1 The following background comes from the transcript of the administrative proceedings, which is

designated as “Tr.”

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

WILLIE L. McMULLEN, §

 §

Plaintiff §

 §

v. § Civil Action No. 3:04-CV-2449-L (BH)

 §

COMMISSIONER OF SOCIAL SECURITY, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of Title 28, United States Code, § 636(b)(1)(B), and the District

Court’s Order of Reference, filed April 27, 2005, this matter has been referred to the undersigned

United States Magistrate Judge for proposed findings of fact and recommendation for

disposition. Before the Court are Plaintiff’s Motion for Summary Judgment, filed August 23, 2005;

Commissioner’s Motion for Summary Judgment, filed October 18, 2005; and Plaintiff’s Reply Brief,

filed December 22, 2005. Having reviewed the evidence of the parties in connection with the

pleadings, the Court recommends that Plaintiff’s Motion for Summary Judgment be GRANTED,

Commissioner’s Motion for Summary Judgment be DENIED, and the case be remanded to the

Commissioner for further proceedings. 

I. BACKGROUND1

A. Procedural History

Willie L. McMullen (“Plaintiff”) seeks judicial review of a final decision by the

 

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Plaintiff previously filed Title II and Title XVI applications for disability benefits and supplemental

security income payments on July 31, 1997, both of which were initially denied on October 22, 1997. (Tr. at 15; see 

Tr. at 23-33.) These applications are not at issue in the instant case. 

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Commissioner of Social Security (the “Commissioner”) denying his claim for disability benefits and

supplemental security income payments under Title II and Title XVI of the Social Security Act. On

December 28, 2001, Plaintiff filed an application for disability insurance benefits and supplemental

security income payments.2

 (Tr. at 15, 98-100.) Plaintiff claimed he was disabled due to Human

Immunodeficiency Virus (“HIV”). (Tr. at 16.) Plaintiff’s application was denied initially and upon

reconsideration. (Tr. at 15.) Plaintiff timely requested a hearing before an Administrative Law

Judge (“ALJ”). (Tr. at 53.) A hearing, at which Plaintiff personally appeared and testified, was held

on October 22, 2003. (Tr. at 314-62). On December 17, 2003, the ALJ issued his decision finding

Plaintiff not disabled. (Tr. at 12-22.) The Appeals Council denied Plaintiff’s request for review,

concluding that the contentions raised in Plaintiff’s request for review did not provide a basis for

changing the ALJ’s decision. (Tr. at 5-8.) Thus, the ALJ’s decision became the final decision of

the Commissioner. (Tr. at 5.) Plaintiff timely appealed the Commissioner’s decision to the United

States District Court pursuant to 42 U.S.C. § 405(g) on November 12, 2004. 

B. Factual History

1. Age, Education, and Work Experience

Plaintiff was born on October 15, 1958. (Tr. at 98.) At the time of the hearing before the

ALJ, he was 45 years old. (See Tr. at 319.) He graduated from high school. (Tr. at 320.) His past

relevant work experience included work as a sander for a furniture company, a nurse’s aide, a home

health aide, and a cook. (Tr. at 321, 326.) Plaintiff last worked on January 1, 2000. (Tr. at 16, 21.)

 

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2. Medical Evidence

In 1996, Plaintiff fell and broke his dominant right hand in three places at home. (Tr. at 323-

24.) His right hand remained functional, although it swelled and caused pain with repetitive use.

(Tr. at 21, 325.) 

Plaintiff was diagnosed as HIV positive on December 5, 2001. (Tr. at 187, 195.) He briefly

underwent Highly Active Anti-Retroviral Therapy (HAART) under the direction of his care provider

at the AIDS Resources of Rural Texas (“ARRT”) clinic in Waxahachie, Texas. (Tr. at 176, 250.)

However, after chest and arm pain prompted a visit to the emergency room on July 1, 2002, he

ceased the HAART regimen on the advice of the emergency room physician and his ARRT care

provider. (Tr. at 251-72.) He did not resume anti-retroviral treatment therapy. (See Tr. at 277-78.)

