65FR38312 Haddock v. Apfel; Use of Vocational Expert Testimony and the Dictionary of Occupational Titles Under 20 CFR 404.1566, 416.966-- Titles II and XVI of the Social Security Act
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Posting-number: Volume 65, Issue 119, Page 38312
[Federal Register: June 20, 2000 (Volume 65, Number 119)]
[Notices]
[Page 38312-38314]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn00-107]
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SOCIAL SECURITY ADMINISTRATION
[Social Security Acquiescence Ruling 00-3 (10)]
Haddock v. Apfel; Use of Vocational Expert Testimony and the
Dictionary of Occupational Titles Under 20 CFR 404.1566, 416.966--
Titles II and XVI of the Social Security Act
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Acquiescence Ruling.
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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of
Social Security gives notice of Social Security Acquiescence Ruling 00-
3 (10).
EFFECTIVE DATE: June 20, 2000.
FOR FURTHER INFORMATION CONTACT: Cassia W. Parson, Litigation Staff,
Social Security Administration, 6401 Security Boulevard, Baltimore, MD
21235-6401, (410) 966-0446.
SUPPLEMENTARY INFORMATION: Although not required to do so pursuant to 5
U.S.C. 552(a)(1) and (a)(2), we are publishing this Social Security
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
A Social Security Acquiescence Ruling explains how we will apply a
holding in a decision of a United States Court of Appeals that we
determine conflicts with our interpretation of a provision of the
Social Security Act (the Act) or regulations when the Government has
decided not to seek further review of that decision or is unsuccessful
on further review.
We will apply the holding of the Court of Appeals' decision as
explained in this Social Security Acquiescence Ruling to claims within
the Tenth Circuit. This Social Security Acquiescence Ruling will apply
to all decisions made on or after June 20, 2000. If we made a decision
on your application for benefits between July 13, 1999, the date of the
Court of Appeals' decision,\1\ and June 20, 2000, the effective date of
this Social Security Acquiescence Ruling, you may request application
of the Social Security Acquiescence Ruling to the prior decision. You
must demonstrate, pursuant to 20 CFR 404.985(b)(2) or 416.1485(b)(2),
that application of the Ruling could change our prior decision in your
case.
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\1\ The decision was issued on July 13, 1999. On November 9,
1999, the Tenth Circuit Court of Appeals amended the decision on
denial of rehearing.
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Additionally, when we received this precedential Court of Appeals'
decision and subsequently determined that a Social Security
Acquiescence Ruling might be required, we began to identify those
claims that were pending before us within the circuit that might be
subject to readjudication if an Acquiescence Ruling was subsequently
issued. Because we determined that an Acquiescence Ruling is required,
we are publishing this Social Security Acquiescence Ruling. We will
send a notice to those individuals whose claims we have identified
which may be affected by this Social Security Acquiescence Ruling. The
notice will provide information about the Acquiescence Ruling and the
right to request readjudication under the Ruling. It is not necessary
for an individual to receive a notice in order to request application
of this Social Security Acquiescence Ruling to the prior decision on
his or her claim as provided in 20 CFR 404.985(b)(2) or 416.1485(b)(2),
discussed above.
If this Social Security Acquiescence Ruling is later rescinded as
obsolete, we will publish a notice in the Federal Register to that
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we
decide to relitigate the issue covered by this Social Security
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or
416.1485(c), we will publish a notice in the Federal Register stating
that we will apply our interpretation of the Act or regulations
involved and explaining why we have decided to relitigate the issue.
(Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social
Security--Disability Insurance; 96.002 Social Security--Retirement
Insurance; 96.004 Social Security--Survivors Insurance; 96.005--
Special Benefits for Disabled Coal Miners; 96.006--Supplemental
Security Income.)
Dated: June 5, 2000.
Kenneth S. Apfel,
Commissioner of Social Security.
Acquiescence Ruling 00-3 (10)
Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999)--Use of Vocational
Expert Testimony and the Dictionary of Occupational Titles under 20 CFR
404.1566, 416.966--Titles II and XVI of the Social Security Act.
