Jeffrey Pearson v. Carolyn Colvin , 810 F.3d 204 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2255
JEFFREY PEARSON,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social
Security Administration,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:14-cv-00088-HCM-DEM)
Argued: October 27, 2015 Decided: December 17, 2015
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion. Judge Motz wrote
the opinion, in which Judge Gregory and Judge Harris joined.
ARGUED: E. Gregory Wallace, CAMPBELL UNIVERSITY SCHOOL OF LAW,
Raleigh, North Carolina, for Appellant. Mark Anthony Exley,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee. ON BRIEF: Anthony W. Bartels, BARTELS LAW FIRM,
Jonesboro, Arkansas, for Appellant. Dana J. Boente, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia; Nora Koch, Acting Regional Chief Counsel,
Taryn Jasner, Supervisory Attorney, Naomi Mendelsohn, Assistant
Regional Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania, for Appellee.
DIANA GRIBBON MOTZ, Circuit Judge:
Jeffrey Pearson appeals the denial of his application for
Social Security disability benefits. He contends that
substantial evidence does not support the determination of the
administrative law judge denying those benefits because the
judge failed to resolve a conflict between the vocational
expert’s testimony and the Dictionary of Occupational Titles.
We reverse and remand for further proceedings.
I.
In the past, Pearson has worked in a number of fields,
including as a groundskeeper and a press operator in a plastics
factory. On February 5, 2009, Pearson was laid off from his
most recent job. Six weeks later, he applied for Social
Security disability benefits under Titles II and XVI of the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381, 1382c(a)(3)
(2012). Pearson alleged disability due to arthritis of the
spine, degenerative joint disease and a torn rotator cuff in his
right shoulder, shin splints, degenerative artery disease in his
feet, a hiatal hernia, irritable bowel syndrome, post-traumatic
stress disorder, depression, and anxiety.
Pearson’s application for benefits was denied initially and
upon rehearing. An administrative law judge (ALJ) then affirmed
the denial. The Social Security Appeals Council (Appeals
2
Council), however, granted Pearson’s request for review and
remanded the case for further consideration, including testimony
from a vocational expert.
During the second ALJ hearing, at the beginning of the
vocational expert’s testimony, the ALJ asked the expert: “[i]f
your testimony here today differs [from] what is contained
within the Dictionary of Occupational Titles, will you please so
advise both [Pearson’s counsel] and myself?” 1 The expert agreed
to do so.
The ALJ presented the vocational expert with a series of
hypotheticals. The ALJ first posed the following scenario to
the expert:
[A]ssume a hypothetical individual the same age,
education and work experience which our claimant
possesses. Further assume that this hypothetical
individual can lift and carry up to 20 pounds
occasionally and ten pounds frequently; sit six hours
in an eight hour day and stand and walk a total of six
hours in an eight hour day. Further assume that this
hypothetical individual would be limited to
occasionally overhead lifting and reaching using the
upper nondominant extremity. Likewise, this
hypothetical individual could perform occasional
1
The Dictionary of Occupational Titles, and its companion,
Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (hereinafter, “Dictionary”
refers to both documents), are Social Security Administration
resources that list occupations existing in the economy and
explain some of the physical and mental requirements of those
occupations. U.S. Dep’t of Labor, Dictionary of Occupational
Titles (4th ed. 1991); U.S. Dep’t of Labor, Selected
Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles (1993).
3
bending, stooping, crouching, kneeling and
crawling. . . . The hypothetical individual, I would
restrict to ambulating on level surfaces. Likewise,
this hypothetical individual could perform no more
than frequent fingering and handling using the upper
extremities. . . . None exertionally. I would
restrict this hypothetical individual to performing
simple, routine tasks, with supervision which is
simple, direct and concrete.
The ALJ then asked the vocational expert whether this
hypothetical person could perform any of Pearson’s past jobs.
The expert said he could not.
The ALJ next asked the vocational expert whether this
hypothetical person could perform any other jobs in the national
economy. The expert testified that the hypothetical individual
could perform unskilled and light work, including jobs as a
motel cleaner (Dictionary 323.687-014), cashier II (Dictionary
211.462-010), and bench press operator (Dictionary 690.685-014).
Pearson’s counsel asked the expert no questions. At no time did
the vocational expert mention any conflicts between his
testimony and the Dictionary.