Plaintiff had no psychiatric history prior to February 6, 2003, the date on which he underwent

an initial psychiatric evaluation due to insomnia and feelings of depression. (Tr. at 226-29.) He was

diagnosed with depression, and the assessment noted that he appeared to be coping with his HIV

diagnosis. (Tr. at 229.) On October 9, 2003, at the request of Plaintiff’s attorney, Plaintiff’s

psychiatric mental health nurse practitioner (“PMHNP”) completed a psychiatric/psychological

impairment questionnaire. (Tr. at 233-40.) The questionnaire indicated that Plaintiff had begun to

experience auditory hallucinations in the previous two weeks; he had never experienced such

symptoms previously. (Tr. at 235.) The PMHNP diagnosed Plaintiff with “major depressive

disorder, severe, with psychotic features.” (Tr. at 233.) The PMHNP noted that he had moderate

and mild mental limitations in understanding and memory, concentration and persistence, social

interaction, and adaption, with marked limitation in the ability to carry out detailed instructions. (Tr.

at 233.) She noted that Plaintiff’s prognosis for his depression was “fair with ongoing treatment and

 

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A work history report completed by Plaintiff on January 18, 2002, for the Social Security Administration

indicates that he held his position as a cook from August 1999 until October 2001. (Cf. Tr. at 117, 127.)

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support.” Id. 

3. Hearing Testimony 

A hearing was held before the ALJ on October 22, 2003. (Tr. at 314.) Plaintiff appeared

personally and was represented by an attorney. Id. Plaintiff testified that he was born on October

15, 1958, and had graduated from high school. (Tr. at 319-20.) He further testified that he last

worked as a cook at a nursing home in August 1999.3 (Tr. at 320.) He previously worked as a

sander for a furniture company, a home health aide, and a nurse’s aide. (Tr. at 321-22.) 

Plaintiff testified that he contracted HIV in 2000. (Tr. at 325.) He was not diagnosed until

December 5, 2001, when he became ill shortly after being released from jail. (Tr. at 326.) He

testified that he is unable to work due to his HIV symptoms, and that but for his HIV, he would still

be working today. (Tr. at 327.) Plaintiff stated that he experienced night sweats, a fever, and had

a urinary tract infection that limited him to an average of two hours of sleep per night due to frequent

trips to the restroom. (Tr. at 327-28.) Plaintiff also attributed vomiting and diarrhea to his HIV.

(Tr. at 335.) In addition to the mentioned physical symptoms, Plaintiff testified that he suffered

from depression-induced sadness, irritability, insomnia, and hallucinations. (Tr. at 337-38.) 

 After hearing Plaintiff’s testimony, the ALJ asked the vocational expert (“VE”) to assume

a hypothetical individual of Plaintiff’s age, education, and work background. (Tr. at 353-54.) The

VE was asked to assume that the individual was limited to lifting no more than 20 pounds

occasionally and 10 pounds frequently, but could otherwise perform a full range of light exertional

jobs except that he was precluded from constant handling and fingering with his dominant hand.

The hypothetical individual was limited to understanding, remembering and carrying out simple

 

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instructions; using appropriate judgment to make only simple, work-related decisions; maintaining

sufficient concentration to perform simple, repetitive tasks; and adapting to routine changes that

accompany simple, unskilled work. The hypothetical individual could get along appropriately with

co-workers and peers and respond appropriately to instructions and criticism from supervisors in an

unskilled environment. 

In response to this hypothetical, the VE testified that such an individual would be precluded

from performing his past work as a sander, a nurse’s aide, a home health aide, and a cook. (See Tr.

at 354.) However, the VE testified that Plaintiff could work as a telephone solicitor, which the

United States Statistical Publishing Company (“USSPC”) identified as both light and unskilled and

sedentary and unskilled. (Tr. 354.) The VE referenced the USSPC in support of her testimony that

there are 14,089 light, unskilled telephone solicitors for the regional economy and 244,892 for the

national economy. (Tr. at 355.) The VE testified that the hypothetical individual with Plaintiff’s

residual functional capacity was capable of working as an information clerk, with 12,670 regional

and 98,685 light, unskilled information clerk positions available. Id. The position of cashier also

fit the hypothetical, with 204,125 regional and 955,069 national positions available. The USSPC

was the source for all of the VE’s data. (See Tr. at 354-55.) 

