LISA A. JENSEN, District Judge.
This is a Social Security disability appeal. Plaintiff Laurel C., who is now 49 years old, stopped working full-time in 2012 because of a combination of physical and mental problems.
On February 16, 2017, the administrative law judge ("ALJ") held a hearing. Ellen Rozenfeld, a psychologist, testified about plaintiff's psychological limitations. One of plaintiff's arguments here is based on a portion of this testimony. No expert was called to testify about plaintiff's physical limitations. At the end of the hearing, a vocational expert ("VE") testified by answering hypothetical questions about the types of jobs that would be available for a person with limitations similar to plaintiff's.
On April 12, 2017, the ALJ issued a written decision finding plaintiff not disabled. The ALJ agreed that plaintiff had some physical and mental limitations, but did not believe they were as severe as plaintiff alleged and found that she had the capacity to work as a hotel housekeeper or sales attendant. Translated into the parlance of Social Security law, the ALJ found that plaintiff had the residual functional capacity ("RFC") to do light work, subject to numerous restrictions, and further found that a person with this RFC could do these two jobs. The latter finding was based on the VE's testimony.
Although plaintiff raises several arguments for a remand, her main argument — and one that this Court finds justifies a remand — is based on the VE's testimony, specifically one ambiguous answer. This answer, loosely paraphrased for now, was that plaintiff could work as a hotel housekeeper or sales attendant using mostly her left arm and hand. Plaintiff argues that this answer was confusing and conflicted with the Dictionary of Occupational Titles. The DOT has been described as "the Bible of vocational experts." McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010).
Because this argument is narrow, focusing solely on the VE's testimony at Step Five, we can omit the traditional background summary of plaintiff's medical history. We can likewise skip over the ALJ's credibility analysis, as well as the analysis of the medical opinions. Instead, we can go right to the ALJ's Step Four RFC finding. An RFC finding represents an ALJ's translation of plaintiff's medical functional capacities into the vocational-legal framework. The ALJ must first place the claimant into one of five exertional categories (sedentary, light, medium, heavy, or very heavy work). Then, if needed, further restrictions and limitations are added. In this case, the ALJ found that plaintiff could do "light work" subject to various restrictions. The complete RFC is set forth below:
R. 18. Plaintiff's argument relates to only one part of this paragraph, which is the limitations on handling and fingering for both the right and left arms and hands, referred to in the paragraph above as the upper extremities.
The Court will now consider the VE's testimony. As is customary, at the hearing, the ALJ posed a series of increasingly restrictive hypotheticals to the VE. Depending on how you count them, there were somewhere between five to seven. Each time, the VE opined that the hypothetical claimant could do at least the jobs of hotel housekeeper and sales attendant. The VE identified these two jobs based on their DOT code — i.e. hotel housekeeper (323.687-014) and sales attendant (299.677-010). In one hypothetical, the ALJ added the handling and fingering limitation, which was that plaintiff could do these activities "frequently" in both arms and hands. Then, in the last hypothetical, the ALJ changed this limitation to "occasionally," with the limitation again being the same for both hands. In response to this last hypothetical, the VE stated for the first time that no jobs would be available.
At this point, the ALJ turned the questioning over to plaintiff's counsel who proposed a modified hypothetical based on the ALJ's last hypothetical. The following colloquy ensued:
R. 92 (emphasis added). The questioning then proceeded to other issues not relevant here.
Plaintiff's argument centers on two phrases — that the left arm was "pretty much okay" and that the right arm could be used as "an assist." Plaintiff raises two main criticisms. The first is that the VE's answer conflicted with the DOT. But plaintiff also makes a second, more general criticism. It is that the phrases are vague. Under either theory, the ALJ was obligated to ask additional clarifying questions, according to plaintiff. The Government's main argument is that, even if there were ambiguities in the VE's answer (and it is not clear whether the Government believes there were any), plaintiff's counsel had the opportunity to clarify them through cross-examination, but chose not to do so. In short, this is a waiver argument.
