UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-2100

JEFFERY S. GUITON,

Plaintiff – Appellant,

v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security 

Administration,

Defendant – Appellee.

Appeal from the United States District Court for the Middle

District of North Carolina, at Greensboro. James A. Beaty, Jr.,

Chief District Judge. (1:08-cv-00822-JAB-LPA)

Argued: September 19, 2013 Decided: November 7, 2013

Before AGEE, DAVIS, and DIAZ, Circuit Judges. 

Affirmed by unpublished opinion. Judge Diaz wrote the opinion, 

in which Judge Agee joined. Judge Davis wrote a separate 

opinion concurring in the judgment.

ARGUED: B. Michel Phillips, MARTIN & JONES, Decatur, Georgia, 

for Appellant. Jason W. Valencia, SOCIAL SECURITY 

ADMINISTRATION, Boston, Massachusetts, for Appellee. ON BRIEF: 

Charles L. Martin, Decatur, Georgia; J. Kevin Morton, WinstonSalem, North Carolina, for Appellant. Gill P. Beck, Assistant 

United States Attorney, Civil Division, OFFICE OF THE UNITED 

STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

DIAZ, Circuit Judge:

Jeffery S. Guiton appeals the district court’s order 

affirming the Commissioner of Social Security’s termination of 

his disability insurance benefits. Guiton contends that the 

decision to terminate his benefits is not supported by

substantial evidence, and that the Administrative Law Judge

(“ALJ”) erred in crediting testimony by a Vocational Expert

(“VE”) regarding the number of existing jobs in the economy that 

Guiton could perform. We agree with the district court that 

substantial evidence supports the Commissioner’s termination of 

Guiton’s benefits and find no error in the ALJ’s reliance on the 

VE’s testimony. Accordingly, we affirm. 

I.

Guiton, a North Carolina resident, first applied for 

benefits on July 31, 2000, after a doctor diagnosed him with a 

malignant brain tumor. Finding that Guiton was disabled within 

the meaning of the Social Security Act, the Commissioner awarded 

benefits. In October 2003, following a continuing disability 

review, the Commissioner found that Guiton’s condition was “no 

longer severe enough to be considered disabling,” and terminated 

Guiton’s benefits. Tr. 55.1

 1 “Tr.” refers to the administrative record transcript. 
4

Guiton appealed the termination of his benefits first to a 

state agency hearing officer, and then to an ALJ. The ALJ held 

a hearing and affirmed the Commissioner’s determination. After 

the Appeals Council denied review, Guiton sought review of the 

ALJ’s decision in the U.S. District Court for the Middle 

District of North Carolina. Pursuant to a consent order, the 

district court reversed the termination of Guiton’s benefits and 

remanded to the Commissioner. The ALJ held a second hearing,

and again found that Guiton was no longer disabled within the 

meaning of the Social Security Act. 

The ALJ adhered to the eight-step analytical framework that 

governs administrative reevaluation of Social Security 

disability awards.2 See 20 C.F.R. § 404.1594(f). As relevant 

here, the ALJ assessed whether Guiton had experienced medical 

improvement related to his ability to work; whether he continued 

to suffer from an impairment sufficiently severe to be 

considered disabling; and if not, whether he retained the 

residual functional capacity (“RFC”) to perform work that exists 

in significant numbers in the national economy. See id.

 2 This eight-step analysis essentially incorporates the more 

familiar five-step analysis governing the initial determination 

of whether a claimant is disabled. See 20 C.F.R. 

§ 404.1520(a)(4). 
5

The ALJ found that Guiton had indeed experienced medical 

improvement related to his ability to work. Although Guiton had 

not worked during the period of disability, he had undergone 

surgery to remove his brain tumor and had not suffered a seizure 

since 2000. The ALJ found that Guiton continued to suffer from 

several medically determinable impairments (including a seizure 

disorder, lumbar disc disease, low intellect, and a memory 

disorder), but that these impairments were not severe enough to 

be considered disabling under the applicable federal 

regulations. Specifically, the ALJ rejected Guiton’s claim that 

his condition qualified as mental retardation under Listing 

12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C, because he

failed to establish (a) an onset of impairment before age 22, as 

the listing requires, and (b) the requisite deficits in adaptive 

functioning. 

