Haddock v. Apfel - Case Law

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT M. HADDOCK,

Plaintiff-Appellant,

v. No. 98-7063

KENNETH S. APFEL, Commissioner,
Social Security Administration,

Defendant-Appellee.

ORDER
Filed November 9, 1999

Before BALDOCK, EBEL, and MURPHY, Circuit Judges.

Upon consideration, appellee’s petition for rehearing is denied. However,

the court on its own motion has determined that the opinion filed on July 13,

1999, should be modified. A modified opinion is attached.

Entered for the Court
PATRICK FISHER, Clerk

By:
Keith Nelson
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 13 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

ROBERT M. HADDOCK,

Plaintiff-Appellant,

v. No. 98-7063

KENNETH S. APFEL, Commissioner,
Social Security Administration, *

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-35-S)

Submitted on the briefs:

Paul F. McTighe, Jr. and Gayle L. Troutman, Tulsa, Oklahoma, for
Plaintiff-Appellant.

Bruce Green, United States Attorney; Tina M. Waddell, Chief Counsel, Region
VI; and Mary F. Lin, Assistant Regional Counsel, Office of the General Counsel,
Social Security Administration, Dallas, Texas, for Defendant-Appellee.

*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
Before BALDOCK , EBEL , and MURPHY , Circuit Judges. **

EBEL , Circuit Judge.

If a disability claimant shows that he can no longer perform any of his past

jobs, he is disabled unless the administrative law judge (ALJ) finds that he can

do some other kind of work. In this case, the ALJ found that claimant retained

the residual functional capacity (RFC) only for sedentary work that would allow

him to alternate sitting and standing and that was, at most, semi-skilled. In

response to the ALJ’s hypothetical question including these restrictions, a

vocational expert (VE) summarily identified four jobs claimant ostensibly could

perform. The Dictionary of Occupational Titles, which was not discussed at the

hearing, indicates that these jobs generally require greater exertional capacity

than the ALJ found this claimant to have. We hold that before an ALJ may rely

on expert vocational evidence as substantial evidence to support a determination

of nondisability, the ALJ must ask the expert how his or her testimony as to the

exertional requirement of identified jobs corresponds with the Dictionary of

**
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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Occupational Titles, and elicit a reasonable explanation for any discrepancy on

this point. 1

Disability Claim

Robert Haddock was born on January 6, 1942. He completed ten years of

school. His past jobs included lead carpenter, school bus driver, school janitor,

and lift-dump operator. He filed his claim for disability benefits on January 19,

1995, alleging that he became disabled in November 1992 due to hip problems,

shortness of breath related to heart and lung problems, lack of strength, and

residual chest pains resulting from a heart attack in May 1992.

The ALJ denied Mr. Haddock’s claim at step five of the evaluation

sequence. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.

1988). He decided at step four that Mr. Haddock did not have the residual

functional capacity (RFC) to return to either of his relevant past jobs–the skilled,

heavy job of lead carpenter or the unskilled, medium job of school janitor. At

step five, the ALJ found that Mr. Haddock nevertheless retained the RFC to

perform sedentary work if he could alternate sitting and standing. He further

found that Mr. Haddock had skills transferable to semi-skilled work, had a

1
Although appellant raises four issues on appeal, we have determined that
this is the only issue that warrants discussion. Her other arguments are without
merit.

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limited or less education, and was closely approaching advanced age (as

Mr. Haddock was just over fifty years old at the time his insured status expired).

The VE testified that Mr. Haddock could perform four jobs: payroll clerk, parts

clerk, materials lister, and inventory clerk. The VE did not volunteer the source

of his information, nor did anyone at the hearing ask him to identify or discuss it.

Lumping all four jobs together, the VE said that there were many thousands of

these jobs in the regional and national economies. The ALJ decided that

Mr. Haddock was not disabled in light of this expert vocational testimony and

Rule 201.11 from the medical-vocational guidelines (the “grids”), 20 C.F.R.

pt. 404, subpt. P, app. 2. The Appeals Council denied review, making the ALJ’s

denial of benefits the final agency decision. Mr. Haddock then brought this suit.

The district court adopted the magistrate judge’s recommendation to uphold the

agency’s decision. Mr. Haddock passed away on December 2, 1997.

