive basis for
deviating from the lifting requirements of light work when she found he could lift no
more than 8.5 pounds occasionally and three to five pounds more than occasionally.
He also contends the VE never explained how work that required lifting only 8.5
pounds occasionally, and with standing and walking limited to 15 minutes at a time,
would ever be classified as “light” in the DOT.
We see no error. As we will discuss in Section II.B., infra, Anders’s RFC
corresponded with a reduced range of light work, not with, as Anders seems to imply,
7
sedentary work, which “involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools,”
20 C.F.R. § 404.1567(a). And the ALJ asked the VE whether the DOT gave the same
level of detail the ALJ gave in the hypothetical to the VE that contained the same
limitations as the ALJ’s eventual RFC finding. The VE responded it did not and she
had reduced the numbers by 80% to account for all the limitations, see Aplt. App.,
Vol. I at 71, not just the sit/stand option, as Anders suggests, see Aplt. Opening Br.
at 35. Anders’s attorney specifically asked the VE if “the lifting limitation being in a
range not occasionally ten pounds but between eight and a half and ten pounds,
variable on the day,” would erode the number of jobs in the light-exertional category.
Aplt. App., Vol. I at 73. The VE responded it would.
Hence, the VE was asked about the deviation from the DOT and drew on her
own education and experience in determining the erosive effect the specific
limitations had on the number of jobs she identified. That was entirely permissible.
See Haddock, 196 F.3d at 1091-92 (explaining that a “valid explanation” by a VE for
a conflict with the DOT is “that a specified number or percentage of a particular job
is performed at a lower RFC level than the [DOT] shows the job generally to
require”); SSR 00-4p, 2000 WL 1898704, at *2 (listing the VE’s experience among
the bases for reasonable explanations for conflicts with the DOT). As required by
SSR 00-4p, see 2000 WL 1898704, at *4, the ALJ explained in her decision how she
resolved the conflict with the DOT: “[T]he expert stated that her education and
experience indicates that such jobs do allow for such limitations, in the reduced
8
numbers . . . . The expert’s resume is found in the file. No contrary evidence was
presented.” Aplt. App., Vol. I at 30. Accordingly, we reject Anders’s argument.
B. The ALJ was not required to use the sedentary exertional table
in the “grids” and find Anders disabled.
Anders next points to one of the agency’s internal policies set forth in its
Program Operations Manual System (POMS).2 The POMS defines the term
“significant erosion” as a “considerable reduction in the available occupations at a
particular exertional level” and states when there is such a reduction, an adjudicator
should “[g]enerally[] use a lower exertional rule [in the Medical-Vocational
Guidelines] as a framework for a decision.” POMS DI 25001.001.B.72. Anders
asserts the 80% erosion in the numbers of jobs the VE said he could perform with his
RFC for less than the full range for light work is a significant erosion or considerable
reduction, and therefore the ALJ should not have used Table 2 of the grids, which
applies when a claimant can perform less than a full range of light work, but Table 1
instead, which applies when a claimant is limited to sedentary work. Anders
contends if the ALJ had done so, she would have determined Anders was disabled at
all times since he turned 50, but the ALJ gave no reason for deviating from usual
POMS practice. Anders adds that the exertional limitations the ALJ imposed (sitting
for six hours and lifting no more than 8.5 pounds occasionally) are not in accord with
2
The POMS is “a set of policies issued by the [Social Security]
Administration to be used in processing claims.” McNamar v. Apfel, 172 F.3d 764,
766 (10th Cir. 1999). This court “defer[s] to the POMS provisions unless we
determine they are ‘arbitrary, capricious, or contrary to law.’” Ramey v. Reinertson,
268 F.3d 955, 964 n.2 (10th Cir. 2001) (quoting McNamar, 172 F.3d at 766).
9
the meaning of light work but instead resemble the exertional limitations of sedentary
work.