The ALJ proposed a hypothetical individual with the same exertional limitations as Plaintiff

and added that the individual had the mental limitations identified by Plaintiff’s testimony and in

the checklist completed by Plaintiff’s PMHNP. (Tr. at 355-56.) The VE testified that such an

individual would have difficulty sustaining competitive work. (Tr. at 356-57.) 

 

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C. ALJ’s Findings

The ALJ denied Plaintiff’s application for benefits by written opinion issued on December

17, 2003. (Tr. at 12-22.) The ALJ found that Plaintiff met the non-disability requirements for a

period of disability and disability insurance benefits and was insured for benefits through the date

of the decision. (Tr. at 20, ¶1.) The ALJ found that Plaintiff had not engaged in substantial gainful

activity since the alleged onset of his disability, January 1, 2000. (Tr. at 21, ¶2.) In addition, he

found that although Plaintiff’s HIV was a severe impairment, it did not meet or medically equal one

of the listed impairments in Appendix I, Subpart P of 20 C.F.R. 404. (Tr. at 21, ¶3-4.) The ALJ

further found that claimant’s allegations regarding his limitations were not totally credible since they

were unsupported by the medical evidence in the record. (Tr. at 21, ¶5; see Tr. at 18.) 

The ALJ determined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds

frequently; sit 6 hours out of an 8 hour workday; and stand, walk, or both for 6 hours out of an 8

hour workday. (Tr. at 21, ¶7.) The ALJ found that Plaintiff had to avoid constant handling or

fingering with his right hand. Id. The ALJ further found that Plaintiff had the mental limitations

of being able to understand, remember, and carry out only short and simple instructions, and perform

simple, repetitive tasks in an unskilled environment. Id. 

Although Plaintiff was unable to perform his past relevant work as a sander, nurse’s aide,

home health aide, or cook, the ALJ considered Plaintiff’s residual functional capacity and relevant

vocational characteristics and concluded that he had the residual functional capacity to perform a

significant range of light work. (Tr. at 21, ¶8, 12.) The ALJ found a significant number of jobs in

the national economy that Plaintiff could perform with his residual functional capacity. (Tr. at 21,

¶13.) Examples of these jobs included telephone solicitor, information clerk, and cashier. Id.

 

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Accordingly, the ALJ determined that Plaintiff was not under a disability, as defined by the Social

Security Act, at any time through the date of his decision. (Tr. at 22, ¶14.) 

II. ANALYSIS

A. Legal Standards

1. Standard of Review

Judicial review of the Commissioner’s denial of benefits is limited to whether the

Commissioner’s position is supported by substantial evidence and whether the Commissioner

applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236

(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3). Substantial evidence is defined as more than a

scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a

reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,

564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not

reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the

record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding

of no substantial evidence is appropriate only if there is a conspicuous absence of credible

evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson

v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).

The scope of judicial review of a decision under the supplemental security income program

is identical to that of a decision under the social security disability program. Davis v. Heckler, 759

F.2d 432, 435 (5th Cir. 1985). Moreover, the relevant law and regulations governing the

determination of disability under a claim for disability insurance benefits are identical to those

governing the determination under a claim for supplemental security income. See id. Thus, the

 

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Court may rely on decisions in both areas without distinction in reviewing an ALJ’s decision. See

id. 

2. Disability Determination

To be entitled to social security benefits, a claimant must prove that he or she is disabled as

defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,

640 (5th Cir. 1988). The definition of disability under the Social Security Act is “the inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Anthony v.

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

The Commissioner utilizes a sequential five-step analysis to determine whether a claimant

is disabled: 

1. An individual who is working and engaging in substantial gainful activity will not

be found disabled regardless of medical findings.

2. An individual who does not have a “severe impairment” will not be found to be

disabled.

3. An individual who “meets or equals a listed impairment in Appendix 1” of the

regulations will be considered disabled without consideration of vocational factors.

4. If an individual is capable of performing the work he has done in the past, a finding

of “not disabled” must be made.

5. If an individual’s impairment precludes him from performing his past work,

other factors including age, education, past work experience, and residual functional

 capacity must be considered to determine if work can be performed.

Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).

Under the first four steps of the analysis, the burden lies with the claimant to prove disability. 

 

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Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any point during

the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies

his or her burden under the first four steps, the burden shifts to the Commissioner at step five to

show that there is other gainful employment available in the national economy that the claimant is

capable of performing. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). This burden may

be satisfied either by reference to the Medical-Vocational Guidelines of the regulations or by expert

vocational testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.

