Jones v. Apfel

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
09/29/99
THOMAS K. KAHN
No. 98-6797 CLERK

D. C. Docket No. 2:97-692-BH-C

CHRISTINE JONES,

Plaintiff-Appellant,

versus

KENNETH S. APFEL,

Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of Alabama

(September 29, 1999)

Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.

DUBINA, Circuit Judge:

_______________________
*Honorable Richard W. Story, U.S. District Judge for the Northern District of
Georgia, sitting by designation.

In this social security case, we are called upon to decide if the testimony of a
vocational expert (“VE”) trumps the Dictionary of Occupational Titles (“DOT”)

when the two are in conflict. We hold that it does.

I. BACKGROUND

Christine Jones (“Jones”) applied for supplemental security income benefits

(“SSI”) on February 22, 1994, alleging that pain in her back, hands, legs, and

chest, and numbness on her right side left her disabled. The Social Security

Administration (“SSA”) denied her application, and the Appeals Council denied it

again on reconsideration. Jones then requested a hearing before an administrative

law judge (“ALJ”).

At the hearing, Jones, then age 41, testified that she was a high school

graduate, was married, and had six children, five of whom lived with her and her

husband.1 Jones had worked as a restaurant cook, a fish filleter, and a corn-dog

packager. In 1992, Jones quit her job as a fish filleter because of pain and swelling

in her right knee. She could not stand for longer than 10 to 25 minutes and could

not sit for extended periods of time. Her daily activities consisted of bathing,

watching television, reading, sleeping, and sometimes making breakfast. She

1
A review of the record indicates that Jones’s husband has filed for SSI and one of her
children also receives SSI. (Exhibit at 78-80).

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testified that her back and knee pain prohibited her from doing housework, driving,

bending, or stooping. She also asserted that she had numbness and pain in both

arms, high blood pressure, sinus problems, and a defective heart valve which

caused her heart to stop beating sometimes. She took medication on a daily basis,

some of which made her drowsy. On a scale of one to ten, she rated her pain a

seven or eight.

The ALJ questioned Charles Whitson, a VE, about Jones’s assertions in her

application for disability. The ALJ asked the VE to assume that Jones can perform

sedentary level work that does not involve significant bending, stooping,

crouching, crawling, or reaching above shoulder level, and does not involve

exposure to extreme dust, fumes, gasses, irritants, and pollen. The ALJ also asked

the VE to assume that Jones is best suited to working with objects rather than

people and can perform routine, repetitive, and unskilled work activities. Based on

this hypothetical, the VE testified to four categories of jobs that existed in the

national and regional economy that such a claimant could perform: (1) a hand

packager, (2) an agricultural sorter, (3) small-parts assembler, and (4) a product

inspector.

Alternatively, the ALJ asked the VE to assume that the record supported

Jones’s claims of pain and discomfort and her limitations of ability to function. If

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the record supported these claims, the VE responded that Jones would be precluded

from the occupations he identified. On cross-examination, the VE stated that

moderately severe pain would also preclude Jones from all of the identified

occupations.

The ALJ reviewed the reports of three physicians and a psychologist who

had treated or examined Jones. Dr. Bony F. Barrineau (“Dr. Barrineau”) treated

Jones after she twisted her right knee on the job. Dr. Barrineau gave Jones an

injection for the pain and recommended wearing a knee sleeve. Several months

later, Jones returned to Dr. Barrineau with continued pain. Upon further

examination, Dr. Barrineau diagnosed a medial meniscus tear and indicated that

this knee injury precluded her from standing for long periods of time. (Exhibit at

133-35).

Dr. Larry B. Thead (“Dr. Thead”) performed a consultative examination of

Jones. Based on his examination, Dr. Thead concluded that Jones “would have no

difficulty performing work related physical activities such as sitting, standing,

handling objects, hearing, and speaking.” (Exhibit at 141-44).

Dr. Judy C. Travis (“Dr. Travis”) treated Jones for various complaints over

the course of a year. In February 1996, Dr. Travis completed a physical evaluation

of Jones and found that she could frequently lift objects weighing less than ten

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pounds; that her impairment did not affect her standing, walking, and sitting; that

she could frequently bend, squat, kneel, and crawl, and occasionally climb and

balance; that her impairment did not affect her grasping, reaching, pushing, and

pulling; that her environmental restrictions included temperature extremes,

chemicals, noise, fumes, and vibration; that she did not have chronic pain, but that

she needed vocational rehabilitation to return to work; and that she would be an

unreliable worker as a result of her condition and attendant limitations.

The psychologist, Kenneth R. Schneider, Ph.D., (“Dr. Schneider”)

completed a mental evaluation of Jones. Jones’s full scale IQ score was 71; she

functioned at the borderline mentally retarded range of intellectual development.

Dr. Schneider indicated that Jones’s pain, combined with her borderline mentally

retarded range of intellectual functioning, could significantly impact her ability to

function in a work setting. He concluded that Jones had moderate limitations in

several areas. Dr. Schneider also indicated that Jones’s condition was likely to

deteriorate if she were placed under the stress of a job.