As explained below, the Court finds that the first argument presents a close call due in large part to uncertainties in the case law. However, because the Court finds that a remand is appropriate under the second argument, the Court need not reach a definitive resolution of the first argument, although the Court will discuss some of the issues raised by it.
This general issue of a possible conflict between a VE's testimony and the DOT has been litigated often, going back for at least several decades. See, e.g., Donahue v. Barnhart, 279 F.3d 441, 445 (7th Cir. 2002) (this issue "is not so easy to deal with" and courts "disagree about the appropriate interaction" between the DOT and the VE). In 2000, the Agency attempted to bring some order to this question by issuing SSR 00-4p. This regulation states, in relevant part:
As indicated by the bullet points, the ALJ has two basic obligations. The first is the "affirmative responsibility" to ask about "any possible conflict" with the DOT. The second obligation, which is triggered if the VE's testimony "appears" to conflict with the DOT, is to resolve that conflict by eliciting a "reasonable explanation" for it. Even now, many years after this regulation was issued, courts continue to struggle with this issue. See generally Carolyn A. Kubitschek and Jon C. Dubin, Social Security Disability Law and Procedure in Federal Court, p. 519 (2019 ed.) ("Despite the seemingly clear requirements of Soc. Sec. Rul. 00-4p, there is conflict among the circuits about the precise boundaries of the ALJ's affirmative duty.").
Turning to the facts of the present case, there is no dispute that ALJ never asked the VE about a possible DOT conflict. One consequence of this failure is that we do not now know the VE's position on whether she believed that her own testimony conflicted with the DOT and, if so, what authorities she was relying on to reach a conclusion contrary to the DOT. Although the ALJ did not raise this issue with the VE at the hearing, in the later written decision, the ALJ recognized that this issue should have been addressed and did so by adding the following conclusory sentence: "Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles." R. 27. The ALJ did not identify what, if any, possible conflicts had been considered.
One could stop here and assess whether the ALJ violated this first duty in SSR 00-4p by failing to simply ask the general question whether the VE believed her testimony conflicted with the DOT.
After the Government raised this argument, plaintiff in her reply brief responded to it by citing a later Seventh Circuit case — Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008). In that case, the Government relied on Donahue and made a similar argument to the one it makes here. The Seventh Circuit rejected this argument, at least initially, by first noting that SSR 00-4p places an "affirmative duty on the ALJ to inquire into and resolve apparent conflicts." Id. at 463 (emphasis in original). Given this language, the Seventh Circuit held that the failure of the claimant's counsel "to raise a possible violation of SSR 00-4p at the administrative level does not forfeit the right to argue later that a violation occurred." Id. However, the Seventh Circuit went on to qualify this holding by declaring that the failure of the claimant's attorney to object at the hearing should not be "without consequences." Id. The Seventh Circuit then set forth a new standard, holding that the claimant "now" can only avoid waiver in this situation by arguing that "the conflicts were obvious enough that the ALJ should have picked up on them without assistance." Id. The Seventh Circuit then found, under the facts of that case, that two "apparent discrepancies" met this obviousness standard. Id. at 463-64.
Aside from Donahue and Overman, which were only mentioned in a passing citation in the briefs and which were not further analyzed, the parties do not cite to any additional cases addressing the question of when a conflict — whether actual, possible, or apparent — should be deemed obvious. Instead, plaintiff relies only on arguments based on common sense and "simple logic." Dkt. #21 at 5. According to plaintiff, the conflicts here were "glaringly obvious." Id. This argument is based on an examination of the job duties listed in the DOT for housekeeper.
DICOT 323.687-014; Dkt. #18-1. In her opening brief, plaintiff asks this Court to imagine how a person with only one hand would go about doing tasks such as making beds or hanging drapes or moving furniture:
Dkt. #11 at 12. In her reply brief, she veers toward mild sarcasm in emphasizing this point: "Surely the ALJ has made a bed, cleaned a room, or even stayed in a hotel room before." Dkt. #21 at 5.