1987). A finding that a claimant is 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).

B. Issue for Review

Plaintiff asserts that the ALJ’s Step 5 finding that Plaintiff can perform new occupations

despite his lack of transferrable skills and his inability to perform occupations demanding more than

“short and simple instructions” and “simple, repetitive tasks” is unsupported by substantial evidence.

(Brief at 9.) Plaintiff contends that telephone solicitor, information clerk, and cashier jobs are not

within his limitations to unskilled occupations requiring only “short and simple” instructions, (id.),

and that the VE’s testimony regarding the functional requirements of those jobs conflicts with the

requirements set forth in the Dictionary of Occupational Titles (“DOT”). (See Brief.) Because the

VE’s testimony was not consistent with the DOT, Plaintiff argues, the ALJ was required by Social

Security Ruling 00-4p to resolve any conflict before relying on the VE’s evidence to deny disability

at Step 5. (Brief at 14.)

1. Social Security Ruling 00-4p

Social Security Ruling 00-4p requires that prior to relying upon evidence from a VE or

 

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Although the ALJ and the VE classify Plaintiff’s previous work as a sander according to the DOT, the

USSPC is the source of the VE’s information for the three jobs listed by the VE that Plaintiff could perform. (See

Tr. at 353-56.) 

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vocational specialist (“VS”) to support a determination of disability, the ALJ must identify and

obtain a reasonable explanation for any apparent conflicts between occupational evidence provided

by a VE or VS and information in the DOT or its companion publication, the Selected

Characteristics of Occupations (SCO) defined in the Revised DOT. SSR 00-4p, 2000 WL 1898704,

*1-2 (S.S.A., Dec. 4, 2000). As part of his duty to fully develop the record at the hearing level, the

ALJ must inquire on the record whether or not there is such an inconsistency. Id. at *2.

Furthermore, the ALJ must also explain in the decision how any identified conflict was resolved.

Id. at *1. 

In the instant case, the VE relied upon the USSPC for examples of jobs that a hypothetical

person with Plaintiff’s residual functional capacity could perform. (See Tr. at 354-55.) At no point

during the administrative hearing did the ALJ ask the VE if her testimony conflicted with

information in the DOT or SCO as required by SSR 00-4p, however.4

 (See Tr. at 351-61.) 

Furthermore, the ALJ determined that Plaintiff is capable of unskilled work that requires

“short and simple” instructions. (Tr. at 21, ¶¶7, 11.) According to the DOT, unskilled work

corresponds to a specific vocational preparation (“SVP”) level of 1-2. SSR 00-4p, 2000 WL

1898704, at *3; see 20 C.F.R. 404.1568(a). The DOT’s General Educational Development scale

restricts those who can apply “commonsense understanding to carry out simple one- or two-step

instructions” to a reasoning development level of one. DEPT. OF LABOR, DICTIONARY OF

OCCUPATIONAL TITLES, APPENDIX C (4th ed. 1991). A person with a reasoning level of two must

be able to “carry out detailed but uninvolved written or oral instructions.” Id. 

 

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Since Plaintiff is an unskilled worker capable of following “short and simple” instructions,

he is limited to jobs with an SVP of 1-2 and a reasoning level of one. Despite these limitations, none

of the jobs identified by the VE comport with Plaintiff’s residual functional capacity. A telephone

solicitor has an SVP of three. (See DOT at § 299.357-014). An information clerk has a reasoning

level of four, and a cashier has a reasoning level of three. (See Brief at 19-21; DOT at §§ 237.367-

018, 211.462-010). Plaintiff has therefore identified direct and obvious conflicts between the VE’s

characterization of the jobs she found Plaintiff capable of performing and the skill levels provided

for those jobs in the DOT. See Carey, 230 F.3d at 146-47; see Bagwell v. Barnhart, 338 F.Supp.2d

723, 737-38 (S.D. Tex. 2004).

