Lindell Washington v. Commissioner of Social Security , 906 F.3d 1353 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-13649
________________________
D.C. Docket No. 8:16-cv-00935-MAP
LINDELL WASHINGTON,
Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 29, 2018)
Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.
MARCUS, Circuit Judge:
The disability programs administered under the Social Security Act “are of a
size and extent difficult to comprehend.” Richardson v. Perales, 402 U.S. 389, 399
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(1971); see also Heckler v. Day, 467 U.S. 104, 106 (1984) (“Approximately two
million disability claims were filed under [the Social Security Act] in fiscal year
1983. Over 320,000 of these claims must be heard by some 800 administrative law
judges each year.”). In 2017 alone, approximately 2.2 million disability
applications were filed, and the Social Security Administration (SSA) disbursed
$54 billion in benefits. See Social Security Administration, Annual Report of the
Supplemental Security Income Program (2017); Selected Data from Social
Security’s Disability Program, www.ssa.gov/oact/STATS/dibStat.html. The
federal government’s provision of disability benefits represents an enormous
administrative undertaking.
This appeal is about the legal standards by which Administrative Law
Judges (ALJ) within the SSA adjudicate whether a claimant is “disabled” under
Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and, therefore, entitled
to disability benefits. More specifically, it is about the ALJ’s duty to investigate
and develop an adequate factual record to support a disability determination in
cases where expert testimony offered by a Vocational Expert (VE) is contradicted
by an authoritative Department of Labor (DOL) publication -- the Dictionary of
Occupational Titles (DOT) -- that the SSA frequently relies on. Ultimately, the
case is about what constitutes “substantial evidence” to support an ALJ’s decision
to deny an application for benefits.
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How we resolve these issues depends on the meaning and application of
Social Security Ruling 00-4p (SSR 00-4p). In SSR 00-4p, the SSA offered a
“policy interpretation” of its regulations governing the adjudication of disability
claims. SSR 00-4p, 2000 WL 1898704 (Dec. 4 2000). The Ruling clarified what
ALJs must do to resolve conflicts between the DOT and expert evidence. After
careful review, we conclude that, pursuant to the terms of the Ruling, and in light
of the overall regulatory scheme that governs disability claims, the ALJs within the
SSA have an affirmative duty to identify apparent conflicts between the testimony
of a Vocational Expert and the DOT and resolve them. This duty requires more of
the ALJ than simply asking the VE whether his testimony is consistent with the
DOT. Once the conflict has been identified, the Ruling requires the ALJ to offer a
reasonable explanation for the discrepancy, and detail in his decision how he has
resolved the conflict. The failure to discharge this duty means that the ALJ’s
decision, when based on the contradicted VE testimony, is not supported by
substantial evidence.
Central to our holding is the recognition that in the context of a Social
Security disability adjudication we are dealing with an inquisitorial proceeding.
Few, if any, agency adjudications depart more markedly from the adversarial
customs that define the American legal tradition than do SSA hearings. In
processing disability claims, the ALJs do not simply act as umpires calling balls
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and strikes. They are by law investigators of the facts, and are tasked not only with
the obligation to consider the reasons offered by both sides, but also with actively
developing the record in the case. Accordingly, although independently
identifying and resolving the points of apparent conflict between expert testimony
and other evidence would be out of character for most judges, for a Social Security
ALJ it can be fairly said to come with the territory. Here, the ALJ failed to meet
his obligations to identify, explain, and resolve an apparent conflict between the
testimony of the VE and the DOT on a matter of considerable importance, and,
therefore, we are required to reverse the judgment of the district court and remand
the case with instructions to send it back to the Commissioner to resolve the
apparent conflict evident in this record.
I.
Lindell Washington has type 2 diabetes. Because of his diabetes, he suffers
from diabetic neuropathy -- a type of nerve damage that can occur as a
consequence of diabetes that causes pain and numbness in the extremities -- and
decreased visual acuity. He is also obese, and has a history of alcohol abuse. In
the past, Washington has worked as a dishwasher, auto detailer, sander, and
warehouse worker. He has a high school education, and served in the Army for a
time. Washington says he is disabled on account of his illnesses.
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In November of 2012, Washington filed a claim for disability benefits with
the SSA. His claim was initially denied in December of that year and again on
reconsideration in March of 2013. Appellant then sought a hearing before an ALJ,
which was held on August 5, 2014. He was represented by counsel during the
proceeding. At the hearing, Washington provided extensive testimony and offered
documentary evidence about his various health problems. Among other things, he
testified about pain and swelling in his hands and feet on account of his diabetes.
