Jeffery Guiton v. Carolyn Colvin , 546 F. App'x 137 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2100
JEFFERY S. GUITON,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,
Defendant – Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cv-00822-JAB-LPA)
Argued: September 19, 2013 Decided: November 7, 2013
Before AGEE, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Agee joined. Judge Davis wrote a separate
opinion concurring in the judgment.
ARGUED: B. Michel Phillips, MARTIN & JONES, Decatur, Georgia,
for Appellant. Jason W. Valencia, SOCIAL SECURITY
ADMINISTRATION, Boston, Massachusetts, for Appellee. ON BRIEF:
Charles L. Martin, Decatur, Georgia; J. Kevin Morton, Winston-
Salem, North Carolina, for Appellant. Gill P. Beck, Assistant
United States Attorney, Civil Division, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DIAZ, Circuit Judge:
Jeffery S. Guiton appeals the district court’s order
affirming the Commissioner of Social Security’s termination of
his disability insurance benefits. Guiton contends that the
decision to terminate his benefits is not supported by
substantial evidence, and that the Administrative Law Judge
(“ALJ”) erred in crediting testimony by a Vocational Expert
(“VE”) regarding the number of existing jobs in the economy that
Guiton could perform. We agree with the district court that
substantial evidence supports the Commissioner’s termination of
Guiton’s benefits and find no error in the ALJ’s reliance on the
VE’s testimony. Accordingly, we affirm.
I.
Guiton, a North Carolina resident, first applied for
benefits on July 31, 2000, after a doctor diagnosed him with a
malignant brain tumor. Finding that Guiton was disabled within
the meaning of the Social Security Act, the Commissioner awarded
benefits. In October 2003, following a continuing disability
review, the Commissioner found that Guiton’s condition was “no
longer severe enough to be considered disabling,” and terminated
Guiton’s benefits. Tr. 55. 1
1
“Tr.” refers to the administrative record transcript.
3
Guiton appealed the termination of his benefits first to a
state agency hearing officer, and then to an ALJ. The ALJ held
a hearing and affirmed the Commissioner’s determination. After
the Appeals Council denied review, Guiton sought review of the
ALJ’s decision in the U.S. District Court for the Middle
District of North Carolina. Pursuant to a consent order, the
district court reversed the termination of Guiton’s benefits and
remanded to the Commissioner. The ALJ held a second hearing,
and again found that Guiton was no longer disabled within the
meaning of the Social Security Act.
The ALJ adhered to the eight-step analytical framework that
governs administrative reevaluation of Social Security
disability awards. 2 See 20 C.F.R. § 404.1594(f). As relevant
here, the ALJ assessed whether Guiton had experienced medical
improvement related to his ability to work; whether he continued
to suffer from an impairment sufficiently severe to be
considered disabling; and if not, whether he retained the
residual functional capacity (“RFC”) to perform work that exists
in significant numbers in the national economy. See id.
2
This eight-step analysis essentially incorporates the more
familiar five-step analysis governing the initial determination
of whether a claimant is disabled. See 20 C.F.R.
§ 404.1520(a)(4).
4
The ALJ found that Guiton had indeed experienced medical
improvement related to his ability to work. Although Guiton had
not worked during the period of disability, he had undergone
surgery to remove his brain tumor and had not suffered a seizure
since 2000. The ALJ found that Guiton continued to suffer from
several medically determinable impairments (including a seizure
disorder, lumbar disc disease, low intellect, and a memory
disorder), but that these impairments were not severe enough to
be considered disabling under the applicable federal
regulations. Specifically, the ALJ rejected Guiton’s claim that
his condition qualified as mental retardation under Listing
12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C, because he
failed to establish (a) an onset of impairment before age 22, as
the listing requires, and (b) the requisite deficits in adaptive
functioning.
