38312 Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Notices

1The decision was issued on July 13, 1999. On

November 9, 1999, the Tenth Circuit Court of

Appeals amended the decision on denial of

rehearing.

2Employment 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).

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.

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.

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.

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

Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Notices 38313

3The court cited Social Security Ruling 96–9p.

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.’’

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. §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

38314 Federal Register / Vol. 65, No. 119 / Tuesday, June 20, 2000 / Notices

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

DEPARTMENT OF TRANSPORTATION

Coast Guard

[USCG 2000–7502]

Merchant Marine Personnel Advisory

Committee

AGENCY: Coast Guard, DOT.

ACTION: Notice of charter renewal.

SUMMARY: The Secretary of

Transportation has renewed the charter

for the Merchant Marine Personnel

Advisory Committee (MERPAC) to

remain in effect for a period of two years

from May 20, 2000, until May 20, 2002.

MERPAC is a federal advisory

committee constituted under 5 U.S.C.

App. 2. Its purpose is to advise the

Coast Guard on matters relating to the

training, qualification, licensing,

certification and fitness of seamen

serving in the U.S. merchant marine.

The charter is available on MERPAC’s

Internet web page at http://

www.uscg.mil/hg/g-m/advisory/

merpac/merpac.htm.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Luke B. Harden,

Acting Executive Director, or Mr. Mark

C. Gould, Assistant to the Executive

Director, Commandant (G–MSO–1), U.S.

Coast Guard, 2100 Second Street SW,

Washington, DC 20593–0001, telephone

202–267–0229.

Dated: June 14, 2000.

Howard L. Hime,

Acting Director of Standards.

[FR Doc. 00–15513 Filed 6–19–00; 8:45 am]

BILLING CODE 4910–15–U

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

RTCA, Special Committee 172; Future

Air-Ground Communications in the

VHF Aeronautical Data Band (118–137

MHz)

Pursuant to section 10(a)(2) of the

Federal Advisory Committee Act (Pub.

L. 92–463, 5 U.S.C., Appendix 2), notice

is hereby given for Special Committee

172 meeting to be held July 26–27, 2000,

starting at 9:00 a.m. The meeting will be

held at RTCA, 1140 Connecticut

Avenue, NW., Suite 1020, Washington,

DC 20036.

The agenda will be as follows: July 26:

(1) Plenary Convenes at 9:00 a.m.; (2)

Introductory Remarks; (3) Review and

Approve Agenda; (4) Working Group

(WG)–2, VHF Data Radio Signal-inSpace Minimum Aviation System

Performance Standards, review

comments on final work (written inputs

only) and vote on DO–224A (distributed

in advance).

Note: This is a single-purpose meeting

convened solely for the purpose of

completing the final draft of DO–224A. No

comments will be accepted that were not

submitted for review, in writing, prior to the

meeting. July 27: (5) WG–2/Plenary as

necessary; (6) Other Business; (7) Dates and

Locations of Next Meeting; (8) Closing.

Attendance is open to the interested

public but limited to space availability.

With the approval of the chairman,

members of the public may present oral

statements at the meeting. Persons

wishing to present statements or obtain

information should contact the RTCA

Secretariat, 1140 Connecticut Avenue,

NW., Suite 1020, Washington, DC

20036; (202) 833–9339 (phone); (202)

833–9434 (fax); or http://www.rtca.org

(web site). Members of the public may

present a written statement to the

committee at any time.

Issued in Washington, DC, on June 14,

2000.

Jane P. Caldwell,

Designated Official.

[FR Doc. 00–15537 Filed 6–19–00; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

RTCA, Special Committee 194; ATM

Data Link Implementation

Pursuant to section 10(a)(2) of the

Federal Advisory Committee Act (Pub.

L. 92–463, 5 U.S.C., Appendix 2), notice

is hereby given for Special Committee

194 meeting to be held July 10–13, 2000,

starting at 9:00 a.m. The meeting will be

held at RTCA, 1140 Connecticut Ave.,

NW, Suite 1020, Washington, DC 20036.

The agenda will include: July 10:

Working Group (WG) 3, Human Factors.

July 11: WG–1, Data Link Ops Concept

& Implementation Plan; WG–3, Human

Factors; WG–4, Service Provider

Interface. July 12: WG–1, Data Link Ops

Concept & Implementation Plan; WG–3,

Human Factors; WG–4, Service Provider

Interface. July 13: Plenary Session: (1)

Welcome and Introductory Remarks; (2)

Review Agenda; (3) Review/Approve of

Previous Meetings; (4) Working Group

Reports; (5) Other Business; (13) Date

and Location of Future Meetings; (14)

Closing.

Attendance is open to the interested

public but limited to space availability.

With the approval of the chairman,

members of the public may present oral

statements at the meeting. Persons

wishing to present statements or obtain

information should contact the RTCA

Secretariat, 1140 Connecticut Avenue,

NW., Suite 1020, Washington, DC.

20036; (202) 833–9339 (phone); (202)

833–9434 (fax); or http://www.rtca.org

(web site). Members of the public may

present a written statement to the

committee at any time.

Issued in Washington, DC, on June 14,

2000.

Jane P. Caldwell,

Designated Official.

[FR Doc. 00–15538 Filed 6–19–00; 8:45 am]

BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Notice of Intent To Rule on Application

To impose and Use a Passenger

Facility Charge (PFC) at Monterey

Peninsula Airport, Monterey, CA

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of Intent to Rule on

Application.

SUMMARY: The FAA proposes to rule and

invites public comment on the

application to impose and use a PFC at

Monterey Peninsula Airport under the

provisions of the Aviation Safety and

Capacity Expansion Act of 1990 (Title

IX of the Omnibus Budget

Reconciliation Act of 1990) (Public Law

101–508) and Part 158 of the Federal

Aviation Regulations (14 CFR Part 158).

DATES: Comments must be received on

or before July 20, 2000.

ADDRESSES: Comments on this

application may be mailed or delivered

in triplicate to the FAA at the following