Vocational Expert Testimony Which Conflicts with the Dictionary of Occupational Titles (“DOT”)

On December 4, 2000, the Commissioner issued Social Security Ruling 00-4p to address the situations where the vocational expert’s (“VE’s”) testimony conflicts with the Dictionary of Occupational Titles (“DOT”). Due to the issuance of SSR 00-4p, this topic has been rewritten so as to include only those cases dated after the issuance of this important ruling that apply the ruling.

SSA issued SSR 00-4p in light of the fact that the circuit courts of appeals continued to issue conflicting decisions regarding whether an ALJ may rely on a VE’s testimony, even if it conflicts with the DOT. As the Third Circuit noted in Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003), four circuits had “held that an ALJ may base his conclusions on a vocational expert’s testimony that conflicts with the DOT.” Id. at 126 n.8, citing Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000); Jones v. Apfel, 190 F.3d 1224, 1229-1230 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000); Conn v. Sec’y of Health & Human Servs., 51 F.3d 607, 610 (6th Cir. 1995); Johnson v. Shalala, 60 F.3d 1428, 1435 (5th Cir. 1995). However, the Eighth Circuit had held that “an ALJ always must prefer the DOT over the testimony of a vocational expert . . . , although the court seems to have quickly retreated from that bright-line rule.” Id., citing Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995) and Montgomery v. Chater, 69 F.3d 273, (8th Cir. 1995). Other circuits had adopted a “middle view” which requires “an ALJ to explain any decision to prefer the testimony of a vocational expert over the DOT.” Id., citing Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).

Precisely because of this continuing conflict between the circuits, SSA determined that there should be a single nationwide rule regarding the significance of the DOT for the evaluation of VE testimony and promulgated SSR 00-4p. Through SSR 00-4p, the Commissioner established a uniform, nationwide rule that “neither the DOT nor the VE evidence automatically ‘trumps’ where there is a conflict,” thereby abrogating prior case law to the contrary. This ruling further requires an ALJ to inquire about the consistency of VE testimony with the DOT and obtain a reasonable explanation for any inconsistency.

Applicable Regulations

20 C.F.R. §§ 404.1566, 416.966

These regulations provide that the SSA will take administrative notice of “reliable job information available from various governmental and other publications,” including, but not limited to, the Dictionary of Occupational Titles, published by the Department of Labor, and the use of vocational experts and other specialists.

Applicable Rulings

Social Security Ruling 00-4p provides that “adjudicators may not rely on evidence provided by a [Vocational Specialist], or other reliable source of occupational information if that evidence is based on underlying assumptions or definitions that are inconsistent with our regulatory policies or definitions.” This Ruling further provides that the ALJs have a duty to ask the VE to explain the conflict between the DOT and the VE’s testimony. Additionally, occupational evidence provided by VEs “generally should be consistent with the occupational information supplied by the DOT” and when there is an apparent unresolved conflict between the VE’s testimony and the DOT, the ALJ must elicit a reasonable explanation for the conflict before relying on the VE testimony to support a determination or decision about whether the claimant is disabled. As part of the ALJ’s duty to fully develop the record, the ALJ will inquire, on the record, as to whether or not there is such consistency.

The Ruling further explains that neither the DOT nor the VE testimony “automatically ‘trumps’ when there is a conflict.” The ALJ is required to resolve the conflict by determining if the explanation given by the VE is reasonable and provides a basis for relying on the VE testimony rather than the DOT information.

When vocational evidence provided by a VE is not consistent with information in the DOT, the ALJ must resolve this conflict before relying on the VE testimony to support a decision that the individual is or is not disabled. The ALJ will explain in the decision how he or she resolved the conflict and the resolution of the conflict “irrespective of how the conflict was identified.”

Applicable Case Law

Second Circuit

Where the VE and the ALJ both found that the claimant’s vocational capacity was for sedentary, semi-skilled positions, and the jobs identified by the VE were classified as light work, the court concluded that the Commissioner failed to demonstrate the existence of substantial gainful employment of a sedentary nature which the claimant was capable of performing. Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).

In Jasinski, an ALJ relied on vocational expert testimony in determining that the claimant was not disabled at Step Four based on the claimant’s ability to do her past relevant work as she actually performed that job. Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003). The claimant argued that the vocational expert’s testimony conflicted with the DOT and therefore was not substantial evidence supporting the ALJ’s step-four decision. Id. at 184. The Second Circuit disagreed, making the distinction between past relevant work as actually performed and past relevant work as generally performed. Id. at 185. Because the ALJ made an as-actually-performed finding based on the claimant’s own testimony reiterated by the vocational expert, substantial evidence supported the ALJ’s step-four decision. There is no prohibition on a vocational expert confirming the claimant’s own testimony about the demands of a claimant’s past relevant work as actually performed. Id.