With respect to the onset of Guiton’s impairment, the ALJ
concluded that Guiton’s brain tumor and related surgeries (which
occurred after age 22) had negatively affected his IQ. The ALJ
credited the written submission of John Bevis, a licensed
psychological associate, 3 who opined that Guiton’s pre-tumor
3
In North Carolina, a licensed psychological associate is
“[a]n individual to whom a license has been issued pursuant to
[the North Carolina Psychology Practice Act] . . . and whose
license permits him or her to engage in the practice of
psychology.” N.C. Gen. Stat. § 90-270.2(7). Licensure requires
(Continued)
5
intellectual abilities had likely been in the “borderline”
range, which, the ALJ noted, is “outside the range for mental
retardation and [Listing] 12.05C.” Tr. 19. The ALJ found that
the record evidence was consistent with this evaluation,
specifically relying on the absence of any notation in Guiton’s
school records that he was mentally retarded, and pointing out
that the low marks Guiton received in school tended to coincide
with extended absences and poor effort.
The ALJ also found that Guiton had failed to demonstrate
the requisite deficits in adaptive functioning. Questioning
Guiton’s claim that he is illiterate, the ALJ noted that Guiton
often received “satisfactory” and “commendable” marks in school
for reading, and that one report card indicated he was able to
read at “level 8.” Tr. 20. Additionally, the ALJ found that
Guiton “washed his own clothes and dishes, cooked, vacuumed,
helped his father and mowed the lawn with a riding mower.” Tr.
20. The ALJ noted that Guiton lived alone at the time of the
hearing, and found that he was able to “perform[] routine daily
activities without difficulty.” Tr. 20.
Concluding that Guiton had not met the requirements of a
disability listing, the ALJ proceeded to the final two steps of
either a master’s degree or a specialist degree in psychology.
Id. § 90-270.11(b).
6
the analysis. First, the ALJ found that Guiton retained the RFC
to perform light work. The ALJ discounted the opinions of
several treating physicians that Guiton’s condition would
prevent him from sustaining full-time employment. Instead, the
ALJ credited the statements of nonexamining state agency medical
consultants who opined that Guiton could perform light work.
The ALJ explained that this conclusion was more consistent with
the evaluations of other physicians who had examined Guiton, as
well as with other evidence in the record.
Finally, the ALJ concluded that, given Guiton’s age,
education, work experience, and RFC, he was able to perform work
that exists in significant numbers in the economy. The ALJ
credited the testimony of a state VE 4 who testified that Guiton
was able to perform the requirements of three occupations
identified in the Dictionary of Occupational Titles (“DOT”). 5 To
4
VEs are “persons who have, through training and experience
in vocational counseling or placement, an up-to-date knowledge
of job requirements, occupational characteristics and working
conditions, and a familiarity with the personal attributes and
skills necessary to function in various jobs.” Wilson v.
Califano, 617 F.2d 1050, 1053 (4th Cir. 1980). VEs routinely
“assist the ALJ in determining whether there is work available
in the national economy which [a] particular claimant can
perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
5
The DOT is a reference published by the U.S. Department of
Labor that lists and describes various jobs. Its use in the
disability review process is authorized by regulation. See 20
C.F.R. § 404.1566(d).
7
conclude that each of these occupations exists in significant
numbers in both the North Carolina and national economies, the
VE relied on the Occupational Employment Quarterly (“OEQ”), a
commercial publication that employs government data to provide
statistics regarding the number of available jobs by census-
coded occupational category.
Having proceeded through the eight-step analysis, the ALJ
concluded that Guiton was no longer disabled within the meaning
of the Social Security Act, and was therefore not entitled to
benefits.
In response, Guiton filed this action in the district
court, seeking review of the Commissioner’s termination of his
benefits. A magistrate judge found that the decision was
supported by substantial evidence and recommended affirming the
Commissioner’s determination. The district court adopted the
magistrate judge’s opinion and granted judgment on the pleadings
to the Commissioner. Guiton appeals.
II.
This court is authorized to review the Social Security
Commissioner’s termination of benefits under 42 U.S.C. § 405(g).
In doing so, we “must uphold the factual findings of the [ALJ]
if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Hancock v.
8
Astrue, 667 F.3d 470, 472 (4th Cir. 2012) (alteration in
original) (internal quotation marks omitted). “Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Johnson v.
Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation
marks omitted). When reviewing for substantial evidence, we
will not reweigh conflicting evidence or make credibility
determinations. Hancock, 667 F.3d at 472. Rather, “[w]here
conflicting evidence allows reasonable minds to differ as to
whether a claimant is disabled, the responsibility for that
decision falls on the [ALJ].” Id. (alteration in original)
(internal quotation marks omitted).