He also explained that he has difficulty with certain basic tasks, such as buttoning
his shirts and tying his shoes. During the hearing, the ALJ asked Washington to
pick up a pen, which he was unable to do.
After Washington testified, the ALJ called a Vocational Expert1 (VE) to
provide evidence about the availability of jobs that Washington could perform.
The ALJ posed a hypothetical question about an individual with all of
Washington’s relevant characteristics, including that, because of his neuropathy, he
would not be able to engage in “fine manipulation” with his fingers, and because of
his visual impairments he would not be able to work around hazardous equipment
or heights. In response, the VE testified there were no jobs the individual could
perform because all such jobs required at least occasional fine manipulation. The
1
At the hearings and appeals levels of Social Security proceedings, Vocational Experts are
vocational professionals who provide impartial expert opinions either by testifying or by
providing written responses to interrogatories. SSR 96-9p, 1996 WL 374185 (July 2, 1996).
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ALJ then posed the same hypothetical except he proffered that the individual could
perform occasional fine manipulation, also referred to as “occasional fingering.”
In response, the VE identified two available jobs: table worker and bagger. The
VE further opined that the table worker job involved inspecting larger items such
as DVD cases or aspirin bottles for defects, and thus, would not involve fine detail
work. He also explained that the bagger job entailed placing items -- such as
clothing or jewelry -- into bags.
The ALJ then asked the VE if his testimony was consistent with the
Dictionary of Occupational Titles (DOT). 2 The VE responded that his testimony
was consistent and that he based his testimony on his experience, including having
conducted onsite analyses of the jobs he identified. Washington’s attorney
declined the invitation to question the VE.
The ALJ followed a five-step sequential process and concluded that
Washington was not disabled. The ALJ determined that Washington could find
work as a bagger or table worker despite his impairments. On this basis, the ALJ
2
The DOT is an extensive compendium of data about the various jobs that exist in the United
States economy, and includes information about the nature of each type of job and what skills or
abilities they require. The Department of Labor was responsible for compiling it. As of 1999, the
Department stopped producing new editions of the work, and much of the data contained in the
DOT is now found in online databases. See generally Department of Labor, Revising the
Standard Occupational Classification System (1999), https://www.bls.gov/soc/socrpt929.pdf.
The SSA is currently developing a new Occupational Information System to replace the DOT
and provide its ALJs with more up to date information about current occupations and their
requirements. See Social Security Agency, Occupational Information System Project (2018),
https://www.ssa.gov/disabilityresearch/occupational_info_systems.html.
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denied his claim for benefits. In his decision, the ALJ also stated that, “[p]ursuant
to SSR 00-4p, the undersigned has determined that the vocational expert’s
testimony is consistent with the information in the Dictionary of Occupational
Titles.” The order contained no other discussion of whether or how the VE’s
testimony was consistent with the DOT.
After exhausting his administrative remedies, Washington sought relief from
the denial of benefits in the United States District Court for the Middle District of
Florida. There, he challenged the ALJ’s decision on the grounds that it was not
supported by substantial evidence because the ALJ had failed to properly identify,
explain, and resolve an apparent conflict between the VE’s testimony and the
DOT, as required by SSR 00-4p. In particular, Washington observed that the VE
expressly said that a person who is capable of only occasional fingering could
work the jobs of bagger and table worker. In sharp contrast, however, the DOT
describes both of these jobs as requiring frequent fingering. See DOT § 734.687-
014 (4th ed. 1991) (listing job requirements for table workers, including
“Fingering: Frequently - Exists from 1/3 to 2/3 of the time”); DOT § 920.687-018
(4th ed. 1991) (listing job requirements for baggers, including “Fingering:
Frequently – Exists from 1/3 to 2/3 of the time”). The district court rejected this
challenge, concluding that the ALJ fulfilled his duties under SSR 00-4p simply by
asking the VE if he had testified consistently with the DOT.
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This timely appeal ensued.
II.
In reviewing the denial of Social Security disability benefits, “this Court and
the district court must review the agency’s decision and determine whether its
conclusion, as a whole, was supported by substantial evidence in the record.” Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005). Section 405(g) of Title 42 also
prescribes that “[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C.
§ 405(g). Substantial evidence means “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson, 402 U.S. at 401. “Put differently, we must decide
whether on this record it would have been possible for a reasonable jury to reach
the [agency’s] conclusion.” Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522
U.S. 359, 366–67 (1998). Since our standard of review in a Social Security case is
the same as the one that governs the district court, we owe the trial court’s decision
no deference. Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). “Remand for
further factual development of the record before the ALJ is appropriate where the
record reveals evidentiary gaps which result in unfairness or clear prejudice.”