The Commissioner raises three arguments to counter Plaintiff’s claim that these conflicts

were not substantial evidence upon which the ALJ could base a finding of not disabled. The

Commissioner first asserts that Plaintiff’s arguments are baseless because the VE did not reference

the DOT in her testimony regarding what jobs Plaintiff could perform. (Resp. at 2-3.) The Social

Security Administration regulations are clear that the DOT is but one source of information that may

be considered by the ALJ when taking administrative notice of jobs that exist in the regional and

national economy. See 20 C.F.R. § 404.1566(d) and (e). In addition, SSR 00-4p explicitly states

that “[n]either the DOT nor the VE or VS evidence automatically ‘trumps’ when there is a conflict.”

SSR 00-4p, 2000 WL 1898704, at *2; Siller v. Barnhart, 2005 WL 1430361, *7-8 (W.D. Tex. June

17, 2005) (finding that neither the DOT nor VE testimony should automatically be accorded

controlling weight.) However, “[o]ccupational evidence provided by a VE or VS generally should

be consistent with the occupational information supplied by the DOT.” SSR 00-4p, 2000 WL

1898704, at *2. When there is an “apparent unresolved conflict” between the DOT and VE or VS

 

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testimony, the ALJ must elicit a reasonable explanation for the discrepancy. Id. Thus, merely

because the VE did not reference or rely upon the DOT does not mean that her testimony need not

be consistent with the DOT. Furthermore, although the VE did not rely upon the DOT, any conflicts

between her testimony and the DOT should have been resolved before the ALJ made a

determination of disability based upon the VE’s testimony. 

The Commissioner’s second argument is that Plaintiff has failed to show a direct and obvious

conflict between the VE’s testimony and the DOT. (Resp. at 3,5.) In support of this assertion, the

Commissioner relies upon Carey v. Apfel, which found that the VE’s clear and unchallenged

testimony that a claimant with one arm could perform a number of jobs was adequate to support the

ALJ’s determination that the claimant was not disabled. 230 F.3d 131, 147 (5th Cir. 2000).

However, Carey is distinguishable from the instant case in several ways. First, Carey was issued

on October 5, 2000, prior to the Social Security Administration’s requirement in SSR 00-4p that the

ALJ resolve conflicts between VE testimony and DOT job descriptions. Cf. SSR 00-4p, 2000 WL

1898704 (issued on Dec. 4, 2000). Second, although Carey faults the claimant for not exploring the

alleged discrepancy during the administrative hearing, the subsequently issued SSR 00-4p expressly

places the affirmative responsibility on the ALJ to ask about any discrepancies between VE or VS

evidence and information provided in the DOT. Carey, 230 F.3d at 145-46; cf. SSR 00-4p, 2000

WL 1898704, at *4. Third, the alleged discrepancy in Carey was mitigated by that VE’s specific

testimony that the claimant could perform the identified jobs with his specific limitations. Carey,

230 F.3d at 146. In this case, although the VE responded to the ALJ’s hypothetical individual based

upon Plaintiff’s residual functional capacity, she did not address the discrepancy between Plaintiff’s

skill level and the higher skill levels required by the jobs (as defined by the DOT) she identified

 

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The Fifth Circuit has not yet addressed whether an ALJ’s decision denying benefits lacks substantial

evidentiary support if based on a VE’s testimony that directly and obviously conflicts with the DOT’s description of

exertional requirements or skill levels required for particular jobs. See Bagwell, 338 F.Supp.2d at 737-38. 

6

The Commissioner cites to Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994), in support of the proposition

that Plaintiff’s counsel has the obligation to correct any perceived deficiencies in the VE’s testimony. (Resp. at 3.) 

However, Bowling is inapposite since it addresses defective hypothetical questions posed by the ALJ. Bowling, 36

F.3d at 436. Furthermore, Bowling, a 1994 case, pre-dates SSR 00-4p, which was issued on December 4, 2000.

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using the USSPC. (See Tr. at 354-56.) Finally, the Fifth Circuit held in Carey that if the conflict

is “implied or indirect,” the ALJ may rely on a VE’s testimony “provided that the record reflects an

adequate basis for doing so.” 230 F.3d at 146. The Fifth Circuit distinguished the indirect conflict

involved in Carey from direct and obvious conflicts such as when the VE’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. Since the Fifth Circuit distinguished between “implied and

indirect” and “direct” conflicts in Carey, a reasonable inference can be drawn that a more stringent

rule might apply when the VE’s testimony directly and obviously conflicts with DOT job

descriptions.5

 See Bagwell, 338 F.Supp.2d at 737-38. Thus, upon closer examination, Carey

actually supports Plaintiff’s position since the instant case involves a direct and obvious conflict

between the VE’s testimony and the DOT.

