Weatherbee v. Astrue

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3736

G REGORY K. W EATHERBEE,

Plaintiff-Appellant,

v.

M ICHAEL J. A STRUE, Commissioner of the

Social Security Administration,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. 4:09-cv-00103-TWP-WGH—Tanya Walton Pratt, Judge.

A RGUED A PRIL 7, 2011—D ECIDED A UGUST 10, 2011

Before C UDAHY, M ANION, and H AMILTON, Circuit Judges.

C UDAHY, Circuit Judge. Gregory K. Weatherbee applied

for Social Security disability insurance benefits and sup-

plemental security income payments after suffering

serious injuries in a motorcycle crash. Weatherbee’s

application was initially denied by the Social Security

Administration. An Administrative Law Judge (ALJ) also

denied Weatherbee’s claim after conducting a hearing,

2 No. 10-3736

finding that Weatherbee could perform a significant

number of jobs. Weatherbee appealed the ALJ’s denial

of his claim to the district court, who found that the

decision to deny his application was supported by sub-

stantial evidence. We affirm.

I. Background

In June 2006, Gregory Weatherbee, an employee of

a heating and cooling company, was involved in a motor-

cycle crash and sustained serious injuries. While Weather-

bee eventually recovered from the accident, he con-

tinues to suffer from a litany of physical impairments:

he has significant attention and concentration problems;

he suffers from regular headaches; his memory and

sense of balance have been impaired; and he has lost

functionality in his dominant arm. Since the motorcycle

crash, Weatherbee has been unemployed.

In July 2006, Weatherbee sought Social Security

disability insurance benefits and supplemental security

income pursuant to the Social Security Act. See generally

42 U.S.C. § 423(d); 42 U.S.C. § 1382c(a)(3). The Commis-

sioner of Social Security (the Commissioner) first denied

Weatherbee’s application on February 9, 2007, and

again when it was submitted for reconsideration on

May 7, 2007.

Weatherbee requested review of the Commissioner’s

denials and, on December 1, 2008, participated in a

hearing before an ALJ. During the hearing, the ALJ so-

licited testimony from Weatherbee and his mother re-

garding his injuries and their effect on his daily life. The

No. 10-3736 3

ALJ also solicited testimony from a Vocational Expert

(VE) concerning the ability of an individual with

Weatherbee’s limitations to work in the economy.

Before he began questioning the VE, the ALJ provided

the following instruction:

In your responses, ma’am, I’d like you to refer to

jobs and their descriptions as they’re found in the

Dictionary of Occupational Titles. Should there be any

conflict between your testimony and the material to

be found in the DOT, kindly identify the conflict

and resolve it by [citing] the source of the informa-

tion, if you would.

The ALJ proceeded to describe an individual with

physical capabilities matching those of Weatherbee

and asked what types of work such a person could per-

form.1

1

When questioning the VE about Weatherbee’s ability to

work, the ALJ described Weatherbee’s impairments in the

following manner: “I want you to assume a person of the same

age, education, and past work experience as Mr. Weatherbee.

I want you to assume that such a person is limited to the

performance of sedentary work, primarily because of balance

problems. Such a person would have unlimited use of the non-

dominant left hand; could use the dominant right hand for

fine manipulation only but not for gripping, turning, and

twisting. Such a person should be limited to simple tasks,

both because of attention and concentration problems, and

because of possible memory problems. Should not—any work

should not require interaction with the public and should not

be fast paced or quota driven.”

4 No. 10-3736

The VE testified that the limitations listed by the ALJ

would preclude an individual from working as an “HVAC

man,” Weatherbee’s former profession. She went on to

state, however, that an individual with these limitations

could do unskilled sedentary work and identified three

types of occupations he could perform.

First, the VE stated that an individual with the limita-

tions described by the ALJ could perform “some inspector

jobs,” adding that there were 493 inspector jobs in

Indiana and 15,000 jobs in the U.S. She cited the position

of weight tester as an occupational title falling within

this category of jobs. Second, the VE stated that such an

individual could perform “some general office clerk

jobs,” which she claimed constituted 1,215 jobs in

Indiana and approximately 64,200 jobs nationally. She

provided “document preparer” as a sample occupational

title of an office clerk job that someone like Weatherbee

could perform. Finally, the VE testified that there were

“some production jobs” that such an individual could

perform. She said that there were 2,200 of these jobs in

Indiana and 60,600 jobs nationally, all of which could

be performed with the hypothetical limitations posed.

She specified “fabrication finisher” as an example of an

occupational title within this set of jobs.

The ALJ accepted the VE’s testimony concerning the

types of occupations that Weatherbee could perform as

well as the availability of such work. He explicitly stated

that the testimony was consistent with the informa-

tion provided in the Dictionary of Occupational Titles (DOT)

and concluded that the government had established

that, despite his injuries, Weatherbee was able to work in

No. 10-3736 5

a significant number of positions. Accordingly, he held

that Weatherbee was not disabled for the purposes of

the Social Security Act and denied his application for

benefits. Weatherbee sought review of the ALJ’s decision

by the Social Security Appeals Council, which declined

his request on May 29, 2009. Because the Appeals

Council declined review, the ALJ’s ruling constituted the

Commissioner’s final, appealable decision. Haynes v.

Barnhart, 416 F.3d 621, 626 (7th Cir. 2005). Weatherbee

sought review of this decision in the United States

District Court for the Southern District of Indiana. On

September 29, 2010, the district court affirmed the ALJ’s

decision. On November 27, 2010, Weatherbee filed a

notice of appeal to this court.

II. Analysis

We review an ALJ’s disability determination deferen-

tially, upholding it if it is supported by “substantial

evidence.” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.

2007). Evidence is substantial if a reasonable person

would accept it as sufficient to support the decision. Jens

v. Barnhart, 347 F.3d 209, 212 (7th Cir. 2003). While we

will not hesitate to reverse a ruling that lacks evidentiary

support, we will not reweigh the evidence that the

parties presented or substitute our judgment for that of

the ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).

To receive disability benefits under the Social Security

Act, a claimant must be “disabled” as defined by the

Act. 42 U.S.C. § 423(a)(1)(E). A claimant qualifies as

disabled if he is unable to “engage in any substantial

6 No. 10-3736

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). Moreover, a claimant’s physical

or mental impairment or impairments must be of such

severity that he is not only unable to do his previous

work but cannot, considering his age, education and

work experience, engage in any other kind of substantial

gainful work which exists in the national economy.

42 U.S.C. § 423(d)(2)(A).

When determining whether or not an individual is

disabled, we use a five-step sequential analysis. Craft v.

Astrue, 539 F.3d 668, 673 (7th Cir. 2008).

The first step considers whether the applicant is

engaging in substantial gainful activity. The second

step evaluates whether an alleged physical or mental

impairment is severe, medically determinable, and

meets a durational requirement. The third step com-

pares the impairment to a list of impairments that

are considered conclusively disabling. If the impair-

ment meets or equals one of the listed impairments,

then the applicant is considered disabled; if the im-

pairment does not meet or equal a listed impairment,

then the evaluation continues. The fourth step assesses

an applicant’s residual functional capacity (RFC) and

ability to engage in past relevant work. If an ap-

plicant can engage in past relevant work, he is not

disabled. The fifth step assesses the applicant’s RFC,

as well as his age, education, and work experience

No. 10-3736 7

to determine whether the applicant can engage in

other work. If the applicant can engage in other work,

he is not disabled.

Id. at 674. The claimant bears the burden of proof in each

of the first four steps. Briscoe v. Barnhart, 425 F.3d 345, 352

(7th Cir. 2005). The government bears the burden of proof

at the fifth step and must present evidence estab-

lishing that the claimant possesses the residual functional

capacity2 to perform work that exists in a significant

quantity in the national economy. 42 U.S.C. § 423(d)(2)(A);

Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir. 2009).

ALJs often rely heavily on two sources of occupational

information to determine whether the government has

met its burden: the DOT and Vocational Experts. The

DOT, published by the Department of Labor, provides

standardized occupational information, including the

most typical characteristics of jobs as they exist through-

out the American economy. It classifies jobs based on a

number of factors, such as worker actions, exertional

level and skill requirements in order to facilitate the

placement of applicants in positions that match their

qualifications. The DOT has played a prominent role in

social security hearings and ALJs are required to take

administrative notice of the DOT under Social Security

regulations. 20 C.F.R. § 404.1566(d)(1); 20 C.F.R.

§ 416.966(d)(1).

2

Residual functional capacity is defined as “the most [the

claimant] can still do despite [his] limitations.” 20 C.F.R.

§§ 404.1545(a), 416.945(a).

8 No. 10-3736

Vocational Experts often supplement the information

provided in the DOT by providing an impartial assess-

ment of the types of occupations in which claimants

can work and the availability of positions in such occupa-

tions. Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009).

The decision whether to employ a VE at a hearing is a

matter entrusted to the discretion of ALJs, Ehrhart v.

Secretary of H.H.S., 969 F.2d 534, 540 (7th Cir. 1992), but

once an ALJ decides to rely on a VE’s testimony, he

must make sure that the testimony comports with the

rules set forth in the Commissioner’s Social Security

Rulings. For instance, Social Security Ruling 00-4p

requires ALJs to ask whether a VE’s testimony conflicts

with information provided in the DOT before relying

on the VE’s testimony. Social Security Ruling 00-4p at 4;

Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008).

