Chantel Courtney v. Commissioner, Social Security , 894 F.3d 1000 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-1777
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Chantel Courtney
lllllllllllllllllllll Plaintiff - Appellant
v.
Commissioner, Social Security Administration
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 11, 2018
Filed: July 10, 2018
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Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
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SMITH, Chief Judge.
Chantel Courtney appeals from the district court’s1 affirmance of the Social
Security Commissioner’s decision denying her claims for a period of disability,
disability insurance benefits, and supplemental security income. We affirm.
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
I. Background
Courtney’s daily activities primarily involve caring for her children and
household. They include cooking, helping her kids get ready for school, and picking
them up at the end of the day. She spends time with her sister, grocery shops, and
manages the household finances. Courtney suffers from degenerative disc
disease/degenerative joint disease of the spine, and has a history of syncopal
episodes. She also suffers from left ankle degenerative osteoarthritis and has a history
of bone fractures. Courtney has also been diagnosed with post-traumatic stress
disorder, major depressive disorder, and generalized anxiety disorder.
In 2011, Courtney alleged she was disabled and applied for social security
benefits. After remand from the Appeals Council, the Administrative Law Judge
(ALJ) held a supplemental hearing. In his written opinion, proceeding through the
five-step evaluation process, 20 C.F.R. § 416.920(a)(4), the ALJ found at steps one
through three that Courtney had not engaged in substantial gainful activity in the
relevant period and that she has severe mental and physical impairments. The ALJ
concluded, however, that these impairments do not meet or equal impairments listed
in the social security regulations. The ALJ then determined Courtney’s residual
functional capacity (RFC). At step four, the ALJ concluded that Courtney could no
longer perform her past relevant work but can perform light work with appropriate
limitations. At step five, the ALJ found that Courtney can adjust to other work with
jobs existing in significant numbers in the national economy. He thus found that
Courtney was not “disabled” within the meaning of the Social Security Act.
The Appeals Council denied Courtney’s request for review. The ALJ’s denial
thus became the final agency decision and subject to judicial review. Lott v. Colvin,
772 F.3d 546, 548 (8th Cir. 2014) (citation omitted). Courtney sought judicial review.
After the district court heard oral argument, it affirmed the ALJ’s decision.
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II. Discussion
We review the district court’s judgment affirming the denial of benefits de
novo, and “[w]e will reverse the findings of an agency only if they are not supported
by substantial evidence or result from an error of law.” Draper v. Colvin, 779 F.3d
556, 559 (8th Cir. 2015) (citations omitted). In this appeal, we address whether the
Commissioner failed at step five to show that Courtney could perform jobs in the
national economy, by erroneously relying on the vocational expert’s (VE) testimony.
At the hearing, the ALJ asked the VE a hypothetical question about an
individual limited by factors not found in the Dictionary of Occupational Titles
(DOT) or its companion publication, the Selected Characteristics of Occupations
(SCO). Specifically, the ALJ asked the VE to assume a hypothetical claimant who can
do the following:
[L]ift and carry 20 pounds occasionally and 10 pounds frequently; can
stand or walk for six hours out of eight; sit for six; should never climb
ropes, ladders and scaffolds; can occasionally climb stairs and ramps,
stoop, kneel, crouch and crawl; should avoid even moderate exposure
to unprotected heights.
She is able to understand, remember and carry out at least simple
instructions and non-detailed tasks. She can demonstrate adequate
judgment to make simple/work-related decisions and can respond
appropriately to supervisors and co-workers, adapt to routine/simple
work changes and take appropriate precautions to avoid hazards.
See Admin. Rec. at 54. The VE identified jobs that this hypothetical individual could
perform. The hypothetical individual had the same characteristics as Courtney. After
the hearing, the ALJ found that Courtney’s RFC matched that of the hypothetical
claimant.
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On appeal, Courtney argues that the ALJ failed to properly weigh the VE’s
opinions as to Courtney’s RFC. Specifically, Courtney points out that some of the
limitations identified by the VE—those regarding memory of instructions, detail of
tasks, simplicity of decisions, simplicity of workplace changes, and only routine
workplace changes—are not included in or addressed by the DOT. Because some of
the limiting factors in the hypothetical question are not in the DOT, Courtney argues,
the VE necessarily considered knowledge and resources beyond the DOT in
answering the question. Consequently, she contends that this extra-DOT testimony
required that the ALJ examine the VE for the basis of his reliance. The ALJ did not.
