Jeffrey Pearson v. Carolyn Colvin
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-00088-HCM-DEM. [999720289]. [14-2255]
Appeal: 14-2255
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2255
JEFFREY PEARSON,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN, Acting
Security Administration,
Commissioner
of
the
Social
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Henry Coke Morgan, Jr.,
Senior District Judge. (2:14-cv-00088-HCM-DEM)
Argued:
October 27, 2015
Decided:
December 17, 2015
Before MOTZ, GREGORY, and HARRIS, Circuit Judges.
Reversed and remanded by published opinion.
Judge Motz wrote
the opinion, in which Judge Gregory and Judge Harris joined.
ARGUED: E. Gregory Wallace, CAMPBELL UNIVERSITY SCHOOL OF LAW,
Raleigh, North Carolina, for Appellant.
Mark Anthony Exley,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.
ON BRIEF: Anthony W. Bartels, BARTELS LAW FIRM,
Jonesboro, Arkansas, for Appellant.
Dana J. Boente, United
States
Attorney,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Alexandria, Virginia; Nora Koch, Acting Regional Chief Counsel,
Taryn Jasner, Supervisory Attorney, Naomi Mendelsohn, Assistant
Regional Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania, for Appellee.
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DIANA GRIBBON MOTZ, Circuit Judge:
Jeffrey Pearson appeals the denial of his application for
Social
Security
disability
benefits.
He
contends
that
substantial evidence does not support the determination of the
administrative
judge
failed
law
to
judge
denying
resolve
a
those
conflict
benefits
between
because
the
the
vocational
expert’s testimony and the Dictionary of Occupational Titles.
We reverse and remand for further proceedings.
I.
In the past, Pearson has worked in a number of fields,
including as a groundskeeper and a press operator in a plastics
factory.
most
On February 5, 2009, Pearson was laid off from his
recent
job.
Six
Security disability
weeks
benefits
later,
under
he
Titles
applied
for
II
XVI
and
Social
of
the
Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381, 1382c(a)(3)
(2012).
Pearson
alleged
disability
due
to
arthritis
of
the
spine, degenerative joint disease and a torn rotator cuff in his
right shoulder, shin splints, degenerative artery disease in his
feet, a hiatal hernia, irritable bowel syndrome, post-traumatic
stress disorder, depression, and anxiety.
Pearson’s application for benefits was denied initially and
upon rehearing.
the
denial.
An administrative law judge (ALJ) then affirmed
The
Social
Security
2
Appeals
Council
(Appeals
Appeal: 14-2255
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Council),
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however,
granted
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Pearson’s
request
for
review
and
remanded the case for further consideration, including testimony
from a vocational expert.
During
the
second
ALJ
hearing,
at
the
beginning
vocational expert’s testimony, the ALJ asked the expert:
your
testimony
here
today
differs
[from]
what
is
of
the
“[i]f
contained
within the Dictionary of Occupational Titles, will you please so
advise both [Pearson’s counsel] and myself?” 1
The expert agreed
to do so.
The ALJ presented the vocational expert with a series of
hypotheticals.
The ALJ first posed the following scenario to
the expert:
[A]ssume a hypothetical individual the same age,
education and work experience which our claimant
possesses.
Further assume that this hypothetical
individual can lift and carry up to 20 pounds
occasionally and ten pounds frequently; sit six hours
in an eight hour day and stand and walk a total of six
hours in an eight hour day. Further assume that this
hypothetical
individual
would
be
limited
to
occasionally overhead lifting and reaching using the
upper
nondominant
extremity.
Likewise,
this
hypothetical
individual
could
perform
occasional
1
The Dictionary of Occupational Titles, and its companion,
Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles (hereinafter, “Dictionary”
refers to both documents), are Social Security Administration
resources that list occupations existing in the economy and
explain some of the physical and mental requirements of those
occupations.
U.S. Dep’t of Labor, Dictionary of Occupational
Titles
(4th
ed.
1991);
U.S.
Dep’t
of
Labor,
Selected
Characteristics of Occupations Defined in the Revised Dictionary
of Occupational Titles (1993).
3
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bending,
stooping,
crouching,
kneeling
and
crawling. . . .
The hypothetical individual, I would
restrict to ambulating on level surfaces.
