Moore, Jr. v. Colvin, an appeal heard in the United States Court of Appeals for the Eighth Circuit, involved claimant who applied for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act.
At a hearing by an administrative law judge (ALJ) with the Social Security Administration (SSA), the ALJ determined that claimant was not disabled, because of jobs identified by a vocational expert (VE). These jobs were identified in response to a hypothetical created by the ALJ.
As our Boston disability lawyers understand, a VE is a person hired by the SSA to determine if a claimant is able to perform any work in either the local or national economies. While this is supposed to be an independent expert, a VE is hired by the SSA and will typically make a finding that someone is not entitled to benefits.
In Moore, Jr, claimant filed for review and that request was denied. Claimant appealed to the district court, which affirmed the ALJ’s finding. Claimant then appealed to the U.S. Court of Appeals for the Eighth Circuit.
The basis for the appeal was the ALJ failed to resolve an obvious conflict between the limitation described by the ALJ in his hypothetical and the requirement for the jobs the VE testified that claimant could do. The VE used the Dictionary of Occupational Titles (DOT) in finding allegedly suitable jobs.
Prior to posing the hypothetical, ALJ had determined claimant had not engaged in any meaningful activity since August of 2010 and suffered from degenerative disc disease, morbid obesity, and anxiety. After finding that this did not qualify for a presumption of disability, ALJ looked at claimant’s residual functional capacity (RFC).
Among the many restrictions, claimant’s RFC would only allow claimant to occasionally perform overhead reaching bilaterally. When ALJ asked what type of jobs a person could work in the national economy given these limitations, VE said a janitorial worker or a cafeteria worker. ALJ asked if these conformed with the requirements of claimant’s RFC, and VE said they did.
On appeal, the district court found that even if the janitorial job required frequent reaching, the cafeteria attendant job did not, so any error was harmless. However, the U.S. Court of Appeals found that both jobs required frequent reaching, according to the DOT, and the direction of reaching (such as bilateral) was not mentioned in the DOT job description.
The court noted that Social Security Ruling (SSR) 00-4p makes it mandatory that an ALJ inquire about an apparent conflict and resolve that conflict before finding a claimant is able to work a particular job in the DOT.
The ALJ is not absolved of his responsibility, according to the appellate court, merely because VE answers yes to a question of whether the RFC is consistent with DOT description.
Ultimately, the appeals court concluded that ALJ had erred in his determination that claimant could work those jobs, and his error was not harmless. The court reversed and remanded the case for further proceedings consistent with its opinion.
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Moore, Jr. v. Colvin, October 18, 2014, U.S. Court of Appeals for the Eight Circuit
More Blog Entries:
Hanson v. Colvin: A Critical Look by a Court of Appeals on a Denial of Benefits, August 14, 2014, Boston Disability Lawyers Blog