Richard Welsh v. Carolyn Colvin , 765 F.3d 926 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2619
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Richard Welsh
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: April 17, 2014
Filed: September 2, 2014
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Before LOKEN and MURPHY, Circuit Judges, and PERRY,* District Judge.
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LOKEN, Circuit Judge.
Richard Welsh applied for Social Security disability and supplemental security
income benefits. Following an administrative hearing, the ALJ denied the application,
concluding that Welsh’s severe impairments precluded return to his past relevant
*
The Honorable Catherine D. Perry, Chief Judge, United States District Court
for the Eastern District of Missouri, sitting by designation.
work, but he retained the residual functional capacity to perform sedentary work as
a surveillance systems monitor and a call out operator. The district court remanded
for further proceedings because the ALJ failed to resolve inconsistencies between the
testimony of a vocational expert (“VE”) and work descriptions of those jobs in the
Department of Labor’s Dictionary of Occupational Titles (“DOT”).
On remand, a second ALJ more thoroughly questioned the VE regarding her
opinion that Welsh could perform sedentary work as a surveillance systems monitor
and call out operator, and that jobs Welsh could perform exist in significant numbers
in the national or regional economies. Crediting the VE’s testimony that her opinion
was consistent with the occupational information about those jobs in the DOT, the
ALJ in a thorough written decision denied Welsh’s claim for benefits. The
Commissioner’s Appeals Council denied an administrative appeal. In this action,
Welsh seeks judicial review of the adverse agency decision. The district court1
affirmed the denial of benefits in a thorough opinion. Welsh appeals. We review the
district court’s decision upholding the denial of benefits de novo but, like the district
court, we must uphold the ALJ’s decision if it is supported by substantial evidence on
the administrative record as a whole. Renfrow v. Astrue, 496 F.3d 918, 920 (8th Cir.
2007). Applying this standard of review, we affirm.
I.
After the second administrative hearing, which primarily addressed the issue
on which the district court remanded, the ALJ again concluded that Welsh had
multiple serious impairments that did not meet the criteria of a listed impairment --
rotator cuff tears, a right knee meniscus tear, carpel tunnel disease, right traumatic
1
The Honorable Jon Stuart Scoles, Chief Magistrate Judge for the Northern
District of Iowa, who heard the case with the consent of the parties pursuant to 28
U.S.C. § 636(c).
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brachial plexopathy, depression, anxiety, obesity, COPD, and a history of
polysubstance abuse. The ALJ next found that Welsh -
has the residual functional capacity [RFC] to perform sedentary work as
defined in [the regulations] except: he can only lift five pounds with
either upper extremity. Moreover, he cannot climb ladders, ropes, or
scaffolds, and may only occasionally climb ramps or stairs. The
claimant can occasionally balance, stoop, kneel, crouch, or crawl.
However, he may not reach overhead bilaterally, and while he is left-
hand dominant, he may only occasionally finger with his right hand.
Moreover, he cannot be required to drive, and he must avoid
concentrated exposure to extremes of cold and hazards. Finally, he is
limited to simple, routine, repetitive work with only simple, work-related
decisions and few workplace changes.
The ALJ found at step four of the Commissioner’s five-step disability
determination process2 that Welsh was unable to perform his past relevant work.
Proceeding to step five, after posing a hypothetical consistent with the RFC he had
found, the ALJ asked the VE, “Can such a person perform any past work or any other
work?” The VE responded that, even with these additional limitations, this person
could perform the duties of two sedentary jobs, surveillance systems monitor and call
out operator. The VE was then extensively questioned by the ALJ and cross-
examined by Welsh’s attorney regarding information in the DOT descriptions of those
jobs that is inconsistent with the RFC -- that the surveillance systems monitor and call
out operator jobs require occasional lifting up to ten pounds, and the fact that the left-
hand dominant Welsh can only do work that requires little if any handling or fingering
with his right hand. In response, the VE noted that DOT sedentary job descriptions
requiring the ability to occasionally lift up to ten pounds are at the outer limit of what
might be required in a particular job; based on her experience observing people at
work, surveillance systems monitor and call out operator jobs do not require lifting
2
See 20 C.F.R. §§ 404.1520(a), 416.920(a).