Likewise,
this hypothetical individual could perform no more
than frequent fingering and handling using the upper
extremities. . . .
None exertionally.
I would
restrict this hypothetical individual to performing
simple, routine tasks, with supervision which is
simple, direct and concrete.
The
ALJ
then
asked
the
vocational
expert
whether
this
hypothetical person could perform any of Pearson’s past jobs.
The expert said he could not.
The
ALJ
next
asked
the
vocational
expert
whether
this
hypothetical person could perform any other jobs in the national
economy.
could
The expert testified that the hypothetical individual
perform
unskilled
and
light
work,
including
jobs
as
a
motel cleaner (Dictionary 323.687-014), cashier II (Dictionary
211.462-010), and bench press operator (Dictionary 690.685-014).
Pearson’s counsel asked the expert no questions.
the
vocational
expert
mention
any
conflicts
At no time did
between
his
testimony and the Dictionary.
The ALJ again affirmed the denial of benefits.
that
Pearson
shoulder
has
the
tendonitis
(status-post
left
following
and
severe
impairments:
synovial
lesion,
left
tympanoplasty),
diffuse
joint
ear
pain
He found
“right
disorder
due
to
arthritis, back pain, carpal tunnel syndrome of the right wrist,
anxiety, and depression.”
However, the ALJ found that, with
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impairments,
Pearson
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retains
the
residual
functional
capacity
to perform less than the full range of unskilled,
light work . . . .
Physically, he retains the
residual functional capacity to lift and carry 20
pounds occasionally and 10 pounds frequently; stand
and/or walk six hours in an eight-hour workday; sit
for six hours in an eight-hour workday; is limited to
occasional overhead lifting/reaching using the nondominant upper extremity; can do no more than frequent
fingering and handling; can occasionally bend, stoop,
crouch and crawl; is limited to ambulating on level
surfaces; and is limited to face-to-face communication
due to alleged hearing loss in one ear. Mentally, the
claimant is limited to simple, routine tasks with
supervision that is simple, direct, and concrete.
This residual functional capacity mirrors that of the individual
in the first hypothetical that the ALJ posed to the vocational
expert.
The
ALJ
concluded
that
although
Pearson
could
not
perform any relevant past work, he could perform jobs that exist
in significant numbers in the national economy, including work
as a motel cleaner, cashier II, and machine tender/bench press
operator;
these
mentioned.
are
the
same
jobs
the
vocational
expert
The ALJ thus found Pearson not disabled and not
entitled to benefits.
Pearson
requested
an
Appeals
decision, which the Council denied.
action in federal court.
Council
review
of
this
Pearson then filed this
Upon consideration of the parties’
cross-motions for summary judgment, a magistrate judge issued a
report
recommending
grant
of
summary
5
judgment
to
the
Acting
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Commissioner
of
the
(Commissioner).
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Social
Pearson
filed
Security
objections,
Administration
arguing
that
the
magistrate judge erred in recommending affirmance of the ALJ’s
finding
that
benefits.
he
This
was
was
not
disabled
assertedly
so
or
eligible
because
the
to
ALJ
receive
did
not
resolve a conflict between the vocational expert’s testimony and
the Dictionary as to whether the jobs identified by the expert
required an ability Pearson did not have -- to frequently reach
overhead
with
objection,
both
adopted
arms.
the
The
district
magistrate
judge’s
granted the Commissioner summary judgment.
court
overruled
the
recommendation,
and
This timely appeal
followed.
II.
When reviewing a Social Security disability determination,
a reviewing court must “uphold the determination when an ALJ has
applied correct legal standards and the ALJ’s factual findings
are supported by substantial evidence.”
Bird v. Comm’r of Soc.
Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012).
evidence
is
that
which
“a
reasonable
adequate to support a conclusion.”
mind
might
Substantial
accept
as
Johnson v. Barnhart, 434
F.3d 650, 653 (4th Cir. 2005) (per curiam) (internal quotation
marks omitted).
It “consists of more than a mere scintilla of
evidence but may be less than a preponderance.”
6
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Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (internal quotation
marks omitted).
In considering an application for disability benefits, an
ALJ
uses
a
five-step
disability claim.
(2015).
The
sequential
process
to
evaluate
the
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4)
ALJ
determines
whether
a
claimant:
first,
is
currently gainfully employed; second, has a severe impairment;
and
third,
has
an
impairment
that
meets
requirements of a listed impairment.