With respect to the onset of Guiton’s impairment, the ALJ

concluded that Guiton’s brain tumor and related surgeries (which 

occurred after age 22) had negatively affected his IQ. The ALJ

credited the written submission of John Bevis, a licensed

psychological associate,3 who opined that Guiton’s pre-tumor 

 3 In North Carolina, a licensed psychological associate is 

“[a]n individual to whom a license has been issued pursuant to 

[the North Carolina Psychology Practice Act] . . . and whose 

license permits him or her to engage in the practice of 

psychology.” N.C. Gen. Stat. § 90-270.2(7). Licensure requires 

(Continued)
6

intellectual abilities had likely been in the “borderline”

range, which, the ALJ noted, is “outside the range for mental 

retardation and [Listing] 12.05C.” Tr. 19. The ALJ found that 

the record evidence was consistent with this evaluation, 

specifically relying on the absence of any notation in Guiton’s 

school records that he was mentally retarded, and pointing out 

that the low marks Guiton received in school tended to coincide 

with extended absences and poor effort. 

The ALJ also found that Guiton had failed to demonstrate 

the requisite deficits in adaptive functioning. Questioning 

Guiton’s claim that he is illiterate, the ALJ noted that Guiton

often received “satisfactory” and “commendable” marks in school

for reading, and that one report card indicated he was able to 

read at “level 8.” Tr. 20. Additionally, the ALJ found that 

Guiton “washed his own clothes and dishes, cooked, vacuumed, 

helped his father and mowed the lawn with a riding mower.” Tr. 

20. The ALJ noted that Guiton lived alone at the time of the 

hearing, and found that he was able to “perform[] routine daily 

activities without difficulty.” Tr. 20. 

Concluding that Guiton had not met the requirements of a 

disability listing, the ALJ proceeded to the final two steps of 

 

either a master’s degree or a specialist degree in psychology. 

Id. § 90-270.11(b). 
7

the analysis. First, the ALJ found that Guiton retained the RFC

to perform light work. The ALJ discounted the opinions of 

several treating physicians that Guiton’s condition would 

prevent him from sustaining full-time employment. Instead, the 

ALJ credited the statements of nonexamining state agency medical 

consultants who opined that Guiton could perform light work.

The ALJ explained that this conclusion was more consistent with 

the evaluations of other physicians who had examined Guiton, as 

well as with other evidence in the record. 

Finally, the ALJ concluded that, given Guiton’s age, 

education, work experience, and RFC, he was able to perform work

that exists in significant numbers in the economy. The ALJ 

credited the testimony of a state VE4 who testified that Guiton

was able to perform the requirements of three occupations

identified in the Dictionary of Occupational Titles (“DOT”).5 To 

 4 VEs are “persons who have, through training and experience 

in vocational counseling or placement, an up-to-date knowledge 

of job requirements, occupational characteristics and working

conditions, and a familiarity with the personal attributes and 

skills necessary to function in various jobs.” Wilson v. 

Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). VEs routinely 

“assist the ALJ in determining whether there is work available 

in the national economy which [a] particular claimant can 

perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). 

5 The DOT is a reference published by the U.S. Department of 

Labor that lists and describes various jobs. Its use in the 

disability review process is authorized by regulation. See 20 

C.F.R. § 404.1566(d). 
8

conclude that each of these occupations exists in significant 

numbers in both the North Carolina and national economies, the 

VE relied on the Occupational Employment Quarterly (“OEQ”), a 

commercial publication that employs government data to provide

statistics regarding the number of available jobs by censuscoded occupational category. 

Having proceeded through the eight-step analysis, the ALJ 

concluded that Guiton was no longer disabled within the meaning 

of the Social Security Act, and was therefore not entitled to 

benefits. 

In response, Guiton filed this action in the district 

court, seeking review of the Commissioner’s termination of his 

benefits. A magistrate judge found that the decision was 

supported by substantial evidence and recommended affirming the 

Commissioner’s determination. The district court adopted the 

magistrate judge’s opinion and granted judgment on the pleadings 

to the Commissioner. Guiton appeals. 

II.

This court is authorized to review the Social Security 

Commissioner’s termination of benefits under 42 U.S.C. § 405(g). 

In doing so, we “must uphold the factual findings of the [ALJ]

if they are supported by substantial evidence and were reached 

through application of the correct legal standard.” Hancock v. 
9

Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (alteration in 

original) (internal quotation marks omitted). “Substantial 

evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Johnson v. 

Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation 

marks omitted). When reviewing for substantial evidence, we 

will not reweigh conflicting evidence or make credibility 

determinations. Hancock, 667 F.3d at 472. Rather, “[w]here 

conflicting evidence allows reasonable minds to differ as to 

whether a claimant is disabled, the responsibility for that 

decision falls on the [ALJ].” Id. (alteration in original) 

(internal quotation marks omitted). 

III.

On appeal, Guiton challenges the Commissioner’s termination 

of his benefits in three respects. Guiton argues: (1) that the 

ALJ erred in finding that he failed to satisfy the requirements 

of Listing 12.05C, because the ALJ wrongly concluded that the 

onset of his disability occurred after age 22 and improperly 

determined that he had not demonstrated deficits in adaptive 

functioning; (2) that, by substituting his evaluation of the 

evidence and the opinion of nonexamining state agency medical 

consultants for the opinions of treating physicians, the ALJ 

erred in finding that Guiton retained the RFC to perform light 
10

work; and (3) that the ALJ erred in crediting the VE’s job 

numbers because they were based on a flawed statistical 

methodology. 

A. 

We have considered Guiton’s first two arguments and, for 

the reasons stated by the magistrate judge and adopted by the 

district court, find them to be without merit. See Guiton v. 

Astrue, No. 1:08CV822, 2012 WL 1267856 (M.D.N.C. Apr. 16, 2012). 

As the magistrate judge explained, the ALJ thoroughly analyzed 

the testimony and available evidence, and reasonably concluded 

that Guiton (1) failed to meet the requirements of Listing 

12.05C; and (2) retained the RFC to perform light work. In 

challenging these findings, Guiton essentially asks us to 

“reweigh conflicting evidence, make credibility determinations, 

[and] substitute our judgment for that of the [ALJ].” Hancock, 

667 F.3d at 472 (alteration in original) (internal quotation 

marks omitted). This we are not authorized to do. We instead 

hold that the ALJ’s findings with respect to these issues are 

supported by substantial evidence. 

B.

Guiton’s third argument requires further discussion. At 

the last of the eight steps, the Commissioner bears the burden

of demonstrating that work the claimant can perform exists in 

significant numbers in the national economy. See 20 C.F.R. 
11

§ 404.1594(f); id. § 404.1560(c)(2). Guiton submits that the 

ALJ erred in concluding that the Commissioner satisfied this 

burden, arguing that the ALJ impermissibly credited testimony by 

the VE regarding job statistics that were insufficiently 

specific. 

During the administrative hearing, the VE testified that 

Guiton is able to perform at least three occupations. She 

identified these occupations by DOT code: bench assembler (DOT 

706.684-022); assembler arranger (DOT 739.687-010); and 

agricultural sorter (DOT 529.687-186). The VE then reported the 

number of existing jobs in the North Carolina and national 

economies for each of these occupations, gleaning the numbers

from the OEQ. As Guiton points out, however, the OEQ reports 

job numbers by census code, not by DOT code. Census codes are 

broader designations than DOT codes, and a single census code

may comprise numerous DOT-coded occupations.6 Guiton therefore 

argues that the job numbers the VE reported from the OEQ 

overstate the actual number of jobs in the economy available to 

him, because they likely include many jobs associated with DOTcoded occupations he is unable to perform. Guiton contends that 

without some reliable methodology for determining the number of 

 6 For example, Guiton points out that the DOT code for bench 

assembler is one of 1,687 DOT codes included within a single 

census code. 
12

jobs corresponding to the specific DOT-coded occupations the VE

identified, it was error for the ALJ to credit the VE’s 

testimony. 

We have not previously addressed the issue of a VE’s 

reliance on job numbers from the OEQ, and it appears that only 

one other circuit has done so directly.7 In Liskowitz v. Astrue, 

559 F.3d 736 (7th Cir. 2009), the Seventh Circuit considered a

similar argument regarding the specificity of OEQ job numbers. 

Noting that OEQ job numbers include both full-time and part-time 

positions--and contending that only full-time positions suffice 

to carry the Commissioner’s burden--the claimant in that case 

argued that the ALJ should not have credited the job numbers a 

 7 In Brault v. Social Security Administration Commissioner, 

683 F.3d 443 (2d Cir. 2012), the Second Circuit described, in a 

footnote, a similar argument to the one raised here, made by the 

claimant in that case before an ALJ. Id. at 443, 447 n.4 (per 

curiam). The claimant had disputed the reliability of job 

numbers that a VE derived from a newer version of the OEQ on the 

basis that it reported job numbers by standard occupational 

classification (“SOC”) code rather than DOT code. SOC codes, 

like the census codes involved here, may each comprise numerous 

DOT codes. Id. The court acknowledged that this “many-to-one 

mapping” problem might cause a VE’s job estimates to “deviate

significantly from the actual number of existing positions.” 

Id. On appeal, however, the claimant argued only that the ALJ 

had not provided him a sufficient opportunity to challenge the 

VE’s testimony, and that the ALJ had not adequately explained 

its reasoning. Rejecting these arguments, the court left the 

merits of the ALJ’s reliance on the VE’s testimony “for another 

day and a closer case.” Id. at 450. 
13

VE reported because the VE had not further identified the 

percentage of the jobs that were full-time. Id. at 743-44. 

The court rejected this challenge. Acknowledging that the 

OEQ is a “source on which VEs customarily rely,” id. at 744, the 

court determined that requiring more specific numbers would lead 

to “significant practical problems,” id. at 745. The court 

explained that because “no government data source contains” the 

full-time-only data that the claimant was requesting, insisting 

that a VE produce such data would “impose impossible burdens on 

the VE.” Id. at 745. A VE, after all, is “not . . . a census 

taker or statistician.” Id. at 743. The court thus found no 

error in the ALJ’s reliance on the VE’s testimony. 

Similar considerations guide us here. As the ALJ 

explained, the DOT-specific job numbers Guiton would have the VE

provide simply do not exist: “There apparently is no data, 

updated on a regular basis, available through either a public or 

private source[], that reports numbers of jobs by DOT code 

number.” Tr. 34. Guiton does not dispute this observation.

Thus, if we required a VE to produce job statistics specific to 

the DOT-coded occupations a claimant can perform, it is unlikely 

that the Commissioner would ever succeed in satisfying her

burden. This cannot be the result the regulations intend.

Indeed, that the data Guiton requests does not exist “is a sign 

that [Guiton] expects too much,” and like the Seventh Circuit, 
14

we decline to “impose impossible burdens on the VE.” See

Liskowitz, 559 F.3d at 745. 

In this case, the VE cited the existence of 26,330 jobs in 

North Carolina and 825,000 jobs in the United States that Guiton 

could perform. Tr. 624. Even assuming these numbers were 

overinclusive, far smaller figures would still suffice to 

satisfy the Commissioner’s burden. See Hicks v. Califano, 600 

F.2d 1048, 1051 n.2 (4th Cir. 1979) (holding that 110 jobs in 

the claimant’s state was a significant number). We hold that 

the job numbers the VE provided, although perhaps somewhat 

imprecise, were sufficiently reliable to support the ALJ’s 

conclusion. 

IV.

For the reasons stated above, we affirm the decision of the 

district court. 

AFFIRMED
15

DAVIS, Circuit Judge, concurring in the judgment:

I write separately to express my discomfort with the ALJ’s 

acceptance of the vocational expert’s uncritical reliance on the 

Occupational Employment Quarterly (“OEQ”) to calculate the 

number of jobs available in the economy. Under the legal regime 

applicable in this case, once a claimant such as Guiton 

establishes that he has some limitations and cannot perform his 

past work, “the burden shifts to the Commissioner to produce 

evidence that other jobs exist in the national economy that the 

claimant can perform considering h[is] age, education, and work 

experience.” Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir. 

2012) (internal quotation marks omitted). “This is generally 

done through testimony of a vocational expert.” Harvey v. 

Heckler, 814 F.2d 162, 164 (4th Cir. 1987). Jobs exist in the 

national economy if they are available in “significant numbers 

either in the region where such individual lives or in several 

regions of the country.” 42 U.S.C. § 423(d)(2)(A). See also 20 

C.F.R. § 404.1566. 

In this case, the ALJ accepted the vocational expert’s 

testimony that Guiton could perform three widely available jobs 

listed in the Dictionary of Occupational Titles (“DOT”): bench 

assembler, assembler arranger, and agricultural sorter. The 

expert said that she obtained the numbers from the privately 

published OEQ, which breaks down the number of available jobs by 
16

Census Code and exertion subcategory (e.g., “unskilled, light”), 

but not by DOT title. She could not say how the publisher 

calculates its numbers. Guiton’s counsel argued that this 

rendered her testimony unreliable, but the ALJ disagreed. He 

reasoned that no “public or private sources . . . report[] 

numbers of jobs by DOT code number,” so the expert “had to rely 

on the numbers given in the OEQ.” The ALJ further reasoned that 

the expert’s testimony was reliable because “this is an area 

where mathematical precision is virtually impossible to 

achieve.”