Based on this evidence, the ALJ determined that Jones had two severe

impairments that impacted her ability to perform basic work activities: (1) a medial

meniscus tear of the right knee, and (2) borderline intellectual functioning. The

ALJ concluded, however, that these impairments did not preclude work activity.

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The ALJ discredited Jones’s allegations of pain and swelling in her knee,

numbness of the joints, high blood pressure, sinus problems, heart fluttering, and

side effects of medication. Although the ALJ determined that Jones could not

perform her past relevant work, he found that she had the residual functional

capacity to perform work related activities at the sedentary level of exertion. The

ALJ noted that Jones could not perform the full range of sedentary work, but she

could perform such jobs as hand packager, with 2,000 jobs existing regionally and

100,000 nationally; agricultural sorter, with 400 jobs existing regionally and

20,000 nationally; small parts assembler, with 2,500 jobs existing regionally and

120,000 nationally; and product inspector, with 2,000 jobs existing regionally and

100,000 nationally.

Following the ALJ’s decision, Jones submitted additional medical records to

the Appeals Council. The Appeals Council concluded, however, that the

information was insufficient to reverse the ALJ’s decision. The magistrate judge,

upon judicial review, issued a report recommending affirmance of the ALJ’s

decision. Jones objected, but the district court adopted the magistrate’s report and

affirmed the denial of benefits.

II. DISCUSSION

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 Jones presents two arguments on appeal: whether the ALJ properly assessed

the effect of her limitations on her ability to perform sedentary work and whether

the Commissioner proved that there were a substantial number of jobs in the

economy that the claimant could perform. We affirm the Commissioner’s decision

on a disability benefits application if it is supported by substantial evidence and the

Commissioner applied the correct legal standards. See Graham v. Apfel, 129 F.3d

1420, 1422 (11th Cir. 1997).

A. Erosion of the occupational base

Jones contends that by not questioning the VE about her limitations, the ALJ

failed to properly assess the effect of her limitations on her ability to perform

sedentary work. She further asserts that the ALJ did not consider the extent of any

erosion of the occupational base, as determined by her residual functional capacity,

and assess its significance in terms of the medical-vocational rules. The

Commissioner responds that Jones’s argument regarding the erosion of the

occupational base is waived because she did not clearly present it to the district

court.

A review of the record indicates that Jones did not raise this specific issue to

the district court. There is no mention of this issue in her brief in support of her

complaint nor in her appeal to the district court, so the district court did not have an

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opportunity to consider the issue and rule on it. See In re Pan American World

Airways, Inc., 905 F.2d 1457, 1461-62 (11th Cir. 1990). Jones also cannot satisfy

any exception to our well-settled rule; accordingly, we decline to consider this

issue presented for the first time on appeal.

B. Ability to perform other work in the economy

An individual who files an application for Social Security disability benefits

must prove that she is disabled. See 20 C.F.R. § 416.912 (1998). The Social

Security regulations provide a five-step sequential evaluation process for

determining if a claimant has proven that she is disabled. See 20 C.F.R. § 416.920.

At the first step, the claimant must prove that she has not engaged in substantial

gainful activity. See id. At the second step, she must prove that she has a severe

impairment or combination of impairments. See id. If, at the third step, she proves

that her impairment or combination of impairments meets or equals a listed

impairment, she is automatically found disabled regardless of age, education, or

work experience. See id. If she cannot prevail at the third step, she must proceed

to the fourth step where she must prove that she is unable to perform her past

relevant work. See id. At the fifth step, the burden shifts to the Commissioner to

determine if there is other work available in significant numbers in the national

economy that the claimant is able to perform. See id. If the Commissioner can

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demonstrate that there are jobs the claimant can perform, the claimant must prove

she is unable to perform those jobs in order to be found disabled. See id. This case

centers on step five of the sequential evaluation process.

Jones argues that the ALJ erred in relying on the testimony of the VE to

demonstrate that she could perform other jobs in the economy because that

testimony conflicted with the DOT. According to the limitations identified by the

ALJ and the job descriptions in the DOT, Jones contends that the Commissioner

has failed to prove by a preponderance of the evidence that there are other jobs in

substantial numbers in the economy which she can perform. The Commissioner

responds that the ALJ appropriately relied on the VE’s testimony to satisfy its

burden of showing that Jones could perform work that exists in the national and

regional economy. To the extent that the VE’s testimony may have conflicted with

the DOT, the Commissioner urges this court to follow the approach taken by the

Sixth Circuit, or alternatively, the Eighth and Ninth Circuits, and hold that the

VE’s testimony trumps the DOT.

