Donohue, Patrick v. Barnhart, Jo Anne ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2044
Patrick W. Donahue,
Plaintiff-Appellant,
v.
Jo Anne B. Barnhart, Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-C-1507--Thomas J. Curran, Judge.
Argued November 14, 2001--Decided January 25, 2002
Before Coffey, Easterbrook, and Diane P.
Wood, Circuit Judges.
Easterbrook, Circuit Judge. Patrick
Donahue, who last was employed (as a
truck driver) in 1986, seeks an award of
supplemental security income on the basis
of disability. The substantive standards
for supplemental security income are
materially the same as those for Social
Security disability benefits, though the
monthly payment is lower. Donahue had a
laminectomy in 1977 and continues to
suffer back pain. He is illiterate and
suffers from some personality problems as
a result of organic brain damage. But
after hearing the testimony of a
vocational expert, the administrative law
judge concluded that Donahue could
perform low-stress tasks with moderate
exertional requirements, such as
janitorial work, and therefore is not
disabled--for supplemental security
income is not a form of unemployment
insurance and is unavailable if any do-
able work exists in the national economy,
even if other persons with better skills
are likely to be hired instead. The
district court concluded that substantial
evidence supports the administrative
conclusion.
Donahue’s lead argument is that the alj
improperly discounted his contention that
back pain hampers his ability to work. It
is not clear to us that the alj’s
credibility finding made any difference.
Donahue’s own estimate is that his pain
reaches a level of 3 on a scale of 0 to
10, and this does not sound disabling.
What the alj found is not that the pain
should have been rated a 2, but that it
is not bad enough to prevent Donahue from
performing jobs such as janitor. In
making this determination the alj did not
limit herself to an observation that the
severity of pain cannot be demonstrated
by objective medical evidence. If the alj
had made such a finding, it would have
been a legal error, for both regulations
and interpretive guides provide that the
agency will consider all evidence. See 20
C.F.R. sec.416.929(c)(2); Social Security
Ruling 96-7p; Zurawski v. Halter, 245
F.3d 881, 887-88 (7th Cir. 2001). What
the alj actually did, however, is
compatible with all legal requirements.
The alj observed that Donahue continued
working for a decade after his back
operation (and was fired for refusing to
participate in counseling, a reason
unrelated to back pain), implying that
the pain could not be disabling unless
things had gotten worse since 1986. Then
the alj noted that Donahue relied for pain
control on over-the-counter analgesics
and reported that these gave him good
relief, from which the alj inferred that
the level of pain could not be severe. A
physician concluded that Donahue can lift
50 pounds and stand for 6 hours in an 8-
hour period, which again implies that the
level of pain he must endure is not
disabling. There was more; but what we
have recited supplies substantial
evidence for the alj’s decision. Donahue
puts a different spin on the evidence; he
contends, for example, that he settled
for over-the-counter analgesics because
an unnamed physician once told him that
there was not much else to do. At oral
argument his lawyer stated that Donahue
could not afford more powerful pain-
killers, a position never communicated to
the alj. In either event the fact remains
that he reported good pain control with
what he used, and the resolution of
competing arguments based on the record
is for the alj, not the court. See, e.g.,
Brewer v. Chater, 103 F.3d 1384, 1392
(7th Cir. 1997); Stephens v. Heckler, 766
F.2d 284 (7th Cir. 1985).
Asked what jobs could be performed by an
illiterate person who has some back pain
and difficulty interacting with others,
can lift 25 pounds frequently and 50
pounds occasionally, and can stand or
walk for 6 hours during a working day but
needs to sit when back pain and dizzy
spells occur, the vocational expert
replied that the Milwaukee area alone
offers some 5,000 janitorial jobs, 3,000
assembly jobs, and 1,500 hand-packing
jobs that satisfy these limitations. The
alj accepted this testimony, which doomed
Donahue’s application. He now raises two
objections: first, that the alj did not
include in the list of problems his
personality disorder and shortcomings in
concentration; second that the alj
contradicted the Department of Labor’s
Dictionary of Occupational Titles (4th
ed. 1991), when testifying that an
illiterate person could perform these
jobs. The first of these contentions
seems to us picayune. The alj specified
that Donahue had difficulty interacting
with others and would need to sit, on his
own schedule, to accommodate back pain
and dizziness. The vocational expert did
not name jobs in which steady
concentration or sociability is
essential. Donahue does not contend that
he has deteriorated in these respects
since the years he worked as a truck
driver; it is only because of his
testimony about dizzy spells that the alj
concluded that he could not return to his
former occupation, and the dizziness
limitation was stated for the vocational
expert’s consideration.