Guiton maintains on appeal that the vocational expert’s 

testimony was unreliable because “her conclusions [were] not 

found in any publication, and [she] could not explain her 

methodology in deriving her conclusions from published data.” 

Opening Br. 34. Guiton argues that “OEQ provides job numbers 

only for exertional and skill levels by census code, but not by 

DOT code.” Id. at 37 (emphasis in original). This is 

significant, he argues, because “[t]he census code that includes 

bench assembler . . . includes 1,687 separate DOT occupations--

not 1,687 jobs, but 1,687 occupations.” Id. at 36 (emphasis in 

original) (italics omitted). Guiton argues that the OEQ “simply 

is not specific enough,” id. at 37 (emphasis omitted), and 

“[w]ithout testimony showing a reasonable, repeatable, 

verifiable methodology, the DOT job numbers provided by the 
17

vocational expert are not reliable,” id. at 39 (emphasis 

omitted).

The Commissioner concedes that “it is impossible to use 

binding precedent to adequately defend against Guiton’s 

allegations,” as this Court “has not addressed a challenge to a 

[vocational expert’s] reliance on the OEQ.” Resp. Br. 32 

(emphasis omitted). Nonetheless, the Commissioner argues that 

vocational experts “typically rely on the OEQ,” the information 

used in forming an expert opinion need not be admissible, and a 

vocational expert need not be able to explain the methodology 

behind the OEQ. Id. at 33–34 (emphasis omitted). Surely, the 

Commissioner can do better than this.

Only two circuits--the Second and the Seventh Circuits--

have discussed the OEQ. In Brault v. Social Security 

Administration Commissioner, the Second Circuit recognized the 

OEQ’s “classic academic problem with data aggregation,” i.e., 

the “information loss” that results from “many-to-one mapping.” 

683 F.3d 443, 447 n.4 (per curiam).1

 1 Brault involved a newer version of the OEQ, the 

Occupational Employment Quarterly II, which uses standard 

occupational classification (“SOC”) codes. 683 F.3d at 446. Like 

the Census Code, standard occupational classification is a 

“system . . . used by Federal statistical agencies to classify 

workers into occupational categories for the purpose of 

collecting, calculating, or disseminating data.” Bureau of Labor 

Statistics, “Standard Occupational Classification,” available at 

http://www.bls.gov/soc/ (last visited Aug. 19, 2013). “DOT codes 

(Continued)
18

If, for example, ten DOT codes map to a single SOC[2]

code, saying there are 100,000 total positions 

available in that SOC code gives no information at all 

about how many positions each of the ten DOT codes 

contributed to that total. This becomes a problem if 

DOT titles with different exertion or skill levels map 

to the same SOC code. In such a situation, the OEQ 

apparently uses a rough weighted average algorithm--if 

ten DOT codes correspond to one SOC code, and four of 

those codes are light-duty, unskilled positions, then 

the OEQ will list 40% of the positions available in 

that SOC as light-duty, unskilled positions. That 

estimate may deviate significantly from the actual 

number of existing positions.

Id. (emphasis added). Nonetheless, the Second Circuit affirmed 

the ALJ’s denial of benefits despite the vocational expert’s 

reliance on the OEQ;3 rather than challenge the reliability of 

the publication, the appellant argued that the ALJ had been 

required to (1) give the appellant “an opportunity to inspect 

and challenge the proffered evidence,” and (2) “explain why the 

challenge was rejected.” Id. at 448.4

 

are much more granular than SOC codes--according to Brault, 

there were nearly 13,000 jobs titles in the 1991 edition of the 

DOT, but only about 1,000 SOC titles.” Brault, 683 F.3d at 446. 

2 See supra note 1.

3 The vocational expert in Brault “denied having reported 

the numbers for the entire SOC. Instead, he claimed to have 

‘reduced’ the numbers from ‘the entire [SOC] code’ to only count 

‘jobs . . . . that [he] kn[e]w exist[ed].’” Brault, 683 F.3d at 

447.

