Rivera v. Social Security Administration
REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 2/10/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CIV 16-0048 RB/KBM
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Plaintiff’s Motion to Remand or
Reverse (Docs. 21), filed August 9, 2016. Pursuant to 28 U.S.C. § 636(b), this matter
has been referred to me for a recommended disposition. Doc. 16. Having reviewed the
parties’ submissions, the relevant law, and the relevant portions of the Administrative
Record, the Court recommends that Plaintiff’s Motion be denied.
This is Plaintiff’s second appeal. Plaintiff initially filed applications with the Social
Security Administration for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act on December 4, 2009. AR at
153, 160.1 Plaintiff alleged a disability onset date of May 29, 2009, due to bulging and
ruptured discs, disc degeneration, and depression. AR at 196. These applications were
denied initially and upon reconsideration. AR at 76-79. Plaintiff requested review and,
after holding a de novo hearing, Administrative Law Judge (“ALJ”) Michelle K. Lindsay
Documents 10-1 through 10-25 comprise the sealed Administrative Record (“AR”). The Court
cites the Record’s internal pagination, rather than the CM/ECF document number and page.
issued an unfavorable decision on January 23, 2012. AR at 18-28. Plaintiff requested
that the Appeals Council review ALJ Lindsay’s decision on January 30, 2012. AR at 12.
The Appeals Council denied Plaintiff’s request for review of ALJ Lindsay’s decision on
July 5, 2013. AR at 1-3. As such, ALJ Lindsay’s decision became the final decision of
the Commissioner. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003).
Plaintiff appealed ALJ Lindsay’s decision to this Court. AR at 440-42. The
Honorable William P. Lynch issued a decision reversing ALJ Lindsay’s decision on
February 6, 2014. AR at 444-64. Thereafter, the Appeals Council vacated ALJ Lindsay’s
decision on November 18, 2014. AR at 467-68. The Appeals Council noted that Plaintiff
filed subsequent claims for DIWC and SSID on July 24, 2013; accordingly, these claims
were consolidated with Plaintiff’s pending claims. AR at 467.
On August 5, 2015, ALJ Deborah L. Rose held a second de novo hearing. AR at
374. After this hearing, ALJ Rose issued an unfavorable decision on November 18,
2015. AR at 345-65. The Appeals Council did not assume jurisdiction over the case,
and so ALJ Rose’s decision became the final decision of the Commissioner. 20 C.F.R.
§§ 404.984, 416.1484. This Court has jurisdiction to review the decision pursuant to 42
U.S.C. § 405(g) and 20 C.F.R. § 422.210(a).
A claimant seeking disability benefits must establish that she 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 12 months.” 42 U.S.C.
§ 423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). The
Commissioner must use a five-step sequential evaluation process to determine eligibility
for benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see Wall v. Astrue, 561 F.3d
1048, 1052 (10th Cir. 2009).
At Step One of the process, the ALJ found that Plaintiff had not engaged in
substantial gainful activity during the relevant time period. AR at 347. At Step Two, she
determined that Plaintiff had the severe impairment of “degenerative disc disease of the
lumbar spine.” AR at 347-351. At Step Three, the ALJ concluded that Plaintiff’s
impairments, individually and in combination, did not meet or medically equal the
regulatory “listings.” AR at 351-354.
When a claimant does not meet a listed impairment, the ALJ must determine the
claimant’s residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e).
RFC is a multidimensional description of the work-related abilities a plaintiff retains in
spite of his medical impairments. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In this
case the ALJ determined that Plaintiff retained the RFC to
Perform less than the full range of light, and sedentary work as defined in
20 CFR 404.1567(b) and 416.967(b) and 20 CFR 404.1567(a) and
416.967(a) with limitations as follows. The claimant is able to lift or carry
up to ten pounds frequently and up to twenty pounds occasionally. He is
able to stand or walk two hours per day, and sit for six hours daily. The
claimant is only occasionally able to climb ramps and stairs, balance,
stoop, kneel, crouch and crawl, and he is never able to climb ladders,
ropes or scaffolds. The claimant is able to have no more than occasional
exposure to extreme cold, vibration, or hazards, such as dangerous
moving machinery or unprotected heights. He must use a cane for all his
standing and walking. The claimant would need to alternate between
sitting and standing as needed, about every ten to thirty minutes.