The ALJ again affirmed the denial of benefits. He found
that Pearson has the following severe impairments: “right
shoulder tendonitis and synovial lesion, left ear disorder
(status-post left tympanoplasty), diffuse joint pain due to
arthritis, back pain, carpal tunnel syndrome of the right wrist,
anxiety, and depression.” However, the ALJ found that, with
4
those impairments, Pearson retains the residual functional
capacity
to perform less than the full range of unskilled,
light work . . . . Physically, he retains the
residual functional capacity to lift and carry 20
pounds occasionally and 10 pounds frequently; stand
and/or walk six hours in an eight-hour workday; sit
for six hours in an eight-hour workday; is limited to
occasional overhead lifting/reaching using the non-
dominant upper extremity; can do no more than frequent
fingering and handling; can occasionally bend, stoop,
crouch and crawl; is limited to ambulating on level
surfaces; and is limited to face-to-face communication
due to alleged hearing loss in one ear. Mentally, the
claimant is limited to simple, routine tasks with
supervision that is simple, direct, and concrete.
This residual functional capacity mirrors that of the individual
in the first hypothetical that the ALJ posed to the vocational
expert. The ALJ concluded that although Pearson could not
perform any relevant past work, he could perform jobs that exist
in significant numbers in the national economy, including work
as a motel cleaner, cashier II, and machine tender/bench press
operator; these are the same jobs the vocational expert
mentioned. The ALJ thus found Pearson not disabled and not
entitled to benefits.
Pearson requested an Appeals Council review of this
decision, which the Council denied. Pearson then filed this
action in federal court. Upon consideration of the parties’
cross-motions for summary judgment, a magistrate judge issued a
report recommending grant of summary judgment to the Acting
5
Commissioner of the Social Security Administration
(Commissioner). Pearson filed objections, arguing that the
magistrate judge erred in recommending affirmance of the ALJ’s
finding that he was not disabled or eligible to receive
benefits. This was assertedly so because the ALJ did not
resolve a conflict between the vocational expert’s testimony and
the Dictionary as to whether the jobs identified by the expert
required an ability Pearson did not have -- to frequently reach
overhead with both arms. The district court overruled the
objection, adopted the magistrate judge’s recommendation, and
granted the Commissioner summary judgment. This timely appeal
followed.
II.
When reviewing a Social Security disability determination,
a reviewing court must “uphold the determination when an ALJ has
applied correct legal standards and the ALJ’s factual findings
are supported by substantial evidence.” Bird v. Comm’r of Soc.
Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). Substantial
evidence is that which “a reasonable mind might accept as
adequate to support a conclusion.” Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation
marks omitted). It “consists of more than a mere scintilla of
evidence but may be less than a preponderance.” Hancock v.
6
Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation
marks omitted).
In considering an application for disability benefits, an
ALJ uses a five-step sequential process to evaluate the
disability claim. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
(2015). The ALJ determines whether a claimant: first, is
currently gainfully employed; second, has a severe impairment;
and third, has an impairment that meets or equals the
requirements of a listed impairment. Id. § 404.1520(a)(4)(i),
(ii), (iii). Fourth, the ALJ considers the claimant’s residual
functional capacity to determine whether he can perform the
functions of his past relevant work. Id. § 404.1520(a)(4)(iv).
Fifth, the ALJ considers the claimant’s age, education, work
experience, and residual functional capacity to decide whether
he can perform alternative work that exists in significant
numbers in the national economy. Id. §§ 404.1520(a)(4)(v),
404.1560(c). The claimant has the burden of proof for the first
four steps, but at the final, fifth step the Commissioner bears
the burden to prove that the claimant is able to perform
alternative work. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987).
To answer this final question -- whether sufficient other
work exists for the claimant in the national economy -- the ALJ
“rel[ies] primarily” on the Dictionary. Soc. Sec. Admin.,
7
Policy Interpretation Ruling: Titles II & XVI: Use of Vocational
Expert & Vocational Specialist Evidence, & Other Reliable
Occupational Info. in Disability Decisions, Social Security
Ruling (SSR) 00-4p, 2000 WL 1898704 (Dec. 4, 2000), at *2 (the
Ruling). The ALJ “may also use” a vocational expert to address
complex aspects of the employment determination, including the
expert’s observations of what a particular job requires in
practice or the availability of given positions in the national
economy. Id.
Because the expert’s testimony can sometimes conflict with
the Dictionary, the Social Security Administration has
promulgated a multi-page, formal ruling to “clarif[y the]
standards for the use of vocational experts” at ALJ hearings.