Mrs. Haddock appeals from the denial of his claim for disability benefits.

We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We

review the agency’s decision on the whole record to determine only whether the

factual findings are supported by substantial evidence and the correct legal

standards were applied. See Goatcher v. United States Dep’t of Health & Human

Servs. , 52 F.3d 288, 289 (10th Cir. 1995).

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Issue on Appeal

Mrs. Haddock argues on appeal that, of the four jobs identified by the VE,

only payroll clerk is described in the Dictionary of Occupational Titles as a

sedentary, semi-skilled job to match the exertional and skill restrictions the ALJ

found Mr. Haddock to have. See Dictionary of Occupational Titles 215.382-014.

She alleges that parts clerk jobs are described in the Dictionary as either light and

skilled, or heavy and semi-skilled. See id. 222.367-042, 249.367-058,

279.357-062. She asserts that inventory clerk and materials lister jobs are

described as light and skilled, or medium and semi-skilled. See id. 219.387-030,

222.387-026. Mrs. Haddock contends that the VE’s testimony that Mr. Haddock

could perform the jobs of parts clerk, inventory clerk, and materials lister does

not constitute substantial evidence because of the contradiction between the

Dictionary’s description of the exertional and skill requirements of these three

jobs and the restrictions the VE was obliged to assume (because the ALJ

presented them to the VE in his hypothetical question). She maintains that the

lone job that was accurately identified–that of payroll clerk--does not salvage the

ALJ’s denial of benefits because the ALJ failed to ask the VE to specify how

many of that particular job exists, and the evidence as to that type of job was

therefore insufficiently developed to constitute substantial evidence to support

the ALJ’s decision that Mr. Haddock was not disabled.

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Discussion

It is axiomatic that all of the ALJ’s required findings must be supported by

substantial evidence. See 42 U.S.C. § 405(g). Substantial evidence is “‘such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” Richardson v. Perales , 402 U.S. 389, 401 (1971) (quoting

Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229 (1938)). At steps four and

five, the ALJ is required to make a number of findings.

At step four, the ALJ must “‘assess the nature and extent of [the

claimant’s] physical limitations and then determine [the claimant’s] residual

functional capacity for work activity on a regular and continuing basis.’”

Winfrey v. Chater , 92 F.3d 1017, 1023 (10th Cir. 1996) (quoting 20 C.F.R.

§ 404.1545(b)). If the ALJ concludes that the claimant cannot perform any of his

past work with his remaining RFC, the ALJ bears the burden at step five to show

that there are jobs in the regional or national economies that the claimant can

perform with the limitations the ALJ has found him to have. See, e.g. , Thompson

v. Sullivan , 987 F.2d 1482, 1487 (10th Cir. 1993) (citing, inter alia, 42 U.S.C.

§ 423(d)(2)(A)). It is not the claimant’s burden to produce or develop vocational

evidence at step five. See id. at 1491.

When a claimant’s exertional level, age, education, and skill level (i.e.,

work experience) fit precisely within the criteria of a grid rule, an ALJ may base

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a determination of nondisability conclusively on the grids. See Trimiar v.

Sullivan , 966 F.2d 1326, 1332 (10th Cir. 1992); see also 20 C.F.R. pt. 404,

subpt. P, app. 2, § 200.00(a) & Table No. 1; Social Security Ruling 82-41, 1982

WL 31389, at *1. When a requirement to alternate sitting and standing limits a

claimant’s ability to do the full range of sedentary work, as in this case, an ALJ

may not rely on this shortcut method. See Thompson , 987 F.2d at 1488;

20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(e). In a case like this one, the ALJ

“must cite examples of occupations or jobs the individual can do and provide a

statement of the incidence of such work in the region where the individual lives

or in several regions of the country.” Social Security Ruling 96-9p, 1996 WL

374185, at *5; see also Social Security Ruling 83-14, 1983 WL 31254, at *6;