AR at 354. Employing this RFC at Steps Four and Five, the ALJ determined that Plaintiff
was unable to perform his past relevant work. AR at 362. However, the ALJ found that
there were jobs that exist in significant numbers in the national economy that Plaintiff
can perform; specifically, the ALJ determined that Plaintiff maintains the RFC to work as
a mail sorter, Dictionary of Occupational Titles (“DOT”) No. 209.687.026, office helper,
DOT No. 239.567-010, or order clerk, DOT No. 209.567-014. AR at 364. Accordingly,
the ALJ determined that Plaintiff was not disabled from his alleged onset date through
the date of her decision, and denied benefits. AR at 365.
This Court “review[s] the Commissioner’s decision to determine whether the
factual findings are supported by substantial evidence and whether the correct legal
standards were applied.” Vigil v. Colvin, 805 F.3d 1199, 1201 (10th Cir. 2015) (quoting
Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)). A deficiency in either area is
grounds for remand. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
Plaintiff raises a series of errors, all related to the ALJ’s findings at Step Five.
The ALJ did not misstate the burden of proof.
Plaintiff’s first argument is that the ALJ misstated the burden of proof at Step
Five. In this regard, the ALJ stated:
At the last step of the sequential evaluation process (20 CFR 404.1520(g)
and 416.920(g)), I must determine whether the claimant is able to do any
other work considering his residual functional capacity, age, education,
and work experience. If the claimant is able to do other work, he is not
disabled. If the claimant is not able to do other work and meets the
duration requirement, he is disabled. Although the claimant generally
continues to have the burden of proving disability at this step, a limited
burden of going forward with the evidence shifts to the Social Security
Administration. In order to support a finding that an individual is not
disabled at this step, the Social Security Administration is responsible for
providing evidence that demonstrates that other work exists in significant
numbers in the national economy that the claimant can do, given the
residual functional capacity, age, education and work experience (20 CRF
404.1512(g), 404.1506(c), 416.912(g) and 416.960(c)).
AR at 347 (emphasis added). Plaintiff argues that the italicized language is in error,
because, he contends, “the entire burden of proof shifts to the Commissioner and that
‘the claimant has no burden at step five.’” Doc. 22 at 9 (citations omitted).
The Court recognizes that judges in this district have been critical of this
language in opinions in which they reversed the denial of benefits. See Kuykendall v.
Colvin, CIV 13-0877 MV/WPL, Doc. 27 at 19 (D.N.M. Jan. 26, 2015); Martin v. Astrue,
CIV 10-0053 ACT, Doc. 21 at 8 (D.N.M. Jan. 1, 2011); Rivera v. Astrue, CIV 10-0305
WDS, Doc. 25 at 8 (D.N.M. Dec. 29, 2010); Dominguez v. Astrue, CIV 09-1012 ACT,
Doc. 25 at 9 (D.N.M. Sep. 29, 2010); Thompson v. Astrue, CIV 09-0063, RB/ACT,
Doc. 22 at 4 (D.N.M. Feb. 22, 2010). This criticism is based on language in an
unpublished Tenth Circuit opinion stating that “[t]he claimant has no burden at step five.”
Stewart v. Shalala, 999 F.2d 548 at *1 (10th Cir. 1993) (unpublished table decision).
However, none of these cases reversed and remanded an ALJ’s decision merely for this
statement, but for more substantial errors in the process. And there is no Tenth Circuit
case, published or unpublished, that this Court is aware of reversing an ALJ on this
Moreover, as the Commissioner points out, the ALJ’s language is based on the
Administration’s interpretation of the sequential evaluation process as stated in 68 Fed.
Reg. 51153-01. Doc. 25 at 12. In this document, titled “Clarification of Rules Involving
Residual Functional Capacity Assessments; Clarification of Use of Vocational Experts
and Other Sources at Step 4 of the Sequential Evaluation Process; Incorporation of
‘Special Profile’ Into Regulations,” the Commissioner states:
Although you generally bear the burden of proving disability
throughout the sequential evaluation process, there is a limited shift in the
burden of proof to us “only if the sequential evaluation process proceeds
to the fifth step.” Bowen v. Yuckert, [482 U.S. 137, 146 n.5 (1987)]. . . .
When we decide that you are not disabled at step 5, this means that we
have determined that there is other work you can do. To make this finding,
we must provide evidence that demonstrates that jobs exist in significant
numbers in the national economy that you can do, given your RFC, age,
education, and work experience. In legal terms, this is a burden of
production of evidence.