Id. at *1. The Ruling requires that the ALJ “inquire, on the
record, . . . whether” the vocational expert’s testimony
“conflict[s]” with the Dictionary, and also requires that the
ALJ “elicit a reasonable explanation for” and “resolve”
conflicts between the expert’s testimony and the Dictionary.
Id. at *2. The ALJ must, by determining if the vocational
expert’s explanation is “reasonable,” resolve conflicts “before
relying on the [vocational expert’s] evidence to support a
determination or decision about whether the claimant is
disabled.” Id.
8
III.
The parties dispute two aspects of the Ruling: (1),
whether SSR 00-4p requires the ALJ only to ask the vocational
expert whether his testimony conflicts with the Dictionary or
also requires the ALJ to identify conflicts independently from
the vocational expert; and (2), if the ALJ must independently
identify conflicts, which conflicts the Ruling requires an ALJ
to identify. Pearson maintains that SSR 00-4p requires the ALJ
to do more than just ask the vocational expert if his testimony
conflicts with the Dictionary. He contends that even if a
vocational expert fails to identify a conflict in response to
that question, the Ruling requires the ALJ to independently
identify all “possible” conflicts between the expert’s testimony
and the Dictionary. SSR 00-4p, at *4. The Commissioner argues
that SSR 00-4p imposes on the ALJ only the single “affirmative
responsibility” -- to ask the vocational expert whether his
testimony conflicts with the Dictionary. Id. At most, the
Commissioner contends, if the ALJ must do more, he need only
identify “obvious” conflicts. 2
2
The Commissioner does not argue that we must defer to her
interpretation of SSR 00-4p. Although we of course defer to the
Commissioner’s interpretation of the statute as manifested in
the Ruling itself, Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th
Cir. 1995), because the Commissioner’s proposed interpretation
of the Ruling conflicts with the plain language of the Ruling,
we need not and do not defer to her interpretation.
9
As to whether the ALJ must do more than ask the vocational
expert whether his testimony conflicts with the Dictionary, the
Commissioner’s “affirmative responsibility” argument ignores
other language in SSR 00-4p. From its outset, the Ruling sets
forth multiple responsibilities and places all of them on the
ALJ. Id. at *1. The Ruling explains that its “purpose” is to
require the ALJ (not the vocational expert) to “[i]dentify and
obtain a reasonable explanation” for conflicts between the
vocational expert’s testimony and the Dictionary, and to
“[e]xplain in the determination or decision how any conflict
that has been identified was resolved.” Id. (emphasis added).
The Ruling then proceeds to require that the ALJ undertake
exactly these responsibilities. First, the ALJ must “[a]sk the
[vocational expert] . . . if the evidence he or she has provided
conflicts with information provided in the [Dictionary]”; and
second, “[i]f the [vocational expert]’s . . . evidence appears
to conflict with the [Dictionary],” the ALJ must “obtain a
reasonable explanation for the apparent conflict.” Id. at *4.
Notably, this second requirement is so independent of the first
that it does not rest on the vocational expert’s identification
of a conflict. Rather, SSR 00-4p directs the ALJ to “resolve
the conflict by determining if the explanation given by the
[expert] is reasonable,” id. at *2, and to “explain the
10
resolution of the conflict irrespective of how the conflict was
identified,” id. at *4 (emphasis added).
We thus agree with Pearson and the courts that have held
that an ALJ has not fulfilled his affirmative duty “merely
because the [vocational expert] responds ‘yes’ when asked if her
testimony is consistent with the [Dictionary].” Moore v.
Colvin, 769 F.3d 987, 990 (8th Cir. 2014); see Overman v.
Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (explaining that “the
ALJ’s affirmative duty extends beyond merely asking the
[vocational expert] whether his testimony is consistent with the
[Dictionary]”); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.
1999) (deciding, in a case predating SSR 00-4p, that “the ALJ
must ask the expert how his or her testimony . . . corresponds
with the [Dictionary], and elicit a reasonable explanation for
any discrepancy”). But see Lindsley v. Comm’r of Soc. Sec., 560
F.3d 601, 606 (6th Cir. 2009) (“Nothing in [SSR] 00-4p places an
affirmative duty on the ALJ to conduct an independent
investigation . . . .”) (internal quotation marks omitted). 3 The
3
Even the Ruling’s structure and section titles demonstrate
that SSR 00-4p requires far more than that the ALJ ask the
vocational expert a single question. The titles address
“Resolving Conflicts in Occupational Information,” “Reasonable
Explanations for Conflicts (or Apparent Conflicts) in
Occupational Information,” “Evidence That Conflicts with SSA
Policy,” and then “The Responsibility To Ask About Conflicts,”
followed by “Explaining the Resolution.” SSR 00-4p, at *2-*4.
