JOHN H. RICH, III, Magistrate Judge.
This Social Security Disability ("SSD") and Supplemental Security Income ("SSI") appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks reversal and remand on the basis that, in contravention of Social Security Ruling 00-4p ("SSR 00-4p"), the administrative law judge failed to identify and resolve a conflict between the testimony of a vocational expert and the Dictionary of Occupational Titles (U.S. Dep't of Labor, 4th ed. rev. 1991) ("DOT") with respect to the capacity of a functionally illiterate person to perform certain jobs. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff ("Statement of Errors") (Docket No. 7) at 2-3. I agree and, accordingly, recommend that the court vacate the decision and remand this case for further development.
Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 405.101 (incorporating 20 C.F.R. §§ 404.1520, 416.920); Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff had severe impairments of organic mental disorder and an adjustment disorder with depressed mood, Finding 3, Record at 11; that he retained the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that he could stand or walk for six hours in an eight-hour period, sit for six hours in an eight-hour period, could not climb ropes, ladders, or scaffolding, was limited to one- to two-step simple, repetitive tasks, needed to have work tasks explained to him verbally, was functionally illiterate with respect to reading, required a low-stress job with only occasional changes in his work setting, and could have only occasional interaction with the public, Finding 5, id. at 12; that, considering his age (21 years old, defined as a younger individual, on the alleged disability onset date), education (illiterate and able to communicate in English), work experience (transferability of job skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 7-10, id. at 15-16; and that he, therefore, was not disabled from January 1, 2006, his alleged disability onset date, through November 22, 2010, the date of the decision, Finding 11, id. at 17.
The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
The administrative law judge reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than his past relevant work. 20 C.F.R. § 405.101 (incorporating 20 C.F.R. §§ 404.1520(g), 416.920(g)); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Secretary of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).
At Step 5, the administrative law judge relied on the plaintiff's ability to perform three jobs that a vocational expert present at his hearing testified could be performed by someone who was functionally illiterate when it came to reading and required that tasks be explained to him verbally: bottling-line attendant, DOT § 920.687-042, bakery worker, conveyor line, DOT § 524.687-022, and shaker, wearing apparel. See Record at 16, 51-52.
As the plaintiff points out, see Statement of Errors at 2, the DOT describes all three jobs as having a General Educational Development ("GED") language level of 1, which, with respect to reading, entails "[r]ecogniz[ing] [the] meaning of 2,500 (two- or three-syllable) words[,]" "[r]ead[ing] at [a] rate of 95-120 words per minute[,]" and "[c]ompar[ing] similarities and differences between words and between series of numbers." DOT §§ 920.687-042, 524.687-022, 361.687-026; see also Appendix C to id., § III. A person who is functionally illiterate with respect to reading, and must have instructions explained orally, cannot fulfill those reading requirements.
SSR 00-4p provides, in relevant part:
The Responsibility To Ask About Conflicts
SSR 00-4p, reprinted in West's Social Security Reporting Service Rulings 1983-1991 (Supp. 2011), at 246.
In his decision, the administrative law judge stated that the vocational expert's testimony was consistent with the information contained in the DOT. See Record at 16. However, neither he nor the plaintiff's attorney asked the vocational expert if that was the case, and neither of them questioned the vocational expert concerning whether a person who is functionally illiterate in reading could in fact perform any of the three jobs at issue, despite the DOT's indication otherwise, and, if so, why. See id. at 52-54.
At oral argument, counsel for the commissioner defended the decision on two alternative grounds: that (i) the plaintiff, who was represented by counsel at hearing, forfeited this issue on appeal by failing to raise it at hearing and, (ii) in any event, there was no "apparent unresolved conflict" because the DOT does not address illiteracy. For the reasons that follow, I decline to adopt either argument.