This burden shifts to us because, once you establish that you are
unable to do any past relevant work, it would be unreasonable to require
you to produce vocational evidence showing that there are no jobs in the
national economy that you can perform, given your RFC. However, as
stated by the Supreme Court, “It is not unreasonable to require the
claimant, who is in a better position to provide information about his own
medical condition, to do so.” Bowen v. Yuckert, id. Thus, the only burden
shift that occurs at step 5 is that we are required to prove that there is
other work that you can do, given your RFC, age, education, and work
experience. That shift does not place on us the burden of proving RFC.
Thus, we have a burden of proof even though our primary interest
in the outcome of the claim is that it be decided correctly. As required by
the Act, the ultimate burden of persuasion to prove disability, however,
remains with you.
68 Fed. Reg. 51153-01, 2003 WL 22001943.
As stated by another judge in this district when considering this language,
“[t]herefore the ALJ’s statement has an established legal basis.” Jahn v. Astrue, CIV 100771 RHS, Doc. 28 at 10 (D.N.M. June 27, 2011). In fact, the regulations reflect the
notion that while the Commissioner is responsible for providing evidence that the
claimant can still work at Step Five, it remains the claimant’s burden to prove the RFC
that will be used at that step. As stated in the regulations:
In order to support a finding that you are not disabled at this fifth step of
the sequential evaluation process, we are responsible for providing
evidence that demonstrates that other work exists in significant numbers
in the national economy that you can do, given your residual functional
capacity and vocational factors. We are not responsible for providing
additional evidence about your residual functional capacity because we
will use the same residual functional capacity assessment that we used to
determine if you can do your past relevant work.
20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2). The Tenth Circuit has also explained that
“the agency’s burden at step five does not include the burden to provide medical
evidence in support of an RFC assessment, unless the ALJ’s duty to further develop the
record is triggered.” See Howard v. Barnhart, 370 F.3d 945, 948 (10th Cir. 2004).
Therefore, the ALJ did not improperly shift the burden to Plaintiff at Step Five, and her
statement that Plaintiff was still responsible for proving her disability at that step was not
incorrect. See Bustos v. Astrue, CIV 10-0990 LAM, Doc. 19 at 15-16 (D.N.M. Sept. 30,
2011). The Court will not reverse the ALJ on this ground.
B) The ALJ’s hypothetical corresponds with Plaintiff’s RFC.
Plaintiff next argues that the “the hypothetical given to the VE [(Vocational
Expert)] and the answers given do not match the RFC established by the ALJ with
precision.” Doc. 22 at 10 (capitalization omitted). The Court disagrees.
“Whenever a claimant’s residual functional capacity is diminished by both
exertional and nonexertional impairments, the Secretary must produce expert vocational
testimony or other similar evidence to establish the existence of jobs in the national
economy.” Hargis v. Sullivan, 945 F.2d 1482, 1491 (10th Cir. 1991). “[T]he hypothetical
questions posed to the VE to assist with the step-five determination must reflect with
precision all – and only – the impairments and limitations borne out by the evidentiary
record.” Grotendorst v. Astrue, 370 F. App’x 879, 883 (10th Cir. 2010) (unpublished)
(citing Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996)). A VE’s response to a
hypothetical question that meets this standard constitutes substantial evidence for an
ALJ’s disability decision. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000).
In this case the ALJ determined that Plaintiff maintains the RFC to perform less
than the full range of light and sedentary work with the following restrictions:
The claimant is able to lift or carry up to ten pounds frequently and up to
twenty pounds occasionally. He is able to stand or walk two hours per day,
and sit for six hours daily. The claimant is only occasionally able to climb
ramps and stairs, balance, stoop, kneel, crouch and crawl, and he is never
able to climb ladders, ropes or scaffolds. The claimant is able to have no
more than occasional exposure to extreme cold, vibration, or hazards,
such as dangerous moving machinery or unprotected heights. He must
use a cane for all his standing and walking. The claimant would need to
alternate between sitting and standing as needed, about every ten to thirty
AR at 354.
When she questioned the VE at the hearing, the ALJ propounded the following
If this individual could lift or carry up to 10 pounds frequently, up to 20
pounds occasionally; could stand or walk two hours per day; could sit six
hours daily; could only occasionally climb ramps and stairs, balance,
stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds;
could have no more than occasional exposure to extreme cold, vibration,
or hazards such as dangerous moving machinery or unprotected heights;
and if he required the use of a cane for all standing and walking.
