Jeffery S. Guiton v. Michael Astrue
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00822-JAB-LPA Copies to all parties and the district court/agency. [999235753].. [12-2100]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2100
JEFFERY S. GUITON,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
Defendant – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cv-00822-JAB-LPA)
Argued:
September 19, 2013
Decided:
November 7, 2013
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Agee joined.
Judge Davis wrote a separate
opinion concurring in the judgment.
ARGUED: B. Michel Phillips, MARTIN & JONES, Decatur, Georgia,
for
Appellant.
Jason
W.
Valencia,
SOCIAL
SECURITY
ADMINISTRATION, Boston, Massachusetts, for Appellee.
ON BRIEF:
Charles L. Martin, Decatur, Georgia; J. Kevin Morton, WinstonSalem, North Carolina, for Appellant.
Gill P. Beck, Assistant
United States Attorney, Civil Division, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
Jeffery
S.
Guiton
appeals
the
district
court’s
order
affirming the Commissioner of Social Security’s termination of
his disability insurance benefits.
decision
to
substantial
(“ALJ”)
terminate
evidence,
erred
in
his
and
crediting
Guiton contends that the
benefits
that
the
is
not
supported
Administrative
testimony
by
a
Law
Vocational
by
Judge
Expert
(“VE”) regarding the number of existing jobs in the economy that
Guiton could perform.
We agree with the district court that
substantial evidence supports the Commissioner’s termination of
Guiton’s benefits and find no error in the ALJ’s reliance on the
VE’s testimony.
Accordingly, we affirm.
I.
Guiton,
a
North
Carolina
resident,
first
applied
for
benefits on July 31, 2000, after a doctor diagnosed him with a
malignant brain tumor.
Finding that Guiton was disabled within
the meaning of the Social Security Act, the Commissioner awarded
benefits.
In October 2003, following a continuing disability
review, the Commissioner found that Guiton’s condition was “no
longer severe enough to be considered disabling,” and terminated
Guiton’s benefits.
1
Tr. 55. 1
“Tr.” refers to the administrative record transcript.
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Guiton appealed the termination of his benefits first to a
state agency hearing officer, and then to an ALJ.
The ALJ held
a hearing and affirmed the Commissioner’s determination.
After
the Appeals Council denied review, Guiton sought review of the
ALJ’s
decision
in
the
U.S.
District of North Carolina.
District
Court
for
the
Middle
Pursuant to a consent order, the
district court reversed the termination of Guiton’s benefits and
remanded to the Commissioner.
The ALJ held a second hearing,
and again found that Guiton was no longer disabled within the
meaning of the Social Security Act.
The ALJ adhered to the eight-step analytical framework that
governs
administrative
disability awards. 2
reevaluation
of
Social
See 20 C.F.R. § 404.1594(f).
Security
As relevant
here, the ALJ assessed whether Guiton had experienced medical
improvement related to his ability to work; whether he continued
to
suffer
considered
from
an
disabling;
impairment
and
if
sufficiently
not,
whether
severe
he
to
retained
be
the
residual functional capacity (“RFC”) to perform work that exists
in significant numbers in the national economy.
2
See id.
This eight-step analysis essentially incorporates the more
familiar five-step analysis governing the initial determination
of
whether
a
claimant
is
disabled.
See
20
C.F.R.
§ 404.1520(a)(4).
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The ALJ found that Guiton had indeed experienced medical
improvement related to his ability to work.
Although Guiton had
not worked during the period of disability, he had undergone
surgery to remove his brain tumor and had not suffered a seizure
since 2000.
The ALJ found that Guiton continued to suffer from
several medically determinable impairments (including a seizure
disorder,
lumbar
disc
disease,
low
intellect,
and
a
memory
disorder), but that these impairments were not severe enough to
be
considered
regulations.
his
condition
disabling
under
the
applicable
federal
Specifically, the ALJ rejected Guiton’s claim that
qualified
as
mental
retardation
under
Listing
12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C, because he
failed to establish (a) an onset of impairment before age 22, as
the listing requires, and (b) the requisite deficits in adaptive
functioning.