Henry v. Comm’r of Soc. Sec., 802 F.3d 1264, 1267 (11th Cir. 2015) (quotation
omitted).
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We are also required to review de novo whether the Commissioner’s
decision was based on a proper view of the law. Ellison v. Barnhart, 355 F.3d
1272, 1275 (11th Cir. 2003); Henry, 802 F.3d at 1266; see also Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999) (“We affirm the Commissioner’s decision on a
disability benefits application if it is supported by substantial evidence and the
Commissioner applied the correct legal standards.”).
A.
“Under the Social Security Act, the [SSA] is authorized to pay disability
insurance benefits and Supplemental Security Income to persons who have a
‘disability.’” Barnhart v. Thomas, 540 U.S. 20, 21 (2003). Title II of the Act
defines a “disability” as 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). The Act
sharpens this definition by also providing that a person qualifies as disabled, and is
thereby eligible for benefits, “only if his physical or mental impairment or
impairments are 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.” Id.
§ 423(d)(2)(A). In turn, the statute defines “work which exists in the national
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economy” to mean “work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.” Id.
To determine whether a claimant is disabled, the SSA conducts a “five-step
sequential evaluation process.” 20 C.F.R. § 416.920(a)(1). The evaluation is made
at a hearing conducted by an ALJ. The first three steps deal with whether the
claimant is currently engaged in “substantial gainful activity,” the “medical
severity of the [applicant’s] impairment(s),” and whether the impairments meet the
requirements of a listed impairment. Id. § 416.920(a)(4). If the claimant has failed
to establish that he is disabled at the third step, the ALJ will proceed to step four
and consider the claimant’s “residual functional capacity” and his “past relevant
work” in order to determine whether he can still engage in the kind of gainful
employment that he has undertaken in the past. Id. § 416.920(a)(4)(iv). At step
four, the claimant carries a heavy burden of showing that his impairment prevents
him from performing his past relevant work. See Bloodsworth v. Heckler, 703
F.2d 1233, 1240 (11th Cir. 1983) (“The scheme of the Act places a very heavy
initial burden on the claimant to establish existence of a disability by proving that
he is unable to perform his previous work.”).
If the claimant successfully establishes the existence of an impairment that
prevents him from doing the kind of work that he has done in the past, the
evaluation proceeds to step five. At step five the burden of going forward shifts to
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the SSA “to show the existence of other jobs in the national economy which, given
the claimant’s impairments, the claimant can perform.” Hale v. Bowen, 831 F.2d
1007, 1011 (11th Cir. 1987). If the SSA makes this showing, “the burden shifts
back to the claimant to prove she is unable to perform the jobs suggested by the
[SSA].” Id.; see also Jones, 190 F.3d at 1228 (“At the fifth step, the burden shifts
to the Commissioner to determine if there is other work available in significant
numbers in the national economy that the claimant is able to perform. If the
Commissioner can demonstrate that there are jobs the claimant can perform, the
claimant must prove she is unable to perform those jobs in order to be found
disabled.”) (citation omitted). If the claimant demonstrates that he is unable to
perform the work suggested by the Commissioner on account of his impairment,
the ALJ will find that he is disabled and entitled to disability benefits. 20 C.F.R.
§ 416.920(a)(4)(v). Although the burden temporarily shifts at step five, “the
overall burden of demonstrating the existence of a disability as defined by the
Social Security Act unquestionably rests with the claimant.” Doughty v. Apfel,
245 F.3d 1274, 1280 (11th Cir. 2001) (quotations omitted).
The SSA’s regulations establish how the agency may determine whether
there is suitable work available in the national economy at step five. See 20 C.F.R.
§ 416.966. The regulations, much like the statute itself, provide that “[w]ork exists
in the national economy when there is a significant number of jobs (in one or more
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occupations) having requirements which [the claimant is] able to meet with [his]
physical or mental abilities and vocational qualifications.” Id. § 416.966(b).
Furthermore, this provision enumerates the sources of jobs data that the ALJ
should consider. In particular, it provides that:
When we determine that unskilled, sedentary, light, and medium jobs exist
in the national economy (in significant numbers either in the region where
you live or in several regions of the country), we will take administrative
notice of reliable job information available from various governmental and
other publications. For example, we will take notice of—
(1) Dictionary of Occupational Titles, published by the Department of
Labor …
Id. § 416.966(d). In addition, it provides that:
If the issue in determining whether you are disabled is whether your work
skills can be used in other work and the specific occupations in which they
can be used, or there is a similarly complex issue, we may use the services of
a vocational expert or other specialist. We will decide whether to use a
vocational expert or other specialist.