Issue: Whether an Administrative Law Judge (ALJ), when receiving
evidence from a vocational expert (VE) must ask the expert how the
testimony or information corresponds to information provided in the
Dictionary of Occupational Titles (DOT).\2\ If the testimony or
evidence differs from the DOT, whether the ALJ must ask the expert to
explain the difference.
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\2\ Employment and Training Administration, U.S. Department of
Labor, Dictionary of Occupational Titles (Fourth Edition, Revised
1991) and its companion publication, Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational
Titles, (1993).
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Statute/Regulation/Ruling Citation: Sections 223(d)(2)(A) and
1614(a)(3)(B) of the Social Security Act (42 U.S.C. 423(d)(2)(A) and
1382c(a)(3)(B)); 20 CFR 404.1520(f)(1), 404.1566(d) and (e),
416.920(f)(1), 416.966(d) and (e); Social Security Rulings (SSRs) 83-
12, 85-15, and 96-9(p).
Circuit: Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah or
Wyoming).
Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999).
Applicability of Ruling: This Ruling applies to decisions at the
Administrative Law Judge (ALJ) hearing and Appeals Council levels of
administrative review.
Description of Case: The claimant, Robert M. Haddock, applied for
disability insurance benefits claiming that he was disabled since
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. Born on January 6, 1942, Mr. Haddock
had worked as a lead carpenter, school bus driver, school janitor, and
lift-dump operator. Following the denial of his application for
benefits at both the initial and reconsideration steps of the
administrative review process, the claimant requested and received a
hearing before an ALJ.
The ALJ denied Mr. Haddock's claim at step five of the sequential
evaluation process for determining disability. The ALJ found that Mr.
Haddock retained the residual functional capacity (RFC) to perform
sedentary work if he could alternate sitting and standing. During the
hearing, a VE testified that four jobs would accommodate Mr. Haddock's
restrictions. The VE did not give the source of his information, nor
did anyone at the hearing ask the VE to identify or discuss his
sources.
Based on the VE's testimony and Rule 201.11 of the Medical--
Vocational Guidelines, 20 CFR part 404, Subpart P, Appendix 2, the ALJ
found that Mr. Haddock was not disabled. The Appeals Council denied
review, making the ALJ's denial of benefits the Social Security
Administration's (SSA's) final decision.
Mr. Haddock brought suit and the district court adopted the
magistrate judge's recommendation to uphold SSA's decision. The
district court decision was appealed to the Court of Appeals for the
Tenth Circuit by Mrs. Haddock due to her husband's death on December 2,
1997. On appeal, the claimant argued that, of the four jobs the
[[Page 38313]]
VE testified Mr. Haddock could perform, only one was described in the
DOT as matching the exertional restrictions that the ALJ found Mr.
Haddock had. The claimant argued that the VE testimony regarding the
other three jobs Mr. Haddock could perform did not constitute
substantial evidence because of the contradiction between the DOT's
description of the exertional requirements of the three jobs and the
limitations the VE had to assume because of the hypothetical questions
posed by the ALJ.
The Court of Appeals for the Tenth Circuit remanded the case to SSA
to investigate whether there was a significant number of specific jobs
that the claimant could have performed. The court found that the ``ALJ
must investigate and elicit a reasonable explanation for any conflict
between the Dictionary [DOT] and expert testimony before the ALJ may
rely on the expert's testimony as substantial evidence to support a
determination of nondisabilty.''
Holding: The Tenth Circuit held 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 DOT and elicit a reasonable explanation for any
discrepancies.
The court stated that 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 restrictions found by the ALJ. Because
the claimant's RFC was restricted to alternate sitting and standing
which would limit his ability to do a full range of sedentary work, the
court noted that the ALJ ``must cite examples of occupations or jobs
the individual can do and provide a statement of the incidence of such
work* * * '' \3\ The court summarized, that in cases such as this,
``the ALJ must find that the claimant retains a particular exertional
capacity, decide whether the claimant has acquired 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.''
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\3\ The court cited Social Security Ruling 96-9p.