With respect to the onset of Guiton’s impairment, the ALJ
concluded that Guiton’s brain tumor and related surgeries (which
occurred after age 22) had negatively affected his IQ.
credited
the
psychological
written
submission
associate, 3
who
of
John
Bevis,
opined
that
Guiton’s
3
a
The ALJ
licensed
pre-tumor
In North Carolina, a licensed psychological associate is
“[a]n individual to whom a license has been issued pursuant to
[the North Carolina Psychology Practice Act] . . . and whose
license permits him or her to engage in the practice of
psychology.” N.C. Gen. Stat. § 90-270.2(7). Licensure requires
(Continued)
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intellectual
abilities
had
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likely
been
in
the
“borderline”
range, which, the ALJ noted, is “outside the range for mental
retardation and [Listing] 12.05C.”
the
record
evidence
was
Tr. 19.
consistent
with
The ALJ found that
this
evaluation,
specifically relying on the absence of any notation in Guiton’s
school records that he was mentally retarded, and pointing out
that the low marks Guiton received in school tended to coincide
with extended absences and poor effort.
The ALJ also found that Guiton had failed to demonstrate
the
requisite
deficits
in
adaptive
functioning.
Questioning
Guiton’s claim that he is illiterate, the ALJ noted that Guiton
often received “satisfactory” and “commendable” marks in school
for reading, and that one report card indicated he was able to
read at “level 8.”
Tr. 20.
Additionally, the ALJ found that
Guiton “washed his own clothes and dishes, cooked, vacuumed,
helped his father and mowed the lawn with a riding mower.”
20.
Tr.
The ALJ noted that Guiton lived alone at the time of the
hearing, and found that he was able to “perform[] routine daily
activities without difficulty.”
Tr. 20.
Concluding that Guiton had not met the requirements of a
disability listing, the ALJ proceeded to the final two steps of
either a master’s degree or a specialist degree in psychology.
Id. § 90-270.11(b).
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the analysis.
to
perform
several
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First, the ALJ found that Guiton retained the RFC
light
treating
work.
The
physicians
ALJ
discounted
that
Guiton’s
the
opinions
condition
prevent him from sustaining full-time employment.
of
would
Instead, the
ALJ credited the statements of nonexamining state agency medical
consultants who opined that Guiton could perform light work.
The ALJ explained that this conclusion was more consistent with
the evaluations of other physicians who had examined Guiton, as
well as with other evidence in the record.
Finally,
the
ALJ
concluded
that,
given
Guiton’s
age,
education, work experience, and RFC, he was able to perform work
that exists in significant numbers in the economy.
The ALJ
credited the testimony of a state VE 4 who testified that Guiton
was
able
to
perform
the
requirements
of
three
occupations
identified in the Dictionary of Occupational Titles (“DOT”). 5
To
4
VEs are “persons who have, through training and experience
in vocational counseling or placement, an up-to-date knowledge
of job requirements, occupational characteristics and working
conditions, and a familiarity with the personal attributes and
skills necessary to function in various jobs.”
Wilson v.
Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).
VEs routinely
“assist the ALJ in determining whether there is work available
in the national economy which [a] particular claimant can
perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
5
The DOT is a reference published by the U.S. Department of
Labor that lists and describes various jobs.
Its use in the
disability review process is authorized by regulation.
See 20
C.F.R. § 404.1566(d).
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conclude that each of these occupations exists in significant
numbers in both the North Carolina and national economies, the
VE relied on the Occupational Employment Quarterly (“OEQ”), a
commercial publication that employs government data to provide
statistics regarding the number of available jobs by censuscoded occupational category.
Having proceeded through the eight-step analysis, the ALJ
concluded that Guiton was no longer disabled within the meaning
of the Social Security Act, and was therefore not entitled to
benefits.
In
response,
Guiton
filed
this
action
in
the
district
court, seeking review of the Commissioner’s termination of his
benefits.
A
magistrate
judge
found
that
the
decision
was
supported by substantial evidence and recommended affirming the
Commissioner’s determination.
The district court adopted the
magistrate judge’s opinion and granted judgment on the pleadings
to the Commissioner.
Guiton appeals.
II.
This
court
is
authorized
to
review
the
Social
Security
Commissioner’s termination of benefits under 42 U.S.C. § 405(g).
In doing so, we “must uphold the factual findings of the [ALJ]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.”
8
Hancock v.
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Astrue,
667
original)
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F.3d
470,
(internal
472
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(4th
quotation
Cir.
marks
2012)
(alteration
omitted).
in
“Substantial
evidence is such relevant evidence as a reasonable mind might
accept
as
adequate
to
support
a
conclusion.”
