Purdy v. Colvin
Filing
OPINION issued by William J. Kayatta, Jr., Appellate Judge; David H. Souter, Associate Supreme Court Justice* and Bruce M. Selya, Appellate Judge. Published. *Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. [16-2242]
Case: 16-2242
Document: 00117273235
Page: 1
Date Filed: 04/03/2018
Entry ID: 6160761
United States Court of Appeals
For the First Circuit
No. 16-2242
RITA PURDY,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Before
Kayatta, Circuit Judge,
Souter, Associate Justice,
and Selya, Circuit Judge.
Sarah H. Bohr, with whom Francis M. Jackson was on brief,
for appellant.
Molly E. Carter, Special Assistant United States Attorney,
with whom Richard W. Murphy, Acting United States Attorney, was
on brief, for appellee.
April 3, 2018
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Case: 16-2242
Document: 00117273235
Page: 2
SOUTER, Associate Justice.
district
court’s
affirmance
of
an
Date Filed: 04/03/2018
Entry ID: 6160761
This is an appeal from the
administrative
law
judge’s
finding that the appellant, Rita Purdy, was not disabled and was
thus
not
benefits.
entitled
to
Supplemental
Security
Income
(SSI)
Although the record of her attempts to demonstrate
disability is a complicated interplay of medical testimony, the
facts
to
be
considered
in
this
appeal
may
be
stated
with
relative economy, so far as they bear on the two issues raised
before us: Whether the administrative law judge (ALJ) lapsed
into error in according only slight weight to the testimony of a
physician who treated Purdy for a non-displaced fracture of her
left femur, and whether the ALJ was entitled to rely on evidence
presented by the appellee Commissioner about available jobs that
Purdy was qualified to perform.
We affirm on both issues.
I
An applicant for SSI benefits1
proof
at
the
first
four
steps
1
of
a
bears the burden of
five-step
procedure
The Social Security Administration administers two
separate benefits programs for the disabled: the Social Security
Disability Insurance (SSDI) program under Title II of the Social
Security Act and the SSI program under Title XVI of the Act.
Whereas “[e]ligibility for SSDI depends on the insured person’s
contributions and insured status, SSI provides a minimum income
for disabled people based on need.” Dion v. Sec’y of Health &
Human Servs., 823 F.2d 669, 670 (1st Cir. 1987) (citations
omitted).
- 2 -
Case: 16-2242
Document: 00117273235
Page: 3
Date Filed: 04/03/2018
Entry ID: 6160761
established to determine whether an applicant is entitled to
disability benefits.
Freeman v. Barnhart, 274 F.3d 606, 608
(1st Cir. 2001) (“The applicant has the burden of production and
proof at the first four steps of the process.”).
An applicant
for SSI benefits is disabled “if he is unable to engage in any
substantial
gainful
activity
by
reason
of
any
medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.”
42 U.S.C. § 1382c(a)(3)(A).
severity
that
[the
The impairment must be “of such
applicant]
is
not
only
unable
to
do
his
previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.”
Id. § 1382c(3)(B).
The five-step sequence employed by the Social Security
Administration (the SSA) proceeds as follows:
1) if the applicant is engaged in substantial gainful
work activity, the application is denied; 2) if the
applicant does not have, or has not had within the
relevant
time
period,
a
severe
impairment
or
combination of impairments, the application is denied;
3) if the impairment meets the conditions for one of
the “listed” impairments in the Social Security
regulations, then the application is granted; 4) if
the applicant’s “residual functional capacity” is such
- 3 -
Case: 16-2242
Document: 00117273235
Page: 4
Date Filed: 04/03/2018
Entry ID: 6160761
that he or she can still perform past relevant work,
then the application is denied; 5) if the applicant,
given his or her residual functional capacity,
education, work experience, and age, is unable to do
any other work, the application is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (quoting 20
C.F.R. § 416.920 (2001)).