Id. § 416.966(e). Put simply, the critical inquiry at step five is whether jobs exist
in the national economy in significant numbers that the claimant could perform in
spite of his impairments, and the ALJ can consider both jobs data drawn from the
DOT as well as from the testimony of the VE in making this determination.
Step five in the evaluation process -- and in particular how to weigh
conflicting VE and DOT evidence at that stage -- was, for years, a source of
contention. See, e.g., Tom v. Heckler, 779 F.2d 1250, 1255 (7th Cir. 1985)
(remanding case because of conflict between the VE’s testimony and the DOT);
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Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (remanding case for
reconsideration of jobs claimant could perform in light of DOT descriptions that
called VE testimony into question). The circuits were split over when an ALJ
faced with a conflict could credit a VE over the DOT. See, e.g., Montgomery v.
Chater, 69 F.3d 273, 276 (8th Cir. 1995) (establishing a rebuttable presumption in
favor of the DOT); Conn v. Sec’y of Health and Human Servs., 51 F.3d 607, 610
(6th Cir. 1995) (allowing an ALJ to credit a VE over the DOT); see also Haddock
v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) (imposing on the ALJ a duty to
investigate and explain the conflict). In Jones v. Apfel, 190 F.3d 1224 (11th Cir.
1999), a panel of this Court went some way toward resolving the controversy by
holding that “an ALJ may rely solely on the VE’s testimony” when that testimony
conflicts with the DOT. Jones, 190 F.3d at 1230.3
About a year after this Court decided Jones, the SSA issued a Policy
Interpretation Ruling providing detailed guidance on how the ALJs should go
3
We said in Jones that we “agree[d] with the Sixth Circuit,” and explicitly relied on two Sixth
Circuit precedents that gave the ALJ discretion to credit VE testimony over the evidence
provided in the DOT. See id. at 1229–30 (citing Conn, 51 F.3d at 610 and then citing Barker v.
Shalala, 40 F.3d 789, 795 (6th Cir. 1994)). The first said that the DOT was “not the sole source
of admissible information concerning jobs” and that it was within the ALJ’s discretion to credit a
VE’s testimony over the DOT. Barker, 40 F.3d at 795. The second reiterated: “the ALJ may
accept testimony of a [VE] that is different from information in the [DOT].” Conn, 51 F.3d at
610 (emphasis added). To the extent that Jones might be read to suggest that “the VE’s
testimony ‘trumps’ the DOT” automatically and irrebuttably, we do not read the opinion in that
way, since neither Sixth Circuit case says that an ALJ must credit the VE over the DOT, and the
Jones opinion itself observed that, “an ALJ may rely solely on the ALJ’s testimony,” Jones, 190
F.3d at 1230 (emphasis added), not that the ALJ must rely on the VE’s testimony. See id. at
1229–30. Regardless, though, Jones no longer controls the outcome here, as we explain below.
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about weighing VE testimony and data in the DOT. SSR 00-4p, 2000 WL
1898704 (Dec. 4 2000). The Ruling is characterized by the SSA as a “policy
interpretation” of 20 C.F.R. § 416.966 that seeks “to clarify [the] standards for
identifying and resolving . . . conflicts” between these two sources of evidence.
SSR 00-4p, 2000 WL 1898704, at *2. In the Ruling, the SSA explains that
“[n]either the DOT nor the VE or VS evidence automatically ‘trumps’ when there
is a conflict.” Id. Instead, the Ruling directs ALJs to “[i]dentify and obtain a
reasonable explanation for any conflicts.” Id. at *1. Only after discharging these
duties can an ALJ rely on VE testimony in making his determination at step five.
Id.
Both sides agree that SSR 00-4p governs the resolution of this case and thus
we ought to apply it here. This is not to say that we are bound by agency rulings
that interpret an agency’s regulations. We are not. B. B. v. Schweiker, 643 F.2d
1069, 1071 (5th Cir. 1981).4 But the Rulings are binding within the Social
Security Administration. 20 C.F.R. § 402.35(b)(1) (“[SSA Rulings] are binding on
all components of the Social Security Administration.”). We require the agency to
follow its regulations “where failure to enforce such regulations would adversely
affect ‘substantive rights of individuals.’” First Ala. Bank, N.A. v. United States,
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court
adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October
1, 1981.
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981 F.2d 1226, 1230 n.5 (11th Cir. 1993) (quoting Morton v. Ruiz, 415 U.S. 199,
232 (1974)); see also Romano-Murphy v. C.I.R., 816 F.3d 707, 720 (11th Cir.
2016); Gonzalez v. Reno, 212 F.3d 1338, 1349 (11th Cir. 2000) (“Agencies must
respect their own procedural rules and regulations.”). This is the case even where,
as here, “the internal procedures are more rigorous than otherwise would be
required.” Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. 1981) (per curiam).
Jones had set a floor on SSA procedures. Thereafter, the SSA stepped in,
explained and clarified the governing rules and exercised its prerogative to
strengthen its own procedural requirements, and established an enhanced duty on
the part of the ALJ to discern and resolve conflicts. See Chrysler Corp. v. Brown,
441 U.S. 281, 312–13 (1979) (“It is within an agency’s discretion to afford parties
more procedure, but it is not the province of the courts to do so.”). Since the SSA
did step in, and since the substantive rights of Lindell Washington and other
benefits applicants are at stake, we will require the agency to follow the procedure
laid out in SSR 00-4p. Our task today, then, is limited to interpreting the nature
and meaning of the SSA’s Ruling, its relation to the regulations, and the general
statutory framework created by Congress.
B.
The meaning of SSR 00-4p is at the heart of this appeal. Washington argues
that SSR 00-4p imposes a robust duty on the ALJs to independently identify and
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resolve VE-DOT conflicts. Conversely, the Commissioner says that the ALJ’s
duties under the Ruling are satisfied simply by asking the VE if he has testified
consistently with the DOT, which is what occurred here. After close review, we
conclude that Washington has the better of the argument.
SSR 00-4p imposes a duty on ALJs to identify and resolve apparent conflicts
between DOT data and VE testimony, and this duty is not fulfilled simply by
taking the VE at his word that his testimony comports with the DOT when the
record reveals an apparent conflict between the VE’s testimony and the DOT.
Rather, as we see it, the ALJ has an affirmative obligation to identify any
“apparent” conflict and to resolve it. The failure to properly discharge this duty
means the ALJ’s decision is not supported by substantial evidence. In reaching
this conclusion, we are in agreement with at least four of our sister circuits that
have addressed this question. See, e.g., Hackett v. Barnhart, 395 F.3d 1168, 1175
(10th Cir. 2005); Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008); Moore v.
Colvin, 769 F.3d 987 (8th Cir. 2014); Pearson v. Colvin, 810 F.3d 204 (4th Cir.
2015); see also Haddock v. Apfel, 196 F.3d 1084, 1087 (10th Cir. 1999) (holding,
before SSR 00-4p was issued, that the “ALJ must investigate and elicit a
reasonable explanation for any conflict between the Dictionary and expert
testimony before the ALJ may rely on the expert's testimony as substantial
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evidence to support a determination of nondisability.”). But see Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009).
Ordinarily we construe regulations and other regulatory materials in much
the same way we interpret statutes. See KCMC, Inc. v. F.C.C., 600 F.2d 546, 549
(5th Cir. 1979) (“We approach the issue at hand by noting that, in construing a
regulation, we must employ the rules of construction generally applicable to
statutes.”). This means that we start -- and often end -- with the text. See Chase
Bank USA, N.A. v. McCoy, 562 U.S. 195, 204 (2011). “[A] regulation should be
construed to give effect to the natural and plain meaning of its words.” Ala. Air
Pollution Control Comm’n v. Republic Steel Corp., 646 F.2d 210, 213 (5th Cir.
1981). In addition, we look to the stated purpose of the regulation, as well as the
broader regulatory and statutory context of which it is a part. See Pennzoil Co. v.
F.E.R.C., 645 F.2d 360, 383 (5th Cir. 1981) (“Administrative regulations are to be
interpreted broadly and liberally to effectuate their essential purposes.”). We add
that principles of statutory interpretation “do not necessarily carry over wholesale
to regulatory interpretation.” Butterworth v. Bowen, 796 F.2d 1379, 1389 (11th
Cir. 1986). But for purposes of interpreting the regulatory text at issue here, we
find the rules of statutory construction to be useful aids to our analysis.
To begin, SSR 00-4p’s statement of purpose strongly suggests that the ALJ
has an affirmative duty to ascertain the existence of conflicts. It declares that ALJs
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“must: Identify and obtain a reasonable explanation for any conflicts between
occupational evidence provided by VEs or VSs and information in the Dictionary
of Occupational Titles (DOT) . . . and [e]xplain in the determination or decision
how any conflict that has been identified was resolved.” SSR 00-4p, 2000 WL
1898704, at *1 (emphasis added). The ALJ’s duties are thus three-fold and defined
in the conjunctive. The ALJ must not only “identify . . . any conflicts,” but also
explain any discrepancy and detail in the decision how the discrepancy was
resolved. This language places the burden squarely on the ALJ to determine
whether there are any conflicts. See Pearson, 810 F.3d at 208 (“From its outset,
the Ruling sets forth multiple responsibilities and places all of them on the ALJ.”).