AR at 404. After discussing the ramifications of this hypothetical, the ALJ then asked:
And if we added to hypothetical number one this individual would need to
be able to alternate between sitting and standing as needed, and he
testified that that would be every 10 to 30 minutes. Would these jobs allow
for that option, to be performed either at the sitting level or the standing
AR at 409. In response, the VE testified that the hypothetical individual could perform
three jobs: office helper, mail sorter, and order clerk, and that the number of these jobs
within the economy would be reduced by 30% to accommodate this restriction. AR at
Thus, “[t]he ALJ propounded a hypothetical question to the VE that included all
the limitations the ALJ ultimately included in [her] RFC assessment. Therefore, the VE’s
answer to that question provided a proper basis for the ALJ’s disability decision.” See
Qualls, 206 F.3d at 1373.
Plaintiff argues that “both the VE and the ALJ lose sight of the entire RFC found,
and fail to address the effect on the inability to use one hand during the times Plaintiff
supports himself with his cane, while they focus just on the sitting and standing
requirement.” Doc. 22 at 11. The hearing transcript belies this contention. As noted, the
ALJ specifically included Plaintiff’s need to use a cane in the first hypothetical to the VE.
This limitation was not forgotten in the second hypothetical. Rather, the ALJ
incorporated by reference those limitations stated in the first hypothetical when she
“added” the sit stand option which was ultimately included in Plaintiff’s RFC. In sum, the
ALJ’s hypothetical to the VE reflected the full extent of his limitations; there is no
reversible error here.
C) The VE’s testimony was not unacceptably vague or confusing.
Plaintiff contends that the VE’s testimony was vague and confusing, and for that
reason, cannot constitute substantial evidence in support of the ALJ’s decision. Doc. 22
at 11-13. Plaintiff explains that “[o]nly after three opportunities does the VE include the
order clerk, and reaches the three jobs eventually found by the ALJ.” Id. at 13. Plaintiff
therefore argues that “the three jobs found by the ALJ are established by this
inconsistent testimony.” Id. at 13. The Court agrees that the ALJ’s questioning of the VE
could have been clearer. However, the Court disagrees with Plaintiff’s position that
merely because the VE’s testimony was slightly confusing it cannot constitute
substantial evidence on which the ALJ could rely.
In setting forth her first hypothetical, the ALJ asked the VE to assume an
individual who, among other things, was limited to walking and standing to two hours
per day, who could sit for six hours daily, and who required the use of a cane for all
standing and walking. AR at 404. The VE testified that this hypothetical individual could
not complete Plaintiff’s past relevant work; however, after some clarification, the VE
testified that there are other jobs that such an individual can perform. AR at 404-05.
Specifically, the VE testified that the individual in hypothetical number one could
perform the occupations of mail sorter, DOT number 209.687-026, office helper, DOT
number 239.567-010, order clerk, DOT number 209.567-014, final assembler, DOT
number 713.687-018, and charge account clerk, DOT number 205.367-014. AR at 40609.
The ALJ then set forth a second hypothetical with an attendant follow-up
question: “And if we added to hypothetical number one this individual would need to be
able to alternate between sitting and standing as needed, and he testified that that
would be every 10 to 30 minutes. Would these jobs allow for that option, to be
performed either at the sitting level or the standing level?” AR at 409. The VE
responded: “Depending on what the individual is doing for the office helper, that could
be a possibility. However, if the individual is working on something that requires more
standing or sitting, then that interruption would interfere with the job.” AR at 409. The VE
continued, “[t]he other jobs would not allow it.” AR at 409. To clarify, the ALJ asked the
VE: “So the mail sorter, the order clerk, final assembler, and charge account clerk would
not allow this alternating between sitting and standing?” AR at 409. The VE responded:
“The only one – the only addition would be the mail sorter, but the rest was (sic) not.
The other sedentary – the two other sedentary positions.” AR at 410. The ALJ further
inquired: “Okay. So that I’m clear, which jobs can do this?” AR at 410. The VE
responded that the office helper, the mail sorter and the order clerk positions could
tolerate Plaintiff’s need to sit or stand at will. AR at 410. The VE went on to testify,
however, that the need to alternate sitting or standing would reduce the number of
available jobs in these categories by thirty percent. AR at 410-11.
While the VE’s testimony could have been more clearly expressed, it establishes
the following observations: (1) Plaintiff cannot perform his past relevant work; (2) there
are a wide variety of jobs available to the first hypothetical individual that the ALJ
described; (3) however, only three of these jobs are available to a person with Plaintiff’s
RFC, which limits him to positions that can accommodate sitting and standing at will;
and, (4) the number of available positions in these three jobs would be further reduced
by thirty percent due to the requirement of a sit/stand option. Plaintiff does not explain
why these conclusions, albeit presented in a somewhat confusing manner, cannot
constitute substantial evidence in support of the ALJ’s decision. The Court will not
reverse the ALJ on this ground.