The conflict between the vocational
expert’s testimony and the Dictionary of
Occupational Titles is not so easy to
deal with. It turns out that whoever
wrote the Dictionary believes that basic
literacy (defined as a vocabulary of
2,500 words, the ability to read about
100 words a minute, and the ability to
print simple sentences) is essential for
every job in the economy, and that
janitors require a higher level (the
ability to read about 200 words per
minute). See Dictionary at
classifications 382, 358.687-010,
381.687-014, 381.687-018, 382.664-101
(discussing various janitorial
classifications), and Appendix C pp.
1010-11 (literacy for all jobs). The
vocational expert obviously did not
agree--nor did Donahue’s former employer,
for he was no more literate during the 23
years he drove a garbage truck than he is
today. Illiteracy is not a progressive
disease.
Courts disagree about the appropriate
interaction between the Dictionary and a
vocational expert. The eighth circuit
held at one point that an alj always must
prefer the Dictionary over the view of a
vocational expert. See Smith v. Shalala,
46 F.3d 45, 47 (8th Cir. 1994). If this
is so, then Donahue (and every other
illiterate person in the United States)
must be deemed "disabled," even though
illiteracy is not a listed impairment
leading to an automatic finding of
disability under the Commissioner’s
regulations. On the other hand, three
circuits hold that an alj always may pre
fer the testimony of a vocational expert
over the conclusions in the Dictionary.
See Jones v. Apfel, 190 F.3d 1224 (11th
Cir. 1999); Conn v. Secretary of Health
and Human Services, 51 F.3d 607 (6th Cir.
1995); Carey v. Apfel, 230 F.3d 131 (5th
Cir. 2000). Three more circuits allow the
alj to accept a vocational expert’s
position, but only after providing an
explanation (with record support) for
doing this; in these circuits a
vocational expert’s bare conclusion is
not enough. See Haddock v. Apfel, 196
F.3d 1084 (10th Cir. 1999); Johnson v.
Shalala, 60 F.3d 1428, 1435 (9th Cir.
1995); Mimms v. Heckler, 750 F.2d 180 (2d
Cir. 1984). We have yet to face the issue
squarely, on occasion remanding for a
better explanation and on occasion
affirming, but never articulating a rule
of decision for cases of this kind.
Compare Young v. Secretary of Health and
Human Services, 957 F.2d 386, 392-93 (7th
Cir. 1992), and Tom v. Heckler, 779 F.2d
1250, 1255-56 (7th Cir. 1985) (both
remanding), with Powers v. Apfel, 207
F.3d 431, 436-37 (7th Cir. 2000)
(permitting a hearing officer to rely on
expert testimony that contradicts the
Dictionary).
The position articulated in Smith that
the Dictionary always wins is untenable.
Smith itself gave no reason for a flat
rule, and the eighth circuit sensibly has
retreated in more recent cases. See Young
v. Apfel, 221 F.3d 1065 (8th Cir. 2000);
Jones v. Chater, 72 F.3d 91 (8th Cir.