4 The Second Circuit held that ALJs had no duty to explain. 

Brault, 683 F.3d at 449. Assuming without deciding that ALJs 

must give claimants a chance to inspect and challenge evidence, 

(Continued)
19

In Liskowitz v. Astrue, the Seventh Circuit observed that 

the OEQ “seem[s] to be a source on which [vocational experts] 

customarily rely.” 559 F.3d 736, 744 (7th Cir. 2009). But the 

court found that the appellant had waived the argument that her 

vocational expert “should not have relied on the OEQ because it 

was published by a private company.” Id. In assessing the more 

general (and preserved) challenge that the vocational expert had 

not been able “to testify as to the reliability of the data she 

used,”5 the court observed that

[t]he witness was testifying as a vocational expert, 

not as a census taker or statistician. Indeed, even if 

the [vocational expert] had happened to know something 

about the statistical basis for her testimony, she 

arguably still would not be in a position to fully 

vindicate her conclusions. After all, statisticians 

use arithmetic operations, but few probably have 

studied the foundation of arithmetic in set theory. Is 

the statistician’s use of arithmetic therefore 

unjustified? Clearly not. 

Id. at 743.6 

 

the court found that the ALJ had done so. Id. at 450. 

5 In addition to the OEQ, the vocational expert used sources 

published by the U.S. Department of Labor and the Wisconsin 

Department of Workforce Development. Liskowitz, 559 F.3d at 743–

44.

6 Two other Seventh Circuit opinions make only fleeting 

references to the OEQ. See Britton v. Astrue, 521 F.3d 799, 804 

(7th Cir. 2008) (per curiam) (rejecting appellant’s claim that 

she should have been given access to the entire OEQ, not just 

the portion on which the vocational expert had relied, because 

the “selections . . . would have allowed [appellant’s counsel] 

(Continued)
20

Guiton’s argument raises real concerns. Although vocational 

experts customarily rely on the OEQ, Liskowitz, 559 F.3d at 744, 

the Second Circuit has aptly noted that the publication’s 

utility in social security proceedings is problematic, see

Brault, 683 F.3d at 447 n.4. The difference between Census Code 

data and DOT titles is vast: as Guiton points out, “[t]he census 

code that includes bench assembler . . . includes 1,687 separate 

DOT occupations.” Opening Br. 36. Moreover, unlike the expert in 

Brault, the vocational expert here apparently did not adjust the 

OEQ’s numbers to reflect what she knew existed in a particular 

market; rather, she apparently accepted OEQ’s numbers as 

accurate without further inquiry.

I am willing to accept, for this case only, the majority’s 

reasoning that “[e]ven assuming [the vocational expert’s 

estimates] were overinclusive, far smaller figures would still 

suffice to satisfy the Commissioner’s burden.” Ante, at 13. I do 

not believe, however, that an attitude reflecting a belief that 

the performance of vocational experts in social security cases 

“is good enough for government work” should be the test of 

 

to sufficiently test the reliability of [the expert’s] 

testimony”); Lawrence v. Astrue, 337 F. App’x 579, 583, 586 (7th 

Cir. 2009) (noting that the appellant did not challenge the 

conclusion of the vocational expert, who had relied in part on 

the OEQ).
21

reliability.7 After all, it is Congress and the Commissioner that 

are responsible for seeing to the creation and implementation of 

reliable evidentiary standards. Federal courts should not too 

willingly indulge a watered down application of well-settled 

evidentiary reliability criteria for a discrete class of 

disfavored cases.

With these observations, I concur in the judgment.

 7 And some commentators have recognized the fundamental 

problems this attitude may pose for the structure of the social 

security regime. See Jon C. Dubin, Overcoming Gridlock: Campbell 

After A Quarter-Century and Bureaucratically Rational GapFilling in Mass Justice Adjudication in the Social Security 

Administration's Disability Programs, 62 Admin. L. Rev. 937, 966

(2010) (“[T]here are no prescribed standards for job incidence 

or non-DOT job characteristics evidence and this evidence is 

often produced through questionable job data and unreliable 

methodologies.”); Nathaniel O. Hubley, The Untouchables: Why A 

Vocational Expert’s Testimony in Social Security Disability 

Hearings Cannot Be Touched, 43 Val. U. L. Rev. 353, 393 (2008)

(“With the seemingly high degree of deference given to the ALJ 

with regard to evidentiary matters and the relatively broad 

credibility granted to the VE’s testimony, the question bound to 

arise is whether an adequate level of fairness is afforded 

disability claimants.”).