We first disagree that the exertional component of the ALJ’s RFC finding is
equivalent to sedentary work. Certainly, the lifting limitation is in line with that of
sedentary work, which “involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools,”
20 C.F.R. § 404.1567(a). And the ALJ did state Anders could sit for as much as six
hours, which is consistent with sedentary work. See SSR 83-10, 1983 WL 31251,
at *5 (1983) (explaining that in sedentary work, “sitting should generally total
approximately 6 hours of an 8-hour workday”). But the ALJ also found Anders could
stand and walk for 6 hours of an 8-hour workday provided that he could sit every 15
minutes, which is consistent with light work. See id. at *6 (explaining that “the full
range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during
the remaining time”); cf. SSR 83-12, 1983 WL 31253, at *4 (1983) (stating that
although most light work involves prolonged standing, an ALJ should consult a VE
“[i]n cases of unusual limitation of ability to sit or stand”). Thus the ALJ’s RFC was
for light work, albeit not the full range of light work.3
3
Anders asserts that in a prior decision in his case the Appeals Council
vacated, the same ALJ found he had an RFC for sedentary work despite greater
lifting capacity and an uninterrupted capacity to stand and walk with the option of
using a cane. But Anders has not suggested that the ALJ was bound by her prior
findings, and in any event his assertion rests on a misreading of the prior decision.
(continued)
10
Because Anders’s RFC was for a limited range of light work, it fell between
grid rules for light and sedentary work directing opposite conclusions: Anders would
be disabled under the applicable sedentary-work rule, 201.10, but not under the
applicable light-work rule, 202.11. In that circumstance, the ALJ was required to
determine the degree to which Anders’s specific limitations eroded the occupational
base for light work. See id. at *2. In easy cases, an ALJ might be able to make that
call. See id. But “[w]here the extent of the erosion of the occupational base is not
clear, the adjudicator will need to consult a vocational resource.” Id.
As noted, the ALJ did consult a VE, which indicates the ALJ found the extent
of the erosion unclear. The VE calculated the erosion based on her “experience and
study of the jobs.” Aplt. App., Vol. I at 71. Accounting for the erosion, there
remained 20,000 jobs in the national economy, and Anders has not developed any
argument that 20,000 is not a significant number of jobs.4 Hence, the ALJ did not
violate the general rule of POMS DI 25001.001.B.72 by not using Table 1 of the
The ALJ actually said Anders had “at least the [RFC] to perform the full range of
sedentary to light, unskilled work,” subject to a number of restrictions. Aplt. App.,
Vol. I at 130 (emphasis added).
4
Anders does contend the VE’s numbers were inaccurate. We address that
contention in the next section. Anders does note, in his reply brief, that “[t]he ALJ
never found that the jobs in a single or even two of the occupations represented a
significant number of jobs.” Aplt. Reply at 15. But this argument comes too late and
is insufficiently developed to garner appellate review. See Stump v. Gates, 211 F.3d
527, 533 (10th Cir. 2000) (“This court does not ordinarily review issues raised for the
first time in a reply brief.”); Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir.
1994) (arguments that insufficiently “frame and develop an issue” are insufficient “to
invoke appellate review”).
11
grids, but instead adhered to the guiding principles laid out in the agency rulings we
have discussed. The ALJ was not required to provide any further explanation for not
applying the POMS general rule.
C. The VE’s testimony regarding the number of available jobs was
reliable as a source of substantial evidence.
Anders’s final argument appears to have two parts. The first part, as best we
can interpret, proceeds as follows: The VE said she got her numbers from the Bureau
of Labor Statistics’ (BLS’s) Occupational Employment Statistics (OES). Aplt. App.,
Vol. I at 72. The OES states that as of May 2011,5 there were 235,910 jobs
nationally in a category of jobs termed “Production Workers, All Other,” id., Vol. VI
at 19-6 000019, and that category includes the gluer job the VE identified.6 But
contrary to the VE’s contention that there were approximately 50,000 such jobs,
“gluer” is not listed among the five industries with the highest levels of employment,
which range from 47,870 to 5,170 jobs. Id. Similarly, the OES states that as of May
2011, there were 434,170 jobs nationally in a category of jobs termed “Inspectors,
Testers, Sorters, Samplers, and Weighers,” id. at 19-6 00001, and that category
5
The May 2011 statistics are relevant because Anders had to show he was
disabled between his onset date in March 2011 and his date last insured, June 30,
2011. See Henrie v. U.S. Dep’t of Health & Human Servs., 13 F.3d 359, 360
(10th Cir. 1993).