Social Security Ruling 83-12, 1983 WL 31253, at *5. The requirement to

identify specific jobs the claimant can perform with the limitations the ALJ has

found him to have also pertains when the ALJ finds that the claimant has

acquired skills which will transfer to other work, as in this case. See Social

Security Ruling 96-9p, 1996 WL 374185, at *4; Social Security Ruling 82-41,

1982 WL 31389, at *7. Identified jobs must be shown to exist in “significant

numbers” in the regional or national economies. 42 U.S.C. § 423(d)(2)(A). To

summarize, in a case like this one, the ALJ must find that the claimant retains a

particular exertional capacity, decide whether the claimant has acquired

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transferable skills, identify specific jobs that the claimant can perform with the

restrictions the ALJ has found the claimant to have, and verify that the jobs the

claimant can do exist in significant numbers in the regional or national

economies. All of these findings must be supported by substantial evidence.

What the agency’s regulations and rulings require an ALJ to do, or even

allow an ALJ to do, to produce substantial vocational evidence at step five is not

clear. 20 C.F.R. § 404.1566(d)(1) states that “[w]hen [the agency] determines

that unskilled, sedentary, light, and medium jobs exist in the national economy

. . ., [the agency] will take administrative notice of reliable job information

available from various governmental and other publications[, including the]

Dictionary of Occupational Titles.” This subsection suggests that an ALJ, since

he or she has the burden at step five, must correlate a VE’s testimony in an

individual case with vocational information provided in the Dictionary of

Occupational Titles or other reliable publications. We have previously indicated

such an understanding of § 404.1566(d)(1) in dicta in Campbell v. Bowen ,

822 F.2d 1518, 1523 & n.3 (10th Cir. 1987).

Subsection 404.1566(e), however, allows an ALJ to use a vocational expert

“[i]f the issue in determining whether [the claimant is] disabled is whether [the

claimant’s] work skills can be used in other work and the specific occupations in

which they can be used, or there is a similarly complex issue.” The relationship

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between § 404.1566(d) and (e), and how these subsections should be applied to

particular cases, is not clarified to any great extent by the agency’s other

regulations or rulings.

At this point, we narrow our focus. Although Mrs. Haddock complains

that the VE’s testimony conflicted with the Dictionary of Occupational Titles as

to both the exertional and skill requirements of the jobs the VE identified, we

hold that the ALJ did not elicit enough evidence with regard to skills for us to

assess whether there is a conflict between the Dictionary and the VE’s testimony

on that job characteristic. By the same token, we cannot say that the ALJ’s

conclusion that the identified jobs met the semi-skilled restriction he found the

claimant to have is supported by substantial evidence.

The Dictionary uses a different and considerably more extensive

classification scheme for skill requirements than the agency’s regulations.

Compare Dictionary at xv & App. C, ¶¶ II, III with 20 C.F.R. § 404.1568.

Section 404.1568 indicates that an ALJ should use information provided by the

Dictionary to assess occupational skill requirements, but it is evident that the

Dictionary’s information about skills must be massaged, if you will, into the

agency’s three classifications (unskilled, semi-skilled, skilled). The ALJ did not

ask the VE to explain his thought process, but settled for a summary conclusion.

We therefore limit the rest of our discussion to exertional requirements.

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Both the Dictionary and the agency’s regulations use the same

designations--sedentary, light, etc.--for exertional requirements. See 20 C.F.R.

§ 404.1567. We therefore can assess whether the VE’s testimony, limited as it

was to sedentary jobs by the ALJ’s hypothetical, conflicts with the Dictionary as

to the exertional requirements of the jobs of parts clerk, materials lister, and

inventory clerk. There is a conflict here, and we find it unnecessary to parse the

regulations and rulings to reach the conclusion that the ALJ should have asked

the expert how his testimony as to the exertional requirement of these three jobs

corresponded with the Dictionary of Occupational Titles, and elicited a

reasonable explanation for the discrepancy on this point, before he relied on the

expert’s opinion that claimant could perform these three jobs.

The agency uses the Dictionary, among other publications listed in

§ 1566(d), as source material when it formulates the grids for use at step five.

See Social Security Ruling 83-10, 1983 WL 31251, at *3 (citing 20 C.F.R.