The Commissioner’s third and final argument is that Plaintiff’s counsel had an opportunity

to cross-examine the VE to correct any perceived discrepancies between her testimony and the job

descriptions in the DOT. (Resp. at 3.) “When a VE or VS provides evidence about the requirements

of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible

conflict between that VE or VS evidence and information provided in the DOT.” SSR 00-4p, 2000

WL 1898704, at *4. Since the burden is on the ALJ to fully develop the record prior to determining

disability, the claimant is not required to raise the issue of any discrepancy at the hearing.6

 Romine

 

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v. Barnhart, 454 F.Supp.2d 623, 627-28 (E.D. Tex. 2006) (citing Prochaska v. Barnhart, 454 F.3d

731, 735-36 (7th Cir. 2006)). Thus, the responsibility lies with the ALJ to ask about any possible

conflict between the VE’s testimony and the DOT. The ALJ in the instant case did not make the

necessary inquiry at the hearing prior to determining that Plaintiff was not disabled. 

In sum, the testimony provided by the VE at the administrative hearing regarding the jobs

she believed Plaintiff was capable of with his residual functional capacity directly conflicted with

the skill level requirements for those jobs as defined by the DOT. Although the DOT is but one

source of information for administrative notice of jobs in the national economy, the ALJ had an

affirmative responsibility to ask the VE whether her testimony conflicted with the DOT and to

resolve any conflict prior to relying upon the VE’s testimony in his determination of disability.

Since the ALJ did not identify and obtain a reasonable explanation for the conflict, he did not follow

SSR 00-4p in making his determination of Plaintiff’s disability. 

2. Error resulted in prejudice

The Court must now consider whether the ALJ’s failure to follow SSR 00-4p resulted in

prejudice to Plaintiff. “Should an agency in its proceedings violate its rules and prejudice result, the

proceedings are tainted and any actions resulting from the proceeding cannot stand.” Hall v.

Schweiker, 660 F.2d 116, 119 (5th Cir.1981) (citing Pac. Molasses Co. v. Fed. Trade Comm’n, 356

F.2d 386, 390 (5th Cir.1966)). “Violation of a ruling usually constitutes legal error, but such error

warrants remand only if it results in prejudice.” Romine, 454 F.Supp.2d at 628. In actions for

judicial review, a claimant establishes prejudice by showing that adherence to the ruling might have

led to a different decision. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000). 

In the instant case, Plaintiff has shown that he is incapable of meeting the skill requirements

 

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for each of the jobs identified by the VE at the administrative hearing. The ALJ relied upon the

VE’s testimony in his decision, but since the VE’s testimony conflicted with the DOT, the

determination that Plaintiff is not disabled is unsupported by substantial evidence. The

Commissioner asserts that remand is not warranted because the “VE could easily testify about a

voluminous number of light, unskilled occupations Plaintiff could perform” with his residual

functional capacity. (Resp. at 7.) While this may be true, the Court cannot speculate upon what

evidence a VE might present at an administrative hearing to establish Plaintiff’s lack of disability.

The ALJ therefore has not met his burden at Step Five to show that there is other gainful

employment available in the national economy that Plaintiff is capable of performing. Greenspan,

38 F.3d at 236. 

III. RECOMMENDATION

For the foregoing reasons, the Court recommends that Plaintiff’s Motion for Summary

Judgment be GRANTED and the Commissioner’s Motion for Summary Judgment be DENIED.

The Court further recommendsthat the decision of the Commissioner be REVERSED and the case

be REMANDED for reconsideration consistent with these findings.

Furthermore, on remand the ALJ must, as a part of his Step Five analysis, resolve any

conflict between the VE’s testimony and the DOT descriptions for jobs which Plaintiff might be

capable of performing with his residual functional capacity. 

SO RECOMMENDED, on this 17th day of May, 2007.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object

to these findings, conclusions and recommendation must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify those

findings, conclusions or recommendation to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. A party’s failure to file such written

objections to these proposed findings, conclusions and recommendation shall bar that party from a

de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales

v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections

to the proposed findings, conclusions and recommendation within ten (10) days after being served

with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions

of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error.

Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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