III.
On appeal, Guiton challenges the Commissioner’s termination
of his benefits in three respects. Guiton argues: (1) that the
ALJ erred in finding that he failed to satisfy the requirements
of Listing 12.05C, because the ALJ wrongly concluded that the
onset of his disability occurred after age 22 and improperly
determined that he had not demonstrated deficits in adaptive
functioning; (2) that, by substituting his evaluation of the
evidence and the opinion of nonexamining state agency medical
consultants for the opinions of treating physicians, the ALJ
erred in finding that Guiton retained the RFC to perform light
9
work; and (3) that the ALJ erred in crediting the VE’s job
numbers because they were based on a flawed statistical
methodology.
A.
We have considered Guiton’s first two arguments and, for
the reasons stated by the magistrate judge and adopted by the
district court, find them to be without merit. See Guiton v.
Astrue, No. 1:08CV822, 2012 WL 1267856 (M.D.N.C. Apr. 16, 2012).
As the magistrate judge explained, the ALJ thoroughly analyzed
the testimony and available evidence, and reasonably concluded
that Guiton (1) failed to meet the requirements of Listing
12.05C; and (2) retained the RFC to perform light work. In
challenging these findings, Guiton essentially asks us to
“reweigh conflicting evidence, make credibility determinations,
[and] substitute our judgment for that of the [ALJ].” Hancock,
667 F.3d at 472 (alteration in original) (internal quotation
marks omitted). This we are not authorized to do. We instead
hold that the ALJ’s findings with respect to these issues are
supported by substantial evidence.
B.
Guiton’s third argument requires further discussion. At
the last of the eight steps, the Commissioner bears the burden
of demonstrating that work the claimant can perform exists in
significant numbers in the national economy. See 20 C.F.R.
10
§ 404.1594(f); id. § 404.1560(c)(2). Guiton submits that the
ALJ erred in concluding that the Commissioner satisfied this
burden, arguing that the ALJ impermissibly credited testimony by
the VE regarding job statistics that were insufficiently
specific.
During the administrative hearing, the VE testified that
Guiton is able to perform at least three occupations. She
identified these occupations by DOT code: bench assembler (DOT
706.684-022); assembler arranger (DOT 739.687-010); and
agricultural sorter (DOT 529.687-186). The VE then reported the
number of existing jobs in the North Carolina and national
economies for each of these occupations, gleaning the numbers
from the OEQ. As Guiton points out, however, the OEQ reports
job numbers by census code, not by DOT code. Census codes are
broader designations than DOT codes, and a single census code
may comprise numerous DOT-coded occupations. 6 Guiton therefore
argues that the job numbers the VE reported from the OEQ
overstate the actual number of jobs in the economy available to
him, because they likely include many jobs associated with DOT-
coded occupations he is unable to perform. Guiton contends that
without some reliable methodology for determining the number of
6
For example, Guiton points out that the DOT code for bench
assembler is one of 1,687 DOT codes included within a single
census code.
11
jobs corresponding to the specific DOT-coded occupations the VE
identified, it was error for the ALJ to credit the VE’s
testimony.
We have not previously addressed the issue of a VE’s
reliance on job numbers from the OEQ, and it appears that only
one other circuit has done so directly. 7 In Liskowitz v. Astrue,
559 F.3d 736 (7th Cir. 2009), the Seventh Circuit considered a
similar argument regarding the specificity of OEQ job numbers.
Noting that OEQ job numbers include both full-time and part-time
positions--and contending that only full-time positions suffice
to carry the Commissioner’s burden--the claimant in that case
argued that the ALJ should not have credited the job numbers a
7
In Brault v. Social Security Administration Commissioner,
683 F.3d 443 (2d Cir. 2012), the Second Circuit described, in a
footnote, a similar argument to the one raised here, made by the
claimant in that case before an ALJ. Id. at 443, 447 n.4 (per
curiam). The claimant had disputed the reliability of job
numbers that a VE derived from a newer version of the OEQ on the
basis that it reported job numbers by standard occupational
classification (“SOC”) code rather than DOT code. SOC codes,
like the census codes involved here, may each comprise numerous
DOT codes. Id. The court acknowledged that this “many-to-one
mapping” problem might cause a VE’s job estimates to “deviate
significantly from the actual number of existing positions.”