§ 404.1566(d)); see also 20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(b). The

agency has also stated in a number of its rulings that an ALJ may use the

Dictionary or other “authoritative” publications, rather than an expert, to provide

vocational evidence at step five in some cases in which the grids may not be

employed. Social Security Ruling 96-9p, 1996 WL 374185, at *9; see also Social

Security Ruling 85-15, 1985 WL 56857, at *3; Social Security Ruling 83-14,

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1983 WL 31254, at *4; Social Security Ruling 83-12, 1983 WL 31253, at *2;

Social Security Ruling 82-41, 1982 WL 31389, at *2, *7. Most importantly, the

agency accepts the Dictionary’s definitions as reliable evidence at step four of

“the functional demands and job duties” of a claimant’s past job “as it is usually

performed in the national economy.” Social Security Ruling 82-61, 1982 WL

31387, at *2; see also Andrade v. Secretary of Health & Human Servs. , 985 F.2d

1045, 1051 (10th Cir. 1993). Determining “the functional demands and job

duties” of specific jobs and matching those requirements to a claimant’s

limitations is the very task the ALJ must undertake at step five. It would be

anomalous to read the agency’s regulations to allow an ALJ to disregard the

Dictionary at step five--where the ALJ bears the burden–when the ALJ is allowed

to rely conclusively on essentially the same information from the Dictionary

at step four.

To relieve the ALJ of the burden to thoroughly develop the vocational

evidence at step five would shift the burden to the claimant in the form of a

requirement to cross-examine the vocational expert. To do so would contravene

basic principles of social security law, however. First, “[i]t is not [the

claimant’s] burden to prove [h]e cannot work at any level lower than h[is] past

relevant work; it is the [agency’s] burden to prove that [h]e can.” Thompson ,

987 F.2d at 1491. To allow an ALJ to elicit and rely on summary conclusions

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given by a VE, in the absence of contrary testimony elicited by the claimant

through cross-examination, would amount to shifting the burden to produce and

develop vocational evidence back to the claimant. Cf. id. (“The ALJ’s reliance

on an omission [in the record] effectively shifts the burden back to the

claimant.”)

Second, “[i]t is well established that a Social Security disability hearing is

a nonadversarial proceeding.” Id. (quotation omitted); see also, e.g. , Heckler v.

Campbell , 461 U.S. 458, 471 (1983) (Brennan, J., concurring) . Claimants have

a right to cross-examine vocational experts as a part of procedural due process.

See Glass v. Shalala , 43 F.3d 1392, 1396 (10th Cir. 1994) (citing Perales , 402

U.S. at 402, 410). Cross-examination is nevertheless an adversarial procedure.

See, e.g. , Cooks v. Ward , 165 F.3d 1283, 1296 (10th Cir. 1998) (citing United

States v. Cronic , 466 U.S. 648, 659 (1984)), cert. denied , 1999 WL 319436 (U.S.

Oct. 4, 1999) (No. 98-9420). Social security claimants may be unrepresented or

represented by someone who is unfamiliar with social security law. But

cross-examining a vocational expert with a publication such as the Dictionary of

Occupational Titles is clearly a matter for someone well versed in social security

law, not a layman. For these reasons, we believe the role of cross-examination in

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disability proceedings should remain limited. 2
Cf. Hodge v. West , 155 F.3d

1356, 1362-63 (Fed. Cir. 1998) (“In such a beneficial structure [as the

nonadversarial system of awarding veterans’ benefits] there is no room for such

adversarial concepts as cross examination, best evidence rule, hearsay evidence

exclusion, or strict adherence to burden of proof.” (quotation omitted)).

2
It may be argued that we suggested in Gay v. Sullivan that the claimant
bears the burden to cross-examine a vocational expert concerning information in
a publication, because we stated that 20 C.F.R. § 404.1566(d) and (e) “offer
alternative avenues of proof” and that “sources of expert testimony . . . may be
tested by cross-examination.” 986 F.2d 1336, 1340 & n.2 (10th Cir. 1993). The
issue in Gay , however, was the legitimacy of a vocational expert relying on a
publication not specifically listed in § 1566(d), not an alleged inconsistency
between the VE’s conclusions and information in a listed publication. Read in
context of the issue it decided, Gay holds that a vocational expert is not limited
to the sources named in § 1566(d), but that expert vocational testimony may be
used to “reach beyond matters already established through administrative (or
judicial) notice” of information provided by those recognized publications. 986
F.2d at 1340. In other words, expert testimony may be used to verify, clarify, and
supplement information available in publications the agency has deemed reliable.
The claimant’s failure in that case to cross-examine the vocational expert about
her non-listed source publication made it impossible for this court to assess on
appeal whether the VE’s testimony was unreliable. See id. at 1340 & n.2.