(ii), (iii).
functional
or
equals
the
Id. § 404.1520(a)(4)(i),
Fourth, the ALJ considers the claimant’s residual
capacity
to
determine
whether
functions of his past relevant work.
he
can
perform
the
Id. § 404.1520(a)(4)(iv).
Fifth, the ALJ considers the claimant’s age, education, work
experience, and residual functional capacity to decide whether
he
can
numbers
perform
alternative
in
national
the
404.1560(c).
work
economy.
that
exists
Id.
in
significant
§§ 404.1520(a)(4)(v),
The claimant has the burden of proof for the first
four steps, but at the final, fifth step the Commissioner bears
the
burden
to
prove
alternative work.
that
the
claimant
is
able
to
perform
See Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987).
To answer this final question -- whether sufficient other
work exists for the claimant in the national economy -- the ALJ
“rel[ies]
primarily”
on
the
Dictionary.
7
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Sec.
Admin.,
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Policy Interpretation Ruling: Titles II & XVI: Use of Vocational
Expert
&
Vocational
Occupational
Info.
in
Specialist
Evidence,
Disability
&
Reliable
Social
Decisions,
Other
Security
Ruling (SSR) 00-4p, 2000 WL 1898704 (Dec. 4, 2000), at *2 (the
Ruling).
The ALJ “may also use” a vocational expert to address
complex aspects of the employment determination, including the
expert’s
observations
of
what
a
particular
job
requires
in
practice or the availability of given positions in the national
economy.
Id.
Because the expert’s testimony can sometimes conflict with
the
Dictionary,
promulgated
a
the
Social
multi-page,
Security
formal
Administration
ruling
to
“clarif[y
has
the]
standards for the use of vocational experts” at ALJ hearings.
Id. at *1.
record,
The Ruling requires that the ALJ “inquire, on the
.
.
.
whether”
the
vocational
expert’s
testimony
“conflict[s]” with the Dictionary, and also requires that the
ALJ
“elicit
conflicts
a
reasonable
between
Id. at *2.
the
explanation
expert’s
testimony
for”
and
and
the
“resolve”
Dictionary.
The ALJ must, by determining if the vocational
expert’s explanation is “reasonable,” resolve conflicts “before
relying
on
the
determination
disabled.”
or
[vocational
decision
expert’s]
about
Id.
8
evidence
whether
the
to
support
claimant
a
is
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III.
The
parties
dispute
two
aspects
of
the
Ruling:
(1),
whether SSR 00-4p requires the ALJ only to ask the vocational
expert whether his testimony conflicts with the Dictionary or
also requires the ALJ to identify conflicts independently from
the vocational expert; and (2), if the ALJ must independently
identify conflicts, which conflicts the Ruling requires an ALJ
to identify.
Pearson maintains that SSR 00-4p requires the ALJ
to do more than just ask the vocational expert if his testimony
conflicts
with
the
Dictionary.
He
contends
that
even
if
a
vocational expert fails to identify a conflict in response to
that
question,
the
Ruling
requires
the
ALJ
to
independently
identify all “possible” conflicts between the expert’s testimony
and the Dictionary.
SSR 00-4p, at *4.
The Commissioner argues
that SSR 00-4p imposes on the ALJ only the single “affirmative
responsibility”
--
to
ask
the
vocational
testimony conflicts with the Dictionary.
expert
Id.
whether
his
At most, the
Commissioner contends, if the ALJ must do more, he need only
identify “obvious” conflicts. 2
2
The Commissioner does not argue that we must defer to her
interpretation of SSR 00-4p. Although we of course defer to the
Commissioner’s interpretation of the statute as manifested in
the Ruling itself, Pass v. Chater, 65 F.3d 1200, 1204 n.3 (4th
Cir. 1995), because the Commissioner’s proposed interpretation
of the Ruling conflicts with the plain language of the Ruling,
we need not and do not defer to her interpretation.
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As to whether the ALJ must do more than ask the vocational
expert whether his testimony conflicts with the Dictionary, the
Commissioner’s
“affirmative
responsibility”
other language in SSR 00-4p.
argument
ignores
From its outset, the Ruling sets
forth multiple responsibilities and places all of them on the
ALJ.