Johnson
v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation
marks omitted).
will
not
When reviewing for substantial evidence, we
reweigh
determinations.
conflicting
evidence
or
Hancock, 667 F.3d at 472.
make
credibility
Rather, “[w]here
conflicting evidence allows reasonable minds to differ as to
whether
decision
a
claimant
falls
on
is
the
disabled,
[ALJ].”
the
Id.
responsibility
(alteration
in
for
that
original)
(internal quotation marks omitted).
III.
On appeal, Guiton challenges the Commissioner’s termination
of his benefits in three respects.
Guiton argues: (1) that the
ALJ erred in finding that he failed to satisfy the requirements
of Listing 12.05C, because the ALJ wrongly concluded that the
onset of his disability occurred after age 22 and improperly
determined that he had not demonstrated deficits in adaptive
functioning; (2) that, by substituting his evaluation of the
evidence and the opinion of nonexamining state agency medical
consultants for the opinions of treating physicians, the ALJ
erred in finding that Guiton retained the RFC to perform light
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work; and (3) that the ALJ erred in crediting the VE’s job
numbers
because
they
were
based
on
a
flawed
statistical
methodology.
A.
We have considered Guiton’s first two arguments and, for
the reasons stated by the magistrate judge and adopted by the
district court, find them to be without merit.
See Guiton v.
Astrue, No. 1:08CV822, 2012 WL 1267856 (M.D.N.C. Apr. 16, 2012).
As the magistrate judge explained, the ALJ thoroughly analyzed
the testimony and available evidence, and reasonably concluded
that
Guiton
(1)
failed
to
meet
the
requirements
of
Listing
12.05C; and (2) retained the RFC to perform light work.
In
challenging
to
these
findings,
Guiton
essentially
asks
us
“reweigh conflicting evidence, make credibility determinations,
[and] substitute our judgment for that of the [ALJ].”
Hancock,
667 F.3d at 472 (alteration in original) (internal quotation
marks omitted).
This we are not authorized to do.
We instead
hold that the ALJ’s findings with respect to these issues are
supported by substantial evidence.
B.
Guiton’s third argument requires further discussion.
At
the last of the eight steps, the Commissioner bears the burden
of demonstrating that work the claimant can perform exists in
significant
numbers
in
the
national
10
economy.
See
20
C.F.R.
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§ 404.1594(f); id. § 404.1560(c)(2).
Guiton submits that the
ALJ erred in concluding that the Commissioner satisfied this
burden, arguing that the ALJ impermissibly credited testimony by
the
VE
regarding
job
statistics
that
were
insufficiently
specific.
During the administrative hearing, the VE testified that
Guiton
is
able
to
perform
at
least
three
occupations.
She
identified these occupations by DOT code: bench assembler (DOT
706.684-022);
assembler
arranger
(DOT
agricultural sorter (DOT 529.687-186).
number
of
existing
jobs
in
the
739.687-010);
and
The VE then reported the
North
Carolina
and
national
economies for each of these occupations, gleaning the numbers
from the OEQ.
As Guiton points out, however, the OEQ reports
job numbers by census code, not by DOT code.
Census codes are
broader designations than DOT codes, and a single census code
may comprise numerous DOT-coded occupations. 6
argues
that
the
job
numbers
the
VE
Guiton therefore
reported
from
the
OEQ
overstate the actual number of jobs in the economy available to
him, because they likely include many jobs associated with DOTcoded occupations he is unable to perform.
Guiton contends that
without some reliable methodology for determining the number of
6
For example, Guiton points out that the DOT code for bench
assembler is one of 1,687 DOT codes included within a single
census code.
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jobs corresponding to the specific DOT-coded occupations the VE
identified,
it
was
error
for
the
ALJ
to
credit
the
VE’s
testimony.
We
have
not
previously
addressed
the
issue
of
a
VE’s
reliance on job numbers from the OEQ, and it appears that only
one other circuit has done so directly. 7
In Liskowitz v. Astrue,
559 F.3d 736 (7th Cir. 2009), the Seventh Circuit considered a
similar argument regarding the specificity of OEQ job numbers.
Noting that OEQ job numbers include both full-time and part-time
positions--and contending that only full-time positions suffice
to carry the Commissioner’s burden--the claimant in that case
argued that the ALJ should not have credited the job numbers a
7
In Brault v. Social Security Administration Commissioner,
683 F.3d 443 (2d Cir. 2012), the Second Circuit described, in a
footnote, a similar argument to the one raised here, made by the
claimant in that case before an ALJ. Id. at 443, 447 n.4 (per
curiam).
The claimant had disputed the reliability of job
numbers that a VE derived from a newer version of the OEQ on the
basis that it reported job numbers by standard occupational
classification (“SOC”) code rather than DOT code.
