IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

CAROLYN R. BECKHAM §

§

Plaintiff, §

§

VS. § NO. 7-04-CV-191-R

§

JO ANNE B. BARNHART, §

Commissioner of Social Security §

§

Defendant. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Plaintiff Carolyn R. Beckham seeks judicial review of a final decision of the Commissioner

of Social Security denying her application for disability insurance and supplemental security income

("SSI") benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401, et seq. For the

reasons stated herein, the hearing decision should be reversed.

I.

Plaintiff alleges that she is disabled due to a variety of ailments, including bipolar disorder,

asthma, congestive heart failure, chronic obstructive pulmonary disease, degenerative disc disease,

and impairments resulting from cervical fusion surgery. After her application for disability and SSI

benefits were denied initially and on reconsideration, plaintiff requested a hearing before an

administrative law judge. That hearing was held on December 18, 2003. At the time of the hearing,

plaintiff was 46 years old. She has a high school education and past work experience as a

secretary, receptionist, and pawn broker. Plaintiff has not engaged in substantial gainful activity

since January 7, 2002.

 

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The ALJ found that plaintiff was not disabled and therefore not entitled to disability or SSI

benefits. Although the medical evidence established that plaintiff suffered from bipolar disorder,

asthma, and congestive heart failure and that such impairments were severe, the judge concluded

that the severity of those impairments did not meet or equal any impairment listed in the social

security regulations. The ALJ further determined that plaintiff had the residual functional capacity

to perform a limited range of sedentary work, but could not return to her past employment. Relying

on the testimony of a vocational expert, the judge found that plaintiff was capable of working as a

sorter, a small products inspector, and a small parts assembler-- jobs that exist in significant numbers

in the national economy. Plaintiff appealed this decision to the Appeals Council. The Council

affirmed. Plaintiff then filed this action in federal district court.

II.

In her sole ground for relief, plaintiff challenges the finding that she is capable of working

in other jobs despite her lack of transferable skills and her limited ability to perform reaching

activities.

A.

Judicial review in social security cases is limited to determining whether the Commissioner's

decision is supported by substantial evidence and whether the proper legal standards were used to

evaluate the evidence. See 42 U.S.C. § 405(g); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).

Substantial evidence is defined as "relevant evidence that a reasonable mind might accept to support

a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842

(1971); Austin v. Shalala, 994 F.2d 1170, 1174 (5th Cir. 1993). It is more than a scintilla but less

than a preponderance. Richardson, 91 S.Ct. at 1427. The district court may not reweigh the

evidence or substitute its judgment for that of the Commissioner, but must scrutinize the entire

 

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record to ascertain whether substantial evidence supports the hearing decision. Hollis v. Bowen, 837

F.2d 1378, 1383 (5th Cir. 1988).

A disabled worker is entitled to monthly social security benefits if certain conditions are met.

42 U.S.C. § 423(a). The Act defines "disability" as the inability to engage in substantial gainful

activity by reason of any medically determinable physical or mental impairment that can be expected

to result in death or last for a continued period of 12 months. Id. § 423(d)(1)(A); Cook v. Heckler,

750 F.2d 391, 393 (5th Cir. 1985). The Commissioner has promulgated a five-step sequential

evaluation process that must be followed in making a disability determination:

1. The hearing officer must first ascertain whether the claimant

is engaged in substantial gainful activity. A claimant who is

working is not disabled regardless of the medical findings.

2. The hearing officer must then determine whether the claimed

impairment is "severe." A "severe impairment" must

significantly limit the claimant's physical or mental ability to

do basic work activities. This determination must be made

solely on the basis of the medical evidence.

3. The hearing officer must then determine if the impairment

meets or equals in severity certain impairments described

in Appendix 1 of the regulations. This determination is

made using only medical evidence.

4. If the claimant has a "severe impairment" covered by the

regulations, the hearing officer must determine whether the

claimant can perform his past work despite any limitations.