Further, the Ruling does not cabin this duty with any language suggesting that it is
limited to conflicts the ALJ is put on notice of by the claimant or by the VE.
Rather, by the terms of the Ruling’s statement of purpose, the ALJ’s duty is
defined in an expansive manner.
Next, in the section entitled “The Responsibility To Ask About Conflicts,”
the Ruling states that ALJs have “an affirmative responsibility to ask about any
possible conflict between [] VE or VS evidence and information provided in the
DOT.” SSR 00-4p, 2000 WL 1898704, at *4. The Ruling then breaks down this
responsibility into two parts, explaining that, “in these situations,” the ALJ must
first “Ask the VE or VS if the evidence he or she has provided conflicts with
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information provided in the DOT”; and, second, if “the VE’s or VS’s evidence
appears to conflict with the DOT,” the ALJ must “obtain a reasonable explanation
for the apparent conflict.” Id. (emphasis added).
This section establishes a separate duty to explore any “apparent conflict,”
regardless of whether the VE identified the conflict for the ALJ when questioned.
See Overman, 546 F.3d at 463 (“Here, the ALJ satisfied this first step by asking
the VE if his testimony was consistent with the DOT; the VE answered (wrongly,
as it turns out) that it was. If evidence from a VE ‘appears to conflict with the
DOT,’ SSR 00-4p requires further inquiry: an ALJ must obtain ‘a reasonable
explanation for the apparent conflict.’”). Put another way, the provision articulates
a general duty to “ask about” conflicts, and posits two ways that an ALJ must
discharge this responsibility, which are distinct and independent from one another.
See Pearson, 810 F.3d at 208 (“Notably, this second requirement is so independent
of the first that it does not rest on the vocational expert’s identification of a
conflict.”). The ALJ must ask the VE whether there is a conflict and must ask for
an explanation if there appears to be a conflict. Whenever a conflict is “apparent,”
the ALJ must also ask the VE about it. Moreover, “[w]hen an ALJ identifies an
apparent conflict that was not raised during a hearing, [the ALJ] can request an
explanation of the conflict by submitting interrogatories to the vocational expert.”
Id. at 210 n.4 (citing Social Security Administration, Hearings, Appeals, and
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Litigation Law Manual, ch. I–2–5 § 30(C)(2015)). During or after the hearing, the
ALJ is expected to take notice of apparent conflicts, even when they are not
identified by a party, and resolve them.
The independent obligation of the hearing examiner to identify and resolve
apparent conflicts between the VE and the DOT is reinforced in the final provision
of the Ruling. This section describes how the ALJ is required to explain and
resolve any conflict in a final decision. Notably, it provides that the ALJ “must
explain the resolution of the conflict irrespective of how the conflict was
identified.” SSR 00-4p, 2000 WL 1898704, at *4 (emphases added). The Ruling
anticipates that an ALJ will satisfy his duty-to-identify in many ways. Asking the
VE about whether there is a conflict is not the only thing required of an ALJ.
Indeed, if that were not the case the ALJ could ignore explaining and resolving any
apparent conflict (such as the one that existed in this case) simply by asking one
question of the VE and relying on his erroneous answer.
Our interpretation of the Ruling’s text is further informed by the broader
regulatory scheme of which it is a part. Cf. Smith v. United States, 508 U.S. 223,
233 (1993) (“Just as a single word cannot be read in isolation, nor can a single
provision of a statute. As we have recognized: Statutory construction . . . is a
holistic endeavor.” (quotation omitted)); United States v. Rigel Ships Agencies,
Inc., 432 F.3d 1282, 1288 (11th Cir. 2005) (“In any question of statutory
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interpretation, we do not look at one word or term in isolation, but instead we look
to the entire statutory context.”).
Unlike judicial proceedings, disability hearings “are inquisitorial rather than
adversarial.” Sims v. Apfel, 530 U.S. 103, 111 (2000) (plurality opinion). Indeed,
“[t]he differences between courts and agencies are nowhere more pronounced than
in Social Security proceedings. Although many agency systems of adjudication
are based to a significant extent on the judicial model of decisionmaking, the SSA
is perhaps the best example of an agency that is not.” Id. at 110 (quotations and
citations omitted). Because Social Security hearings basically are inquisitorial in
nature, “[i]t is the ALJ’s duty to investigate the facts and develop the arguments
both for and against granting benefits.” Id. at 111; see also Crawford & Co. v.
