[Federal Register Volume 65, Number 119 (Tuesday, June 20, 2000)]
[Notices]
[Pages 38312-38314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15426]



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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

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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]
BILLING CODE 4191-02-F