In a disability determination, once a claimant proves that she can no longer

perform her past relevant work, the burden shifts to the Commissioner “to show the

existence of other jobs in the national economy which, given the claimant’s

impairments, the claimant can perform.” Hale v. Bowen, 831 F.2d 1007, 1011

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(11th Cir. 1987). Often, the Commissioner meets this burden by relying on the

grids. See Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995). When the

claimant cannot perform a full range of work at a given level of exertion or the

claimant has non-exertional impairments that significantly limit basic work skills,

exclusive reliance on the grids is inappropriate. See id. In such cases, the

Commissioner’s preferred method of demonstrating that the claimant can perform

other jobs is through the testimony of a VE. See id. In order for a VE’s testimony

to constitute substantial evidence, the ALJ must pose a hypothetical question which

comprises all of the claimant’s impairments. See generally McSwain v. Bowen,

814 F.2d 617, 619-20 (11th Cir. 1987).

The ALJ determined that Jones was not capable of performing a full range of

sedentary work, so he appropriately called a VE to testify whether Jones, given her

limitations, was capable of performing other jobs in the national economy. The

VE identified the above-mentioned jobs that Jones could perform with her

limitations. Notwithstanding, Jones argues that the ALJ’s reliance on the VE’s

testimony was improper because the exertional and environmental requirements of

some of the jobs identified by the VE, such as hand packager and nut sorter,

conflict with the DOT. Specifically, Jones notes that there are no unskilled

sedentary packaging jobs in the DOT and the DOT lists only eight agricultural

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sorter jobs which are unskilled, sedentary occupations.

Several other circuits have analyzed the conflict between the VE’s testimony

and the DOT. The Sixth Circuit in Conn v. Secretary of Health and Human

Services, 51 F.3d 607, 610 (6th Cir. 1995), held that the social security regulations

do not require the Commissioner or the VE to rely on classifications in the DOT.

Therefore, an ALJ may rely on the VE’s testimony even if it is inconsistent with

the DOT. The Eighth and Ninth Circuits hold that the DOT controls unless it can

be “rebutted . . . with VE testimony which shows that ‘particular jobs, whether

classified as light or sedentary, may be ones that a claimant can perform.’”

Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir. 1995) (quoting Johnson v.

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). The VE’s task, therefore, is to

determine whether there are jobs in the region which the claimant can perform with

her precise disabilities or limitations. If the VE can accomplish this task, then the

DOT does not control. 69 F.3d at 277.

In a recent case, the Tenth Circuit held that before an ALJ may rely on

expert VE testimony as substantial evidence to support a determination of

nondisability, the ALJ must ask the VE how his or her testimony corresponds with

the DOT. See Haddock v. Apfel, ___ F.3d ___ , No. 98-7063 (10th Cir., July 13,

1999). The Tenth Circuit rejected the approach of the Sixth Circuit in Conn, and

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followed the reasoning of the Eighth and Ninth Circuits. The court noted that the

ALJ’s duty is to develop the record fully, and to do so, the ALJ must question the

VE about the source of his or her opinion and any deviations from a publication

recognized as authoritative by the agency’s own regulations. Id. at ___. The court

stated that

[w]e do not mean by our holding that the Dictionary of Occupational
Titles “trumps” a VE’s testimony when there is a conflict about the
nature of a job. We hold merely that the ALJ must investigate and
elicit a reasonable explanation for any conflict between the Dictionary
and expert testimony before the ALJ may rely on the expert’s
testimony as substantial evidence to support a determination of
nondisability.

Id. at ___. See also Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir. 1985)

(remanding case because of conflict between the VE’s testimony and the DOT);

Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (remanding case for

reconsideration of jobs claimant could perform in light of DOT descriptions).

We agree with the Sixth Circuit that when the VE’s testimony conflicts with

the DOT, the VE’s testimony “trumps” the DOT. We so hold because the DOT “is

not the sole source of admissible information concerning jobs.” Barker v. Shalala,

40 F.3d 789, 795 (6th Cir. 1994). The DOT itself states that it is not

comprehensive. It provides occupational information on jobs in the national

economy, and it instructs “DOT users demanding specific job requirements [to]

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supplement th[e] data with local information detailing jobs within their

community.” Dictionary of Occupational Titles, Special Notice at xiii (4th ed.

1991); Barker, 40 F.3d at 795. Additionally, the Code of Federal Regulations

states that the SSA will take administrative notice of reliable job information

available from various governmental and other publications, such as the DOT. See

CFR § 404.1566(d)(1). By this wording, the SSA itself does not consider the DOT

dispositive.

As noted in the DOT, the ALJ should supplement the DOT data with local

information detailing jobs in the regional community. The VE provides this vital

information. In this case, the VE testified that he compiled the employment

information from a personal survey, contact with employers and other VEs and a

survey of literature such as census reports and county business patterns. (Exhibit

at 71). As such, we conclude that the VE’s testimony is crucial to an ALJ’s

determination at step 5 of the sequential evaluation process. Due to the

significance of the VE’s testimony, we agree with the Sixth Circuit and hold that

an ALJ may rely solely on the VE’s testimony.2

Following the Sixth Circuit’s analysis, we see no error in this case. The

2
Our holding does not preclude reliance on the DOT; reliance on the DOT is within the
discretion of the ALJ.

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ALJ’s determination that Jones was not disabled is supported by substantial

evidence. The VE identified several jobs that Jones could perform with her

limitations. The VE identified no jobs that went beyond Jones’s residual

functional capacity, even under the definitions in the DOT. The VE even

identified the DOT classifications for sedentary work which Jones could perform.

Accordingly, we affirm the district court’s order affirming the Commissioner’s

denial of SSI benefits to claimant Jones.

AFFIRMED.

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