With respect to the first of the commissioner's two defenses, his counsel observed that the First Circuit has held that "there is a duty on the part of litigants to make it known to the trial judge that they do not wish to forgo their rights to an evidentiary hearing: a party cannot sit silently by, await the entry of judgment, and only then (having seen the results and having been disappointed thereby) bemoan the court's failure to take evidence." Pearson v. Fair, 808 F.2d 163, 166 (1st Cir. 1986). He stated that this court has applied that principle in the Social Security context in at least two cases, Baker v. Social Sec. Admin. Comm `r, No. 1:10-cv-00167-JAW, 2011 WL 1298694 (D. Me. Mar. 31, 2011) (rec. dec., aff'd Apr. 19, 2011), and Little v. Astrue, Civil No. 09-619-P-H, 2010 WL 4365559 (D. Me. Oct. 27, 2010) (rec. dec., aff'dDec. 8, 2010).
In Baker, this court rejected a claimant's argument that the administrative law judge had failed to include in his RFC finding, or convey to a vocational expert, a psychologist's purported material limitation to sustaining simple tasks in only two-hour blocks. See Baker, 2011 WL 1298694, at *4-*6. The court found that the commissioner reasonably assumed that the two-hour block qualifier, rather than being a material limitation, was simply a shorthand reference for the regulatory presumption that an individual is capable of satisfying the mental demands of simple work if, inter alia, he or she can maintain concentration and attention for two-hour segments between arrival and first break, lunch, second break, and departure. See id. In that context, the court observed:
Id. at *5 (citations omitted).
Baker, thus, did not concern the application of SSR 00-4p. Moreover, it is noteworthy that any purported conflict in Baker would have been obscure, rather than "apparent," for purposes of SSR 00-4p.
Little, likewise, was not an SSR 00-4p case. Instead, the claimant's counsel had not addressed, at hearing, the apparent incongruity between a travel restriction that had been included in the administrative law judge's RFC and the jobs identified by a vocational expert at hearing. See Little, 2010 WL 4365559, at *4. This court observed that, in the absence of such questioning, it was unable to determine whether the apparent inconsistency could in fact be reconciled. See id. It declined to give the plaintiff a second opportunity to elicit such testimony. See id.
At oral argument, the commissioner's counsel asked this court to extend the holdings of Baker and Little to encompass any circumstance in which a claimant who is represented by counsel fails at hearing to identify a purported conflict between the DOT and a vocational expert's testimony. He contended that such an approach is consistent with SSR 00-4p, the goal of which is to ensure that conflicts are raised and resolved, and that, in any event, Social Security rulings are nonbinding.
I decline to recommend that the court stretch Baker and Little that far. As the plaintiff's counsel rejoined at oral argument, SSR 00-4p imposes an affirmative obligation on administrative law judges to (i) inquire whether there is any conflict between vocational expert testimony and the DOT, (ii) elicit a reasonable explanation for any apparent conflict, and (iii) resolve said conflict, regardless of how it was identified. See SSR 00-4p at 246. Social Security rulings are binding on administrative law judges, see, e.g., McDonald v. Secretary of Health & Human Servs., 795 F.2d 1118, 1125 (1st Cir. 1986), and errors in failing to comply with their dictates generally merit reversal and remand unless harmless, see, e.g., Little v. Soc. Sec. Admin. Comm `r, No. 1:10-cv-00096-JAW, 2010 WL 5367015, at *2 (D. Me. Dec. 21, 2010) (rec. dec., aff'd Jan. 10, 2011) (SSR 00-4p error was harmless when, although administrative law judge neglected to make a conflict inquiry, no conflict existed).
Here, the administrative law judge did not even make the required threshold inquiry as to whether the vocational expert's testimony was consistent with the DOT. As the plaintiff's counsel noted at oral argument, in Prochaska v. Barnhart, 454 F.3d 731 (7th Cir. 2006), the United States Court of Appeals for the Seventh Circuit held, in the same circumstance, that a claimant's counsel's failure at hearing to identify an asserted conflict between vocational testimony and the DOT did not effect a waiver. See Prochaska, 454 F.3d at 735 ("Prochaska was not required to raise this issue at the hearing, because the Ruling [SSR 00-4p] places the burden of making the necessary inquiry on the ALJ."). Prochaska is well-reasoned and consistent with the dictates of SSR 00-4p, and I follow it here. While counsel for the commissioner argued, in the alternative, that there is no conflict between the testimony given in this case and the DOT, I reject that position for the reasons set forth below. Here, as in Prochaska, the administrative law judge failed to make a threshold inquiry that should have identified a conflict that it was his duty, in the first instance, to resolve. See id. at 736 ("We cannot determine, based on the record, whether the expert's testimony regarding stooping or reaching was actually inconsistent with the DOT. That determination should have been made by the ALJ in the first instance, and his failure to do so should have been identified and corrected by the Appeals Council."); see also, e.g., Xiong v. Astrue, No. 1:10cv01135 AWI DLB, 2011 WL 3322828, at *17 (E.D. Cal. Aug. 2, 2011) (rec. dec., aff'd Sept. 29, 2011) (administrative law judge committed reversible error in failing to make threshold SSR 00-4p conflict inquiry in circumstances in which there was an unexplained conflict between vocational expert's testimony that illiterate claimant could perform certain jobs and DOT listings stating that those jobs had a language level of 1).