Id. On appeal, however, the claimant argued only that the ALJ
had not provided him a sufficient opportunity to challenge the
VE’s testimony, and that the ALJ had not adequately explained
its reasoning. Rejecting these arguments, the court left the
merits of the ALJ’s reliance on the VE’s testimony “for another
day and a closer case.” Id. at 450.
12
VE reported because the VE had not further identified the
percentage of the jobs that were full-time. Id. at 743-44.
The court rejected this challenge. Acknowledging that the
OEQ is a “source on which VEs customarily rely,” id. at 744, the
court determined that requiring more specific numbers would lead
to “significant practical problems,” id. at 745. The court
explained that because “no government data source contains” the
full-time-only data that the claimant was requesting, insisting
that a VE produce such data would “impose impossible burdens on
the VE.” Id. at 745. A VE, after all, is “not . . . a census
taker or statistician.” Id. at 743. The court thus found no
error in the ALJ’s reliance on the VE’s testimony.
Similar considerations guide us here. As the ALJ
explained, the DOT-specific job numbers Guiton would have the VE
provide simply do not exist: “There apparently is no data,
updated on a regular basis, available through either a public or
private source[], that reports numbers of jobs by DOT code
number.” Tr. 34. Guiton does not dispute this observation.
Thus, if we required a VE to produce job statistics specific to
the DOT-coded occupations a claimant can perform, it is unlikely
that the Commissioner would ever succeed in satisfying her
burden. This cannot be the result the regulations intend.
Indeed, that the data Guiton requests does not exist “is a sign
that [Guiton] expects too much,” and like the Seventh Circuit,
13
we decline to “impose impossible burdens on the VE.” See
Liskowitz, 559 F.3d at 745.
In this case, the VE cited the existence of 26,330 jobs in
North Carolina and 825,000 jobs in the United States that Guiton
could perform. Tr. 624. Even assuming these numbers were
overinclusive, far smaller figures would still suffice to
satisfy the Commissioner’s burden. See Hicks v. Califano, 600
F.2d 1048, 1051 n.2 (4th Cir. 1979) (holding that 110 jobs in
the claimant’s state was a significant number). We hold that
the job numbers the VE provided, although perhaps somewhat
imprecise, were sufficiently reliable to support the ALJ’s
conclusion.
IV.
For the reasons stated above, we affirm the decision of the
district court.
AFFIRMED
14
DAVIS, Circuit Judge, concurring in the judgment:
I write separately to express my discomfort with the ALJ’s
acceptance of the vocational expert’s uncritical reliance on the
Occupational Employment Quarterly (“OEQ”) to calculate the
number of jobs available in the economy. Under the legal regime
applicable in this case, once a claimant such as Guiton
establishes that he has some limitations and cannot perform his
past work, “the burden shifts to the Commissioner to produce
evidence that other jobs exist in the national economy that the
claimant can perform considering h[is] age, education, and work
experience.” Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir.
2012) (internal quotation marks omitted). “This is generally
done through testimony of a vocational expert.” Harvey v.
Heckler, 814 F.2d 162, 164 (4th Cir. 1987). Jobs exist in the
national economy if they are available in “significant numbers
either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. § 423(d)(2)(A). See also 20
C.F.R. § 404.1566.
In this case, the ALJ accepted the vocational expert’s
testimony that Guiton could perform three widely available jobs
listed in the Dictionary of Occupational Titles (“DOT”): bench
assembler, assembler arranger, and agricultural sorter. The
expert said that she obtained the numbers from the privately
published OEQ, which breaks down the number of available jobs by
15
Census Code and exertion subcategory (e.g., “unskilled, light”),
but not by DOT title. She could not say how the publisher
calculates its numbers. Guiton’s counsel argued that this
rendered her testimony unreliable, but the ALJ disagreed. He
reasoned that no “public or private sources . . . report[]
numbers of jobs by DOT code number,” so the expert “had to rely
on the numbers given in the OEQ.” The ALJ further reasoned that
the expert’s testimony was reliable because “this is an area
where mathematical precision is virtually impossible to
achieve.”