A New York district court noted that SSR 00-4p, enacted after the ALJ rendered his decision and therefore not applicable here, is consistent with the Second Circuit’s case law requiring that a discrepancy between the VE’s testimony and the DOT be explained and supported by the substantial evidence of record. Gravel v. Barnhart, 360 F. Supp.2d 442, 451 (N.D.N.Y. 2005), citing Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984); Jasinski v. Barnhart, 341 F.3d 182, 185-86 (2d Cir. 2003).

In Kuleszo, the court held that even assuming that the ALJ’s residual functional capacity was correct, the VE’s testimony did not provide substantial evidence to support the ALJ’s finding denying this case, in part, because the VE’s testimony conflicted with the DOT. Kuleszo v. Barnhart, 232 F. Supp.2d 44, 53 (W.D.N.Y. 2002). Specifically, the VE’s testimony that jobs as a cashier do not require fine manipulation “is at odds with the authoritative vocational information and common usage of the term” and VE testimony which “conflicts with the DOT fails to demonstrate the existence of substantial gainful employment which the claimant is capable of performing.” Id. at 54, citing Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984).

Where the VE improperly classified a claimant’s janitorial position as requiring only a “medium” level of physical exertion as set forth in the DOT when, in fact, the DOT classifies the job as heavy, the court held that the VE’s erroneous testimony invalidated the ALJ’s finding that the claimant could return to his past work. Valentin v. Barnhart, 339 F. Supp.2d 596, 600 (S.D.N.Y. 2004). In so holding, the court distinguished Jasinski v. Barnhart, 341 F.3d 182 (2d Cir. 2003), noting that “unlike the VE in this case who misstated the level of physical exertion by an entire level, the vocational expert in Jasinski modified the claimant’s past work from ‘light’ to ‘sedentary to light’ after the vocational expert had the opportunity to evaluate the claimant’s description of the job and all its attendant subtleties.” Id. at 600 n.4, citing Jasinski, 341 F.3d at 184-85.

In Sanchez v. Barnhart, 329 F. Supp.2d 445 (S.D.N.Y. 2004), the court noted that the VE neither informed the ALJ of the discrepancy between her opinion and the DOT, nor provided a reasonable explanation for the conflict between her testimony regarding the exertional levels of certain jobs and with the DOT. Id. at 453. While the VE’s error only pertained to two of the four jobs proffered in her testimony, the court stated that it was “in no position to conclude that the remaining two jobs exist in sufficient numbers in the national and local economy as to satisfy the fifth prong of the disability test and preclude remand.” Id. at 454. The court concluded that remand was warranted as the VE’s:

incorrect denial of any conflict between her testimony and the DOT effectively deprived the ALJ of an opportunity to inquire into the nature of the discrepancy and make a precise and informed decision in applying the medical evidence to the universe of jobs available in the economy, as required in the fifth part of the disability test.

Id.

In a case decided prior to the promulgation of SSR 00-4p, a Connecticut district court noted that the DOT is one of several sources of which the ALJ may take administrative notice in determining whether unskilled, sedentary, light, and medium jobs exist. Bellamy v. Apfel, 110 F. Supp.2d 81, 92 (D. Conn. 2000), citing 20 C.F.R. § 404.1566(d). While the regulations also allow for the use of a VE, they do not require the VE to base his or her testimony on the DOT. Id., citing 20 C.F.R. § 404.1566; Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000).

Third Circuit

In Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003), the Third Circuit noted that SSR 00-4p “puts the burden on the ALJ to uncover the existence of any conflicts between the VE’s testimony and the DOT.” Id. at 209. Given the conflict between the VE’s testimony and the DOT as to each occupation identified by the VE, “and the failure of the VE and the ALJ to acknowledge (much less explain) the conflict,” the court concluded that the VE’s testimony did not by itself provide substantial evidence of a significant number of jobs in the economy that the claimant could perform. Id. See also Burns v. Barnhart, 312 F.3d 113 (3d Cir. 2002) (holding that, on remand, in accordance with SSR 00-4p, any inconsistencies between the VE’s testimony and information in the DOT had to be explained by the VE and the ALJ). But see Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005) (holding that even though “inconsistencies between vocational expert testimony and DOT information” may warrant reversal, remand was not warranted in this case as the VE testified that he was “simply providing examples” and inconsistencies were not present as to each of the jobs identified).

In Jones, the claimant argued that the jobs identified by the VE in response to the ALJ’s hypothetical question, providing the examples of cashier, personal attendant, and telephone operator, are jobs that are not generally performed at the sedentary level. Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The court rejected this argument, noting that, according to the DOT, the job of personal attendant is light work, the jobs of cashier and telephone operator are listed as sedentary. Id. at 505-506. “Moreover, the ALJ’s three enumerated occupations are merely examples, and not a complete list, of the sedentary work that Jones can perform.” Id. at 506. The court distinguished its decision in Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003), because, in Boone, “there was a much more explicit conflict, a conflict as to ‘each occupation identified by the VE,’ and the VE’s testimony was riddled with hesitation.” Id. at 506 n. 6.

The Third Circuit noted in Rutherford that SSR 00-4p can provide relief when the VE “provides evidence about the requirements of a job or occupation” which conflicts with the DOT. Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005). The court reaffirmed its holding in Boone v. Barnhart, 353 F.3d 203, 208 n. 11 (3d Cir. 2004) that “inconsistencies between vocational expert testimony and DOT information may . . . warrant reversal as a result — even when they do not come within the literal obligation imposed by SSR 00-4p.” Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005). However, in this case, the Third Circuit concluded that the VE’s testimony provided substantial evidence for ALJ’s conclusions, despite possible inconsistencies between the VE’s testimony and the DOT. Id. The court explained that this case bore a closer resemblance to Jones v. Barnhart, 364 F.3d 501, 506 (3d Cir. 2004) than to Boone, stating:

First, the vocational expert here explicitly stated that other occupations would be available and that he was simply providing examples, so his testimony was not intended to provide a complete list of occupations available to an individual with Rutherford’s limitations. Second, inconsistencies are not present as to each of the jobs that the expert did list.

Id. While the court acknowledged that there was one claimed inconsistency, relating to two jobs identified by the expert with specified vocational preparation classifications that rendered them beyond the ALJ’s limitation to unskilled work, “they are simply not egregious enough — either in number or in substance — to bring into question the ALJ’s reliance on the expert testimony as a whole.” Id. at 558.

In Diehl, the court rejected the claimant’s assertion that the ALJ failed to comply with Social Security Ruling 00-4p. Diehl v. Barnhart, 357 F. Supp.2d 804, 820 (E.D. Pa. 2005). The court found that there was no material conflict between the DOT and the VE evidence, which assumed that the claimant could perform some cashier, security, packing, food preparation, usher, or attendant jobs. Id. The court noted that while the ALJ did not ask the VE specifically whether there were any conflicts between his testimony and the DOT, such an inquiry was unnecessary given the detailed questioning of the VE by both the ALJ and the claimant’s attorney and given the fact that the VE’s testimony demonstrated that “the VE was quite familiar with the DOT, as he referred to it specifically and repeatedly.” Id. at 823.

In a case decided prior to Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2003), a Pennsylvania district court rejected the claimant’s argument that the ALJ erred in failing to inquire of the VE whether his testimony conflicted with the DOT. Thompson v. Barnhart, 281 F. Supp.2d 770, 782 (E.D. Pa. 2003). The court held that SSR 00-4p does not require the ALJ to “make a mechanical inquiry on this point any time a VE testifies,” explaining that SSR 00-4p “makes clear that such a duty arises only where a conflict ‘has been identified,’ or ‘[w]here there is an apparent unresolved conflict between VE . . . evidence and the DOT.’” Id. (emphasis added). The court relied on Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002) in holding that since the hearing contained no mention of any possible conflict, the ALJ was under no duty to make such an inquiry. Id.

Fourth Circuit

In Oxendine v. Massanari, 181 F. Supp.2d 570 (E.D.N.C. 2001), the claimant, who was functionally illiterate, argued that the ALJ’s decision was not supported by substantial evidence because the VE’s testimony was “vague and erroneous in almost every instance and because the ALJ made no attempt to resolve the conflicts in the evidence.” Id. at 571. For example, while the ALJ cited jobs that the claimant could perform, which were purportedly “unskilled,” several jobs required a language development of “2” and/or were actually semi-skilled. Id. at 571-72. The court noted that the record reflected only the DOT classifications as a factual basis for the VE’s opinions. Id. at 572. The court agreed with the Commissioner that since the claimant’s administrative decision became “final” before the December 4, 2000 effective date of SSR 00-4p, this Ruling was not applicable. Id. at 573. Nevertheless, the court held that Fourth Circuit precedent did not support the defendant’s position on the merits, and that SSR 00-4p confirmed the correctness of the analogous principle underlying the decision in English v. Shalala, 10 F.3d 1080, 1084-85 (4th Cir. 1993), in which the court held that an ALJ’s reliance on a VE’s testimony based on an outdated edition of the DOT required a remand. Id. at 573. The court noted that there is an inconsistency among the circuits regarding conflicts between a VE’s testimony and the provisions of the DOT and determined that the Fourth Circuit has taken the “middle ground rule” in English, explaining that the:

principle underlying English also requires the conclusion that a VE who purports to rely on the DOT for his opinion must rely on a correct recitation of the DOT. Under English, it is only logical that, if a VE’s testimony is based on a misunderstanding or misstatement of DOT criteria, then an ALJ’s decision based, in turn, on such testimony cannot be supported by ‘substantial evidence.’

Id. at 574. The court also stated that its analysis was supported by SSR 00-4p which “makes clear that the ALJ has an affirmative duty to reconcile apparent conflicts.” Id. Since this ruling “confirms the correctness of the analogous principle underlying the ruling in English,” and under these circumstances, the ALJ’s decision was not based on substantial evidence. Id.

Fifth Circuit

In Bagwell v. Barnhart, 338 F. Supp.2d 723 (S.D. Tex. 2004), the claimant argued that the ALJ erred by relying on VE testimony regarding which conflicted with the DOT in violation of SSR 00-4p. Id. at 737. The court noted that neither the VE nor the ALJ recognized or discussed the conflict between the VE’s testimony that an individual with the claimant’s functional capacity could perform the job of library page with the DOT job description of this job as requiring frequent stooping. Id. at 738. “Likewise, neither the VE nor the ALJ articulated plausible reasons for finding the VE’s testimony more credible under the circumstances.” Id. The court noted that while the other two jobs identified by the VE do not require frequent stooping, the VE did not distinguish as to each job whether work exists in significant numbers in the national economy for the particular job. Accordingly, the court concluded that there was insufficient evidence demonstrating that, absent the library page job, that the claimant could perform work that exists in significant numbers in the national economy. Id.

The deceased claimant’s husband argued in Johnson v. Barnhart, 285 F. Supp.2d 899 (S.D. Tex. 2003) that the ALJ erred by relying on vocational expert testimony regarding other work that the deceased claimant could perform because the VE’s testimony conflicted with the DOT, in violation of SSR 00-4p. Id. at 912-13. The court noted that SSR 00-4p was effective December 4, 2000 and was not retroactive and was inapplicable to this case. Id. at 913. The court rejected the claimant’s argument that the ALJ must reconcile conflicts between the VE’s testimony and contrary DOT provisions, stating that “to the extent SSR 00-4p establishes such a duty on the part of the ALJ, it is not applicable to the case at bar due to the fact that it was promulgated after the ALJ’s hearing in this case.” Id. at 913-14.

A Texas district court noted that although the claimant argued that the ALJ violated SSR 00-4p by failing to recognize and resolve the conflict between the DOT and the VE’s testimony of the VE, SSR 00-4p was not in effect at the time of the ALJ’s decision on June 6, 2000. Mittag v. Barnhart, 365 F. Supp.2d 809, 815 n.1 (S.D. Tex. 2004).

Sixth Circuit

In Teverbaugh v. Comm’r of Soc. Sec. 258 F. Supp.2d 702 (E.D. Mich. 2003), the court noted that it was undisputed that the ALJ failed to question the VE regarding whether the jobs she identified as being consistent with the claimant’s RFC conflicted with the DOT and the VE failed to provide the codes for the positions that she listed, which would have enabled the claimant to consult the DOT to determine whether, in fact, a conflict existed. Id. at 706. The court held that in order to meet the Commissioner’s burden at step five, the ALJ was required to ensure that there was no conflict between the VE’s testimony and the DOT as required by SSR 00-4p and the ALJ “failed to ensure there was no conflict, and there is no apparent means of otherwise determining whether, in fact, the jobs identified are ones that Plaintiff can perform (because the VE failed to provide the job codes).” See also Young v. Comm’r of Soc. Sec., 351 F.2d 644, 651-52 (E.D. Mich. 2004) (remanding the case, in part, because each of the jobs cited by the VE have at least a reasoning level of “2,” which exceed the claimant’s capabilities and the ALJ failed to comply with SSR 00-4p in resolve the conflict between the VE’s testimony and the DOT).