In these circumstances, the plaintiff's counsel's failure to raise the conflict issue at hearing does not effect a waiver.
At oral argument, counsel for the commissioner made a novel argument in support of the proposition that, in this case, there was no conflict between the vocational testimony and the relevant DOT job descriptions. He reasoned that, because GED language level 1 is the lowest level contained in the DOT, the DOT does not address illiteracy, just as it does not address sit-stand options. Accordingly, he contended, there was no conflict triggering the application of SSR 00-4p. See, e.g., Wasilauskis v. Astrue, Civil No. 08-284-B-W, 2009 WL 861492, at *5 n.8 (D. Me. Mar. 30, 2009) (rec. dec., aff'd Apr. 21, 2009) ("The premise that there was an apparent inconsistency between the vocational expert's testimony and the DOT is, in this instance, incorrect. The DOT does not address the subject of the need to alternate sitting and standing. Hence, there could be no discrepancy.") (citations omitted); see also Burns v. Barnhart, 312 F.3d 113, 128 (3d Cir. 2002) (duty under SSR 00-4p to inquire into conflicts did not arise when, although claimant asserted that intelligence testing placed his aptitude in the lowest 10 percent of the population and that the DOT required an aptitude level above the lowest 10 percent, court found no such levels incorporated into the DOT).
Counsel further argued that acceptance of the proposition that there is a clash between the DOT definition of language level 1 and vocational testimony regarding jobs of which illiterate claimants are capable is tantamount to acceptance of the proposition that an illiterate person is per se disabled, a proposition that this court has noted is contrary to the commissioner's own regulations. See Omar v. Astrue, Civil No. 08-270-P-S, 2009 WL 961230, at *4 (D. Me. Apr. 7, 2009) (rec. dec., aff'd May 1, 2009) (illiteracy does not necessarily preclude all jobs).
These arguments, while thoughtful, ultimately are unpersuasive. First, unlike in Wasilauskis and Burns, the DOT in this case directly addresses the point at issue: whether an individual possesses sufficient reading ability to perform the jobs in question. The plaintiff's reading capacity, as found by the administrative law judge and conveyed to the vocational expert, clearly conflicts with the reading ability that the DOT indicates is necessary to perform the jobs at issue.
SSR 00-4p at 244.
Second, recognizing the existence of this particular conflict is hardly tantamount to decreeing illiterate people per se disabled. "Neither the DOT nor the VE or VS evidence automatically `trumps' when there is a conflict." Id. Rather, SSR 00-4p simply requires a reasonable explanation before an administrative law judge can rely on vocational testimony at odds with a DOT job description. See id. See also, e.g., Oeur v. Astrue, No. EDCV 11-00370-JEM, 2012 WL 234642, at *6 (C.D. Cal. Jan. 24, 2012) (rejecting argument by commissioner that acceptance of claimant's argument that administrative law judge had erred in not identifying and resolving conflict between illiteracy and DOT reading requirements "necessarily leads to the conclusion that all illiterate claimants are disabled"). Had the vocational expert in this case been asked whether a conflict between her testimony and the DOT existed and identified this conflict, she likely would have been able to provide a reasonable explanation for the inconsistency with respect to at least one, if not all, of the jobs at issue. However, she was never asked, and no explanation is of record. Accordingly, her testimony cannot stand as substantial evidence in support of the commissioner's Step 5 finding.
For the foregoing reasons, I recommend that the decision of the commissioner be