Put differently, even if an applicant fails to show
disability at Step 3 because his impairment does not meet the
conditions of a “listed” impairment in the Federal Regulations,
he may still be eligible for benefits.
applicant’s
“residual
In particular, if the
capacity”2
functional
is
such
that
he
cannot perform jobs he performed in the past, “the Commissioner
then has the burden at Step 5 of coming forward with evidence of
specific jobs in the national economy that the applicant can
still perform,” or else a finding of disability is required.
Freeman, 274 F.3d at 608.
II
On October 10, 2011, Purdy filed an application for
SSI
benefits,
alleging
replacement
in
degenerative
disc
spurs;
severe
April
disability
2011;
disease;
migraines,
to
thoracic
right
nerve
due
and
shoulder
damage,
a
total
lumbar
rotator
and
throat
cuff
knee
spine
bone
problems;
attention deficit hyperactivity disorder (ADHD) and attention
2
An applicant’s residual functional capacity “is the most
[he or she] can still do despite [his or her] limitations.” 20
C.F.R. § 416.945(a)(1).
- 4 -
Case: 16-2242
Document: 00117273235
deficit
disorder;
Page: 5
Date Filed: 04/03/2018
post-traumatic
stress
Entry ID: 6160761
disorder;
disorder; substance abuse; and learning difficulties.
claim
was
initially
reconsideration.
denied
on
March
19,
2012,
and
panic
Purdy’s
again
on
In November 2012, Purdy filed a request for a
hearing, which took place on February 11, 2014.
On February 27,
2014, the administrative law judge who presided over Purdy’s
hearing issued a decision finding that Purdy was not disabled
within the meaning of the Social Security Act and denying her
claim.3
At Step 1, the ALJ found that Purdy had not engaged in
substantial gainful activity since filing her application.
Step
2,
the
ALJ
found
impairments
(i.e.,
ability
perform
to
§ 416.922):
“status
that
Purdy
impairments
basic
post
the
following
significantly
work
knee
had
activities,
replacement;
severe
limiting
see
20
At
her
C.F.R.
degenerative
disc
disease; right shoulder rotator cuff bone spurs; chronic pain;
dysthymia; anxiety disorder; ADHD; [and] history of substance
abuse in remission.”
Addendum to Appellant’s Amended Initial
3
The SSA employs a four-step administrative-review process.
First, the SSA makes an initial determination of eligibility for
benefits.
If dissatisfied with that determination, the
applicant may seek reconsideration.
If dissatisfied with the
reconsideration determination, the applicant may request a de
novo hearing before an administrative law judge.
Finally, the
applicant
may
appeal
the
administrative
law
judge’s
determination to the Appeals Council, which has the discretion
to deny review. See 20 C.F.R. §§ 416.1400, 416.1467. Once the
applicant has exhausted his administrative remedies, he may seek
review in federal court. 42 U.S.C. § 405(g).
- 5 -
Case: 16-2242
Document: 00117273235
Br. (Add.) 21.
Page: 6
Date Filed: 04/03/2018
Entry ID: 6160761
The ALJ noted that although Purdy had been
diagnosed with a left hip stress fracture in April 2013,4 the
impairment was not “severe” as there was “no evidence in the
record that it ha[d] persisted or [was] expected to persist for
12 consecutive months as required by 20 CFR §§ 404.1509 and
Id. at 21-22.5
416.909.”
At Step 3, the ALJ found that Purdy
did not have an impairment or combination of impairments that
met the conditions for one of the “listed” impairments in the
Social Security regulations.
Having
determined
20 C.F.R. § 416.920(d).
that
Purdy’s
impairments
did
not
meet the conditions for a listed impairment, the ALJ’s next task
was to determine Purdy’s “residual functional capacity based on
all
the
record.”
relevant
medical
and
other
20 C.F.R. § 416.920(e).
evidence
in
[the]
case
The ALJ determined that Purdy
retained the residual functional capacity to perform sedentary
work in unskilled jobs with simple instructions and occasional
interaction with others.