Gay has been given a broader interpretation than that in two cases that
dealt with an alleged inconsistency between an expert’s testimony and
information in the Dictionary of Occupational Titles. See Adams v. Apfel ,
No. 97-5140, 1998 WL 99030, at **2 (10th Cir. Mar. 9, 1998) (order and
judgment); Prince v. Apfel , No. 97-5176, 1998 WL 317525, at **3 (10th Cir.
June 11, 1998) (order and judgment). Those cases are unpublished, however, and
this panel is not bound by them. Nothing in Gay precludes us from concluding
now that the ALJ has the burden to investigate whether a vocational expert’s
opinion conflicts with information provided in the Dictionary of Occupational
Titles , and elicit an explanation for any inconsistency.

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Third, regardless of what step is under evaluation, an ALJ has a duty to

fully develop the record--even when the claimant is represented by an attorney, as

in this case. See Thompson , 987 F.2d at 1492. Questioning a vocational expert

about the source of his opinion and any deviations from a publication recognized

as authoritative by the agency’s own regulations falls within this duty. Our

holding as much at step five is consistent with the requirement at steps three and

four that an ALJ establish the predicate facts for his conclusions. See Winfrey ,

92 F.3d at 1024 (step four case); Clifton v. Chater , 79 F.3d 1007, 1009-10

(10th Cir. 1996) (step three case).

Finally, we note that our decision on this issue is consistent with the

majority of circuits to have considered it. See Porch v. Chater , 115 F.3d 567,

571-72 (8th Cir. 1997); Johnson v. Shalala , 60 F.3d 1428, 1435 (9th Cir. 1995);

English v. Shalala , 10 F.3d 1080, 1085 (4th Cir. 1993); Tom v. Heckler , 779 F.2d

1250, 1255-56 (7th Cir. 1985); Mimms v. Heckler , 750 F.2d 180, 186 (2d Cir.

1984). The Eleventh Circuit has held that a vocational expert’s testimony

“trumps” the Dictionary of Occupational Titles in the event of a conflict, but it

did so in the context of a claim in which there was no conflict. Jones v. Apfel ,

No. 98-6797, 1999 WL 770701, at *5-*6 (11th Cir. Sept. 29, 1999). Only the

Sixth Circuit has held that an ALJ may unreservedly accept a VE’s testimony at

step five even if it contradicts the Dictionary of Occupational Titles. See Conn

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v. Secretary of Health & Human Servs. , 51 F.3d 607, 610 (6th Cir. 1995). We

are unpersuaded that the Sixth Circuit’s approach is consistent with the broader

principles that govern these nonadversarial proceedings.

We 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. One reasonable explanation would be that the job the VE is

testifying about is not included in the Dictionary, but is documented in some

other acceptable source. See Johnson , 60 F.3d at 1435 (noting Dictionary states

that it is not comprehensive); Wright v. Sullivan , 900 F.2d 675, 683-84 (3d Cir.

1990) (same). Another valid explanation would be that a specified number or

percentage of a particular job is performed at a lower RFC level than the

Dictionary shows the job generally to require. See, e.g. , Fenton v. Apfel ,

149 F.3d 907, 911 (8th Cir. 1998) (explaining that Dictionary gives maximum

requirements of job as generally performed, not range of requirements as job is

performed in various particular settings); Barker v. Shalala , 40 F.3d 789, 795

(6th Cir. 1994) (same).

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In this case, the ALJ found that Mr. Haddock was limited to sedentary,

semi-skilled work that would allow him to alternate sitting and standing. The

case must be remanded for the ALJ to investigate whether there is a significant

number of specific jobs Mr. Haddock could have done with his limitations.

The judgment of the United States District Court for the Eastern District of

Oklahoma is REVERSED, and the case is REMANDED with instructions for the

district court to remand to the agency for additional proceedings.

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F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 13 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT