In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3736
G REGORY K. W EATHERBEE,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of the
Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 4:09-cv-00103-TWP-WGH—Tanya Walton Pratt, Judge.
A RGUED A PRIL 7, 2011—D ECIDED A UGUST 10, 2011
Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.
C UDAHY, Circuit Judge. Gregory K. Weatherbee applied
for Social Security disability insurance benefits and sup-
plemental security income payments after suffering
serious injuries in a motorcycle crash. Weatherbee’s
application was initially denied by the Social Security
Administration. An Administrative Law Judge (ALJ) also
denied Weatherbee’s claim after conducting a hearing,
2 No. 10-3736
finding that Weatherbee could perform a significant
number of jobs. Weatherbee appealed the ALJ’s denial
of his claim to the district court, who found that the
decision to deny his application was supported by sub-
stantial evidence. We affirm.
I. Background
In June 2006, Gregory Weatherbee, an employee of
a heating and cooling company, was involved in a motor-
cycle crash and sustained serious injuries. While Weather-
bee eventually recovered from the accident, he con-
tinues to suffer from a litany of physical impairments:
he has significant attention and concentration problems;
he suffers from regular headaches; his memory and
sense of balance have been impaired; and he has lost
functionality in his dominant arm. Since the motorcycle
crash, Weatherbee has been unemployed.
In July 2006, Weatherbee sought Social Security
disability insurance benefits and supplemental security
income pursuant to the Social Security Act. See generally
42 U.S.C. § 423(d); 42 U.S.C. § 1382c(a)(3). The Commis-
sioner of Social Security (the Commissioner) first denied
Weatherbee’s application on February 9, 2007, and
again when it was submitted for reconsideration on
May 7, 2007.
Weatherbee requested review of the Commissioner’s
denials and, on December 1, 2008, participated in a
hearing before an ALJ. During the hearing, the ALJ so-
licited testimony from Weatherbee and his mother re-
garding his injuries and their effect on his daily life. The
No. 10-3736 3
ALJ also solicited testimony from a Vocational Expert
(VE) concerning the ability of an individual with
Weatherbee’s limitations to work in the economy.
Before he began questioning the VE, the ALJ provided
the following instruction:
In your responses, ma’am, I’d like you to refer to
jobs and their descriptions as they’re found in the
Dictionary of Occupational Titles. Should there be any
conflict between your testimony and the material to
be found in the DOT, kindly identify the conflict
and resolve it by [citing] the source of the informa-
tion, if you would.
The ALJ proceeded to describe an individual with
physical capabilities matching those of Weatherbee
and asked what types of work such a person could per-
form.1
1
When questioning the VE about Weatherbee’s ability to
work, the ALJ described Weatherbee’s impairments in the
following manner: “I want you to assume a person of the same
age, education, and past work experience as Mr. Weatherbee.
I want you to assume that such a person is limited to the
performance of sedentary work, primarily because of balance
problems. Such a person would have unlimited use of the non-
dominant left hand; could use the dominant right hand for
fine manipulation only but not for gripping, turning, and
twisting. Such a person should be limited to simple tasks,
both because of attention and concentration problems, and
because of possible memory problems. Should not—any work
should not require interaction with the public and should not
be fast paced or quota driven.”
4 No. 10-3736
The VE testified that the limitations listed by the ALJ
would preclude an individual from working as an “HVAC
man,” Weatherbee’s former profession. She went on to
state, however, that an individual with these limitations
could do unskilled sedentary work and identified three
types of occupations he could perform.
First, the VE stated that an individual with the limita-
tions described by the ALJ could perform “some inspector
jobs,” adding that there were 493 inspector jobs in
Indiana and 15,000 jobs in the U.S. She cited the position
of weight tester as an occupational title falling within
this category of jobs. Second, the VE stated that such an
individual could perform “some general office clerk
jobs,” which she claimed constituted 1,215 jobs in
Indiana and approximately 64,200 jobs nationally. She
provided “document preparer” as a sample occupational
title of an office clerk job that someone like Weatherbee
could perform. Finally, the VE testified that there were
“some production jobs” that such an individual could
perform. She said that there were 2,200 of these jobs in
Indiana and 60,600 jobs nationally, all of which could
be performed with the hypothetical limitations posed.
She specified “fabrication finisher” as an example of an
occupational title within this set of jobs.