The ALJ further determined that Purdy
“should never climb ladders, ropes or scaffolds,” “must not use
foot
controls,”
unprotected
“must
heights,”
avoid
and
exposure
could
engage
to
in
hazards,
“rare
such
as
balancing,
4
Presumably, a reference to the injury Purdy’s treating
physician called a fracture of the “left femur.” See 8, infra.
5
The ALJ determined that Purdy’s alleged mental impairments
resulted in only mild or moderate difficulties and did not
entitle her to benefits at Step 3. Add. 22-23. Purdy does not
challenge those determinations here.
- 6 -
Case: 16-2242
Document: 00117273235
Page: 7
Date Filed: 04/03/2018
Entry ID: 6160761
crouching, crawling, kneeling, and climbing of ramps or stairs.”
Add. 23-24.
The ALJ explained that though Purdy claimed that she
was unable to lift, bend, sit, stand, walk, or kneel without
suffering
extreme
pain,
Purdy’s
“statements
concerning
the
intensity, persistence and limiting effects of [her] symptoms
[were] not entirely credible.”
Add. 25.
In particular, Purdy’s
October 2011 “Function Report” indicated that she was able to
cook meals, perform all household chores, go out alone, use
public
transportation,
shop
in
stores,
manage
socialize with friends, and attend meetings.
the
ALJ
reasoned,
sedentary tasks.
established
Purdy’s
her
finances,
These activities,
ability
to
perform
The ALJ also observed, based on the notes from
an emergency room visit in April 2012, that “[i]t seems [Purdy]
exaggerates
behavior.”
her
symptoms
and
engages
in
opiate
this
appeal,
seeking
Add. 26.
Significantly
for
purposes
of
the
ALJ
accorded little weight to the opinion of Dr. Michael Kessler as
provided
on
an
SSA-issued
form
that
Dr.
Kessler
completed
regarding Purdy’s ability to perform work-related activities.
Dr. Kessler found that Purdy could lift or carry less than 10
pounds
occasionally
(and
nothing
frequently);
could
stand
or
walk for less than two hours in an eight-hour workday; could sit
for about six hours in an eight-hour workday; was limited in her
- 7 -
Case: 16-2242
Document: 00117273235
Page: 8
Date Filed: 04/03/2018
Entry ID: 6160761
ability to push or pull with her lower extremities; could not
climb, balance, kneel, crouch, crawl, or stoop; and could endure
only limited exposure to vibration and humidity.
attributed
these
limitations
in
Purdy’s
Dr. Kessler
functioning
to
a
“fracture of [the] left femur [with] delayed union.”
In
the
ALJ’s
view,
Dr.
Kessler’s
opinion
was
conclusory and unsubstantiated: Dr. Kessler had “simply check
marked
boxes
indicating
[Purdy]
had
limitations
that
would
increase the likelihood of [her] obtaining benefits[,] but did
not explain why those limitations were chosen; in particular, he
gave no examples of objective laboratory findings, symptoms or
other medical evidence to support the conclusions.”
Add. 27.
By contrast, the ALJ accorded evidentiary weight to
the findings of the State agency’s non-examining medical and
psychological consultants.6
Those physicians had agreed, based
on their analysis of the evidence in January and September 2012,
respectively,
that
Purdy
was
capable
of
performing
sedentary
work within the limitations identified by the ALJ.
6
Pursuant to SSA regulations, State agencies may (and often
do) make the initial disability determination.
20 C.F.R.
§§ 404.1610, 1611, 1613. A medical or psychological consultant
“is a member of a team that makes disability determinations in a
State agency, or . . . a member of a team that makes disability
determinations for [the SSA].” Id. § 404.1616(a),(c) (citations
omitted). The “consultant completes the medical portion of the
case review and any applicable residual functional capacity
assessment.” Id.
- 8 -
Case: 16-2242
Document: 00117273235
Page: 9
Date Filed: 04/03/2018
Entry ID: 6160761
The ALJ completed Step 4 by finding that Purdy had no
past relevant work and went on to Step 5, where she determined
that there were jobs existing in significant numbers in the
national economy that Purdy could perform.