5. If the claimant does not have the residual functional capacity

to perform past work, the hearing officer must decide whether

the claimant can perform any other gainful and substantial

work in the economy. This determination is made on the

basis of the claimant's age, education, work experience, and

residual functional capacity.

See generally, 20 C.F.R. § 404.1520(b)-(f). The claimant has the initial burden of establishing a

disability in the first four steps of this analysis. Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct.

 

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2287, 2294 n.5, 96 L.Ed.2d 119 (1987). The burden then shifts to the Commissioner to show that

the claimant is capable of performing work in the national economy. Id. A finding that the claimant

is disabled or not disabled at any point in the five-step review is conclusive and terminates the

analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).

In reviewing the propriety of a decision that a claimant is not disabled, the court's function

is to ascertain whether the record as a whole contains substantial evidence to support the

Commissioner's final decision. The court weighs four elements to determine whether there is

substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating

and examining physicians; (3) subjective evidence of pain and disability; and (4) the claimant's age,

education, and work history. Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995), citing Wren v.

Sullivan, 925 F.2d 123, 126 (5th Cir. 1991). The ALJ has a duty to fully and fairly develop the facts

relating to a claim for disability benefits. Ripley, 67 F.3d at 557. If the ALJ does not satisfy this

duty, the resulting decision is not substantially justified. Id. However, procedural perfection is not

required. The court will reverse an administrative ruling only if the claimant shows that his

substantive rights were prejudiced. Smith v. Chater, 962 F.Supp. 980, 984 (N.D. Tex. 1997).

B.

Plaintiff contends that substantial evidence does not support the finding that she can perform

other work in the national economy. In particular, plaintiff claims that she lacks the transferable

skills necessary to work as a sorter and cannot meet the exertional requirements of a small parts

inspector or a small parts assembler.

1.

At the administrative hearing, Shelly Eike, a vocational expert, was asked whether a

hypothetical person of plaintiff's age, education, work experience, and functional limitations could

 

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1

 The Dictionary of Occupational Titles ("DOT") lists a specific vocational preparation time, or SVP, for each

described occupation. Using the skill level definitions set out in the regulations, unskilled work corresponds to an SVP

rating of 1-2, semi-skilled work corresponds to an SVP rating of 3-4, and skilled work corresponds to an SVP rating of

5-9. See SSR 00-4p, 2000 WL 1898704 at *3 (2000). Although there may be a reason for classifying the skill level of

certain occupations differently than in the DOT, the regulatory definitions of skill levels are controlling. Id.

perform other work that exists in significant numbers in the national economy. Eike responded that

this hypothetical person could work as a sorter-- a sedentary, semi-skilled position with an SVP

rating of three.1

 (Supp. Tr. at 531). The ALJ relied on that testimony in finding that plaintiff had

the residual functional capacity to perform the job duties of sorter and, therefore, was not disabled.

(Tr. at 15). However, the judge also found that plaintiff "has not acquired any work skills that are

transferrable to other skilled or semi-skilled occupations." (Id. at 20). According to plaintiff, these

two findings are fatally inconsistent because a person with no transferable skills cannot perform

semi-skilled work. 

SSR 83-10 provides, in pertinent part:

The exertional requirements of work at a particular functional level

are the same regardless of whether the work is skilled, semiskilled,

or unskilled. Therefore, RFC alone never establishes the capability

for skilled or semiskilled work. Ability to perform skilled or

semiskilled work depends on the presence of acquired skills which

may be transferred to such work from past job experience above the

unskilled level or the presence of recently completed education which

allows for direct entry into skilled or semiskilled work. 