11
ALJ independently must identify conflicts between the expert’s
testimony and the Dictionary.
As to the second issue, the language of the Ruling also
explains which conflicts the ALJ must identify and resolve
before relying on the vocational expert’s testimony. Though SSR
00-4p uses several adjectives to describe the relevant conflict,
the most common and, we believe, the most compelling is
“apparent.” See SSR 00-4p, at *2, *4 (requiring that the ALJ
“elicit a reasonable explanation” for “an apparent unresolved
conflict” and “obtain a reasonable explanation for the apparent
conflict”). “Apparent,” of course, has two definitions:
“obvious,” and “seeming real or true, but not
necessarily so.” Apparent, Oxford Dictionary,
http://www.oxforddictionaries.com/definition/apparent (last
visited Dec. 1, 2015). But the context of the word “apparent”
in SSR 00-4p makes plain that the Ruling intends the latter
meaning -- that the ALJ must identify where the expert’s
testimony seems to, but does not necessarily, conflict with the
Dictionary. For the Ruling explains that “[i]f the [vocational
expert]’s . . . evidence appears to conflict with the
[Dictionary], the adjudicator will obtain a reasonable
explanation for the apparent conflict.” SSR 00-4p, at *4
(emphasis added). And the title of one of the Ruling’s sections
12
addresses “Conflicts (or Apparent Conflicts),” id. at *2; that
title would be redundant if “apparent” meant “obvious.”
We recognize that this conclusion rejects both the
Commissioner’s claim that, if any conflict needs to be
identified and resolved, it is only obvious conflicts, and
Pearson’s contention that all possible conflicts must be
identified and resolved. The Commissioner’s contention ignores
the directive in SSR 00-4p that the ALJ address “apparent
conflicts.” Pearson’s view would require the ALJ to do more
than simply compare the express language of the Dictionary and
the vocational expert’s testimony, and would allow the claimant
to nitpick an ALJ’s or expert’s word choice on appeal.
The “apparent” conflict standard falls between the parties’
proposals. It embraces the reality that, in many cases,
testimony may only appear to conflict with the Dictionary, and
the vocational expert may be able to explain that, in fact, no
conflict exists. However, if the ALJ does not elicit this
explanation, then the expert’s testimony cannot provide
substantial evidence to support the ALJ’s decision. An expert’s
testimony that apparently conflicts with the Dictionary can only
provide substantial evidence if the ALJ has received this
explanation from the expert and determined that the explanation
13
is reasonable and provides a basis for relying on the testimony
rather than the Dictionary. See id. at *2. 4
The policies animating the disability benefits adjudication
process also support requiring the ALJ to make an independent
identification of conflicts, and to do so for apparent
conflicts. The Social Security Act is remedial in nature and
“unusually protective” of claimants. See Bowen v. City of New
York, 476 U.S. 467, 480, 486 n.14 (1986). Adopting the
Commissioner’s approach could result in a benefit denial based
on a vocational expert’s testimony that a claimant could fulfill
occupational requirements when, in fact, he could not fulfill
those requirements. We have long recognized that the
administrative hearing process is not an adversarial one, and an
ALJ has a duty to investigate the facts and develop the record
independent of the claimant or his counsel. See Cook v.
Heckler, 783 F.2d 1168, 1173-74 (4th Cir. 1986). An ALJ has not
fully developed the record if it contains an unresolved conflict
between the expert’s testimony and the Dictionary. Nor has the
4 Requiring an ALJ independently to identify apparent
conflicts does not require a further hearing. When an ALJ
identifies an apparent conflict that was not raised during a
hearing, he can request an explanation of the conflict by
submitting interrogatories to the vocational expert. Social
Security Administration, Hearings, Appeals, and Litigation Law
Manual, ch. I-2-5 § 30(C) (2015). If the expert provides a
sufficient explanation, the ALJ can resolve the apparent
conflict on the basis of the answer to the interrogatories.
14
ALJ fulfilled this duty if he ignores an apparent conflict
because the expert testified that no conflict existed.