That determination
was based on the testimony of an impartial vocational expert
(VE).
The
ALJ
asked
the
VE
to
consider
whether
jobs
were
available in the national economy for someone with Purdy’s age
and education who could lift 10 pounds frequently and 20 pounds
occasionally; could stand and walk for two hours in a workday;
could sit for six hours in a workday; could rarely balance,
crouch, crawl, kneel, or climb; could not work around hazards;
could not climb ladders, ropes, or scaffolds; could not operate
foot
controls;
simple
and
who
instructions,
could
limited
perform
changes,
only
simple
and
only
jobs
with
occasional
interaction with the public.7
The VE testified that such an
individual
sedentary,
could
perform
the
unskilled
jobs
of
surveillance system monitor (of which she estimated there were
7
The ALJ’s residual functional capacity determination, as
reflected in the hypothetical she posed to the VE, differed from
Dr. Kessler’s in two key respects.
First, whereas Dr. Kessler
indicated that Purdy could not frequently lift or carry weight,
the ALJ determined that she could carry up to 10 pounds with
frequency.
The ALJ’s determination in that regard was
consistent with that of the agency’s non-examining physicians.
Second, whereas Dr. Kessler indicated that Purdy could stand or
walk for less than two hours in an eight-hour workday, the ALJ
indicated that Purdy could stand or walk for two hours in an
eight-hour workday. These differences were material to the VE,
who testified that if Dr. Kessler’s opinion were accepted and
accurate, there would be no jobs available for Purdy to perform.
- 9 -
Case: 16-2242
Document: 00117273235
Page: 10
Date Filed: 04/03/2018
Entry ID: 6160761
11,000 jobs in the national economy); document preparer (20,000
jobs in the national economy); and stem mounter (1,400 jobs in
the national economy).
On the basis of that testimony, the ALJ
found that Purdy was not disabled within the meaning of the
Social Security Act and denied her application.
The SSA’s Appeals Council denied Purdy’s request for
review, rendering the ALJ’s decision the Commissioner’s final
determination, which Purdy then appealed by bringing this action
in federal district court.
The magistrate judge recommended
affirming the Commissioner’s decision, and the district court,
on de novo review, adopted the recommendation.
III
We review the district court’s decision to affirm or
reverse a final decision of the Commissioner de novo and the
Commissioner’s underlying decision for substantial evidence and
conformity to relevant law.
U.S.C.
§
405(g)).
Seavey, 276 F.3d at 9 (citing 42
Substantial-evidence
review
is
more
deferential than it might sound to the lay ear: though certainly
“more than a scintilla” of evidence is required to meet the
benchmark,
a
preponderance
of
evidence
is
not.
Bath Iron Works Corp. v. U.S. Dep’t of Labor, 336 F.3d 51, 56
(1st Cir. 2003) (internal quotation marks omitted).
“[w]e
must
reasonable
uphold
mind,
the
[Commissioner’s]
reviewing
the
evidence
- 10 -
findings
in
the
. .
Rather,
.
if
a
record
as
a
Case: 16-2242
Document: 00117273235
Page: 11
Date Filed: 04/03/2018
Entry ID: 6160761
whole, could accept it as adequate to support [her] conclusion.”
Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d 218, 222
(1st Cir. 1981) (per curiam).
“[I]ssues of credibility and the
drawing of permissible inference from evidentiary facts are the
prime responsibility of the [Commissioner],” and “the resolution
of
conflicts
ultimate
doctors
in
the
question
or
for
of
the
evidence
and
disability
courts.”
is
Id.
the
for
determination
[her],
(internal
not
of
the
for
the
quotation
marks
omitted).
As mentioned before, Purdy’s first claim of error is
that the ALJ assigned inadequate weight to the opinion of her
treating orthopedic physician, Dr. Kessler, as to her physical
limitations.
The ALJ’s factual findings must be supported by
substantial evidence and the legal standards must be correct.