SSR 83-10, 1983 WL 31251 at *3 (1983) (emphasis added). As noted by the ALJ, plaintiff has no

transferable skills. Nor is there any evidence that plaintiff recently completed education which

allows for direct entry into a skilled or semi-skilled occupation. Without such evidence in the

record, there was no basis for the vocational expert to opine or the ALJ to conclude that plaintiff

could work in a semi-skilled job such as sorter. See, e.g. Steward v. Barnhart, 44 Fed.Appx. 151,

152, 2002 WL 1791513 at *1 (9th Cir. Aug. 5, 2002); Stathis v. Sullivan, 964 F.2d 850, 851-52 (8th

 

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Cir. 1992); Stoglin v. Apfel, 130 F.Supp.2d 1060, 1067 (S.D. Iowa 2000); Heeter v. Sullivan, No.

S87-729, 1990 WL 483669 at *6 (N.D. Ind. Feb. 28, 1990). 

In an attempt to circumvent the plain language of SSR 83-10 and salvage the hearing

decision, the Commissioner argues that the SVP rating assigned to the sorter position is only a

"maximum level" and that the vocational expert was free to base her opinion on other factors, such

as her "knowledge in the vocational field." (Def. MSJ Br. at 6-7). This argument fails for two

reasons. First, there is absolutely no evidence that Eike considered the job of sorter to be unskilled.

To the contrary, she specifically referred to the occupation as "semi-skilled." (Supp. Tr. at 531).

Second, even had Eike testified that the job of sorter was an unskilled position that required no

transferable skills, such testimony would be inconsistent with the regulatory definitions and could

not be considered by the ALJ. See Steward, 44 Fed.Appx. at 152-53. In sum, there is no evidence,

much less substantial evidence, to support the finding that plaintiff has the residual functional

capacity to work as a sorter.

2.

Eike further testified that plaintiff could work as a small parts inspector or a small parts

assembler -- unskilled, sedentary jobs with an SVP rating of two -- despite the inability to "push,

pull or perform[ ] extended reaching repetitiously with the upper extremities more than

occasionally." (Supp. Tr. at 529-31). Plaintiff argues that this testimony conflicts with the

description of these jobs found in the Dictionary of Occupational Titles ("DOT").

The DOT classifies jobs based on various factors, including the degree of exertion required.

Two sedentary, unskilled "inspector" occupations are listed in the DOT. One requires "frequent"

reaching. Dictionary of Occupational Titles § 669.687-014 (4th ed. 1991). The other requires

"constant" reaching. Id. § 726.684-050. The DOT also lists seven sedentary, unskilled "assembler"

 

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2

 The SSA has defined "reaching" as "extending the hands and arms in any direction." SSR 85-15, 1985 WL

56857 at *7 (1985). Although there is no distinct definition of "extended reaching," the Commissioner suggests that

"extended" should be defined as "stretched or pulled out." (See Def. MSJ Br. at 8, citing The American Heritage College

Dictionary 484 (3d ed. 1997)). 

occupations. Four of those jobs require "frequent" reaching. Id. §§ 706.684-030, 713.687-018,

739.684-094, 739.687-066. Three others require "constant" reaching. Id. §§ 715.687-114, 739.687-

086, 734.687-018. Because all the inspector and assembler jobs require more than "occasional"

reaching, plaintiff argues that Eike's testimony conflicts with the DOT classifications. The

Commissioner responds that there is no conflict because the hypothetical posed by the ALJ was

limited to "extended" reaching, which is not referenced in the DOT.2

There is a split of circuit authority as to whether vocational expert testimony can provide

substantial evidence to support the Commissioner's decision when it conflicts with the DOT

provisions. Some courts permit the ALJ to rely on such testimony even if it conflicts with the DOT.