Seventh Circuit

In Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008), the Seventh Circuit held that “[b]ecause the ALJ’s ruling was premised entirely on testimony that conflicted with the DOT and otherwise was vague and confusing, this case must be remanded for further proceedings.” Id. at 465. On appeal, the Commissioner conceded that the VE’s testimony regarding the extremes of heat and cold and vision problems related to the jobs cited by the VE and the DOT conflict, but disagreed that such conflict warranted remand. Id. at 462. In Overman, the ALJ asked the VE whether his testimony conflicted with the DOT and the VE testified, “wrongly as it turns out,” that it was not. Id. at 463. Even though the claimant’s counsel never identified any apparent conflicts at the time of the hearing, the claimant argued that the “discrepancies between the DOT definitions and the VE’s testimony were so obvious that the ALJ’s duty to investigate was triggered.” Id. The Commissioner argued that the conflicts were not obvious and that the claimant “forfeited any argument under SSR 00-4p because he did not raise it at the hearing.” Id

However, the court explained that “because SSR 00-4p imposes an affirmative duty on the ALJ to inquire into and resolve apparent conflicts, a claimant’s failure to raise a possible violation of SSR 00-4p at the administrative level does not forfeit the right to argue later that a violation occurred.” Id., citing Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (calling language to the contrary in Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002) dicta). The court further elaborated:

The Commissioner attempts to distinguish Prochaska by pointing out that in that case the ALJ violated SSR 00-4p at the first step by never asking the VE whether his testimony was consistent with the DOT. But Prochaska makes clear that the ALJ’s affirmative duty extends beyond merely asking the VE whether his testimony is consistent with the DOT; the ALJ also must “elicit a reasonable explanation for any discrepancy.” Prochaska, 454 F.3d at 735 (quoting Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999)). Overman was denied the opportunity to appeal at the administrative level, and he raised the SSR 00-4p issue before the district court, so he has not forfeited the argument. See Prochaska, 454 F.3d at 735.

Id. The court held that the conflicts between the VE’s testimony and the DOT “should have been apparent to the ALJ.” Id. at 464, The court held that given the conflict with the DOT, “the record does not support the conclusion that [the claimant] can perform either of the two positions identified by the VE.” Id. at 465. The ALJ based his determination that the claimant could perform other work in the economy on the VE’s flawed testimony, which is not supported by substantial evidence. Accordingly, the court reversed and remanded. Id.

In Ketelboeter v. Astrue, 550 F.3d 620 (7th Cir. 2008), the claimant alleged that the ALJ erred in failing to ask the VE if his testimony conflicted with the DOT. Id. at 625. Where the VE found a job for the claimant as locker-room attendant, this was problematic since the job requires some overhead work for which this claimant was restricted. Id. at 625-26. However, the court found this error harmless as there were still the jobs of bench handler, assembler, or office helper that numbered plenty in the economy. Id. at 626.

In Prochaska v. Barnhart, 454 F.3d 731 (7th Cir. 2006), the ALJ did not ask the vocational expert whether the expert’s analysis conflicted with the Dictionary of Occupational Titles (DOT).  Id. at 735.  Nor did the claimant’s attorney ask the vocational expert about the DOTId.  The claimant argued in the district court that the ALJ did not fulfill the ALJ’s affirmative responsibility under SSR 00-4p to inquire about the DOTId.  The district court rejected that argument under the authority of Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002), which held that a claimant forfeits any objection to a vocational expert’s testimony based on its discrepancy with the DOT if the claimant’s attorney fails to cross-examine the vocational expert about that publication.  Id.  On appeal to the Seventh Circuit, the claimant sought enforcement of SSR 00-4p and argued that the vocational expert’s testimony conflicted with the DOTId. at 736.  In response, the Commissioner disavowed reliance on the waiver principle of Donahue, but argued that the ALJ’s failure to inquire about the DOT was harmless error.  Id. at 735-36.  The Seventh Circuit ruled that it could not determine whether in fact the vocational expert’s testimony conflicted with the DOT and held that the ALJ should have determined “in the first instance” whether the vocational expert’s testimony departed from that publication.  Id. at 736.  Therefore, the Seventh Circuit vacated the district court’s judgment and remanded the Commissioner’s final decision for readjudication. Id.