6
Anders incorrectly states that, according to the OES, there were 235,910
gluers jobs as of May 2011. We interpret his argument to mean that gluer falls
within the category of “Production Workers, All Other.”
12
includes the inspector/hand packager job the VE identified.7 But contrary to the
VE’s contention that there were approximately 50,000 such jobs, “inspector/hand
packager” is not listed among the five industries with the highest levels of
employment, which range from 25,500 to 15,730 jobs. Id. Hence, no reasonable
person could accept the VE’s testimony regarding the number of either jobs (before
erosion to account for Anders’s RFC) as reliable because it conflicts with the OES.
Anders’s argument overlooks an important fact—the VE did not rely solely on
the OES but also on information from the Occupational Employment Quarterly
(OEQ), which, as the VE explained, used current population surveys (CPSs) rather
than the OES. When Anders’s attorney asked the VE about the difference in the
number of national production workers in the CPSs, which the attorney claimed was
800,000, versus the number of production workers in the OES, which the attorney
claimed was 230,000, the VE said the OES was “more trustworthy” but that she used
the OEQ and its reliance on the CPS numbers as “another resource to kind of balance
things out.” Aplt. App., Vol. I at 75. And the OEQ is a source that VE’s rely on.
See Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (“For the numbers,
vocational experts normally rely on a journal called the Occupational Employment
Quarterly, published by a company called U.S. Publishing . . . .”). Accordingly, the
fact that neither the gluer nor the inspector/hand packager job appears among the top
7
As with the gluer job, Anders incorrectly states that, according to the OES,
there were 434,170 inspector/hand packager jobs. We interpret his argument to mean
that inspector/hand packager falls within the category of “Inspectors, Testers, Sorters,
Sampler, and Weighers.”
13
five industries with the highest level of employment does not render the VE’s
testimony unreliable. Further, it appears to us (as a matter of common sense) that
gluer and inspector/hand packager are types of jobs that occur across industries, not
industries in and of themselves, so it is unsurprising that neither would appear in a
list of industries employing the most workers in these categories. Accordingly,
Anders has not shown that the VE’s job numbers so deviate from the OES as to be an
unreliable basis for the ALJ’s step-five finding.
The second part of Anders’s final argument is that the VE stated another
source of job numbers—a software program called Job Browser Pro—bases its
numbers on the OES. Aplt. App., Vol. I at 75. And according to Job Browser Pro,
when viewed by DOT job code, there are fewer than 2,000 of each job (before any
erosion) in the national economy—1,613 gluer jobs, id., Vol. II at 440, and 1,749
inspector/handpackager jobs, id. at 443. Anders claims the VE’s testimony regarding
the number of jobs is therefore irreconcilable with the number of jobs shown in Job
Browser Pro. And because Job Browser Pro reflects the BLS’s employment
projections, which in turn form the foundation for the OOH, Job Browser Pro’s
numbers should, like the DOT and the OOH, be subject to administrative notice, and
an ALJ should be required to obtain a reasonable explanation for any deviation from
Job Browser Pro, just as an ALJ is required to do with deviations from the DOT.
Here, the ALJ did not do so. Instead, the only support for the VE’s testimony was
her ipse dixit.
14
We reject this argument because Job Browser Pro is not among the examples
listed in 20 C.F.R. § 404.1566(d) of data sources considered to provide reliable job
information. Nor has Anders established that Job Browser Pro is sufficiently reliable
to contradict the VE’s testimony. The VE’s statement that Job Browser Pro
“basically get[s its] information from the OES,” Aplt. App., Vol. I at 75, is
insufficient to convince us that the numbers the VE gleaned from the OES are suspect
to the point of failure as a source of substantial evidence.
III. CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
15