Id. at *1. The Ruling explains that its “purpose” is to
require the ALJ (not the vocational expert) to “[i]dentify and
obtain
a
reasonable
vocational
expert’s
explanation”
testimony
for
and
conflicts
the
between
Dictionary,
the
and
to
“[e]xplain in the determination or decision how any conflict
that has been identified was resolved.”
Id. (emphasis added).
The Ruling then proceeds to require that the ALJ undertake
exactly these responsibilities.
First, the ALJ must “[a]sk the
[vocational expert] . . . if the evidence he or she has provided
conflicts with information provided in the [Dictionary]”; and
second, “[i]f the [vocational expert]’s . . . evidence appears
to
conflict
with
the
[Dictionary],”
the
ALJ
must
reasonable explanation for the apparent conflict.”
“obtain
a
Id. at *4.
Notably, this second requirement is so independent of the first
that it does not rest on the vocational expert’s identification
of a conflict.
the
conflict
[expert]
is
by
Rather, SSR 00-4p directs the ALJ to “resolve
determining
reasonable,”
if
id.
the
at
10
explanation
*2,
and
to
given
by
the
“explain
the
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resolution of the conflict irrespective of how the conflict was
identified,” id. at *4 (emphasis added).
We thus agree with Pearson and the courts that have held
that
an
ALJ
has
not
fulfilled
his
affirmative
duty
“merely
because the [vocational expert] responds ‘yes’ when asked if her
testimony
Colvin,
is
769
consistent
F.3d
987,
with
990
the
(8th
[Dictionary].”
Cir.
2014);
see
Moore
v.
Overman
v.
Astrue, 546 F.3d 456, 463 (7th Cir. 2008) (explaining that “the
ALJ’s
affirmative
duty
extends
beyond
merely
asking
the
[vocational expert] whether his testimony is consistent with the
[Dictionary]”); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir.
1999) (deciding, in a case predating SSR 00-4p, that “the ALJ
must ask the expert how his or her testimony . . . corresponds
with the [Dictionary], and elicit a reasonable explanation for
any discrepancy”).
But see Lindsley v. Comm’r of Soc. Sec., 560
F.3d 601, 606 (6th Cir. 2009) (“Nothing in [SSR] 00-4p places an
affirmative
duty
on
the
ALJ
to
conduct
an
independent
investigation . . . .”) (internal quotation marks omitted). 3
3
The
Even the Ruling’s structure and section titles demonstrate
that SSR 00-4p requires far more than that the ALJ ask the
vocational expert a single question.
The titles address
“Resolving Conflicts in Occupational Information,” “Reasonable
Explanations
for
Conflicts
(or
Apparent
Conflicts)
in
Occupational Information,” “Evidence That Conflicts with SSA
Policy,” and then “The Responsibility To Ask About Conflicts,”
followed by “Explaining the Resolution.” SSR 00-4p, at *2-*4.
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ALJ independently must identify conflicts between the expert’s
testimony and the Dictionary.
As to the second issue, the language of the Ruling also
explains
which
conflicts
the
ALJ
must
identify
and
before relying on the vocational expert’s testimony.
resolve
Though SSR
00-4p uses several adjectives to describe the relevant conflict,
the
most
common
“apparent.”
and,
we
believe,
the
most
compelling
is
See SSR 00-4p, at *2, *4 (requiring that the ALJ
“elicit a reasonable explanation” for “an apparent unresolved
conflict” and “obtain a reasonable explanation for the apparent
conflict”).
“Apparent,”
“obvious,”
and
necessarily
of
“seeming
course,
real
so.”
has
or
Apparent,
two
definitions:
true,
but
Oxford
not
Dictionary,
http://www.oxforddictionaries.com/definition/apparent
visited Dec. 1, 2015).
(last
But the context of the word “apparent”
in SSR 00-4p makes plain that the Ruling intends the latter
meaning
--
that
the
ALJ
must
identify
where
the
expert’s
testimony seems to, but does not necessarily, conflict with the
Dictionary.
expert]’s
For the Ruling explains that “[i]f the [vocational
.
.
[Dictionary],
explanation
.
evidence
the
for
(emphasis added).
appears
adjudicator
the
apparent
will
to
conflict
obtain
conflict.”