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more than five pounds. In addition, relying on a survey of employers and employees
reported in the Journal of Forensic Vocational Analysis, the VE explained that these
jobs could be adequately performed with one arm. Near the end of this testimony, the
ALJ asked:
Q . . . Is your testimony today consistent with the Dictionary of
Occupational Titles? I understand there’s some changes here.
A It’s consistent with the Dictionary of Occupational Titles and
I’ve been asked my opinion about various other publications.
Q Yes, obviously you’ve gone beyond what they say in the DOT
and you’ve explained the basis of your opinion today. Okay.
A Yes.
The ALJ’s written decision concluded that Welsh was not disabled prior to
April 27, 2012,3 based on the VE’s testimony that there were jobs that existed in
significant numbers in the national and Iowa economies that Welsh could have
performed. Citing Social Security Ruling (“SSR”) 00-4p, 2000 WL 1898704 (Dec.
4, 2000), a Policy Interpretation Ruling for “Resolving Conflict in Occupational
Information” at steps four and five of the sequential evaluation process, the ALJ found
that (i) the VE’s testimony was consistent with the information contained in the DOT,
and (ii) her opinion that surveillance systems monitor and call out operator jobs would
be available in adequate numbers despite Welsh’s right arm impairment was
reasonably supported by the VE’s personal experience observing the jobs listed and
her professional reliance on a survey of employers and employees reported in the
Journal of Forensic Vocational Analysis. The district court affirmed the
Commissioner’s decision after a thorough review of these issues.
3
The ALJ awarded benefits after that date because Welsh’s age then became “an
increasingly adverse vocational factor” under the Commissioner’s regulations.
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II.
A. On appeal, Welsh first argues that a remand is required because the ALJ
failed to explicitly consider Social Security Ruling 96-9p, 1996 WL 374185 (July 2,
1996). This Ruling outlines the proper analysis when a claimant’s RFC limits him to
less than a full range of sedentary work, a situation in which “the occupational base
will be ‘eroded’ by the [disability claimant’s] additional limitations and restrictions.”
SSR 96-9p provides: “Where there is more than a slight impact on the individual’s
ability to perform the full range of sedentary work . . . the adjudicator 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 resides or in several regions
of the country.” The Ruling advises that “it may be useful to consult a vocational
resource.” This is precisely the analysis the ALJ conducted, relying on the VE’s
testimony and opinions. Thus, the failure to explicitly refer to SSR 96-9p was an
arguable deficiency in opinion writing that had no practical effect on the decision and
therefore is not a sufficient reason to set aside the ALJ’s decision. Brown v. Chater,
87 F.3d 963, 966 (8th Cir. 1996).
B. Welsh next argues the ALJ erred in finding that the VE reasonably resolved
the discrepancy between her testimony that Welsh could perform the surveillance
systems monitor and call out operator jobs, based upon the RFC found by the ALJ,
and the DOT descriptions for those sedentary jobs. A conflict existed, Welsh
contends, because (i) the ALJ’s RFC limited him to exerting five pounds of force
occasionally, whereas the DOT descriptions for both jobs require exerting up to ten
pounds; (ii) the RFC limited him to simple, routine, repetitive work, whereas the DOT
descriptions require level three reasoning capability; and (iii) the RFC said he cannot
do overhead reaching with either arm, whereas the DOT description for call out
operator requires occasional reaching, which is defined to include overhead reaching.
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The district court rejected this contention, concluding that the ALJ’s
questioning and the VE’s responsive testimony were consistent with this court’s
approach to the DOT, which treats the DOT as “generic job descriptions that offer the
approximate maximum requirements for each position, rather than their range.”
Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000) (quotation omitted). Welsh
argues the ALJ failed to engage in the analysis required by SSR 00-4p:
“When there is an apparent unresolved conflict between the VE . . . and
the DOT, the adjudicator must elicit a reasonable explanation for the
conflict before relying on the VE . . . . 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.”
In Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014), we construed SSR 00-4p
as placing on the ALJ an affirmative responsibility to ask about “any possible
conflict” between VE evidence and the DOT, and to obtain an explanation for any
such conflict, before relying on VE evidence to support a determination the claimant
is not disabled. Here, following the initial remand for further consideration of this
issue, the ALJ explicitly asked the VE whether her opinions were inconsistent with
the DOT descriptions. Agreeing with the VE that the DOT descriptions are maximum
possible job requirements that are not required to do all jobs in every category, as we
held in Hillier v. Soc. Sec. Admin., 486 F.3d 359, 366-67 (8th Cir. 2007), the ALJ
accepted the VE’s opinion that there was no inconsistency. The ALJ then found that
the VE had reasonably explained her opinion that a person with the RFC described in
the ALJ’s hypothetical could adequately perform the job duties of surveillance
systems monitor and call out operator.
When an ALJ has posed a hypothetical that accurately reflects his RFC finding,
questioned the VE about any apparent inconsistencies with the relevant DOT job
descriptions, and explained his decision to credit the VE’s testimony, the ALJ has
complied with SSR 00-4p, and we review his decision under the deferential substantial
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evidence standard. See Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010). Welsh
argues the VE’s explanations were based upon insufficient personal experience and
unreliable scholarly literature, but these were fact issues for the ALJ to resolve. SSR
00-4p specifically provides that, in crediting VE testimony over a DOT listing, an ALJ
may rely on “[i]nformation about a particular job’s requirements . . . available in other
reliable publications, information obtained directly from employers, or from a VE’s
. . . experience in job placement or career counseling.” The failure to address any
potential inconsistency between the RFC’s limitation to simple, routine, repetitive
work and the DOT’s requirement of level three reasoning does not require a remand.
See Renfrow, 496 F.3d at 921.
C. Finally, Welsh argues the ALJ erred in finding “there is a significant
number of jobs (in one or more occupations) having requirements which [Welsh is]
able to meet.” 20 C.F.R. §§ 404.1566(b), 416.966(b). Relying on the VE’s testimony,
the ALJ found there were 330 surveillance systems monitor and call out operator
positions existing in Iowa, and 36,000 positions nationally. Welsh argues the ALJ
erred in relying on this testimony because the VE admitted that some of those Iowa
jobs could not be performed by someone with Welsh’s additional limitations (in
particular, his lack of bilateral dexterity), and some were part-time rather than full-
time positions, whereas the RFC determination is based on a person’s ability to work
on a regular and continuing basis, meaning eight hours a day, five days a week.
In Dipple v. Astrue, 601 F.3d 833, 836 (8th Cir. 2010), the VE testified that the
claimant could perform identified jobs that existed in the “thousands” in Illinois and
Iowa; we held that the VE “was neither required to articulate the percentage of
available jobs that were part-time or full-time, nor to describe labor market conditions
beyond the data that were readily available.” In Jones, 619 F.3d at 977-78, the VE
reduced his estimate of the number of existing jobs because the claimant’s RFC,
unlike the DOT for those jobs, was limited to “occasional handling,” an approach we
concluded “was a perfectly acceptable basis for the [ALJ’s] conclusions.” Here, the
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VE was thoroughly cross-examined as to the basis for her testimony that 330
surveillance systems monitor and call out operator jobs exist in Iowa, and that Welsh
could perform “most” of those jobs. After careful review of the administrative record,
we conclude that substantial evidence supports the ALJ’s finding that a sufficient
number of jobs existed in the national and local economies that a person with Welsh’s
RFC could perform, based on the VE’s testimony.
The judgment of the district court is affirmed.
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