SOC codes,
like the census codes involved here, may each comprise numerous
DOT codes.
Id.
The court acknowledged that this “many-to-one
mapping” problem might cause a VE’s job estimates to “deviate
significantly from the actual number of existing positions.”
Id.
On appeal, however, the claimant argued only that the ALJ
had not provided him a sufficient opportunity to challenge the
VE’s testimony, and that the ALJ had not adequately explained
its reasoning.
Rejecting these arguments, the court left the
merits of the ALJ’s reliance on the VE’s testimony “for another
day and a closer case.” Id. at 450.
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VE
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reported
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because
the
VE
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had
not
further
percentage of the jobs that were full-time.
The court rejected this challenge.
identified
the
Id. at 743-44.
Acknowledging that the
OEQ is a “source on which VEs customarily rely,” id. at 744, the
court determined that requiring more specific numbers would lead
to “significant practical problems,”
id. at 745.
The court
explained that because “no government data source contains” the
full-time-only data that the claimant was requesting, insisting
that a VE produce such data would “impose impossible burdens on
the VE.”
Id. at 745.
A VE, after all, is “not . . . a census
taker or statistician.”
Id. at 743.
The court thus found no
error in the ALJ’s reliance on the VE’s testimony.
Similar
considerations
guide
us
here.
As
the
ALJ
explained, the DOT-specific job numbers Guiton would have the VE
provide
simply
do
not
exist:
“There
apparently
is
no
data,
updated on a regular basis, available through either a public or
private
source[],
number.”
Tr. 34.
that
reports
numbers
of
jobs
by
DOT
code
Guiton does not dispute this observation.
Thus, if we required a VE to produce job statistics specific to
the DOT-coded occupations a claimant can perform, it is unlikely
that
the
burden.
Commissioner
This
cannot
would
be
the
ever
succeed
result
the
in
satisfying
regulations
her
intend.
Indeed, that the data Guiton requests does not exist “is a sign
that [Guiton] expects too much,” and like the Seventh Circuit,
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to
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“impose
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impossible
burdens
on
the
VE.”
See
Liskowitz, 559 F.3d at 745.
In this case, the VE cited the existence of 26,330 jobs in
North Carolina and 825,000 jobs in the United States that Guiton
could
perform.
overinclusive,
Tr.
far
624.
Even
smaller
assuming
figures
satisfy the Commissioner’s burden.
these
would
numbers
still
were
suffice
to
See Hicks v. Califano, 600
F.2d 1048, 1051 n.2 (4th Cir. 1979) (holding that 110 jobs in
the claimant’s state was a significant number).
the
job
numbers
imprecise,
were
the
VE
provided,
sufficiently
although
reliable
to
We hold that
perhaps
support
somewhat
the
ALJ’s
conclusion.
IV.
For the reasons stated above, we affirm the decision of the
district court.
AFFIRMED
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DAVIS, Circuit Judge, concurring in the judgment:
I write separately to express my discomfort with the ALJ’s
acceptance of the vocational expert’s uncritical reliance on the
Occupational
Employment
Quarterly
(“OEQ”)
to
calculate
the
number of jobs available in the economy. Under the legal regime
applicable
in
this
case,
once
a
claimant
such
as
Guiton
establishes that he has some limitations and cannot perform his
past work, “the burden shifts to the Commissioner to produce
evidence that other jobs exist in the national economy that the
claimant can perform considering h[is] age, education, and work
experience.” Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir.
2012)
done
(internal
through
quotation
testimony
marks
of
a
omitted).
vocational
“This
is
expert.”
generally
Harvey
v.
Heckler, 814 F.2d 162, 164 (4th Cir. 1987). Jobs exist in the
national economy if they are available in “significant numbers
either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. § 423(d)(2)(A). See also 20
C.F.R. § 404.1566.
In
this
case,
the
ALJ
accepted
the
vocational
expert’s
testimony that Guiton could perform three widely available jobs
listed in the Dictionary of Occupational Titles (“DOT”): bench
assembler,
assembler
arranger,
and
agricultural
sorter.
The
expert said that she obtained the numbers from the privately
published OEQ, which breaks down the number of available jobs by
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Census Code and exertion subcategory (e.g., “unskilled, light”),
but
not
by
calculates
DOT
its
title.
She
numbers.
could
not
Guiton’s
say
how
counsel
the
argued
publisher
that
this
rendered her testimony unreliable, but the ALJ disagreed. He
reasoned
that
no
“public
or
private
sources
.