1995); Montgomery v. Chater, 69 F.3d 273(8th Cir. 1995). Smith would make the
Dictionary of Occupational Titles
anindependent source of listed
impairments, giving the Dictionary’s team
of authors a power that Congress has
bestowed on the Commissioner of Social
Security. The editorial board of the
Dictionary has not been nominated by the
President or confirmed by the Senate. The
Dictionary is published by the Department
of Labor as a tool; it does not purport
to contain rules of law, and no statute
or regulation gives it binding force. The
Commissioner of Social Security is
entitled to examine independently those
questions covered by the Dictionary--
something that the Dictionary itself
proclaims when observing that users
should rely on better data if they have
any in their own possession. See
Dictionary at xiii. To go by the record
of this case (and many others), that
caution is prudent. Donahue had a job for
a long time despite his poor reading
skills. (One wonders how Donahue can be
"illiterate" if he could take and pass
the tests required of truck drivers, but
the parties make nothing of this.)
Indeed, people who arrive in the United
States without even the ability to
recognize the Latin alphabet often find
work. So the alj must be entitled to
accept testimony of a vocational expert
whose experience and knowledge in a given
situation exceeds that of the
Dictionary’s authors. But when will this
be true? We asked the parties at oral
argument what makes a vocational expert
an "expert" (and where the information in
the Dictionary came from). They did not
know. Maybe both the authors of the
Dictionary and the vocational expert in
this case are talking out of a hat.
Rule 702 of the Federal Rules of
Evidence provides that "a witness
qualified as an expert by knowledge,
skill, experience, training, or
education, may testify thereto in the
form of an opinion or otherwise, if (1)
the testimony is based upon sufficient
facts or data, (2) the testimony is the
product of reliable principles and
methods, and (3) the witness has applied
the principles and methods reliably to
the facts of the case." This
substantially codifies the holdings of
Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993), and its
successors. Rule 702 does not apply to
disability adjudications, a hybrid
between the adversarial and the
inquisitorial models. See Richardson v.
Perales, 402 U.S. 389 (1971). But the
idea that experts should use reliable
methods does not depend on Rule 702
alone, and it plays a role in the
administrative process because every
decision must be supported by substantial
evidence. Evidence is not "substantial"
if vital testimony has been conjured out
of whole cloth. See Peabody Coal Co. v.
McCandless, 255 F.3d 465 (7th Cir. 2001);
Elliott v. CFTC, 202 F.3d 926 (7th Cir.
2000). Even in court, however, an expert
is free to give a bottom line, provided
that the underlying data and reasoning
are available on demand. Fed. R. Evid.
704(a). That’s what the vocational expert
did here. Presented with a statement of
Donahue’s abilities and limitations, the
vocational expert produced some job
titles and numbers. At this point the
expert could have been cross-examined
(Donahue was represented by counsel)
about where these numbers came from, and
why the expert’s conclusion did not match
the Dictionary’s. Holding out this
opportunity is an approach deemed
adequate in Richardson v. Perales. Yet
counsel did not ask the vocational expert
about the genesis of the numbers or the
reason for the discrepancy.
What, then, happens when the discrepancy
is unexplored? When no one questions the
vocational expert’s foundation or
reasoning, an alj is entitled to accept
the vocational expert’s conclusion, even
if that conclusion differs from the
Dictionary’s--for the Dictionary, after
all, just records other unexplained
conclusions and is not even subject to
cross-examination. If the basis of the
vocational expert’s conclusions is
questioned at the hearing, however, then
the alj should make an inquiry (similar
though not necessarily identical to that
of Rule 702) to find out whether the pur
ported expert’s conclusions are reliable.
Social Security Ruling 00-4p, promulgated
in December 2000 (and thus not directly
applicable to this case), is to much the
same effect. This ruling requires the alj
to "[e]xplain [in the] determination or
decision how any conflict [with the
Dictionary] that has been identified was
resolved." (Emphasis added.) The ruling
requires an explanation only if the
discrepancy was "identified"--that is, if
the claimant (or the alj on his behalf)
noticed the conflict and asked for
substantiation. Raising a discrepancy
only after the hearing, as Donahue’s
lawyer did, is too late. An alj is not
obliged to reopen the record. On the
record as it stands--that is, with no
questions asked that reveal any
shortcomings in the vocational expert’s
data or reasoning--the alj was entitled to
reach the conclusion she did.
Affirmed