Apfel, 235 F.3d 1298, 1304 (11th Cir. 2000) (“[The SSA] has replaced normal
adversary procedure with an investigatory model.”). Thus, “the ALJ has a basic
duty to develop a full and fair record. This is an onerous task, as the ALJ must
scrupulously and conscientiously probe into, inquire of, and explore for all relevant
facts.” Henry, 802 F.3d at 1267.
The inquisitorial nature of disability hearings is prescribed by SSA
regulations. In relevant part, the regulations provide that the ALJ must conduct the
hearings “in an informal, non-adversarial manner.” 20 C.F.R. § 416.1400(b). The
regulations also provide that the agency “will consider at each step of the review
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process any information [the claimant] present[s] as well as all the information in
[the agency’s] records.” Id. (emphasis added). Thus, the SSA generally takes
upon itself the responsibility of identifying information in its records relevant to
the resolution of a party’s claim. In fact, “the [SSA Appeals] Council does not
depend much, if at all, on claimants to identify issues for review.” Sims, 530 U.S.
at 112. Indeed, at the appellate stage of the agency’s review, the SSA’s regulations
do not even require a claimant to file a brief. See 20 C.F.R. § 416.1475.
Relatedly, at the hearing stage, the Commissioner does not have a representative
that appears “before the ALJ to oppose the claim for benefits.” Crawford & Co.,
235 F.3d at 1304. Rather, only the claimant -- who often appears pro se -- and the
ALJ participate at the hearing stage. See id.; Sims, 530 U.S. at 111. Thus, in
numerous and varied ways, the SSA’s adjudicatory scheme exudes the air of an
inquisitorial process.
This too is important to our resolution of the case. First, it reinforces the
idea that SSR 00-4p imposes an independent, affirmative obligation on the part of
the ALJ to undertake a meaningful investigatory effort to uncover apparent
conflicts, beyond merely asking the VE if there is one. The Ruling is consonant
with the nature of the entire Social Security regulatory scheme. See Rutherford v.
Barnhart, 399 F.3d 546, 556 (3d Cir. 2005) (“By its terms, SSR 00-4p was
designed to address the already-well-established (in this Circuit and elsewhere)
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obligation of an ALJ to develop the record during an adjudicative hearing.”)
(citation omitted). Since many claimants appear pro se, imposing this duty may be
essential to the proper resolution of disability claims.
We also note the importance the SSA attaches to the Dictionary of
Occupational Titles as a source of jobs data. As SSR 00-4p itself explains, the
SSA “rel[ies] primarily on the DOT . . . for information about the requirements of
work in the national economy.” SSR 00-4p, 2000 WL 1898704, at *2. Similarly,
20 C.F.R. § 416.966(d) explicitly names the DOT as one of the main sources of
jobs data the SSA relies on, and provides that ALJs “will take administrative notice
of reliable job information available” in the DOT. This subsection places the DOT
first in its list of reliable government sources. Id. What’s more, other SSA
Rulings describe the DOT as “authoritative.” See, e.g., SSR 96-9p. Plainly the
DOT is integral to disability hearings.
The importance of the DOT, coupled with the robust nature of the ALJ’s
investigatory responsibilities, gives further meaning to the obligations imposed on
the ALJ by the Ruling to identify, explain, and resolve “apparent conflicts.” We
add that, given the DOT’s significance as a source of jobs data regularly relied on
by the ALJ, it seems to us quite likely that the ALJs are familiar with and have
ready access to it. This seems especially likely since the Social Security
Administration requires the ALJs to take administrative notice of the DOT. Any
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apparent conflict, then, between the VE’s testimony and DOT data is likely not
something the ALJ will need much help in identifying. Nor does it seem consistent
with the DOT’s status as a primary source of jobs data that an ALJ could discharge
his duty to gather the facts and develop arguments on both sides of a claim by
simply taking a VE at his word that there is no conflict. An “apparent conflict” is
thus more than just a conflict that is made apparent by the express testimony of the
VE. It is a conflict that is reasonably ascertainable or evident from a review of the
DOT and the VE’s testimony. At a minimum, a conflict is apparent if a reasonable
comparison of the DOT with the VE’s testimony suggests that there is a
discrepancy, even if, after further investigation, that turns out not to be the case.
Since the ALJs frequently use the DOT, treat it as an authoritative source, and
actively investigate the evidence for and against granting disability benefits,
identifying these “apparent conflicts” falls well within their wheelhouse.