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The court found that ``[w]hat 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.
Sec. 404.1566(d)(1) states that `* * * [SSA] will take administrative
notice of reliable job information available from various governmental
and other publications [including the] Dictionary of Occupational
Titles.' '' The court found that the regulation suggests that an ALJ 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.'' The court then narrowed its
focus and found that there was a conflict between the VE's testimony
and the DOT as to the exertional requirements of three of the jobs
identified by the VE. The court concluded 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 court stated that it was not holding that the DOT ``trumps'' a
VE's testimony when there is a conflict about the nature of a job.
Rather, the court explained that it was merely holding that the ALJ
must investigate and obtain a reasonable explanation for any conflicts
found. The court noted that a reasonable explanantion could include the
fact that a job is not included in the DOT, but documented in some
other acceptable source, or that a specificed number or percentage of a
particular job is performed at a lower RFC level than the DOT shows the
job to generally require.
Statement As To How Haddock Differs From SSA's Interpretation Of The
Regulations
At step five of the sequential evaluation process (step eight in
continuing disability review claims), we consider the vocational
factors of age, education, and work experience in conjunction with a
claimant's RFC to determine whether a claimant can do other jobs that
exist in significant numbers in the national economy other than the
claimant's past relevant work. We determine whether work exists in the
national economy that a claimant can do when a claimant's physical or
mental abilities and vocational qualifications meet the requirements of
a significant number of jobs (in one or more occupations).
In determining the existence of unskilled sedentary, light, and
medium jobs in the national economy, we take administrative notice of
reliable job information available from various governmental and other
publications. Our regulations provide examples of governmental
publications, including the DOT, and other vocational resources that we
will administratively notice for this purpose, 20 CFR 404.1566(d) and
20 CFR 416.966(d).
We may use the services of a VE in cases involving complex
vocational issues, 20 CFR 404.1566(e) and 20 CFR 416.966(e). For
example, a VE may testify as to whether a claimant's work skills can be
used in (transferred to) other work and the specific occupations in
which they can be used. A VE may also testify as to the effects of
solely nonexertional impairments on the range of work a person can do
(a person's occupational base) or the extent of erosion of a person's
occupational base caused by nonexertional limitations, SSR 96-9p, SSR
85-15 and SSR 83-12.
According to our procedures, an ALJ must resolve conflicts in the
evidence. This includes conflicts in opinion evidence from a VE and job
information contained in the DOT. When such conflicts are evident, the
expert should be asked to explain the basis for his or her opinion and
the reason it differs with the DOT. The ALJ is responsible for
resolving the conflict and must explain in the determination or
decision how the conflict was resolved. Unlike the court's holding, our
procedures do not place an affirmative responsibility on the ALJ to ask
the expert about the possibility of a conflict between the evidence
that he or she provides and the information in the DOT.
The Tenth Circuit held, that as a preliminary step, before an ALJ
may rely on expert vocational evidence, to support a finding of
nondisability, the ALJ must ask the expert whether his or her testimony
is consistent with the DOT.
Explanation of How SSA Will Apply the Haddock Decision Within the
Circuit
This Ruling applies only to cases in which the claimant resides in
Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming at the time of
the decision (ALJ hearing or Appeals Council levels of review).
Before relying on expert vocational evidence to support a decision
of nondisability at step five of the sequential evaluation process
(step eight in continuing disability review claims), an ALJ will ask
the expert whether the expert's evidence is consistent with information
provided in the DOT. If the evidence from the vocational expert differs
from the DOT, the ALJ will elicit a reasonable explanation for any
conflict
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between the DOT and the expert's evidence. The ALJ will explain in the
decision how he or she resolved the conflict between the vocational
expert's evidence and information in the DOT and will give the reasons
for accepting or rejecting the vocational expert's evidence.
We intend to clarify the regulations at issue in this case, 20 CFR
404.1566 and 416.966, through publication of an SSR and we may rescind
this Ruling when the clarification is made.
[FR Doc. 00-15426 Filed 6-19-00; 8:45 am]
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