AR 14-1(8): Brock v. Astrue, 674 F.3d 1062 (8th Cir. 2012): Requiring Vocational Specialist (VS) or Vocational Expert (VE) Evidence When an Individual has a Severe Mental Impairment(s) — Titles II and XVI of the Social Security Act.

Effective Date: May 22, 2014 Publication Date: May 22, 2014 Federal

Register Vol. 77, No. 172, page 54646

Acquiescence Ruling 14-1(8)

Issue: Must an adjudicator obtain VS or VE evidence to

determine whether a claimant with a severe mental impairment can

perform jobs that exist in significant number in the national

economy, given his or her residual functional capacity (RFC),

age, education and work experience?

Statute/Regulation/Ruling

Citation: Sections 205(b) , 223(d)(2)(A) ; 223(d)(5)(A) ; 1614(a)(3)(B) ; 1614(a)(3)(H)(i) of the Social Security Act (42 U.S.C. 423(d)(2)(A); 423(d)(5)(A);

1382c(a)(3)(B); 1382c(a)(3)(H)(i)); 20 CFR 404.1520(a)(4)(v) , 404.1520(g) , 404.1566 , 404.1569 , 404.1569a , 416.920(a)(4)(v) , 416.920(g) , 416.966 , 416.969 , 416.969a ;

section 200.00(e) of 20 CFR Part 404, Subpart P, Appendix 2;

Social Security Rulings (SSRs) 83-10 , 83-12 , 83-14 , 85-15 , 96-9p .

Circuit: Eighth (Arkansas, Iowa, Minnesota, Missouri, Nebraska,

North Dakota, and South Dakota).

Applicability of Ruling: This ruling applies to determinations

or decisions made in the Eighth Circuit at all levels of

administrative review.

Description of Case: Michael Brock (Brock) applied for

Supplemental Security Income (SSI) payments based on disability

alleging he was disabled due to an anxiety disorder and

attention deficit hyperactivity disorder. [1] The administrative

law judge (ALJ) found that Brock's mental impairments were

severe at step two of our sequential evaluation process.

Despite the severe mental impairments, the ALJ found that Brock

had the RFC to perform the full range of medium work

contemplated in the Medical-Vocational Guidelines (the Grid

rules). Considering Brock's RFC, age, education, and work

experience, the ALJ used Medical-Vocational Rule 203.25 as a

framework to find that Brock could adjust to work existing in

significant numbers in the national economy and was “not

disabled.” The ALJ did not request VE testimony.

he RFC to perform the full range of medium work

contemplated in the Medical-Vocational Guidelines (the Grid

rules). Considering Brock's RFC, age, education, and work

experience, the ALJ used Medical-Vocational Rule 203.25 as a

framework to find that Brock could adjust to work existing in

significant numbers in the national economy and was “not

disabled.” The ALJ did not request VE testimony.

On appeal, Brock argued that because his

impairments were solely

nonexertional, the ALJ erred in relying solely on the Grid rules

and that the ALJ should have sought VE evidence to determine

whether he could adjust to other work. Brock asserted that,

because the Grid rules are premised only on exertional

limitations, they are not meant to direct a conclusion of

“disabled” or “not disabled” for individuals

who have solely

nonexertional limitations. Therefore, Brock asserted that

substantial evidence in the record did not support the ALJ's

decision.

Holding: The Court of Appeals for the Eighth Circuit concluded

that the ALJ erred by relying solely on the Grid rules to

determine that Brock could adjust to work existing in

significant numbers in the national economy. The Court held

that “[b]ecause the ALJ determined that Brock suffered from

severe mental impairments, the ALJ should have consulted a [VE]

in determining whether Brock had the RFC to perform other jobs

that exist in significant number in the national economy.”

Statement As to How Brock Differs From the Agency's

Policy:

adjust to work existing in

significant numbers in the national economy. The Court held

that “[b]ecause the ALJ determined that Brock suffered from

severe mental impairments, the ALJ should have consulted a [VE]

in determining whether Brock had the RFC to perform other jobs

that exist in significant number in the national economy.”