See Jones v. Apfel, 190 F.3d 1224, 1229-30 (11th Cir. 1999), cert. denied, 120 S.Ct. 1723 (2000);

Conn v. Secretary of Health and Human Services, 51 F.3d 607, 610 (6th Cir. 1995); Sawyer v. Apfel,

No. 98-1520, 1998 WL 830653 at *1 (4th Cir. Dec. 2, 1998). By contrast, the Eighth Circuit has

held that the DOT job descriptions are generally more reliable than the conflicting testimony of a

vocational expert. Smith v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995). Still other courts, including the

Fifth Circuit, have adopted a "middle ground" approach which allows the ALJ to rely on vocational

expert testimony if the record reflects an adequate basis or a reasonable explanation for deviating

from the DOT. See Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000); Haddock v. Apfel, 196

F.3d 1084, 1091-92 (10th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 1434-35 (9th Cir. 1995);

Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir. 1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d

Cir. 1984). In Carey, the Fifth Circuit held that:

 

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3

 The Commissioner faults plaintiff and her attorney for not asking Eike to clarify the difference between

"reaching" and "extended reaching." However, the regulations make clear that the ALJ, not the claimant, has the burden

to identify and obtain a reasonable explanation for any conflicts between vocational expert testimony and the DOT. SSR

00-4p; see also Long v. Barnhart, No. 03-2570-JWL, 2004 WL 1960104 at *12 (D. Kan. Sept. 3, 2004) (expert's

erroneous response to direct question regarding conflicts between testimony and DOT does not relieve ALJ of duty to

resolve conflict before relying on testimony).

To the extent that there is any implied or indirect conflict between the

vocational expert's testimony and the DOT . . ., we agree with the

majority of circuits that the ALJ may rely upon the vocational

expert's testimony provided that the record reflects an adequate basis

for doing so. . . . Adopting a middle ground approach, in which

neither the DOT nor the vocational expert testimony is per se

controlling, permits a more straightforward approach to the pertinent

issue, which is whether there is substantial evidence supporting the

Commissioner's determination that this particular person can do this

particular job or group of jobs.

Carey, 230 F.3d at 146-47. Although Carey did not involve "the type of direct and obvious conflict

. . . when the vocational expert's characterization of the exertional or skill level required for a

particular job is facially different from the exertional or skill level provided for that job in the DOT,"

lower courts that have considered such direct conflicts have also adopted this "middle ground"

approach. See Johnson v. Barnhart, 285 F.Supp.2d 899, 913-14 (S.D. Tex. 2003); Augustine v.

Barnhart, No. 1-00-CV-749, 2002 WL 31098512 at *9-10 (E.D. Tex. Aug. 27, 2002); Hollan v.

Apfel, No. 3-00-CV-0002-H, 2001 WL 180151 at *6 (N.D. Tex. Feb. 20, 2001). Thus, at least in

this circuit, vocational expert testimony may be accepted over a conflicting DOT provision if "the

record reflects an adequate basis for doing so." Carey, 230 F.3d at 146. 

 Here, there is at least an implied or indirect conflict between Eike's testimony that a person

limited in the ability to perform "extended" reaching can work as an inspector or an assembler, and

the DOT, which classifies such jobs as requiring reaching on a "frequent" or "constant" basis. Yet

nothing in the record explains how the jobs of inspector and assembler can be performed with only

occasional "extended" reaching. Nor is there anything to suggest that either Eike or the ALJ were

even aware of the conflict with the DOT requirements.3

 "When vocational evidence provided by

 

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[an expert] is not consistent with information in the DOT, the adjudicator must resolve this conflict

before relying on the [ ] evidence to support a determination or decision that the individual is or is

not disabled." SSR 00-4p, 2000 WL 1898704 at *4 (2000). If the conflict is resolved in favor of

the vocational expert, the ALJ must articulate a "plausible reason" for accepting testimony that

conflicts with the DOT so that the hearing decision is susceptible to meaningful judicial review.

Augustine, 2002 WL 31098512 at *10; see also SSR 00-4p (providing examples of reasonable

explanations for disregarding DOT). In this case, the ALJ failed to articulate any reason for

disregarding the DOT exertional requirements for the inspector and assembler positions. As a result,

the hearing decision is not supported by substantial evidence and should be reversed.

RECOMMENDATION

The hearing decision should be reversed and this case remanded to the Commissioner of

Social Security for further proceedings consistent with this opinion.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: August 22, 2006.

 

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