SSR
a
with
the
reasonable
00-4p,
at
*4
And the title of one of the Ruling’s sections
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addresses “Conflicts (or Apparent Conflicts),” id. at *2; that
title would be redundant if “apparent” meant “obvious.”
We
recognize
that
Commissioner’s
claim
identified
this
resolved,
Pearson’s
and
that,
contention
rejects
if
any
conflict
is
it
that
conclusion
only
obvious
all
possible
both
needs
the
to
be
conflicts,
and
conflicts
must
be
identified and resolved. The Commissioner’s contention ignores
the
directive
conflicts.”
in
SSR
00-4p
that
the
ALJ
address
“apparent
Pearson’s view would require the ALJ to do more
than simply compare the express language of the Dictionary and
the vocational expert’s testimony, and would allow the claimant
to nitpick an ALJ’s or expert’s word choice on appeal.
The “apparent” conflict standard falls between the parties’
proposals.
It
embraces
the
reality
that,
in
many
cases,
testimony may only appear to conflict with the Dictionary, and
the vocational expert may be able to explain that, in fact, no
conflict
exists.
explanation,
then
However,
the
if
the
expert’s
ALJ
does
not
testimony
elicit
cannot
substantial evidence to support the ALJ’s decision.
this
provide
An expert’s
testimony that apparently conflicts with the Dictionary can only
provide
substantial
evidence
if
the
ALJ
has
received
this
explanation from the expert and determined that the explanation
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is reasonable and provides a basis for relying on the testimony
rather than the Dictionary.
See id. at *2. 4
The policies animating the disability benefits adjudication
process also support requiring the ALJ to make an independent
identification
conflicts.
of
conflicts,
and
to
476
so
for
apparent
The Social Security Act is remedial in nature and
“unusually protective” of claimants.
York,
do
U.S.
467,
480,
486
See Bowen v. City of New
n.14
(1986).
Adopting
the
Commissioner’s approach could result in a benefit denial based
on a vocational expert’s testimony that a claimant could fulfill
occupational requirements when, in fact, he could not fulfill
those
requirements.
We
have
long
recognized
that
the
administrative hearing process is not an adversarial one, and an
ALJ has a duty to investigate the facts and develop the record
independent
of
the
claimant
or
his
counsel.
Heckler, 783 F.2d 1168, 1173-74 (4th Cir. 1986).
See
Cook
v.
An ALJ has not
fully developed the record if it contains an unresolved conflict
between the expert’s testimony and the Dictionary.
4
Nor has the
Requiring an ALJ independently to identify apparent
conflicts does not require a further hearing.
When an ALJ
identifies an apparent conflict that was not raised during a
hearing, he can request an explanation of the conflict by
submitting interrogatories to the vocational expert.
Social
Security Administration, Hearings, Appeals, and Litigation Law
Manual, ch. I-2-5 § 30(C) (2015).
If the expert provides a
sufficient explanation, the ALJ can resolve the apparent
conflict on the basis of the answer to the interrogatories.
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ALJ
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fulfilled
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this
duty
if
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he
ignores
an
apparent
conflict
because the expert testified that no conflict existed.
Moreover, if SSR 00-4p did not require the ALJ to make an
independent identification of conflicts, or only required the
ALJ
to
identify
and
resolve
obvious
conflicts,
the
duty
to
identify conflicts between the vocational expert testimony and
the Dictionary would fall to the claimant.
requires nothing of the claimant.
454
F.3d
731,
735
(7th
Cir.
SSR 00-4p, however,
See Prochaska v. Barnhart,
2006)
(“[The
claimant]
was
not
required to raise th[e conflict] at the hearing, because the
Ruling places the burden of making the necessary inquiry on the
ALJ.”).
Moreover, given that the Commissioner bears the burden
of proof at this final step, adopting the Commissioner’s view
“would amount to shifting the burden” of proof “back to the
claimant.”
Haddock, 196 F.3d at 1090.
This we will not do.
IV.
Finally, we turn to whether in this case the ALJ fulfilled
his
duty
conflicts.
to
make
an
independent
identification
of
apparent
The vocational expert testified that Pearson was not
disabled because he could perform three occupations available in
sufficient numbers in the national economy.
For all three, the
Dictionary lists frequent reaching as a requirement.