The relevant legal standard for a claim filed before March 27,
2017 (as Purdy’s was) is the rule that a treating physician’s
opinion is controlling if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [the]
case record.”
20 C.F.R. § 416.927(c)(2).
And even if not
deemed controlling, a treating physician’s opinion is entitled
to weight that reflects the physician’s opportunity for direct
- 11 -
Case: 16-2242
Document: 00117273235
Page: 12
Id.8
and continual observation.
Date Filed: 04/03/2018
Entry ID: 6160761
There was, however, no error in
the ALJ’s determination to give “little” weight to Dr. Kessler’s
opinion.
To begin with, Dr. Kessler’s opinion as reflected on
the SSA-issued form made little sense on its face.
indicated
both
that
Purdy
had
experienced
the
Dr. Kessler
same
physical
limitations since 2011 and that the cause of her limitations was
the
2013
femur
injury.
Moreover,
Dr.
Kessler
provided
no
discussion or analysis of his own prior observations, as the ALJ
noted when she described his submission as merely checking the
right boxes.
ALJ’s
That itself goes a long way toward supporting the
determination
weight.
(“The
accord
Dr.
Kessler’s
opinion
little
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)
ALJ
treating
to
need
not
accept
physician-if
it
an
is
opinion
of
conclusionary
a
physician-even
and
brief
and
a
is
unsupported by clinical findings.”).
8
The agency has eliminated the treating-physician rule for
purposes of claims filed on or after March 27, 2017. The agency
no longer “defer[s] or give[s] any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [an
applicant’s] medical sources.”
20 C.F.R. § 416.920c(a).
Instead, medical opinions and findings are evaluated for their
persuasiveness according to a uniform set of considerations.
Id. § 416.920c(c). These include the source’s relationship with
the claimant, but most important under the new regulations are
supportability and consistency with the rest of the record. Id.
§ 416.920c(b)(2).
- 12 -
Case: 16-2242
Document: 00117273235
But
even
Page: 13
more
significant
examination and treatment notes.
medical
records
of
Date Filed: 04/03/2018
treating
were
Dr.
Entry ID: 6160761
Kessler’s
Quite simply, Dr. Kessler’s
Purdy
were
at
odds
with
conclusions purporting to support Purdy’s application.
his
Purdy
was diagnosed with a probable stress fracture in April 2013.
Dr. Kessler’s notes tracking the progress of the fracture made
it
clear
that
her
prognosis
was
good.
In
July
2013,
for
example, Dr. Kessler noted that “there is a very, very strong
chance
There
that
was
she
no
will
heal
satisfactorily
displacement
of
the
bone,
with
no
surgery.”
and
the
required
treatment was to avoid stress on the area so nature could take
its course.
records
was
The last mention of the femur in Dr. Kessler’s
on
November
5,
2013,
some
three
months
before
Purdy’s hearing before the ALJ, and then Dr. Kessler noted that
Purdy had a good range of motion in both hips and walked with
minimal
to
no
recommendation).
limp
and
Though
without
Purdy
was
a
cane
continuing
(despite
to
his
experience
pain, Dr. Kessler noted that “chances [were] she [would] end up
getting away without having any surgery,” and that even if the
fracture did “fall apart,” which Dr. Kessler labelled a “very
small” risk, it could be fixed with surgery.
Dr. Kessler’s
notes regarding Purdy’s three further appointments before her
hearing before the ALJ focused on a wrist injury and do not
- 13 -
Case: 16-2242
Document: 00117273235
Page: 14
Date Filed: 04/03/2018
Entry ID: 6160761
mention the stress fracture, or any pain associated with it, at
all.
No one could reasonably read these records as support
for
finding
or
predicating
a
impairment from the fracture.
twelve-month
duration
The contrary is true.
of
any
There was
therefore no legal error in refusing to treat Dr. Kessler’s
opinion as controlling or in according it little weight for
purposes
of
determining
severe impairment.9
whether
the
fracture
constituted
a
For the same reasons, the ALJ did not err in
according Dr. Kessler’s opinion little weight for purposes of
determining Purdy’s residual functional capacity.