The ALJ accepted the VE’s testimony concerning the
types of occupations that Weatherbee could perform as
well as the availability of such work. He explicitly stated
that the testimony was consistent with the informa-
tion provided in the Dictionary of Occupational Titles (DOT)
and concluded that the government had established
that, despite his injuries, Weatherbee was able to work in
No. 10-3736 5
a significant number of positions. Accordingly, he held
that Weatherbee was not disabled for the purposes of
the Social Security Act and denied his application for
benefits. Weatherbee sought review of the ALJ’s decision
by the Social Security Appeals Council, which declined
his request on May 29, 2009. Because the Appeals
Council declined review, the ALJ’s ruling constituted the
Commissioner’s final, appealable decision. Haynes v.
Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Weatherbee
sought review of this decision in the United States
District Court for the Southern District of Indiana. On
September 29, 2010, the district court affirmed the ALJ’s
decision. On November 27, 2010, Weatherbee filed a
notice of appeal to this court.
II. Analysis
We review an ALJ’s disability determination deferen-
tially, upholding it if it is supported by “substantial
evidence.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
2007). Evidence is substantial if a reasonable person
would accept it as sufficient to support the decision. Jens
v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). While we
will not hesitate to reverse a ruling that lacks evidentiary
support, we will not reweigh the evidence that the
parties presented or substitute our judgment for that of
the ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).
To receive disability benefits under the Social Security
Act, a claimant must be “disabled” as defined by the
Act. 42 U.S.C. § 423(a)(1)(E). A claimant qualifies as
disabled if he is unable to “engage in any substantial
6 No. 10-3736
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). Moreover, a claimant’s physical
or mental impairment or impairments must be of such
severity that he is not only unable to do his previous
work but cannot, considering his age, education and
work experience, engage in any other kind of substantial
gainful work which exists in the national economy.
42 U.S.C. § 423(d)(2)(A).
When determining whether or not an individual is
disabled, we use a five-step sequential analysis. Craft v.
Astrue, 539 F.3d 668, 673 (7th Cir. 2008).
The first step considers whether the applicant is
engaging in substantial gainful activity. The second
step evaluates whether an alleged physical or mental
impairment is severe, medically determinable, and
meets a durational requirement. The third step com-
pares the impairment to a list of impairments that
are considered conclusively disabling. If the impair-
ment meets or equals one of the listed impairments,
then the applicant is considered disabled; if the im-
pairment does not meet or equal a listed impairment,
then the evaluation continues. The fourth step assesses
an applicant’s residual functional capacity (RFC) and
ability to engage in past relevant work. If an ap-
plicant can engage in past relevant work, he is not
disabled. The fifth step assesses the applicant’s RFC,
as well as his age, education, and work experience
No. 10-3736 7
to determine whether the applicant can engage in
other work. If the applicant can engage in other work,
he is not disabled.
Id. at 674. The claimant bears the burden of proof in each
of the first four steps. Briscoe v. Barnhart, 425 F.3d 345, 352
(7th Cir. 2005). The government bears the burden of proof
at the fifth step and must present evidence estab-
lishing that the claimant possesses the residual functional
capacity2 to perform work that exists in a significant
quantity in the national economy. 42 U.S.C. § 423(d)(2)(A);
Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009).
ALJs often rely heavily on two sources of occupational
information to determine whether the government has
met its burden: the DOT and Vocational Experts. The
DOT, published by the Department of Labor, provides
standardized occupational information, including the
most typical characteristics of jobs as they exist through-
out the American economy. It classifies jobs based on a
number of factors, such as worker actions, exertional
level and skill requirements in order to facilitate the
placement of applicants in positions that match their
qualifications. The DOT has played a prominent role in
social security hearings and ALJs are required to take
administrative notice of the DOT under Social Security
regulations. 20 C.F.R. § 404.1566(d)(1); 20 C.F.R.
§ 416.966(d)(1).
2
Residual functional capacity is defined as “the most [the
claimant] can still do despite [his] limitations.” 20 C.F.R.
§§ 404.1545(a), 416.945(a).
8 No. 10-3736
Vocational Experts often supplement the information
provided in the DOT by providing an impartial assess-
ment of the types of occupations in which claimants
can work and the availability of positions in such occupa-
tions. Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009).
The decision whether to employ a VE at a hearing is a
matter entrusted to the discretion of ALJs, Ehrhart v.
Secretary of H.H.S., 969 F.2d 534, 540 (7th Cir. 1992), but
once an ALJ decides to rely on a VE’s testimony, he
must make sure that the testimony comports with the
rules set forth in the Commissioner’s Social Security
Rulings. For instance, Social Security Ruling 00-4p
requires ALJs to ask whether a VE’s testimony conflicts
with information provided in the DOT before relying
on the VE’s testimony. Social Security Ruling 00-4p at 4;
Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008).
Ruling 00-4p does not require ALJs to wholly disregard
a VE’s testimony because part of it disagrees with the
DOT, but it does require ALJs to resolve discrepancies
between the two before relying on the conflicting testi-
mony. Overman, 546 F.3d at 464; Jens, 347 F.3d at 213.