Ruling 00-4p does not require ALJs to wholly disregard

a VE’s testimony because part of it disagrees with the

DOT, but it does require ALJs to resolve discrepancies

between the two before relying on the conflicting testi-

mony. Overman, 546 F.3d at 464; Jens, 347 F.3d at 213.

On appeal, Weatherbee argues that the ALJ committed

three discrete errors when determining whether he

could work in other positions and that each of these

errors is serious enough to merit setting aside the ALJ’s

findings. First, he contends that the ALJ did not ade-

quately inquire into whether the VE’s testimony was

consistent with the DOT. Second, he asserts that the

ALJ failed to investigate and resolve discrepancies

between the VE’s testimony and the DOT. Finally, he

challenges the ALJ’s determination that the jobs he could

No. 10-3736 9

perform existed in significant numbers. These objections

get us to a fine-tuned disentanglement of the relevant

arguments.

A. The ALJ did not err by inquiring whether the

VE’s testimony conflicted with the DOT prior to

soliciting her substantive testimony.

Weatherbee claims that Social Security Ruling 00-4p

requires ALJs to ask whether a VE’s testimony is con-

sistent with the DOT after the VE has provided her sub-

stantive testimony. Because the VE at Weatherbee’s

hearing had not yet testified regarding the types of jobs

that somebody with Weatherbee’s capabilities could

perform when the ALJ made this inquiry, Weatherbee

urges us to find that the ALJ’s inquiry did not satisfy

Ruling 00-4p’s requirements.

We reject Weatherbee’s claim that Ruling 00-4p requires

ALJs to inquire about conflicts between a VE’s testimony

and the DOT after the VE provides her substantive testi-

mony. The text of the Ruling only requires ALJs to

inquire about conflicts “before relying” on a VE’s testi-

mony, but does not specify whether this inquiry should

(or must) occur before or after a VE testifies. See Social

Security Ruling 00-4p (“[T]he adjudicator must elicit

a reasonable explanation for the conflict before relying on

the VE . . . evidence.”). As several district courts have

noted, we have not read a temporal requirement into the

Ruling 00-4p and have refused to establish a singular

method by which ALJs must elicit potential conflicts. See

Howze v. Astrue, 2010 WL 3075524, at *1-2 (N.D. Ill. Aug. 3,

10 No. 10-3736

2010); Harris v. Astrue, 646 F. Supp. 2d 979, 995 (N.D. Ill.

2009).

A review of the transcript from the administrative

hearing establishes that the ALJ satisfied the Ruling’s

requirement. The ALJ’s instruction addressed the issue

of conflicting testimony before the VE offered her sub-

stantive testimony. The VE agreed under oath to

identify and resolve any conflict between her testimony

and the DOT. Nothing in the hearing’s transcript

suggests that the VE disregarded the ALJ’s instructions.

While we do not foreclose the possibility that an ALJ’s

inquiry into the consistency of a VE’s testimony with

the DOT could be rendered inadequate due to its timing

in other circumstances, we find that the instructions

given by the ALJ in this case were sufficient.

B. The ALJ did not err in relying on the VE’s testi-

mony because there was no apparent conflict

between this testimony and the DOT.

Weatherbee argues that the ALJ’s ruling should be set

aside because it was based upon VE testimony that con-

flicted with the DOT. Ruling 00-4p requires ALJs to

investigate and resolve any apparent conflict between

the VE’s testimony and the DOT. Social Security Ruling 00-

4p; Overman, 546 F.3d at 463. A conflict is apparent if it

is “so obvious that the ALJ should have picked up on [it]

without any assistance.” Overman, 546 F.3d at 463. When

there is an apparent conflict, ALJs are required to obtain

reasonable explanations for the conflict. Id. Weatherbee

No. 10-3736 11

claims that the ALJ’s ruling should be set aside because

the ALJ failed to resolve apparent conflicts between

the VE’s claim that somebody with Weatherbee’s im-

pairments could perform some general office clerk and

production worker occupations and the DOT entries

for these jobs.3 Weatherbee does not contest the validity

of the VE’s testimony regarding inspector occupations.

1. General Office Clerk Jobs

Weatherbee contends that the VE’s testimony regarding

his ability to perform “some general office clerk jobs”

obviously conflicted with the DOT and that the ALJ

failed to investigate these discrepancies. He claims that

the VE referenced only the occupation of Office Clerk

(listed at Section 209.562-010 of the DOT) when stating

that “[t]here would be some general office clerk jobs

that are [classified as] unskilled sedentary.” Weatherbee

believes that the VE’s testimony directly and apparently

conflicts with the DOT because the DOT entry for

Office Clerk describes the job as non-sedentary and semi-

skilled.