Dictionary
at 323.687-014, 1991 WL 672783; 211.462-010, 1991 WL 671840;
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690.685-014, 1991 WL 678500.
“[e]xtending
hand(s)
and
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The Dictionary defines reaching as
arm(s)
in
any
direction.”
App.
C,
Selected Characteristics of Occupations Defined in the Revised
Dictionary of Occupational Titles C-3.
The ALJ found Pearson’s
nondominant arm could only occasionally reach upward.
Pearson contends that “the plain meaning of ‘reaching,’” as
defined
by
the
Dictionary,
Appellant’s
Br.
at
14.
“encompasses
According
to
overhead
Pearson,
reaching.”
because
the
Dictionary does not specify the type of reaching involved, all
of
the
listed
reaching.”
occupations
Id. at 17.
“may
require
bilateral
overhead
The Commissioner maintains that the
Dictionary only requires some form of frequent reaching, not
necessarily
frequent
occupations.
bilateral
overhead
reaching,
for
these
The Commissioner claims that, because Pearson can
frequently reach bilaterally in every direction but overhead,
and
can
frequently
reach
overhead
with
one
arm,
no
conflict
exists.
Although the Dictionary does not expressly state that the
occupations identified by the expert require frequent bilateral
overhead
reaching,
the
Dictionary’s
broad
definition
of
“reaching” means that they certainly may require such reaching.
Comparing
the
Dictionary
definition
to
Pearson’s
limitations,
the vocational expert’s testimony that Pearson could fulfill the
requirements of these occupations apparently conflicts with the
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Dictionary.
Filed: 12/17/2015
Although
we
Pg: 17 of 19
could
guess
what
these
occupations
require in reality, it is the purview of the ALJ to elicit an
explanation from the expert as to whether these occupations do,
in fact, require frequent bilateral overhead reaching.
If the
explanation does not provide a reasonable basis for relying on
the
expert’s
testimony,
that
testimony
cannot
substantial evidence for a denial of benefits.
explanation
is
reasonable,
the
ALJ
can
provide
If the expert’s
resolve
the
apparent
conflict with the Dictionary and rely on the expert’s testimony.
Deciding that the vocational expert’s testimony apparently
conflicts with the Dictionary here does not mean that an ALJ
must find Pearson, or any other claimant with this limitation,
unable to perform these jobs.
Rather, it simply means that the
ALJ and the expert should address exactly what form of reaching
the
stated
fulfill
occupations
those
require
requirements.
and
As
whether
the
the
Seventh
claimant
Circuit
put
can
it,
“this is exactly the sort of inconsistency the ALJ should have
resolved with the expert’s help.”
(remanding
the
case
vocational
expert’s
for
the
testimony
ALJ
Prochaska, 454 F.3d at 736
to
determine
conflicted
with
whether
the
the
Dictionary
because “the ALJ asked the expert for work that could be done by
someone who could only ‘occasionally reach above shoulder level’
while a cashier’s requirements, under the [Dictionary], include
‘reaching’ frequently”).
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Filed: 12/17/2015
Pg: 18 of 19
Directly addressing this conflict is important because even
if some motel cleaners, cashiers, and bench press operators need
not
frequently
reach
national
with
both
of
An ALJ can only find a claimant not disabled at step
five
the
the
Commissioner
this
number
matters.
if
without
the
in
analysis
economy
arms,
positions
of
the
overhead
requirement
proves
that
the
claimant can perform other work that “exist[s] in significant
numbers in the national economy.”
20 C.F.R. § 404.1560(c).
So
it is not enough that some positions exist in which the worker
need
not
frequently
reach
overhead
with
both
arms.
The
vocational expert must testify to how many of these positions do
not require frequent bilateral overhead reaching.
least some have this requirement.
Likely at
If there are a sufficient
number of these positions that do not require frequent bilateral
overhead
reaching,
disabled.
necessarily
the
ALJ
can
properly
find
Pearson
not
If too many do have this requirement, the ALJ will
find
that
Pearson
cannot
do
work
that
exists
in
significant numbers in the national economy.
V.
For the foregoing reasons, we reverse the judgment of the
district court and remand the case with instructions to remand
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Pg: 19 of 19
it to the Commissioner for further proceedings consistent with
this opinion.
REVERSED AND REMANDED
19
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