Guiton maintains on appeal that the vocational expert’s
testimony was unreliable because “her conclusions [were] not
found in any publication, and [she] could not explain her
methodology in deriving her conclusions from published data.”
Opening Br. 34. Guiton argues that “OEQ provides job numbers
only for exertional and skill levels by census code, but not by
DOT code.” Id. at 37 (emphasis in original). This is
significant, he argues, because “[t]he census code that includes
bench assembler . . . includes 1,687 separate DOT occupations--
not 1,687 jobs, but 1,687 occupations.” Id. at 36 (emphasis in
original) (italics omitted). Guiton argues that the OEQ “simply
is not specific enough,” id. at 37 (emphasis omitted), and
“[w]ithout testimony showing a reasonable, repeatable,
verifiable methodology, the DOT job numbers provided by the
16
vocational expert are not reliable,” id. at 39 (emphasis
omitted).
The Commissioner concedes that “it is impossible to use
binding precedent to adequately defend against Guiton’s
allegations,” as this Court “has not addressed a challenge to a
[vocational expert’s] reliance on the OEQ.” Resp. Br. 32
(emphasis omitted). Nonetheless, the Commissioner argues that
vocational experts “typically rely on the OEQ,” the information
used in forming an expert opinion need not be admissible, and a
vocational expert need not be able to explain the methodology
behind the OEQ. Id. at 33–34 (emphasis omitted). Surely, the
Commissioner can do better than this.
Only two circuits--the Second and the Seventh Circuits--
have discussed the OEQ. In Brault v. Social Security
Administration Commissioner, the Second Circuit recognized the
OEQ’s “classic academic problem with data aggregation,” i.e.,
the “information loss” that results from “many-to-one mapping.”
683 F.3d 443, 447 n.4 (per curiam). 1
1
Brault involved a newer version of the OEQ, the
Occupational Employment Quarterly II, which uses standard
occupational classification (“SOC”) codes. 683 F.3d at 446. Like
the Census Code, standard occupational classification is a
“system . . . used by Federal statistical agencies to classify
workers into occupational categories for the purpose of
collecting, calculating, or disseminating data.” Bureau of Labor
Statistics, “Standard Occupational Classification,” available at
http://www.bls.gov/soc/ (last visited Aug. 19, 2013). “DOT codes
(Continued)
17
If, for example, ten DOT codes map to a single SOC[2]
code, saying there are 100,000 total positions
available in that SOC code gives no information at all
about how many positions each of the ten DOT codes
contributed to that total. This becomes a problem if
DOT titles with different exertion or skill levels map
to the same SOC code. In such a situation, the OEQ
apparently uses a rough weighted average algorithm--if
ten DOT codes correspond to one SOC code, and four of
those codes are light-duty, unskilled positions, then
the OEQ will list 40% of the positions available in
that SOC as light-duty, unskilled positions. That
estimate may deviate significantly from the actual
number of existing positions.
Id. (emphasis added). Nonetheless, the Second Circuit affirmed
the ALJ’s denial of benefits despite the vocational expert’s
reliance on the OEQ; 3 rather than challenge the reliability of
the publication, the appellant argued that the ALJ had been
required to (1) give the appellant “an opportunity to inspect
and challenge the proffered evidence,” and (2) “explain why the
challenge was rejected.” Id. at 448. 4
are much more granular than SOC codes--according to Brault,
there were nearly 13,000 jobs titles in the 1991 edition of the
DOT, but only about 1,000 SOC titles.” Brault, 683 F.3d at 446.
2
See supra note 1.
3
The vocational expert in Brault “denied having reported
the numbers for the entire SOC. Instead, he claimed to have
‘reduced’ the numbers from ‘the entire [SOC] code’ to only count
‘jobs . . . . that [he] kn[e]w exist[ed].’” Brault, 683 F.3d at
447.
4
The Second Circuit held that ALJs had no duty to explain.