On appeal, Weatherbee argues that the ALJ committed
three discrete errors when determining whether he
could work in other positions and that each of these
errors is serious enough to merit setting aside the ALJ’s
findings. First, he contends that the ALJ did not ade-
quately inquire into whether the VE’s testimony was
consistent with the DOT. Second, he asserts that the
ALJ failed to investigate and resolve discrepancies
between the VE’s testimony and the DOT. Finally, he
challenges the ALJ’s determination that the jobs he could
No. 10-3736 9
perform existed in significant numbers. These objections
get us to a fine-tuned disentanglement of the relevant
arguments.
A. The ALJ did not err by inquiring whether the
VE’s testimony conflicted with the DOT prior to
soliciting her substantive testimony.
Weatherbee claims that Social Security Ruling 00-4p
requires ALJs to ask whether a VE’s testimony is con-
sistent with the DOT after the VE has provided her sub-
stantive testimony. Because the VE at Weatherbee’s
hearing had not yet testified regarding the types of jobs
that somebody with Weatherbee’s capabilities could
perform when the ALJ made this inquiry, Weatherbee
urges us to find that the ALJ’s inquiry did not satisfy
Ruling 00-4p’s requirements.
We reject Weatherbee’s claim that Ruling 00-4p requires
ALJs to inquire about conflicts between a VE’s testimony
and the DOT after the VE provides her substantive testi-
mony. The text of the Ruling only requires ALJs to
inquire about conflicts “before relying” on a VE’s testi-
mony, but does not specify whether this inquiry should
(or must) occur before or after a VE testifies. See Social
Security Ruling 00-4p (“[T]he adjudicator must elicit
a reasonable explanation for the conflict before relying on
the VE . . . evidence.”). As several district courts have
noted, we have not read a temporal requirement into the
Ruling 00-4p and have refused to establish a singular
method by which ALJs must elicit potential conflicts. See
Howze v. Astrue, 2010 WL 3075524, at *1-2 (N.D. Ill. Aug. 3,
10 No. 10-3736
2010); Harris v. Astrue, 646 F. Supp. 2d 979, 995 (N.D. Ill.
2009).
A review of the transcript from the administrative
hearing establishes that the ALJ satisfied the Ruling’s
requirement. The ALJ’s instruction addressed the issue
of conflicting testimony before the VE offered her sub-
stantive testimony. The VE agreed under oath to
identify and resolve any conflict between her testimony
and the DOT. Nothing in the hearing’s transcript
suggests that the VE disregarded the ALJ’s instructions.
While we do not foreclose the possibility that an ALJ’s
inquiry into the consistency of a VE’s testimony with
the DOT could be rendered inadequate due to its timing
in other circumstances, we find that the instructions
given by the ALJ in this case were sufficient.
B. The ALJ did not err in relying on the VE’s testi-
mony because there was no apparent conflict
between this testimony and the DOT.
Weatherbee argues that the ALJ’s ruling should be set
aside because it was based upon VE testimony that con-
flicted with the DOT. Ruling 00-4p requires ALJs to
investigate and resolve any apparent conflict between
the VE’s testimony and the DOT. Social Security Ruling 00-
4p; Overman, 546 F.3d at 463. A conflict is apparent if it
is “so obvious that the ALJ should have picked up on [it]
without any assistance.” Overman, 546 F.3d at 463. When
there is an apparent conflict, ALJs are required to obtain
reasonable explanations for the conflict. Id. Weatherbee
No. 10-3736 11
claims that the ALJ’s ruling should be set aside because
the ALJ failed to resolve apparent conflicts between
the VE’s claim that somebody with Weatherbee’s im-
pairments could perform some general office clerk and
production worker occupations and the DOT entries
for these jobs.3 Weatherbee does not contest the validity
of the VE’s testimony regarding inspector occupations.
1. General Office Clerk Jobs
Weatherbee contends that the VE’s testimony regarding
his ability to perform “some general office clerk jobs”
obviously conflicted with the DOT and that the ALJ
failed to investigate these discrepancies. He claims that
the VE referenced only the occupation of Office Clerk
(listed at Section 209.562-010 of the DOT) when stating
that “[t]here would be some general office clerk jobs
that are [classified as] unskilled sedentary.” Weatherbee
believes that the VE’s testimony directly and apparently
conflicts with the DOT because the DOT entry for
Office Clerk describes the job as non-sedentary and semi-
skilled.
We reject Weatherbee’s interpretation of the VE’s testi-
mony. When read in the context of the VE’s adjacent
testimony, it is clear that the VE’s discussion of “office
clerk jobs” was meant to refer to a broad category of jobs
3
The term “occupation,” as used by the DOT, refers to a
collection of jobs, many of which vary in required levels
of activity and qualifications.