Moreover, if SSR 00-4p did not require the ALJ to make an
independent identification of conflicts, or only required the
ALJ to identify and resolve obvious conflicts, the duty to
identify conflicts between the vocational expert testimony and
the Dictionary would fall to the claimant. SSR 00-4p, however,
requires nothing of the claimant. See Prochaska v. Barnhart,
454 F.3d 731, 735 (7th Cir. 2006) (“[The claimant] was not
required to raise th[e conflict] at the hearing, because the
Ruling places the burden of making the necessary inquiry on the
ALJ.”). Moreover, given that the Commissioner bears the burden
of proof at this final step, adopting the Commissioner’s view
“would amount to shifting the burden” of proof “back to the
claimant.” Haddock, 196 F.3d at 1090. This we will not do.
IV.
Finally, we turn to whether in this case the ALJ fulfilled
his duty to make an independent identification of apparent
conflicts. The vocational expert testified that Pearson was not
disabled because he could perform three occupations available in
sufficient numbers in the national economy. For all three, the
Dictionary lists frequent reaching as a requirement. Dictionary
at 323.687-014, 1991 WL 672783; 211.462-010, 1991 WL 671840;
15
690.685-014, 1991 WL 678500. The Dictionary defines reaching as
“[e]xtending hand(s) and arm(s) in any direction.” App. C,
Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles C-3. The ALJ found Pearson’s
nondominant arm could only occasionally reach upward.
Pearson contends that “the plain meaning of ‘reaching,’” as
defined by the Dictionary, “encompasses overhead reaching.”
Appellant’s Br. at 14. According to Pearson, because the
Dictionary does not specify the type of reaching involved, all
of the listed occupations “may require bilateral overhead
reaching.” Id. at 17. The Commissioner maintains that the
Dictionary only requires some form of frequent reaching, not
necessarily frequent bilateral overhead reaching, for these
occupations. The Commissioner claims that, because Pearson can
frequently reach bilaterally in every direction but overhead,
and can frequently reach overhead with one arm, no conflict
exists.
Although the Dictionary does not expressly state that the
occupations identified by the expert require frequent bilateral
overhead reaching, the Dictionary’s broad definition of
“reaching” means that they certainly may require such reaching.
Comparing the Dictionary definition to Pearson’s limitations,
the vocational expert’s testimony that Pearson could fulfill the
requirements of these occupations apparently conflicts with the
16
Dictionary. Although we could guess what these occupations
require in reality, it is the purview of the ALJ to elicit an
explanation from the expert as to whether these occupations do,
in fact, require frequent bilateral overhead reaching. If the
explanation does not provide a reasonable basis for relying on
the expert’s testimony, that testimony cannot provide
substantial evidence for a denial of benefits. If the expert’s
explanation is reasonable, the ALJ can resolve the apparent
conflict with the Dictionary and rely on the expert’s testimony.
Deciding that the vocational expert’s testimony apparently
conflicts with the Dictionary here does not mean that an ALJ
must find Pearson, or any other claimant with this limitation,
unable to perform these jobs. Rather, it simply means that the
ALJ and the expert should address exactly what form of reaching
the stated occupations require and whether the claimant can
fulfill those requirements. As the Seventh Circuit put it,
“this is exactly the sort of inconsistency the ALJ should have
resolved with the expert’s help.” Prochaska, 454 F.3d at 736
(remanding the case for the ALJ to determine whether the
vocational expert’s testimony conflicted with the Dictionary
because “the ALJ asked the expert for work that could be done by
someone who could only ‘occasionally reach above shoulder level’
while a cashier’s requirements, under the [Dictionary], include
‘reaching’ frequently”).
17
Directly addressing this conflict is important because even
if some motel cleaners, cashiers, and bench press operators need
not frequently reach overhead with both arms, the number of
positions in the national economy without this requirement
matters. An ALJ can only find a claimant not disabled at step
five of the analysis if the Commissioner proves that the
claimant can perform other work that “exist[s] in significant
numbers in the national economy.” 20 C.F.R. § 404.1560(c). So
it is not enough that some positions exist in which the worker
need not frequently reach overhead with both arms. The
vocational expert must testify to how many of these positions do
not require frequent bilateral overhead reaching. Likely at
least some have this requirement. If there are a sufficient
number of these positions that do not require frequent bilateral
overhead reaching, the ALJ can properly find Pearson not
disabled. If too many do have this requirement, the ALJ will
necessarily find that Pearson cannot do work that exists in
significant numbers in the national economy.
V.
For the foregoing reasons, we reverse the judgment of the
district court and remand the case with instructions to remand
18
it to the Commissioner for further proceedings consistent with
this opinion.
REVERSED AND REMANDED
19