.
.
report[]
numbers of jobs by DOT code number,” so the expert “had to rely
on the numbers given in the OEQ.” The ALJ further reasoned that
the expert’s testimony was reliable because “this is an area
where
mathematical
precision
is
virtually
impossible
to
achieve.”
Guiton
maintains
on
appeal
testimony
was
unreliable
found
any
publication,
in
that
because
and
the
“her
[she]
vocational
conclusions
could
not
expert’s
[were]
not
explain
her
methodology in deriving her conclusions from published data.”
Opening Br. 34. Guiton argues that “OEQ provides job numbers
only for exertional and skill levels by census code, but not by
DOT
code.”
Id.
at
37
(emphasis
in
original).
This
is
significant, he argues, because “[t]he census code that includes
bench assembler . . . includes 1,687 separate DOT occupations-not 1,687 jobs, but 1,687 occupations.” Id. at 36 (emphasis in
original) (italics omitted). Guiton argues that the OEQ “simply
is
not
specific
enough,”
“[w]ithout
testimony
verifiable
methodology,
id.
at
showing
the
DOT
16
37
a
job
(emphasis
reasonable,
numbers
omitted),
and
repeatable,
provided
by
the
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vocational
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expert
are
not
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reliable,”
id.
at
39
(emphasis
omitted).
The Commissioner concedes that “it is impossible to use
binding
precedent
to
adequately
defend
against
Guiton’s
allegations,” as this Court “has not addressed a challenge to a
[vocational
(emphasis
expert’s]
omitted).
reliance
Nonetheless,
on
the
the
OEQ.”
Resp.
Commissioner
Br.
argues
32
that
vocational experts “typically rely on the OEQ,” the information
used in forming an expert opinion need not be admissible, and a
vocational expert need not be able to explain the methodology
behind the OEQ. Id. at 33–34 (emphasis omitted). Surely, the
Commissioner can do better than this.
Only two circuits--the Second and the Seventh Circuits-have
discussed
the
OEQ.
In
Brault
v.
Social
Security
Administration Commissioner, the Second Circuit recognized the
OEQ’s “classic academic problem with data aggregation,” i.e.,
the “information loss” that results from “many-to-one mapping.”
683 F.3d 443, 447 n.4 (per curiam). 1
1
Brault involved a newer version of the OEQ, the
Occupational Employment Quarterly II, which uses standard
occupational classification (“SOC”) codes. 683 F.3d at 446. Like
the Census Code, standard occupational classification is a
“system . . . used by Federal statistical agencies to classify
workers into occupational categories for the purpose of
collecting, calculating, or disseminating data.” Bureau of Labor
Statistics, “Standard Occupational Classification,” available at
http://www.bls.gov/soc/ (last visited Aug. 19, 2013). “DOT codes
(Continued)
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If, for example, ten DOT codes map to a single SOC[2]
code,
saying
there
are
100,000
total
positions
available in that SOC code gives no information at all
about how many positions each of the ten DOT codes
contributed to that total. This becomes a problem if
DOT titles with different exertion or skill levels map
to the same SOC code. In such a situation, the OEQ
apparently uses a rough weighted average algorithm--if
ten DOT codes correspond to one SOC code, and four of
those codes are light-duty, unskilled positions, then
the OEQ will list 40% of the positions available in
that SOC as light-duty, unskilled positions. That
estimate may deviate significantly from the actual
number of existing positions.
Id. (emphasis added). Nonetheless, the Second Circuit affirmed
the ALJ’s denial of benefits despite the vocational expert’s
reliance on the OEQ; 3 rather than challenge the reliability of
the
publication,
the
appellant
argued
that
the
ALJ
had
been
required to (1) give the appellant “an opportunity to inspect
and challenge the proffered evidence,” and (2) “explain why the
challenge was rejected.” Id. at 448. 4
are much more granular than SOC codes--according to Brault,
there were nearly 13,000 jobs titles in the 1991 edition of the
DOT, but only about 1,000 SOC titles.” Brault, 683 F.3d at 446.
2
See supra note 1.
3
The vocational expert in Brault “denied having reported
the numbers for the entire SOC. Instead, he claimed to have
‘reduced’ the numbers from ‘the entire [SOC] code’ to only count
‘jobs . . . . that [he] kn[e]w exist[ed].’” Brault, 683 F.3d at
447.
4
The Second Circuit held that ALJs had no duty to explain.