Based on the
record and the particular circumstances of this case, the ALJ
was
entitled
to
make
a
“common-sense
judgment[]”
that
the
healing stress fracture did not preclude Purdy from performing
some sedentary work.
Gordils v. Sec’y of Health & Human Servs.,
921 F.2d 327, 329 (1st Cir. 1990).
functional
reserved
capacity
to
the
is,
after
all,
Commissioner.
20
An applicant’s residual
an
administrative
C.F.R.
§§
finding
416.927(d)(2),
416.946.
9
The appellant also takes the ALJ to task for suggesting
that Dr. Kessler’s unsupported opinion reflected personal
sympathy for his patient.
It is true, as the Commissioner
concedes, that this was error, in the sense that the governing
regulations do not list suspicions of sympathy as grounds for
discounting a physician’s opinion.
But the error was
insignificant in the context of this case: sympathy or no
sympathy, the doctor’s records just described do not support his
findings as to Purdy’s physical limitations.
- 14 -
Case: 16-2242
Document: 00117273235
Page: 15
Date Filed: 04/03/2018
Entry ID: 6160761
As her second issue, Purdy says it was error for the
ALJ to rely on the testimony of a VE to conclude that there were
particular
numbers
of
jobs
that
Purdy
could
perform,
precluding (at Step 5) a conclusion that she was disabled.
thus
The
nub of the objection is that the VE testified on the basis of
numbers supplied by Job Browser Pro software available from a
concern called SkillTRAN.
SkillTRAN’s software has been recognized by at least
one
district
experts
in
court
estimating
national economy.
5430,
2017
to
WL
be
the
widely
number
relied
of
upon
relevant
by
vocational
jobs
in
the
See, e.g., Wood v. Berryhill, No. 17 Civ.
6419313,
at
*3
(W.D.
Wash.
Nov.
17,
2017)
(describing Job Browser Pro as “the commonly accepted software
used by . . . vocational experts”).
The software takes as its
starting point the Dictionary of Occupational Titles (the DOT),
a Department of Labor publication that identifies thousands of
jobs by name and describes the skills and capacity for physical
exertion
required
to
perform
each.10
10
The
DOT
“just
defines
The DOT, which has not been updated since 1991, has been
criticized by some courts as “obsolete.”
Herrmann v. Colvin,
772 F.3d 1110, 1113 (7th Cir. 2014).
Nevertheless, the Social
Security Administration continues to treat the DOT as a
“reliable” source of job data and takes administrative notice of
its contents. 20 C.F.R. § 404.1566(d)(1). The Social Security
Administration is “developing a new Occupational Information
System . . ., which will replace the DOT as the primary source
of occupational information SSA staff use in [their] disability
adjudication process.” Occupational Information System Project,
- 15 -
Case: 16-2242
Document: 00117273235
Page: 16
Date Filed: 04/03/2018
Entry ID: 6160761
jobs,” however; “[i]t does not report how many such jobs are
available in the economy.”
Brault v. Soc. Sec. Admin., Comm’r,
683 F.3d 443, 446 (2d Cir. 2012) (per curiam).
And while the
Government collects job data, it does so at an aggregated group
level, rather than by DOT occupation, which renders estimating
the number of jobs available in the economy for a given DOT
occupation
address
no
that
easy
task.
shortcoming
SkillTRAN’s
through
its
software
attempts
interpretation
of
to
the
available data.
The objection to the evidence given by the VE rested
on her testimony that she did not know what precise analysis
SkillTRAN followed to produce the job-number estimates she gave
for
jobs
that
Purdy
could
perform.
On
the
basis
of
that
testimony, and the third-party source for all figures used in
the computations, Purdy argues that the VE’s testimony should
not
be
treated
as
expert
immune
to
effective
numbers
evidence,
but
challenge
simply
by
an
as
parroting
applicant
for
benefits.