Statement As to How Brock Differs From the Agency's

Policy:

At step five of the sequential evaluation process

(or the last step in the sequential evaluation process in continuing

disability review claims), we consider the vocational factors of

age, education, and work experience in conjunction with a

claimant's RFC to determine whether the claimant can adjust to

other work that exists in significant numbers in the national

economy. Section 200.00(e)(1) of 20 CFR Part 404, Subpart P,

Appendix 2 provides that “[i]n the evaluation of disability

where the individual has solely a nonexertional type of

impairment, determination as to whether disability exists shall

be based on the principles in the appropriate sections of the

regulations, giving consideration to the rules for specific case

situations in this appendix 2. The rules do not direct factual

conclusions of disabled or not disabled for individuals with

solely nonexertional types of impairments.” As explained below,

the rules are, however, used as a framework for decision making. Under SSR 85-15 :

Titles II and XVI: Capability To Do Other

Work — The Medical–Vocational (Grid) Rules as a Framework for

Evaluating Solely Nonexertional Impairments, where a person's

only impairment is mental, it is not of listing severity but

does prevent the person from meeting the mental demands of past

relevant work and prevents the transferability of acquired work

skills, the final consideration is whether the person can be

expected to perform unskilled work

ical–Vocational (Grid) Rules as a Framework for

Evaluating Solely Nonexertional Impairments, where a person's

only impairment is mental, it is not of listing severity but

does prevent the person from meeting the mental demands of past

relevant work and prevents the transferability of acquired work

skills, the final consideration is whether the person can be

expected to perform unskilled work. The basic mental demands of

competitive, remunerative, unskilled work include the abilities

(on a sustained basis) to understand, carry out, and remember

simple instructions; to respond appropriately to supervision,

coworkers, and usual work situations; and to deal with changes

in a routine work setting. Where there is no exertional

impairment, unskilled jobs at all levels of exertion constitute

the potential occupational base for persons who can meet the

mental demands of unskilled work. Under our interpretation of

the regulations, an adjudicator is not required to consult a VE

or other vocational resource to determine whether a

nonexertional limitation significantly erodes a claimant's

occupational base when adjudicative guidance on the effect of

the limitation is provided in an

SSR. [2] If the occupational base

is not significantly eroded by non-exertional limitations, the

adjudicator may use the Grid rules as a framework, and VE

testimony is not required.

In Brock, the ALJ found that Brock retained the

ability to perform unskilled work. Pursuant to SSR 85-15 ,

the ALJ found Brock's non-exertional limitations had little or no effect on

the occupational base of medium exertional level unskilled work

before applying the framework of Grid rule 203.25 to find Brock

was not disabled.

the Grid rules as a framework, and VE

testimony is not required.

In Brock, the ALJ found that Brock retained the

ability to perform unskilled work. Pursuant to SSR 85-15 ,

the ALJ found Brock's non-exertional limitations had little or no effect on

the occupational base of medium exertional level unskilled work

before applying the framework of Grid rule 203.25 to find Brock

was not disabled.

The Brock Court's decision differs from our policy

because it held that, because the ALJ found Brock had severe mental

impairments, “the ALJ should have consulted a [VE] in

determining whether Brock had the RFC to perform other jobs that

exist in significant number in the national economy.” The

holding requires the ALJ to consult a VE before denying a claim

at step five of our sequential evaluation process when the claim

involves an individual with a severe mental impairment(s),

regardless of whether adjudicative guidance available in an SSR

holds that the resulting nonexertional limitation(s) does not

significantly erode the occupational base and application of the

applicable Grid rule is appropriate.

Explanation of How We Will Apply the Brock Decision

Within the Circuit:

This Ruling applies only to claims in which the

claimant resides in Arkansas, Iowa, Minnesota, Missouri, Nebraska,

North Dakota, and South Dakota at the time of the determinations or

decision at the initial, reconsideration, and ALJ hearing levels.

In making a disability determination or decision at step five of

the sequential evaluation process (or the last step in the

sequential evaluation process in continuing disability review

claims), we will not rely exclusively on the Grid rules as a

framework for decision making when an individual has a severe

mental impairment(s)

ecision at the initial, reconsideration, and ALJ hearing levels.

In making a disability determination or decision at step five of

the sequential evaluation process (or the last step in the

sequential evaluation process in continuing disability review

claims), we will not rely exclusively on the Grid rules as a

framework for decision making when an individual has a severe

mental impairment(s). Before we deny a claim for disability

benefits at step five (or the last step in the sequential

evaluation process in continuing disability review claims) when

a claimant has a severe mental impairment(s), we will produce VE

evidence in claims at the hearing level. For claims decided at

the initial and reconsideration levels, we will use evidence

from a VS, the Dictionary of Occupational Titles (DOT), or

another reliable source of job information, such as the ones

listed in 20 CFR 404.1566(d) and 416.966(d) .

At the Appeals Council level, the Appeals Council will use this

AR to determine whether it was correctly applied at the hearing

level. However, when the Appeals Council exercises its

authority to issue a corrective unfavorable decision, the

Appeals Council may rely on vocational evidence adduced at the

hearing.