D) The ALJ’s decision comported with Haddock and SSR 00-4P.
Plaintiff maintains that the ALJ’s questioning, and the VE’s responses, were
inconsistent with Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999),2 and SSR 00-4P. In
Haddock, the Tenth Circuit held that an “ALJ must investigate and elicit a reasonable
While Plaintiff refers to the case as Haddock v. Astrue, Doc. 22 at 14, the Commissioner of the
Social Security Administration was Kenneth Apfel when the Haddock decision was published.
Accordingly, the case caption is Haddock v. Apfel, not Astrue.
explanation for any conflict between the Dictionary [of Occupational Titles] and expert
testimony before the ALJ may rely on the expert’s testimony as substantial evidence to
support a determination of nondisability.” Haddock, 196 F.3d at 1091. The
Administration responded to Haddock by publishing SSR 00-4P, which explains the use
of use of vocational expert and vocational specialist evidence, and other reliable
occupational information, in disability decisions. See 2000 WL 1898704. Plaintiff argues
that the ALJ’s questions and the VE’s responses ran afoul of these provisions for a
number of reasons.
1. The VE’s testimony is substantial evidence in support of the thirty-percent
reduction in available jobs due to the sit/stand requirement in Plaintiff’s RFC.
Plaintiff’s first argues that the VE provided an “insufficient description of which
jobs are actually identified and whether sufficiently probative for those jobs with the 30%
reduction.” Doc. 22 at 15. Plaintiff then cites the portion of the VE’s testimony where she
states that there would be a thirty-percent reduction in the available jobs that would
allow for the “possibility” of sitting and standing at will. Id. Plaintiff argues that “the
record is unclear as to which jobs she is referring to on the 30% reduction since she
testified both ways on the standing and sitting for each of the jobs.” Id. Plaintiff also
contends that “it is unclear as to whether she is saying that the sit/stand allowance was
merely ‘possible,’ or whether she was testifying that it was more likely than not that the
sit/stand option would be allowed.” Id.
The Court finds nothing vague about the VE’s testimony on this issue. The VE
stated that the three jobs which would possibly accommodate the sit/stand requirement
of Plaintiff’s RFC would need to be reduced by thirty percent to take into account that
accommodation. Contrary to Plaintiff’s position, such testimony is precisely the sort of
“reasonable” or “valid” explanation that a VE can give when an identified job arguably
conflicts with a claimant’s RFC. Haddock, 196 F.3d at 1091-92 (describing a reasonable
explanation as testimony that “a specified number or percentage or a particular job is
performed at a lower RFC level than the Dictionary shows the job generally to require.”);
see also SSR 00-4P, 2000 WL 1898704 at *3 (“The DOT lists maximum requirements of
occupations as generally performed, not the range of requirements of a particular job as
it is performed in specific settings. A VE, VS, or other reliable source of occupational
information may be able to provide more specific information about jobs or occupations
than the DOT.”). Accordingly, the Court will not reverse the ALJ on this ground.
2. The ALJ properly relied upon the VE’s estimate as to the reduction in the
available number of jobs.
Plaintiff’s next objects that the VE’s decision to discount the available jobs by
thirty percent “appears speculative” for, among other reasons, “the 30% figure was
given as one common number for all three identified and different occupations.” Doc. 22
at 15. Thus, Plaintiff argues that the ALJ “failed to include the variety of loss of sitting
and standing in the respective jobs.” Id. at 16 (emphasis in original); see also id. at 18
(“The spontaneous 30% opinion, under the facts of this case, would seem to be the
antithesis of the specificity required of standard vocational evidence in these cases.”).
The number of available jobs in a particular category is not included within the
DOT. Nor is there any indication of how a particular claimant’s limitations would affect
his or her ability to perform a particular type of work, or, as in this case, how a particular
limitation might affect the number of jobs available. This is, at least in part, why the
Administration relies on the experience and testimony of vocational experts and
vocational specialists when making Step Five findings. See SSR 00-4P, 2000 WL
1898704 at *2 (“as provided in 20 CFR 404.1566(e) and 416.966(e), we use VEs and
VSs as sources of occupational evidence in certain cases.”); see also 20 C.F.R. §§
404.1566(e), 416.966(e) (allowing for the use of VEs in disability determinations to
determine the transferability of skills in a given occupation or in “similarly complex”
issues). For this reason, “[e]vidence from VEs or VSs can include information not listed
in the DOT.” SSR 00-4P, 2000 WL 1898704 at *2. Rather, “[i]nformation about a
particular job’s requirements or about occupations not listed in the DOT may be
available in other reliable publications, information obtained directly from employers, or
from a VE’s or VS’s experience in job placement or career counseling.” Id.