At
the
threshold,
Purdy
faces
high
hurdles.
Admissibility of evidence before an ALJ presiding over Social
Security proceedings is not subject to the Federal Rules of
SSA,
https://www.ssa.gov/disabilityresearch/occupational_info_systems
.html. It plans to roll out the system in 2020 and to update it
every five years. Id.
- 16 -
Case: 16-2242
Document: 00117273235
Page: 17
Date Filed: 04/03/2018
Entry ID: 6160761
Evidence, and an ALJ is given express authority to assess the
reliability
of
(“Evidence
evidence
may
be
offered.
received
See
at
any
42
U.S.C.
hearing
§ 405(b)(1)
before
the
Commissioner of Social Security even though inadmissible under
rules of evidence applicable to court procedure.”); 20 C.F.R.
§ 404.950(c) (“[T]he administrative law judge may receive any
evidence at the hearing that he or she believes is material to
the issues . . . .”); see also Richardson v. Perales, 402 U.S.
389, 400 (1971) (“[S]trict rules of evidence, applicable in the
courtroom, are not to operate at social security hearings so as
to
bar
the
. . .
the
admission
conduct
of
of
evidence
the
otherwise
hearing
rests
pertinent[,]
generally
in
and
the
examiner’s discretion.”).
To be sure, in spite of the breadth of judgment thus
open to an ALJ, there have developed, not one, but two schools
of
thought
for
assessing
proceedings like this one.
Merrell
Dow
the
reliability
of
evidence
in
Drawing inspiration from Daubert v.
Pharmaceuticals,
Inc., 509
U.S.
579
(1993),
and
Federal Rule of Evidence 702, the Seventh Circuit has charged
ALJs with a version of the gate-keeping role that federal courts
must play when considering whether to admit expert testimony.
While
recognizing
that
Rule
702
does
not
formally
apply
in
Social Security proceedings, the Seventh Circuit has reasoned
that “because an ALJ’s findings must be supported by substantial
- 17 -
Case: 16-2242
Document: 00117273235
Page: 18
Date Filed: 04/03/2018
Entry ID: 6160761
evidence, an ALJ may depend upon expert testimony only if the
testimony is reliable.”
(7th Cir. 2004).
McKinnie v. Barnhart, 368 F.3d 907, 910
And “[i]f the basis of the vocational expert’s
conclusions is questioned
at
the
hearing
.
.
.
then
the ALJ should make an inquiry (similar though not necessarily
identical to that of Rule 702) to find out whether the purported
expert’s conclusions are reliable.”
Donahue v. Barnhart, 279
F.3d 441, 446 (7th Cir. 2002) (emphasis removed).
Thus, in
McKinnie, where the vocational expert’s proffered basis for her
job-estimate
figures
was
vague
and
unsubstantiated
by
documentation, the Seventh Circuit held that the ALJ erred by
not enquiring into the reliability of the vocational expert’s
opinion.
368 F.3d at 911.
The Seventh Circuit stands alone, however, in imposing
a Daubert-like requirement on ALJs in Social Security cases.
The Ninth Circuit has disclaimed any such standard for testing
the reliability of a VE’s testimony regarding the number of
relevant jobs in the national economy.
explained
that
“[a]
VE’s
recognized
Rather, that court has
expertise
provides
necessary foundation for his or her testimony.”
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
Circuit,
Circuit’s
too,
has
cast
significant
doubt
approach.
In
particular,
in
the
Bayliss v.