This, Courtney argues, was error. According to Courtney, on this record, the
Commissioner failed to show that Courtney could perform jobs existing in significant
numbers in the national economy.
Courtney compares the ALJ’s failure to scrutinize the VE’s factual basis with
a case where there is an apparent conflict between VE testimony and the DOT. When
such a conflict exists, the ALJ must ask questions that address it. Courtney says that
an analogous duty to inquire further arises when a VE testifies regarding limitations
that are unaddressed by the DOT—but that do not conflict with it. Courtney concedes
there was no direct conflict between the VE testimony and the DOT in this case. She
says it is possible, however, to view the lack of an explanation for the extra-DOT
testimony as a “conflict,” thus requiring further ALJ inquiry.
The Commissioner points out that this court has long held that an ALJ may
properly rely on VE testimony. The Commissioner contends that no statute,
regulation, administrative guidance, or authoritative case law supports Courtney’s
theory. Case law and social security rulings only dictate that an ALJ must inquire
further if there is an apparent conflict between the VE’s testimony and the DOT. The
Commissioner believes that an ALJ is not required to ask questions of the VE to
ascertain additional foundation for his or her testimony. The Commissioner avers that
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the VE’s qualifications and expertise established the requisite foundation for the VE’s
opinion.
We agree with the Commissioner. Social Security Ruling (SSR) 00-4p makes
clear that before relying on VE evidence, adjudicators must “[i]dentify and obtain a
reasonable explanation for any conflicts between” such evidence and the DOT. 2000
WL 1898704, at *1 (Dec. 4, 2000) (emphasis added). SSR 00-4p emphasizes that an
adjudicator must resolve “apparent unresolved conflict[s]” between VE evidence and
the DOT. Id. at *2 (emphasis added). But it does not impose a duty on the ALJ to
obtain a reasonable explanation when the VE simply testifies to information not
found in the DOT—but that does not conflict with it.
We have previously held that SSR 00-4p places an affirmative responsibility
on the ALJ “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.” Welsh v. Colvin, 765 F.3d 926,
929 (8th Cir. 2014) (citing Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014)); see
also Thomas v. Berryhill, 881 F.3d 672, 677 (8th Cir. 2018) (“The Commissioner has
ruled that an ALJ may not rely on a vocational expert’s testimony about the
requirements of a job if an ‘apparent unresolved conflict’ exists between that
testimony and the job’s description in the [DOT].” (citing Moore v. Colvin, 769 F.3d
987, 989–90 (8th Cir. 2014))). But we have never held that SSR 00-4p places an
affirmative responsibility on the ALJ to inquire further when a VE merely testifies to
information not included in the DOT, but that does not conflict with it. Absent social
security statutes, regulations, or policy rulings to the contrary, we decline to impose
an additional duty on ALJs to inquire about the basis of all extra-DOT testimony by
the VE. The Social Security Administration (SSA) describes VEs as “reliable sources
of occupational information” and “sources of occupational evidence.” SSR 00-4p,
2000 WL 1898704, at *1, *2; see also 20 C.F.R. § 416.966(e) (“If . . . there is a . . .
complex issue, we may use the services of a vocational expert or other specialist.”).
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We thus agree with the Commissioner that unless a VE’s testimony appears to
conflict with the DOT, there is no requirement that an ALJ inquire as to the precise
basis for the expert’s testimony regarding extra-DOT information.
Our precedent supports this conclusion. In Welsh, we considered an ALJ’s
duty under SSR 00-4p to resolve apparent conflicts. 765 F.3d at 929. There, the DOT
descriptions of the proposed jobs were inconsistent with Welsh’s RFC—the jobs
required occasional lifting up to ten pounds, but Welsh was limited to lifting up to
five pounds, and he could only do work requiring little if any use of his right hand.