[1] Although Brock was a Title XVI case, the same

principles apply to Title II. Therefore, this Acquiescence Ruling

applies to both Title II and Title XVI disability claims. [2] For example, the following non-exertional limitations

do not significantly erode an occupational base: limited exposure to

dangerous moving machinery, unprotected heights, and ragweed

allergies (sedentary jobs); limited climbing of ladders and

scaffolding, crouching (sedentary and light jobs), exposure to

feathers, use of a cane for prolonged ambulation and uneven

terrain, or slopes (sedentary), and inability to sense texture

or temperature with fingertips

ficantly erode an occupational base: limited exposure to

dangerous moving machinery, unprotected heights, and ragweed

allergies (sedentary jobs); limited climbing of ladders and

scaffolding, crouching (sedentary and light jobs), exposure to

feathers, use of a cane for prolonged ambulation and uneven

terrain, or slopes (sedentary), and inability to sense texture

or temperature with fingertips. See SSR 83-14 :

Titles II and XVI: Capability To Do Other Work —

The Medical-Vocational Rules as a Framework for Evaluating a Combination

of Exertional and Nonexertional Impairments, at *2.

Whereas, the following nonexertional limitations generally do

significantly erode an occupational base: loss of bilateral manual dexterity

(sedentary jobs); constriction of visual field (light and medium

jobs); no stooping, and poor balance when standing or walking on

uneven terrain. See SSR 96-9p :

Policy Interpretation Ruling Titles II and XVI: Determining Capability

To Do Other Work — Implications of a Residual Functional

Capacity for Less Than a

Full Range of Sedentary Work, at *5-6. SSR 83-14 :

Titles II and XVI: Capability To Do Other Work — The

Medical-Vocational Rules as a Framework for Evaluating a Combination

of Exertional and Nonexertional Impairments. SSR 83-10 :

Titles II and XVI: Determining Capability to do Other Work —

The Medical-Vocational Rules of Appendix 2 and SSR 83-12 :

Titles II and XVI: Capability to do Other Work-The Medical-Vocational

Rules as a Framework For Evaluating Exertional Limitations Within a

Range of Work or Between Ranges of Work also provide helpful adjudicative

guidance on using the rules and the impact of nonexertional

impairments on the exertional occupational base.

do Other Work —

The Medical-Vocational Rules of Appendix 2 and SSR 83-12 :

Titles II and XVI: Capability to do Other Work-The Medical-Vocational

Rules as a Framework For Evaluating Exertional Limitations Within a

Range of Work or Between Ranges of Work also provide helpful adjudicative

guidance on using the rules and the impact of nonexertional

impairments on the exertional occupational base.

[2] For example, the following non-exertional limitations

do not significantly erode an occupational base: limited exposure to

dangerous moving machinery, unprotected heights, and ragweed

allergies (sedentary jobs); limited climbing of ladders and

scaffolding, crouching (sedentary and light jobs), exposure to

feathers, use of a cane for prolonged ambulation and uneven

terrain, or slopes (sedentary), and inability to sense texture

or temperature with fingertips. See SSR 83-14 :

Titles II and XVI: Capability To Do Other Work —

The Medical-Vocational Rules as a Framework for Evaluating a Combination

of Exertional and Nonexertional Impairments, at *2.

Whereas, the following nonexertional limitations generally do

significantly erode an occupational base: loss of bilateral manual dexterity

(sedentary jobs); constriction of visual field (light and medium

jobs); no stooping, and poor balance when standing or walking on

uneven terrain. See SSR 96-9p :

Policy Interpretation Ruling Titles II and XVI: Determining Capability

To Do Other Work — Implications of a Residual Functional

Capacity for Less Than a

Full Range of Sedentary Work, at *5-6. SSR 83-14 :

Titles II and XVI: Capability To Do Other Work — The

Medical-Vocational Rules as a Framework for Evaluating a Combination

of Exertional and Nonexertional Impairments

terrain. See SSR 96-9p :

Policy Interpretation Ruling Titles II and XVI: Determining Capability

To Do Other Work — Implications of a Residual Functional

Capacity for Less Than a

Full Range of Sedentary Work, at *5-6. SSR 83-14 :

Titles II and XVI: Capability To Do Other Work — The

Medical-Vocational Rules as a Framework for Evaluating a Combination

of Exertional and Nonexertional Impairments. SSR 83-10 :

Titles II and XVI: Determining Capability to do Other Work —

The Medical-Vocational Rules of Appendix 2 and SSR 83-12 :

Titles II and XVI: Capability to do Other Work-The Medical-Vocational

Rules as a Framework For Evaluating Exertional Limitations Within a

Range of Work or Between Ranges of Work also provide helpful adjudicative

guidance on using the rules and the impact of nonexertional

impairments on the exertional occupational base.