We reject Weatherbee’s interpretation of the VE’s testi-

mony. When read in the context of the VE’s adjacent

testimony, it is clear that the VE’s discussion of “office

clerk jobs” was meant to refer to a broad category of jobs

3

The term “occupation,” as used by the DOT, refers to a

collection of jobs, many of which vary in required levels

of activity and qualifications.

12 No. 10-3736

that the DOT describes as clerical, not to the single oc-

cupation listed in Section 209.562-010 of the DOT. Almost

immediately after stating that an individual with

Weatherbee’s impairments could work in some “general

office clerk jobs,” the VE added that a “sample occupa-

tional title would be Document Preparer.” The fact that

the VE provided the Document Preparer occupation—

listed in Section 249.587-018 of the DOT—as an example

of a clerk position clearly indicates that she was using

the term clerk in a general sense. The VE’s use of the

term in this manner is consistent with its usage through-

out the DOT. See, e.g., Dep’t of Labor, Dictionary of Oc-

cupational Titles §§ 221-229, 243-249 (occupational entries

for a variety of different clerk positions). Hence, the

VE’s testimony regarding Weatherbee’s ability to per-

form some general office clerk positions did not

conflict with the DOT.

2. Production Worker Jobs

Weatherbee also claims that the VE’s testimony re-

garding his ability to work certain production worker

jobs conflicted with the DOT. First, he contends that

the VE’s testimony should not have been relied on by

the ALJ because the sample occupational title identified

by the VE—“fabrication finisher”—does not exist in the

DOT. Second, he argues that the VE’s testimony conflicted

with the DOT because the physical demands and skill

requirements of many production worker jobs preclude

an individual with Weatherbee’s limitations from ob-

taining employment in those positions.

No. 10-3736 13

We reject Weatherbee’s assertion that the ALJ erred

when it failed to resolve the discrepancy between the

sample occupational title described by the VE and the

title for the same job that is listed in the DOT. While

Weatherbee is correct in his assertion that the job of

“fabrication finisher” is not listed in the DOT, his argu-

ment that the DOT does not contain any job titles similar

to “fabrication finisher” misses the mark. The job of

“finisher” is listed in Section 731.687-014 of the DOT,

is described as an occupation dealing with the fabrica-

tion of dolls and is quite clearly the occupational listing

that the VE was referring to in her testimony. See Lindsley

v. Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009)

(stating that a minor discrepancy between the job title

given by a VE and the title listed in the DOT is insuf-

ficient to create an apparent conflict). Given that the

“finisher” job is listed as being appropriate for indi-

viduals who can work only in sedentary and unskilled

positions, there was no apparent conflict between the

VE’s testimony and the DOT and, hence, no failure on

the part of the ALJ.

Weatherbee’s second contention of error fares no better

than his first. The fact that there are a large number

of production jobs that are beyond the capabilities of

sedentary, non-skilled laborers is not, on its own,

sufficient to establish an apparent conflict between the

VE’s testimony and the DOT. The fifth step in the

disability analysis framework focuses only on the types

of work that the claimant can perform, not the posi-

tions the claimant is precluded from working. The

VE testified that Weatherbee could work in the least de-

14 No. 10-3736

manding subset of production worker jobs and identified

a production job that was appropriate for sedentary,

unskilled individuals like Weatherbee. Because there

was no apparent conflict with the VE’s testimony and

Weatherbee did not present evidence establishing that

he could not work any type of production job, the ALJ

did not err by relying on the VE’s opinion.

C. The ALJ appropriately found that Weatherbee is

qualified to work in positions that are available

in significant number.

Finally, Weatherbee argues that the ALJ’s decision

should be reversed because the government did not

establish that he could work jobs that exist in significant

numbers in the economy. More specifically, he contends

that the government failed to meet its burden because

of the flaws in the VE’s testimony concerning clerk and

productions jobs discussed above.

We recently stated that, in the context of step five of

our disability benefits analysis, “it appears well-

established that 1,000 jobs” constitutes a significant

number. Liskowitz, 559 F.3d at 743. The VE stated that an

individual with Weatherbee’s limitations could work in

some clerk, production and inspector jobs and that there

were approximately 3,900 of these positions available in

Indiana and over 140,000 of these positions available

nationally—numbers well above the threshold for signifi-

cance. As stated above, Weatherbee has failed to establish

that there were apparent conflicts between the VE’s

testimony concerning clerk and production jobs and the

No. 10-3736 15

DOT. Further, Weatherbee has not challenged the VE’s

claims that he could work in inspector positions or that

there were 493 inspectors jobs in Indiana. Hence, the

ALJ did not err when he accepted the VE’s estimates

and found that Weatherbee is capable of working in

positions that are available in significant numbers.

III. Conclusion

Because the Commissioner’s decision to deny benefits

was supported by substantial evidence, the judgment

of the district court is

A FFIRMED.

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