Brault, 683 F.3d at 449. Assuming without deciding that ALJs
must give claimants a chance to inspect and challenge evidence,
(Continued)
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In Liskowitz v. Astrue, the Seventh Circuit observed that
the OEQ “seem[s] to be a source on which [vocational experts]
customarily rely.” 559 F.3d 736, 744 (7th Cir. 2009). But the
court found that the appellant had waived the argument that her
vocational expert “should not have relied on the OEQ because it
was published by a private company.” Id. In assessing the more
general (and preserved) challenge that the vocational expert had
not been able “to testify as to the reliability of the data she
used,” 5 the court observed that
[t]he witness was testifying as a vocational expert,
not as a census taker or statistician. Indeed, even if
the [vocational expert] had happened to know something
about the statistical basis for her testimony, she
arguably still would not be in a position to fully
vindicate her conclusions. After all, statisticians
use arithmetic operations, but few probably have
studied the foundation of arithmetic in set theory. Is
the
statistician’s
use
of
arithmetic
therefore
unjustified? Clearly not.
Id. at 743. 6
the court found that the ALJ had done so. Id. at 450.
5
In addition to the OEQ, the vocational expert used sources
published by the U.S. Department of Labor and the Wisconsin
Department of Workforce Development. Liskowitz, 559 F.3d at 743–
44.
6
Two other Seventh Circuit opinions make only fleeting
references to the OEQ. See Britton v. Astrue, 521 F.3d 799, 804
(7th Cir. 2008) (per curiam) (rejecting appellant’s claim that
she should have been given access to the entire OEQ, not just
the portion on which the vocational expert had relied, because
the “selections . . . would have allowed [appellant’s counsel]
(Continued)
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Guiton’s argument raises real concerns. Although vocational
experts customarily rely on the OEQ, Liskowitz, 559 F.3d at 744,
the
Second
utility
in
Circuit
social
has
aptly
security
noted
that
proceedings
the
is
publication’s
problematic,
see
Brault, 683 F.3d at 447 n.4. The difference between Census Code
data and DOT titles is vast: as Guiton points out, “[t]he census
code that includes bench assembler . . . includes 1,687 separate
DOT occupations.” Opening Br. 36. Moreover, unlike the expert in
Brault, the vocational expert here apparently did not adjust the
OEQ’s numbers to reflect what she knew existed in a particular
market;
rather,
she
apparently
accepted
OEQ’s
numbers
as
accurate without further inquiry.
I am willing to accept, for this case only, the majority’s
reasoning
that
“[e]ven
assuming
[the
vocational
expert’s
estimates] were overinclusive, far smaller figures would still
suffice to satisfy the Commissioner’s burden.” Ante, at 13. I do
not believe, however, that an attitude reflecting a belief that
the performance of vocational experts in social security cases
“is
good
enough
for
government
work”
should
be
the
test
of
to
sufficiently
test
the
reliability
of
[the
expert’s]
testimony”); Lawrence v. Astrue, 337 F. App’x 579, 583, 586 (7th
Cir. 2009) (noting that the appellant did not challenge the
conclusion of the vocational expert, who had relied in part on
the OEQ).
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reliability. 7 After all, it is Congress and the Commissioner that
are responsible for seeing to the creation and implementation of
reliable evidentiary standards. Federal courts should not too
willingly
indulge
evidentiary
a
watered
reliability
down
criteria
application
for
a
of
well-settled
discrete
class
of
disfavored cases.
With these observations, I concur in the judgment.
7
And some commentators have recognized the fundamental
problems this attitude may pose for the structure of the social
security regime. See Jon C. Dubin, Overcoming Gridlock: Campbell
After A Quarter-Century and Bureaucratically Rational GapFilling in Mass Justice Adjudication in the Social Security
Administration's Disability Programs, 62 Admin. L. Rev. 937, 966
(2010) (“[T]here are no prescribed standards for job incidence
or non-DOT job characteristics evidence and this evidence is
often produced through questionable job data and unreliable
methodologies.”); Nathaniel O. Hubley, The Untouchables: Why A
Vocational Expert’s Testimony in Social Security Disability
Hearings Cannot Be Touched, 43 Val. U. L. Rev. 353, 393 (2008)
(“With the seemingly high degree of deference given to the ALJ
with regard to evidentiary matters and the relatively broad
credibility granted to the VE’s testimony, the question bound to
arise is whether an adequate level of fairness is afforded
disability claimants.”).
21
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