But despite the surface simplicity of this argument, it is difficult to assess for several reasons. As noted above, the parties have provided little in the way of relevant case law; in particular, plaintiff has not cited to authority stating that this Court (or the ALJ) is permitted to rely solely on common sense. This is not to say that such an argument necessarily could not be made, just that plaintiff has not done so.
Rather than attempt to reach a definitive answer to the question of whether there is an obvious conflict in this case, this Court finds that a remand is justified based on plaintiff's alternative argument, which is the more basic claim that the VE's answer was vague and ambiguous. In fact, this vagueness is yet another reason why it would be hard for this Court to resolve the first argument with any confidence. In Overman, the Seventh Circuit, after analyzing the DOT-conflict issue as summarized above, went on to find that a remand could be ordered on the alternative ground that the VE's testimony was generally "flawed" and not "reliable." 546 F.3d at 464, 465 ("Because the ALJ's ruling was premised entirely on testimony that conflicted with the DOT and otherwise was vague and confusing, this case must be remanded for further proceedings") (emphasis added); see also Ray v. Berryhill, 916 F.3d 486, 492 (7th Cir. 2019) (among other problems, the VE's "testimony is ambiguous"). Relatedly, there is also the often-expressed requirement that the reviewing Court must be able to follow the path of the ALJ's reasoning. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
Based on these general requirements, this Court finds that the VE's testimony was vague or ambiguous on this more basic level of simply understanding what the VE's position was, without yet getting to the deeper question of whether it was correct or not. As a preliminary matter, the VE's answer was hesitant at the outset. She began by going back and forth ("probably keep or not probably"), as if she were unsure of her answer. More substantively, her answer to the RFC hypothetical, which used the phrases "occasionally" and "frequently," introduced new and imprecise terminology. There was thus a disconnect between the question and answer. This creates uncertainty about what the VE meant. One possible interpretation is that the phrases "pretty much okay" and "an assist" were simply rough translations of the technical terms "frequently" and "occasionally." If so, then the VE's answer could be viewed as merely an inartful and roundabout way of basically answering "yes" to the question.
But another possibility is that the VE was changing the hypothetical by modifying it in some way. Up until this point in this opinion, this Court has used hedge words, such as "mostly," to refer loosely to the general fact that the ALJ found that the left and non-dominant hand would be doing more of the work. But at some point the details become important. The VE's answer raises the possibility that the left arm and hand would be doing all of the work, except for the somewhat vague notion of an "assist." In plaintiff's opening brief, she goes through some of these unresolved interpretative possibilities:
Dkt. #11 at 11. In its brief, the Government does not provide any substantive response, but instead insists that the VE's statements were "clear and unambiguous," "entirely consistent," and "straightforward." Dkt. #18 at 6. But the Government does not respond to the specific ambiguities raised by plaintiff. The Court finds that the ambiguities were sufficiently apparent that the ALJ should have probed further. Although the VE's answer was only a small portion of her overall testimony, it was nonetheless important because it addressed the specific RFC that the ALJ later adopted. In sum, to borrow the words of Justice Kagan, the VE's answer was "iffy on its face." Biestek v. Berryhill, 139 S.Ct. 1148, 1156 (2019). It remains true, as the Government has repeatedly emphasized, that plaintiff's counsel could equally be faulted for this problem. Plaintiff's current counsel, who was not the counsel at the hearing, concedes that counsel "could have done better in his questioning." Dkt. #21 at 5. No one would dispute that point. But for all the reasons stated above, the Court finds that, on this critical question, the VE's answer contained sufficient warning signs to trigger the ALJ's independent duty to investigate.
For these reasons, the Court finds that a remand is required. Given this holding, the Court does not need to resolve plaintiff's other remaining arguments. Plaintiff argues that the ALJ failed to fully account for plaintiff's mental limitations in both the RFC and the hypothetical questions by, among other things, not crediting Dr. Rozenfeld's statement at the hearing that plaintiff had a "marked" limitation in memory and concentration. Dkt. #11 at 10.
For the above reasons, plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is reversed and remanded for further proceedings.