12 No. 10-3736
that the DOT describes as clerical, not to the single oc-
cupation listed in Section 209.562-010 of the DOT. Almost
immediately after stating that an individual with
Weatherbee’s impairments could work in some “general
office clerk jobs,” the VE added that a “sample occupa-
tional title would be Document Preparer.” The fact that
the VE provided the Document Preparer occupation—
listed in Section 249.587-018 of the DOT—as an example
of a clerk position clearly indicates that she was using
the term clerk in a general sense. The VE’s use of the
term in this manner is consistent with its usage through-
out the DOT. See, e.g., Dep’t of Labor, Dictionary of Oc-
cupational Titles §§ 221-229, 243-249 (occupational entries
for a variety of different clerk positions). Hence, the
VE’s testimony regarding Weatherbee’s ability to per-
form some general office clerk positions did not
conflict with the DOT.
2. Production Worker Jobs
Weatherbee also claims that the VE’s testimony re-
garding his ability to work certain production worker
jobs conflicted with the DOT. First, he contends that
the VE’s testimony should not have been relied on by
the ALJ because the sample occupational title identified
by the VE—“fabrication finisher”—does not exist in the
DOT. Second, he argues that the VE’s testimony conflicted
with the DOT because the physical demands and skill
requirements of many production worker jobs preclude
an individual with Weatherbee’s limitations from ob-
taining employment in those positions.
No. 10-3736 13
We reject Weatherbee’s assertion that the ALJ erred
when it failed to resolve the discrepancy between the
sample occupational title described by the VE and the
title for the same job that is listed in the DOT. While
Weatherbee is correct in his assertion that the job of
“fabrication finisher” is not listed in the DOT, his argu-
ment that the DOT does not contain any job titles similar
to “fabrication finisher” misses the mark. The job of
“finisher” is listed in Section 731.687-014 of the DOT,
is described as an occupation dealing with the fabrica-
tion of dolls and is quite clearly the occupational listing
that the VE was referring to in her testimony. See Lindsley
v. Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009)
(stating that a minor discrepancy between the job title
given by a VE and the title listed in the DOT is insuf-
ficient to create an apparent conflict). Given that the
“finisher” job is listed as being appropriate for indi-
viduals who can work only in sedentary and unskilled
positions, there was no apparent conflict between the
VE’s testimony and the DOT and, hence, no failure on
the part of the ALJ.
Weatherbee’s second contention of error fares no better
than his first. The fact that there are a large number
of production jobs that are beyond the capabilities of
sedentary, non-skilled laborers is not, on its own,
sufficient to establish an apparent conflict between the
VE’s testimony and the DOT. The fifth step in the
disability analysis framework focuses only on the types
of work that the claimant can perform, not the posi-
tions the claimant is precluded from working. The
VE testified that Weatherbee could work in the least de-
14 No. 10-3736
manding subset of production worker jobs and identified
a production job that was appropriate for sedentary,
unskilled individuals like Weatherbee. Because there
was no apparent conflict with the VE’s testimony and
Weatherbee did not present evidence establishing that
he could not work any type of production job, the ALJ
did not err by relying on the VE’s opinion.
C. The ALJ appropriately found that Weatherbee is
qualified to work in positions that are available
in significant number.
Finally, Weatherbee argues that the ALJ’s decision
should be reversed because the government did not
establish that he could work jobs that exist in significant
numbers in the economy. More specifically, he contends
that the government failed to meet its burden because
of the flaws in the VE’s testimony concerning clerk and
productions jobs discussed above.
We recently stated that, in the context of step five of
our disability benefits analysis, “it appears well-
established that 1,000 jobs” constitutes a significant
number. Liskowitz, 559 F.3d at 743. The VE stated that an
individual with Weatherbee’s limitations could work in
some clerk, production and inspector jobs and that there
were approximately 3,900 of these positions available in
Indiana and over 140,000 of these positions available
nationally—numbers well above the threshold for signifi-
cance. As stated above, Weatherbee has failed to establish
that there were apparent conflicts between the VE’s
testimony concerning clerk and production jobs and the
No. 10-3736 15
DOT. Further, Weatherbee has not challenged the VE’s
claims that he could work in inspector positions or that
there were 493 inspectors jobs in Indiana. Hence, the
ALJ did not err when he accepted the VE’s estimates
and found that Weatherbee is capable of working in
positions that are available in significant numbers.
III. Conclusion
Because the Commissioner’s decision to deny benefits
was supported by substantial evidence, the judgment
of the district court is
A FFIRMED.
8-10-11