“Providing this type of professional, experience-based evidence is precisely what
reliance on evidence from a VE is meant to accomplish. The whole point of vocational
testimony is to go beyond facts already established through publications eligible for
judicial or administrative notice and provide an alternative avenue of proof.” Rogers v.
Astrue, 312 F. App’x 138, 142 (10th Cir. 2009) (unpublished) (citing Gay v. Sullivan, 986
F.2d 1336, 1340 (10th Cir. 1993); 20 C.F.R. § 404.1566(e); SSR 00-4P at *2).
In support of his position that the VE’s reduction of the number of jobs available
to him was speculative, Plaintiff relies upon cases from the Seventh Circuit which are
highly critical of VE testimony. See Doc. 22 at 16-17 (citing and discussing Hermann v.
Colvin, 772 F.3d 1110 (7th Cir. 2014); Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015);
Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014); and Hill v. Colvin, 807 F.3d 862 (7th
Cir. 2015)). The Court has reviewed these cases, but does not find them helpful in
resolving this case for two reasons. First, the cases are not binding on this Court.
Second, the Tenth Circuit has not demonstrated the hostility towards VE testimony that
drove the result in those cases.
In Hermann, for example, the Seventh Circuit rejected the VE’s testimony about
the number of available jobs because “he didn’t explain how impressions from
unspecified past experience and ‘knowledge’ could enable him to determine numbers of
particular jobs. Nor did he reveal what surveys he had relied upon and what they had
shown.” Hermann, 772 F.3d at 1113. Accordingly, the Seventh Circuit reversed and
remanded the case because “[n]othing in the record enable[d] [it] to verify those
numbers, which the administrative law judge accepted.” Id. at 1114.
Likewise in Browning, the Seventh Circuit expressed doubts about the “source or
accuracy of the number of jobs that vocational experts . . . claim the plaintiff could
perform that exist in the plaintiff’s area, the region, or the nation.” Browning, 766 F.3d at
709. “[M]ost serious” in the Court’s opinion, “there are no credible statistics of the
number of jobs doable in each job category by claimants like the plaintiff in this case
who have ‘limitations[.]’” Id.
In contrast, the Tenth Circuit has accepted without reservation VE testimony
concerning the number, percentage and location of jobs within a claimant’s capacity.
See Trimiar v. Sullivan, 966 F.2d 1326, 1331 (10th Cir. 1992).
In Alaura, the Seventh Circuit felt the need to “say something about the
vocational expert’s conclusion” based on its “concern with the source and validity of the
statistics that vocational experts trot out in social security disability hearings[.]” Alaura,
797 F.3d at 507-08. The Court opined that the only reliable statistics for job numbers
“are census data for broad categories of jobs, rather than for jobs in the narrower
categories that the applicant for benefits is capable of doing.” Id. at 508. The court
therefore opined that “[a] vocational expert’s stated number of jobs in a narrow category
seems likely . . . to be a fabrication.” Id. Finally, in a concurrence in Hill, Judge Posner
rejected the VE’s testimony that based on his “own experience” the claimant could
perform jobs with only one functioning limb because “he failed to describe the
experience that formed his opinion[.]” Hill, 807 F.3d at 871. “In short,” Judge Posner
opined that “the vocational expert’s testimony was worthless[.]” Id. at 872.
In contrast, the Tenth Circuit in Trimiar credited VE testimony concerning the
ability of a claimant to work and travel long distances to assigned work, notwithstanding
the limited function of the claimant’s right hand. Trimiar, 966 F.2d at 1330-31. This
included crediting testimony that indirectly established that persons with the claimant’s
impairments could perform the jobs identified by the VE. See id. at n.20. More recently,
in Rogers, 312 F. App’x at 142, the Tenth Circuit affirmed a Step-Five finding as to the
availability and number of jobs which relied upon a VE’s “professional placement
experience.” Id.; see also Holcom v. Barnhart, 79 F. App’x 397, 399 (10th Cir. 2003)
(unpublished) (accepting the testimony of a VE that the claimant could perform certain
jobs “based on her thirty years of experience in observing  jobs and placing people in
these and other occupations”).