Id. at 927–28. The ALJ and Welsh’s attorney both extensively cross-examined the VE
about this conflict. Id. at 928. The VE explained that “based on her experience
observing people at work, [the two proposed jobs] do not require lifting more than
five pounds,” and based on a vocational journal survey, the two “jobs could be
adequately performed with one arm.” Id. The ALJ’s written decision credited the
VE’s opinion, which he found supported by her personal experience and professional
reliance on the journal survey, and he concluded Welsh was not disabled. Id. at
928–29. We held that the ALJ correctly engaged in the analysis required by SSR 00-
4p for apparent unresolved conflicts: the ALJ asked about inconsistencies and
accepted the ALJ’s explanation for the conflict and why Welsh could adequately
perform the proposed jobs. Id. at 929–30. We explained that
[w]hen 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 evidence standard.
Id. at 930 (citing Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010)).
Applying these principles, in Moore v. Colvin, we remanded for resolution of
an apparent conflict. 769 F.3d 987 (8th Cir. 2014). There, the VE recommended jobs
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that the SCO described as requiring reaching “[f]requently,” but the claimant’s RFC
limited him to only “occasional[]” overhead reaching. Id. at 989 (first alteration in
original) (citation omitted). It was unclear whether the proposed jobs—which
required frequent reaching—required more than occasional overhead reaching. Id. at
990. We remanded because the ALJ failed to evaluate this inconsistency between the
VE’s testimony and the DOT and improperly relied on the VE’s testimony without
resolving the apparent conflict. Id.
We have consistently held that if “substantial evidence supports the ALJ’s
phrasing of the hypothetical to the vocational expert, and there was no conflict
between the vocational expert’s testimony and the DOT, the ALJ properly relied on
the testimony.” Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (citing Page v.
Astrue, 484 F.3d 1040, 1045 (8th Cir. 2007) (holding that where the VE identified
jobs the hypothetical individual could perform, and nothing suggested the VE ignored
the reasoning limitations in determining suitable jobs, the ALJ properly relied on the
testimony)). Further, an ALJ can “properly assume that the expert framed his answers
based on the factors the ALJ told him to take into account.” Whitehouse v. Sullivan,
949 F.2d 1005, 1006 (8th Cir. 1991). Here, the ALJ described Courtney’s limitations
to the VE, the VE responded with possible jobs, and the VE’s testimony did not
conflict with the DOT. The ALJ was thus entitled to rely on the testimony. See Moore
v. Astrue, 623 F.3d at 604.2 The agency finding that Courtney is not disabled was
2
Courtney’s citation to a 2016 memorandum from the Chief ALJ of the SSA to
all ALJs does not change our conclusion. See generally Soc. Sec. Reply Br., Exhibit
1, No. 4:15-cv-01894-CDP (E.D. Mo. July 4, 2016), ECF No. 19-1. Like the cases
discussed above, the memorandum discusses an ALJ’s duty to inquire further when
he or she identifies a conflict between the VE’s testimony and the DOT, and it
suggests questions to pose to the VE to help resolve that conflict. Id. at 3–4. As the
district court here pointed out, the law as it stands does not impose this affirmative
obligation merely when the VE includes testimony additional to the DOT
information. Likewise, Courtney’s recent citation to last year’s updated Vocational
Expert Handbook, also issued by the Chief ALJ, guides VEs in identifying conflicts
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supported by substantial evidence and did not result from an error of law. Draper,
779 F.3d at 559.
III. Conclusion
We therefore affirm.
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to the ALJ. E.g., Soc. Sec. Admin., Office of Hearings Operations, Office of the Chief
ALJ, Vocational Expert Handbook at 37–38 (August 2017),
https://www.ssa.gov/appeals/public_experts/Vocational_Experts_(VE)_Handbook
-508.pdf (explaining that an ALJ may not rely on conflicting VE testimony without
finding a “reasonable basis for relying on [the] testimony rather than the conflicting
DOT information,” and that a “common reason[]” for a conflict might be because the
VE testifies to reliable “information that is not listed in the DOT”). In other words,
the handbook acknowledges that an apparent conflict may ultimately arise because
a VE testifies to conflicting information from other sources or the VE’s professional
experience. Again, though, such a conflict did not exist here.
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