Brault, 683 F.3d at 449. Assuming without deciding that ALJs
must give claimants a chance to inspect and challenge evidence,
(Continued)
18
In Liskowitz v. Astrue, the Seventh Circuit observed that
the OEQ “seem[s] to be a source on which [vocational experts]
customarily rely.” 559 F.3d 736, 744 (7th Cir. 2009). But the
court found that the appellant had waived the argument that her
vocational expert “should not have relied on the OEQ because it
was published by a private company.” Id. In assessing the more
general (and preserved) challenge that the vocational expert had
not been able “to testify as to the reliability of the data she
used,” 5 the court observed that
[t]he witness was testifying as a vocational expert,
not as a census taker or statistician. Indeed, even if
the [vocational expert] had happened to know something
about the statistical basis for her testimony, she
arguably still would not be in a position to fully
vindicate her conclusions. After all, statisticians
use arithmetic operations, but few probably have
studied the foundation of arithmetic in set theory. Is
the statistician’s use of arithmetic therefore
unjustified? Clearly not.
Id. at 743. 6
the court found that the ALJ had done so. Id. at 450.
5
In addition to the OEQ, the vocational expert used sources
published by the U.S. Department of Labor and the Wisconsin
Department of Workforce Development. Liskowitz, 559 F.3d at 743–
44.
6
Two other Seventh Circuit opinions make only fleeting
references to the OEQ. See Britton v. Astrue, 521 F.3d 799, 804
(7th Cir. 2008) (per curiam) (rejecting appellant’s claim that
she should have been given access to the entire OEQ, not just
the portion on which the vocational expert had relied, because
the “selections . . . would have allowed [appellant’s counsel]
(Continued)
19
Guiton’s argument raises real concerns. Although vocational
experts customarily rely on the OEQ, Liskowitz, 559 F.3d at 744,
the Second Circuit has aptly noted that the publication’s
utility in social security proceedings is problematic, see
Brault, 683 F.3d at 447 n.4. The difference between Census Code
data and DOT titles is vast: as Guiton points out, “[t]he census
code that includes bench assembler . . . includes 1,687 separate
DOT occupations.” Opening Br. 36. Moreover, unlike the expert in
Brault, the vocational expert here apparently did not adjust the
OEQ’s numbers to reflect what she knew existed in a particular
market; rather, she apparently accepted OEQ’s numbers as
accurate without further inquiry.
I am willing to accept, for this case only, the majority’s
reasoning that “[e]ven assuming [the vocational expert’s
estimates] were overinclusive, far smaller figures would still
suffice to satisfy the Commissioner’s burden.” Ante, at 13. I do
not believe, however, that an attitude reflecting a belief that
the performance of vocational experts in social security cases
“is good enough for government work” should be the test of
to sufficiently test the reliability of [the expert’s]
testimony”); Lawrence v. Astrue, 337 F. App’x 579, 583, 586 (7th
Cir. 2009) (noting that the appellant did not challenge the
conclusion of the vocational expert, who had relied in part on
the OEQ).
20
reliability. 7 After all, it is Congress and the Commissioner that
are responsible for seeing to the creation and implementation of
reliable evidentiary standards. Federal courts should not too
willingly indulge a watered down application of well-settled
evidentiary reliability criteria for a discrete class of
disfavored cases.
With these observations, I concur in the judgment.
7
And some commentators have recognized the fundamental
problems this attitude may pose for the structure of the social
security regime. See Jon C. Dubin, Overcoming Gridlock: Campbell
After A Quarter-Century and Bureaucratically Rational Gap-
Filling in Mass Justice Adjudication in the Social Security
Administration's Disability Programs, 62 Admin. L. Rev. 937, 966
(2010) (“[T]here are no prescribed standards for job incidence
or non-DOT job characteristics evidence and this evidence is
often produced through questionable job data and unreliable
methodologies.”); Nathaniel O. Hubley, The Untouchables: Why A
Vocational Expert’s Testimony in Social Security Disability
Hearings Cannot Be Touched, 43 Val. U. L. Rev. 353, 393 (2008)
(“With the seemingly high degree of deference given to the ALJ
with regard to evidentiary matters and the relatively broad
credibility granted to the VE’s testimony, the question bound to
arise is whether an adequate level of fairness is afforded
disability claimants.”).
21