In Donohue v. Barnhart, 279 F.3d 441 (7th Cir. 2002), the claimant argued that the VE’s testimony contradicted the DOT when testifying that an illiterate person could perform certain jobs. Id. at 444. The court rejected this argument, holding that the ALJ was entitled to accept the vocational expert’s testimony that there were jobs that an illiterate person, such as the claimant, could perform even if such testimony conflicted with the DOT. Id. at 445. In so finding, the court noted that according to the DOT, literacy “(defined as a vocabulary of 2,500 words, the ability to read about 100 words a minute, and the ability to print simple sentences)” is mandatory for “every job in the economy.” Id. at 445. However, the court noted that (1) the DOT is published by the Department of Labor as a tool; (2) it does not claim to contain rules of law; and (3) no statute or regulation gives it binding force. Id. at 445. Also, “[t]he Commissioner of Social Security is entitled to examine independently those questions covered by the Dictionary—something that the Dictionary itself proclaims when observing that users should rely on better data if they have any in their own possession.” Id. Thus, the ALJ must be authorized to accept a vocational expert’s testimony when his experience and knowledge in a given situation exceeds that of the Dictionary’s authors. Id. at 446. Additionally, the Seventh Circuit pointed out that when no one questions the vocational expert’s grounds or reasoning, an ALJ is authorized to accept the vocational expert’s conclusion, even if that conclusion differs from the DOT, “for the Dictionary, after all, just records other unexplained conclusions and is not even subject to cross-examination.” Id. at 446. Nevertheless, the court also noted that if the vocational expert’s grounds for his conclusions are questioned at the hearing, the ALJ should inquire as to whether the professed expert’s conclusions are reliable. Id. The Seventh Circuit elaborated further that Social Security Ruling 00-4p requires the ALJ to “‘[e]xplain [in the] determination or decision how any conflict [with the Dictionary] that has been identified was resolved,’” and that the ruling requires an explanation only if the discrepancy was “identified” by either the ALJ or the claimant and held that “[r]aising a discrepancy only after the hearing, as Donahue’s lawyer did, is too late.” Id. at 446-47. However, in this case, since no questions were asked that exposed any shortcomings in the vocational expert’s data or reasoning, the ALJ correctly reached the conclusion she did. Id. at 447.

In Jens, the claimant argued that the ALJ erroneously relied on vocational expert testimony regarding the demands of his past relevant work. Jens v. Barnhart, 347 F.3d 209, 213 (7th Cir. 2003). The claimant relied on the DOT that classified his past relevant work as light work, not sedentary work. The Seventh Circuit disagreed, noting that at issue was whether the claimant could do his past relevant work as actually performed, not as generally performed and here, the claimant’s work, as described by him, conformed to the VE’s testimony in that it required him to stand for one hour; walk for one hour; sit for six hours; and lift less than one pound, which qualify as “sedentary work,” rather than “light work.” Id. In any case, the ALJ could rely on vocational expert testimony that was inconsistent with the DOT. Id., citing Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000).

In Fischer v. Barnhart, 256 F. Supp.2d 901 (E.D. Wis. 2002), the claimant argued that the ALJ was required to follow SSR 00-4p and elicit a reasonable explanation of the differences between the DOT and the VE’s testimony regarding whether certain jobs should be classified as simple, unskilled or semi-skilled. Id. at 910. The court noted that in order to rely on a VE’s testimony, the ALJ is required to “elicit a reasonable explanation” for the discrepancies as required by SSR 00-4p. “Before the ALJ could conclude whether or not the discrepancies between the VE and the DOT mattered, it was incumbent upon him to analyze the nature and extent of those discrepancies.” Id. The ALJ determined that the discrepancies did not matter as “even 1,500 jobs in the Milwaukee area have been found to be a significant number.” Id. The court criticized the ALJ’s findings, stating:

But without discussing and resolving any discrepancies between the DOT and the VE, how can the ALJ conclude how many jobs actually exist? In this regard, either a new hearing to elicit clarifying testimony from the VE, or supplemental report from the VE, would have been beneficial. But the ALJ did neither; he relied on prior testimony from a VE and unsuccessfully attempted to fashion an explanation which dispensed with differences between her testimony and the DOT. His attempts are not persuasive, and his determination at step five is not supported by substantial evidence.

Id.

In Novak, the plaintiff argued that the VE’s testimony regarding the qualifications required for bench-assembly jobs conflicted with information in the DOT and that, under SSR 00-4p published December 4, 2000, the ALJ was obligated to resolve this conflict. Novak v. Barnhart, 180 F. Supp. 2d 990, 1002 (E.D. Wis. 2001). However, this argument failed because it was not clear that a conflict exists. The court noted that no conflict was called to the ALJ’s attention at the hearing; and the ruling did not apply where, as here, the hearing was held before the ruling was published. Id.