In sum, while the Court takes note of the lack of confidence expressed by the
Seventh Circuit towards VEs and the testimony they offer, Plaintiff has cited nothing
indicating that the Tenth Circuit harbors these same reservations. To the contrary, the
Tenth Circuit is incredibly deferential towards VE testimony so long as the ALJ complies
with the mandates of Haddock and SSR 00-4p. “Indeed, what would be the point of
vocational testimony (or expert testimony in general) if it could not reach beyond
matters already established through administrative (or judicial) notice?” Gay, 986 F.2d
at 1340. The Court therefore rejects Plaintiff’s argument that the VE’s testimony
concerning the thirty-percent reduction cannot constitute substantial evidence in support
of the ALJ’s decision.
3. There is no conflict with the DOT.
Plaintiff argues that “the VE’s job identification fails to match the requirement of
‘frequent’ handling and fingering in each of the three jobs” that the VE testified Plaintiff
can perform. Doc. 22 at 19. Plaintiff argues that his RFC is inconsistent with jobs
requiring frequent bilateral handling and fingering because it contemplates the use of a
cane for all standing and walking, as well as the need to sit and stand at will. Id.
Plaintiff’s argument is based on the Selected Characteristics of Occupations
(“SCO”),3 which is the companion to the DOT. However, Plaintiff has not provided a
citation to the SCO, and the Court was unable to locate “the tables” that Plaintiff relies
on in his brief. The DOT entries for the jobs at issue confirm that handling and fingering
are “frequent” activities of these jobs. See DOT No. 209.687-026, 1991 WL 671813;
DOT No. 239.567-010, 1991 WL 672232; DOT No. 209.567-014, 1991 WL 671794.
However, contrary to Plaintiff’s assertion that “frequent” is defined as two-thirds of the
day, the DOT defines “frequently” as 1/3 to 2/3 of the time. See, e.g., DOT No. 209.687026, 1991 WL 671813. Moreover, none of these positions explicitly require handling and
The SCO is incorrectly identified by Plaintiff as the “Specific Characteristics of Occupations.”
Doc. 22 at 19.
Plaintiff contends that “[w]hile standing he would not be able to handle and finger
while holding and supporting himself with a cane.” Doc. 22 at 19. However, Plaintiff
does not explain why this is the case. True, it would be difficult for Plaintiff to bilaterally
handle or finger anything when walking or standing and using his cane, but none of the
jobs identified by the VE require bilateral handling and fingering, and many of the
requirements of those jobs can be done one-handed, or during the time that Plaintiff is
seated. See DOT No. 209.687.026,4 DOT No. 239.567-010,5 DOT No. 209.567-014.6
According to the DOT, a Mail Sorter: “Sorts incoming mail for distribution and dispatches
outgoing mail: Opens envelopes by hand or machine. Stamps date and time of receipt on
incoming mail. Sorts mail according to destination and type, such as returned letters,
adjustments, bills, orders, and payments. Readdresses undeliverable mail bearing incomplete
or incorrect address. Examines outgoing mail for appearance and seals envelopes by hand or
machine. Stamps outgoing mail by hand or with postage meter. May fold letters or circulars and
insert in envelopes [FOLDING-MACHINE OPERATOR (clerical) 208.685-014]. May distribute
and collect mail. May weigh mail to determine that postage is correct. May keep record of
registered mail. May address mail, using addressing machine [ADDRESSING-MACHINE
OPERATOR (clerical) 208.582-010]. May be designated according to type of mail handled as
Mail Clerk, Bills (clerical).” 1991 WL 671813.
According to the DOT, an Office Helper: “Performs any combination of following duties in
business office of commercial or industrial establishment: Furnishes workers with clerical
supplies. Opens, sorts, and distributes incoming mail, and collects, seals, and stamps outgoing
mail. Delivers oral or written messages. Collects and distributes paperwork, such as records or
timecards, from one department to another. Marks, tabulates, and files articles and records.
May use office equipment, such as envelope-sealing machine, letter opener, record shaver,
stamping machine, and transcribing machine. May deliver items to other business
establishments [DELIVERER, OUTSIDE (clerical) 230.663-010]. May specialize in delivering
mail, messages, documents, and packages between departments of establishment and be
designated Messenger, Office (clerical). May deliver stock certificates and bonds within and
between stock brokerage offices and be designated Runner (financial).” 1991 WL 672232.
