Very Recent Decisions from Three Separate Circuit Courts Clarify ALJ’s’ Obligations Under SSR 00-4p
As we know, SSR 00-4p, among other things, obligates an ALJ to identify and resolve any inconsistencies between the DOT and a VE’s testimony. Cases evaluating this issue have typically set the bar fairly low in terms of the nature of the ALJ’s obligations under 00-4p. In particular, courts have tended to find that unless the inconsistency was very obvious and/or was brought to the attention of the ALJ (usually, what the court means here is that the Claimant waives this issue if it is not brought to the ALJ’s attention), the ALJ does not have any, or much, obligation to “play detective” and look behind the VE’s testimony. Three decisions issued recently by the Eleventh, Fourth, and Second Circuits are very favorable to Claimants on this issue.
In Washington v. Comm’r of Soc. Sec., 906 F.3d 1353 (11th Cir. 2018), issued in October 2018, the court held that “[the ALJ’s obligations under 00-4p] is not fulfilled simply by taking the VE at his word that the testimony comports with the DOT. When the record reveals an apparent conflict between the VE’s testimony and the DOT.” Here, and very notably, the 00-4p issue was preserved, in the court’s opinion, over the Agency’s argument that the issue had been waived at the administrative level because the representative did not bring it to the ALJ’s attention. This was so based on the court’s interpretation, with a detailed survey of Agency policy and of how other circuits have resolve the issue, of “apparent inconsistency”, because the VE’s testimony that the Claimant was able to perform the job identified despite a limitation to occasional fingering, what is in direct conflict with information in the DOT companion volume, Selected Characteristics. Thus, Washington joined in the interpretation of an ALJ’s obligations under 00-4p, as found in the Seventh, Eighth and Tenth circuit’s (e.g. Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008); Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014); Pearson v. Colvin, 810 F.3d 204 (4th Cir. 2015); Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)). Congratulations to Michael Steinberg, Esq. of Tampa Florida for obtaining this very helpful decision.
In Thomas v. Berryhill, 2019 U.S. App. LEXIS 1312 (4th Cir., January 15, 2019) there were two favorable aspects to the court’s decision to remand for further proceedings. First, at issue was the ALJ’s evaluation of the Claimant’s mental RFC, which the court held “contains too little logical explanation” for meaningful judicial review. Id. at *6. In particular, the court emphasized that (1) the ALJ had drew no explicit conclusions about how the Claimant’s mental limitations affected her ability to work on a full-time basis, (2) the ALJ did not explain sufficiently how she weighed the evidence contradicting her finding that the Claimant had no mental limitations at all, (3) the ALJ had expressed her RFC finding first, and only then concluded that the limitations were consistent with the RFC and (4) although the ALJ stated that the Claimant could not work at a “production rate or demand pace,” she had given no insight into what those terms mean.
Very interestingly, the court went on to discuss an issue related to 00-4p, “since it is likely to come up again below…” Id. at *9 (it is unclear whether the court considered this issue sua sponte, or whether it was an issue briefed by the parties). With respect to 00-4p, the court held that “an ALJ cannot rely unquestioningly on a VE’s testimony,” but rather must identify and elicit a reasonable explanation for any conflicts between the testimony and the DOT. Id. at *10-11 (citing Pearson). The court then identified as an apparent contradiction the VE’s identification of jobs with a “reasoning level” of 2 (requiring detailed tasks) with the RFC/hypothetical assumption that Claimant was limited to “short, simple instructions,” may not be able to carry out detailed but uninvolved instructions required by reasoning level 2. Id. at *12. Congratulations to Dana Duncan, Esq. of Nekoosa, Wisconsin for obtaining this very helpful decision.
Finally, in Lockwood v. Comm’r of SSA, No. 17-2591-cv, 2019 U.S. App. LEXIS 2104 (2d Cir. Jan. 23, 2019) the Second Circuit became another circuit which has held regarding the 00-4p requirement to identify and obtain a reasonable explanation for inconsistencies, that a limitation to no overhead reaching was inconsistent with the DOT descriptions of the jobs identified by the VE, since the jobs required occasional or frequent reaching/handling. The critical discussion in this decision is repeated here:
But while “this Court could guess” what the three jobs [the vocational expert] identified “require in reality, it [was] the [Commissioner’s] duty to elicit an explanation from [Heller] as to whether th[ose] occupations actually require . . . overhead reaching.” Spears v. Colvin, No. 15-CV-6236, 2016 U.S. Dist. LEXIS 127084, 2016 WL 4973890, at *5 (W.D.N.Y. Sept. 19, 2016). The importance of teasing out such details is precisely why the Commissioner bears an “affirmative responsibility” to ask about “any possible conflict between [vocational expert] evidence and information provided in the [Dictionary].” SSR 00-4p (emphasis added). Absent such an inquiry, the Commissioner lacks a substantial basis for concluding that no such conflicts in fact exist. [citing Washington and Pearson]
Lockwood, 2019 U.S. App. LEXIS 2104, at *13-14. Congratulations to Patrick Radel, Utica, New York, for obtaining this very helpful decision.
Lockwood therefore explicitly joins Washington, Pearson, et.al., and dovetails nicely also with Thomas. Washington, Thomas and Lockwood are three really nice, very recent decisions that we need to take full advantage of.