And the Second
on
Brault,
the
the
Seventh
Second
Circuit responded to a challenge similar to the one lodged here
- 18 -
Case: 16-2242
Document: 00117273235
Page: 19
Date Filed: 04/03/2018
Entry ID: 6160761
with the observation that the Seventh Circuit’s approach was
inconsistent
Federal
with
Rules
Congress’s
of
Evidence
clear
not
determination
apply
in
that
Social
the
Security
proceedings, see 42 U.S.C. § 405(b)(1), Richardson, 402 U.S. at
400–01, and deemed it puzzling that the “the Seventh Circuit
would acknowledge . . . that ALJs are not bound by the Rules of
Evidence,
but
then
turn
around
and
require
ALJs
to
hew
closely to Daubert’s principles,” Brault, 683 F.3d at 449.
that
matter,
the
Daubert-like
Second
hearing
Circuit
would
standard of review.
be
was
not
useful
persuaded
given
the
so
For
that
a
pertinent
The “substantial evidence” standard, the
court noted, is “extremely flexible,” “giv[ing] federal courts
the freedom to take a case-specific, comprehensive view of the
administrative
proceedings,
weighing
all
determine whether it was ‘substantial.’”
449.
the
evidence
to
Brault, 683 F.3d at
The Second Circuit “thus affirmed, not on any Daubert
basis, but instead on typical ‘substantial evidence’ grounds.”
Id. at 450.11
We
fail
Circuit’s argument.
to
see
an
adequate
answer
to
the
Second
This is not to say that we could go to the
11
Ultimately, the Second Circuit in Brault declined to
resolve the extent to which an ALJ must ever test a VE’s
testimony, simply noting its agreement with the Seventh Circuit
to the extent that “evidence cannot be substantial if it is
‘conjured
out
of
whole
cloth.’”
683
F.3d
at
450
(quoting Donahue, 279 F.3d at 446).
- 19 -
Case: 16-2242
extreme
Document: 00117273235
of
approving
Page: 20
reliance
on
Date Filed: 04/03/2018
Entry ID: 6160761
evidence
software
of
the
numbers offered by a witness who could say nothing more about
them than the name of the software that produced them.12
that is not the case here.
But
The VE, whose qualifications Purdy
did not challenge, testified that the job numbers were from the
Bureau of Labor Statistics and were stated in reference to job
descriptions in the DOT; that is, they were specific to jobs,
not to broad amalgams of jobs, some of which an applicant might
be able to perform but not others.
software’s
conclusions
on
the
The VE testified that the
described
basis
were
generally
accepted by those who are asked to give the sort of opinions
sought here.
She testified, in other words, to a reliable and
practical basis of fact on which analysis was performed, and to
a wide reputation for reliability.
Given the broad discretion
on the part of an ALJ, and the complete lack of any competing
evidence or critique, it is hard to see an abuse of discretion
in the judge’s refusal to demand, say, that a VE perform her own
data-gathering
field
work,
or
be
a
statistician
capable
duplicating the software analysis of the basic material.
of
See
Pena v. Comm’r of Soc. Sec., 489 Fed. App’x 401, 403 (11th Cir.
2012) (rejecting similar challenge because “ALJ was entitled to
12
Nor do we foreclose the possibility that an applicant
could demonstrate the methodology employed by Job Browser Pro
(or any other software) to be so unreliable that it cannot
constitute substantial evidence. No such attempt was made here.
- 20 -
Case: 16-2242
Document: 00117273235
Page: 21
Date Filed: 04/03/2018
Entry ID: 6160761
rely upon the VE’s testimony without requiring the VE to provide
a
comprehensive statistical explanation
. . . job number figures.”).
of
how
he
arrived
at
Nor does Purdy seriously confront
the question of what more might be required.
Rather, she simply
couches her objection in the general terms that more personal
“knowledge, experience or expertise” ought to be required of a
VE relying on Job Browser Pro.
At this level of generality, the
argument is too ethereal to carry the day in demonstrating legal
error in the ALJ’s judgment to rely on the testimony here.13
IV
The ALJ’s determination that Purdy was not disabled
within the meaning of the Social Security Act was supported by
substantial evidence.
We affirm.
13
Purdy also contends that the ALJ mischaracterized the
statements of a physician who examined her in 2012 and
improperly credited the opinions of the State agency nonexamining physicians.
Purdy did not adequately present these
arguments
in
her
objections
to
the
magistrate
judge’s
recommended decision.
They are therefore waived.
See Keating
v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.
1988).
- 21 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?