According to the DOT, an Order Clerk: “Takes food and beverage orders over telephone or
intercom system and records order on ticket: Records order and time received on ticket to
ensure prompt service, using time-stamping device. Suggests menu items, and substitutions for
items not available, and answers questions regarding food or service. Distributes order tickets
or calls out order to kitchen employees. May collect charge vouchers and cash for service and
keep record of transactions. May be designated according to type of order handled as
Telephone-Order Clerk, Drive-In (hotel & rest.); Telephone-Order Clerk, Room Service (hotel &
rest.).” 1991 WL 671794.
Moreover, the VE was aware of all of Plaintiff’s limitations when she testified that
he could complete the requirements of these jobs. “The DOT lists maximum
requirements of occupations as generally performed, not the range of requirements of a
particular job as it is performed in specific settings. A VE, VS, or other reliable source of
occupational information may be able to provide more specific information about jobs or
occupations than the DOT.” SSR 00-4P, 2000 WL 1898704 at *3. Here, the VE testified
that Plaintiff can perform the identified jobs, despite his limitations. The VE’s testimony
that Plaintiff can perform the identified jobs constitutes substantial evidence supporting
the Commissioner’s decision to deny benefits. See Segovia v. Astrue, 226 F. App’x 801,
804 (10th Cir. 2007) (unpublished) (“The VE was aware of Mr. Segovia’s limitations on
overhead reaching, and he testified both that she could perform the jobs he identified
and that his opinion of the jobs open to her was consistent with the DOT’s
specifications. . . . In these circumstances, the VE’s testimony does not conflict with the
DOT and SCO so much as it clarifies how their broad categorizations apply to this
specific case.”); see also Tollett v. Barnhart, 60 F. App’x 263 (10th Cir. 2003)
(unpublished) (“The vocational expert did not suggest that exhaust fumes would
preclude Tollett from performing as a gate guard. To the contrary, she included the gate
guard job as one that could be performed by someone who needed ‘to avoid exposure
to chemical fumes, perfumes, and other such types of pulmonary irritants.’ Therefore,
the vocational expert’s testimony provided a proper basis for the ALJ’s disability
decision.”); Newburn v. Barnhart, 62 F. App’x 300 (10th Cir. 2003) (unpublished) (“[t]he
ALJ directly addressed the issue of whether the designated jobs could be performed
with the specified limitation on hours of standing or walking. In response to the ALJ’s
questions, the vocational expert answered that ‘those jobs would accommodate the
inability to stand more than four hours.’” Thus, “[t]he Commissioner met her step-five
burden of proving that there are sufficient jobs in the national economy for a
hypothetical person with the claimant’s impairments.”); Ellison v. Sullivan, 929 F.2d 534,
537 (10th Cir. 1990) (“The ALJ properly relied on the testimony of a vocational expert
that plaintiff had the residual functional capacity for a limited range of light work and
there were jobs he could perform. This testimony is substantial evidence supporting the
ALJ’s conclusion that plaintiff was not disabled.”).
4. The VE and ALJ reasonably relied upon the DOT.
Plaintiff’s final argument appears to attack the VE and ALJ’s reliance on the DOT
itself. In support of this argument, Plaintiff again relies on authority from the Seventh
Circuit. See Doc. 22 at 20. Specifically, Plaintiff cites to Dimmett v. Colvin, 816 F.3d 486
(7th Cir. 2016). In Dimmett, Judge Posner expressed dissatisfaction with the VE and
ALJ’s reliance on the “obsole[te]” DOT, opining that perhaps the Commissioner ought to
rely on the more up to date O*NET for job descriptions. See id. at 489. However, as
Judge Posner observed, the Administration has not endorsed the O*NET “and in fact is
developing its own parallel classification system.” Id. While this system “is not expected
to be rolled out for at least three more years,” Plaintiff has cited to nothing indicating that
the VE’s reliance on the DOT is impermissible in the Tenth Circuit. To the contrary, the
regulations explicitly list the DOT as an example of a publication from which the
administration will take administrative notice of job data. See SSR 00-4p, 2000 WL
1897804 at *2; see also 20 C.F.R. §§ 404.1566(d), 416.966(d); see also Gibbons v.
Barnhart, 85 F. App’x 88, 93 (10th Cir. 2003) (unpublished) (“Once the VE stated that
[s]he was relying on the DOT, the ALJ had no further duty to investigate.”).
Plaintiff fails to demonstrate that the ALJ committed reversible error in this case.
IT IS HEREBY RECOMMENDED that Plaintiff’s motion to remand (Doc. 22) be
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition, they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.
UNITED STATES CHIEF MAGISTRATE JUDGE
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