The court held that because the claimant failed to raise the issue that the VE’s testimony conflicted with the DOT at the hearing, the ALJ was entitled to rely on the VE’s numbers. Samuel v. Barnhart, 295 F. Supp.2d 926, 957 (E.D. Wis. 2003).

A Wisconsin district court rejected the claimant’s argument that the VE’s testimony regarding the qualifications required for bench-assembly jobs conflicted with DOT and that, in accordance with SSR 00-4p, the ALJ was obligated to resolve this conflict. Novak v. Barnhart, 180 F. Supp.2d 990, 1002 (E.D. Wis. 2002). The court explained that it was not clear that a conflict existed as none was called to the ALJ’s attention at the hearing and SSR 00-4p, which was published on December 4, 2000, did not apply because the hearing was held before the ruling was published. Id.

Eighth Circuit

In Renfrow v. Astrue, 496 F.3d 918 (8th Cir. 2007), the ALJ relied on vocational-expert testimony for a step-five decision without fulfilling the ALJ’s “affirmative responsibility” under SSR 00-4p to ask the vocational expert whether the expert’s testimony was consistent with the DOTId. at 919-21.  The district court affirmed the ALJ’s finding of non-disability.  Id. at 920.  On appeal to the Eighth Circuit, the parties agreed that the ALJ failed to inquire about the DOT, but disagreed whether the ALJ’s error was harmless.  Id. at 921.  The Eighth Circuit sided with the Commissioner and found that the ALJ’s error was harmless because there was no apparent conflict between the vocational expert’s testimony and the DOTId. at 921.

In a case where the claimant died from his heart condition and his wife was substituted as a party, the Eighth Circuit held that substantial evidence supported the determination that there were a significant number of jobs in the economy that the claimant could perform. Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 979 (8th Cir. 2003). The court rejected the claimant’s argument that the VE’s testimony conflicted with the DOT because the jobs cited required a higher Specific Vocational Preparation (SVP) than the claimant had. The court noted that one of the jobs cited required an SVP of 2, which made it an unskilled position under SSR 00-4p and the other two jobs required an SVP of three or four and the claimant’s work history indicated that he had worked at jobs with equally high SVP ratings. Id.

While the claimant did not raise the issue, the court, in carrying out its duty to carefully analyze the evidence, addressed the issue of whether the claimant retained the ability to perform her past relevant work, both as the work was performed and as generally performed in the national economy, i.e., as described in the DOT. Groat v. Barnhart, 282 F. Supp.2d 965, 969 (S.D. Iowa 2003). In this case, the ALJ found that the claimant was able to do her past work as an apartment house manager as it is described in the DOT, which the VE identified as DOT #186.167-018 and claimed that the DOT classified this work as sedentary. However, in fact, the DOT classifies this job as requiring the ability to do light work activity. Thus, there was no difference between the way the claimant performed her past work and the way it is defined in the DOT,  and the ALJ relied on the mistaken testimony of the VE in finding that the claimant could perform her past work as an apartment manager. Id. The court held that because the job of apartment manager requires the ability to do light work, both as the DOT describes it and as performed by the claimant, and because the ALJ’s standing and walking limitations did not allow for more than sedentary jobs, the claimant met her burden of showing that she was unable to return to any of her past relevant work. Id. at 970.

A Minnesota district court held that the ALJ’s limitation that the claimant could perform work which involved simple, routine, repetitive, concrete, tangible tasks was not inconsistent with jobs requiring a level two reasoning requirement. Flaherty v. Halter, 182 F. Supp.2d 824, 850 (D. Minn 2001). As the court noted, “[a]lthough the DOT definition does state that the job requires the understanding to carry out detailed instructions, it specifically caveats that the instructions would be uninvolved — that is, not a high level of reasoning.” Id.

Ninth Circuit

In Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), the ALJ relied on vocational-expert testimony for a step-five decision without fulfilling the adjudicator’s “affirmative responsibility” under SSR 00-4p to ask the expert whether her testimony conflicted with the DOTId. at 1151-52.  The district court found no error, but the Ninth Circuit did.  Id. at 1152-54.  The Ninth Circuit enforced SSR 00-4p’s requirement for an ALJ to inquire about the consistency of a vocational expert’s testimony with the DOT and for the ALJ to obtain from the expert a “reasonable explanation” for any departure therefrom.  Id. at 1153-54.  Consequently, the appellate court vacated the district court’s judgment and ordered the Commissioner on remand to comply with SSR 00-4p.  In dictum the Ninth Circuit noted, “This procedural error could have been harmless, were there no conflict, or if the vocational expert had provided sufficient support for her conclusion so as to justify any potential conflicts, as in [Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)].  Instead, we have an apparent conflict with no basis for the vocational expert’s deviation.” Id. at 1154 n.19.