Finally, the structure of the Social Security Act also reinforces our reading
of the Ruling. As the Supreme Court has observed, “Congress designed [the Social
Security Act] to be unusually protective of claimants.” Bowen v. City of New
York, 476 U.S. 467, 480 (1986) (quotations omitted); see also Heckler v. Day, 467
U.S. 104, 106 (1984) (“To facilitate the orderly and sympathetic administration of
the disability program of Title II, the Secretary and Congress have established an
unusually protective four-step process.”). This too suggests that the ALJ has a
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duty to identify DOT data that may be helpful to a claimant. See Pearson, 810 F.3d
at 210 (“The policies animating the disability benefits adjudication process also
support requiring the ALJ to make an independent identification of conflicts, and
to do so for apparent conflicts. The Social Security Act is remedial in nature and
‘unusually protective’ of claimants.”).
Thus, we conclude that SSR 00-4p is properly understood to impose an
affirmative duty on the ALJs to identify apparent conflicts, ask the VE about them,
and explain how the conflict was resolved in the ALJ’s final decision. The text of
the Ruling strongly suggests as much, and the inquisitorial nature of disability
proceedings practically demands it.
C.
Having established that the ALJ has an affirmative duty to identify and
resolve any apparent VE-DOT conflict in a disability hearing, we turn to whether
the ALJ who denied Washington’s claim breached that duty. We conclude that he
did.
The question boils down to whether the conflict was an “apparent” one that
the ALJ had a duty to take notice of, ask about, and resolve. As we have explained
in this context, “apparent” should be taken to mean apparent to an ALJ who has
ready access to and a close familiarity with the DOT. Put another way, if a conflict
is reasonably ascertainable or evident, the ALJ is required to identify it, ask about
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it, and resolve it in his opinion. We take the word “apparent” to mean “seeming
real or true, but not necessarily so.” Pearson, 810 F.3d at 209 (quoting OXFORD
DICTIONARY).
By our lights, the difference here between the VE’s testimony and the DOT
presents one of the clearest examples of an “apparent conflict.” The VE was asked
whether there are any jobs in the national economy for someone with
Washington’s impairments, including the fact that he can only engage in
“occasional fingering.” The VE testified that such an individual could work as a
bagger and a table worker. A review of the DOT’s entries about these positions,
however, indicates that both of these jobs can only be performed by a person who
is capable of “frequent fingering.” This means that both jobs require fingering, i.e.
“fine manipulation,” anywhere from 1/3 to 2/3 of the time. Thus, while the VE
unequivocally testified that there were jobs Washington could perform, the DOT
says otherwise. This doesn’t mean that the VE was wrong, but it does mean that
there was a conflict, it was apparent, and it was important. The difference between
the ability to occasionally perform a task and frequently perform a task is patent
and significant in determining whether work exists in the national economy for a
claimant. See Moore v. Colvin, 769 F.3d 987, 989 (8th Cir. 2014). What’s more,
the conflict is manifest from even a cursory, side-by-side comparison of the VE’s
testimony and the DOT. The ALJ thus unmistakably breached his duty.
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Moreover, the ALJ’s mistake was not harmless. For starters, the conflict
between the VE and the DOT is an actual one. We can’t disregard the error on the
grounds that no conflict in fact existed. See Terry v. Astrue, 580 F.3d 471, 478
(7th Cir. 2009) (“[T]he error is harmless unless there actually was a conflict.”).
What’s more, the VE’s testimony on what jobs were available for Washington was
sparse, taking up only about a page in the hearing transcript. Any explanation for
how and why he concluded that Washington could work as a bagger and a table
worker was de minimis, and the ALJ asked nothing more to elicit a fuller
explanation. We, therefore, have no basis as an appellate court on which to
conclude that the ALJ adequately resolved any possible discrepancy in spite of his
failure to even acknowledge the conflict. See Welsh v. Colvin, 765 F.3d 926, 930
(8th Cir. 2014) (concluding that the ALJ had complied with SSR 00–4p because, in
response to extensive questioning by the ALJ regarding inconsistencies, the VE
offered evidence of her personal observations of the requirements of the proposed
jobs and cited a professional journal).
III.
The long and short of it is that in this disability hearing there was an
apparent -- indeed glaring -- conflict, and it passed by the ALJ unnoticed, and
therefore unexamined. By failing to identify and resolve the conflict, the ALJ
breached his duty to fully develop the record and offer a reasonable resolution of
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Washington’s claim. This duty is imposed by SSR 00-4p. What’s more, it is
deeply consistent with the nature of SSA proceedings and the ALJ’s responsibility
as an investigator in this process. Accordingly, we reverse and remand to the
district court so that it may, in turn, remand the matter to the Commissioner for
further development of the record.
REVERSED and REMANDED.
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