The Ninth Circuit noted that the ALJ failed to clarify how the claimant’s language and literacy abilities factored into his analysis that she could perform her past relevant work, given the fact that the claimant’s illiteracy conflicted with the DOT’s description of this work. Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001). The Ninth Circuit held “that in order for an ALJ to rely on a job description in the DOT that fails to comport with a claimant’s noted limitations, the ALJ must definitively explain this deviation.” Id. at 847. In Pinto, neither the ALJ nor the vocational expert addressed the impact of the claimant’s illiteracy on her ability to find and perform a similar job. Id.

Tenth Circuit

In Hackett v. Barnhart, 395 F.3d 1168 (10th Cir. 2005), the Tenth Circuit reversed and remanded “to allow the ALJ to address the apparent conflict between the claimant’s inability to perform more than simple and repetitive tasks and the level-three reasoning required by the jobs identified for her by the VE.” Id. at 1176. The court specifically noted that there was no indication in the record that the VE expressly acknowledged a conflict with the DOT or that he offered any explanation for the conflict. Id.

A Kansas district court noted that “SSR 00-4p imposes an affirmative duty on the ALJ to inquire about actual and apparent conflicts between VE testimony and information contained in the DOT.” Frazee v. Barnhart, 259 F. Supp.2d 1182, 1197 (D. Kan. 2003). The court held that the ALJ did not adequately resolve conflicts between the VE evidence and the DOT as required. Id. at 1199. Because the ALJ failed to elicit testimony from the VE to explain actual and apparent conflicts between the VE evidence and information contained in the DOT, substantial evidence did not support the ALJ’s decision. Id.

In Ricketts v. Apfel, 16 F. Supp.2d 1280 (D. Colo. 1998), the court agreed with the claimant that the VE’s suggested jobs were incompatible with the claimant’s limited ability to sit, stand, walk,
and reach with his left arm, and that “most jobs identified . . . require the personal trait of dealing with people and all but the usher job require frequent reaching and handling.” Id. at 1295.

Where the ALJ “failed to elicit a reasonable explanation” for the conflict between the VE’s testimony and the job requirements stated by the DOT, the ALJ was not justified in relying upon the VE’s testimony as “substantial evidence to support a determination of nondisability.” Troy ex rel. Daniels v. Apfel, 225 F. Supp.2d 1234, 1241 (D. Colo. 2002).

Eleventh Circuit

The court rejected the claimant’s argument that she was unable to perform the jobs noted by the ALJ and VE in Huff v. Halter, 169 F. Supp.2d 1318, 1320 (S.D. Ala. 2001). The claimant argued that the jobs required skills and abilities which the claimant did not possess. Id. at 1320-21. The court first noted that the Eleventh Circuit has held that “‘when the VE’s testimony conflicts with the DOT, the VE’s testimony ‘trumps’ the DOT.’” Id. at 1321, quoting Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999). The court also examined the DOT and rejected the claimant’s argument because two of the jobs noted were unskilled and existed in significant numbers in the national economy. Id. [Editor’s note: Jones was actually abrogated by SSR 00-4p].

In Lipson v. Barnhart, 347 F. Supp.2d 1182 (M.D. Ala. 2004), the court rejected the claimant’s argument that the vocational expert’s testimony that jobs existed that claimant was capable of performing were incompatible with the required level of skill as outlined in the DOT. Id. at 1188. In so holding, the court noted that the Eleventh Circuit has specifically held “that when the VE’s testimony conflicts with the DOT, the VE’s testimony ‘trumps’ the DOT.” Id., quoting Jones v. Apfel, 190 F.3d 1224, 1229-1230 (11th Cir. 1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000). [Editor’s note: Jones was actually abrogated by SSR 00-4p].

Practical Pointer
During the hearing always ask the VE on cross-examination to identify the DOT jobs by number (including the characteristics of the jobs such as lifting, reaching, handling, seeing, etc.) and to state whether he or she relied upon the DOT in forming his or her opinion. Depending on the case, you may want to ask the VE to explain the basis for any discrepancy between his or her testimony and the DOT.

An individual court may or may not grant a claimant judicial relief based on an ALJ’s failure to inquire about the DOT.  Thus, whenever possible, argue not only that the ALJ did not inquire about the DOT, but also that the vocational expert’s statements in fact conflicted with that publication.