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Howze v. Astrue

August 3, 2010

STEVE HOWZE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Ronald A. Guzman United States District Judge

Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Plaintiff filed this suit pursuant to 42 U.S.C. § 405(g) for review of a final decision denying his application for Disability Insurance Income and Supplemental Security Income benefits. The parties have filed cross motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, the Court affirms the Commissioner's decision.

Discussion

The Court reviews the ALJ's decision de novo but gives deference to his factual findings. Prochaska v. Barnhart, 454 F.3d 731, 734 (7th Cir. 2006). The decision will be upheld if it is supported by substantial evidence, i.e., evidence "sufficient for a reasonable person to conclude that [it] supports the decision." Id. at 735 (quotation omitted).

Plaintiff argues that the ALJ's decision violates Social Security Ruling ("SSR") 00-4p, which states that "before relying on VE [vocational expert] . . . evidence to support a disability determination, . . . [he] must . . . [i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT)." Policy Interpretation Ruling: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, SSR 00-4p, 2000 WL 1898704, at *1 (S.S.A. Dec. 4, 2000). The Ruling further states:

When a VE . . . provides evidence about the requirements of a job or occupation, the adjudicator has an affirmative responsibility to ask about any possible conflict between that . . . evidence and information provided in the DOT. In these situations, the adjudicator will: Ask the VE . . . if the evidence he or she has provided conflicts with information provided in the DOT; and If the VE's . . . evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.

Id. at *4. In this case, before the VE testified, the ALJ said: "If there's any difference in the way that the jobs are described and the way that they're normally done per the Dictionary of Occupational Titles you should let us know." (AR 53.)

Plaintiff contends that statement does not satisfy SSR 00-4p, citing K. Harris v. Astrue, No. 2:06-CV-222-PRC, 2008 WL 410577 (N.D. Ind. Feb. 11, 2008), as support. In that case, as here, the ALJ asked the VE, before she testified, to identify any conflicts between her testimony and the DOT. Id. at *8. The K. Harris court held that SSR 00-4p required the ALJ to make those inquiries after the VE testifies, not before. Id. Thus, the court found that the ALJ had not complied with the Ruling. Id.

The K. Harris court's interpretation is not compelled by the language of the Ruling, which says that an ALJ must make the inquiries before relying on VE testimony not before a VE testifies. SSR 00-4p, 2000 WL 1898704, at *1. Nor, as the K. Harris court acknowledged, is its interpretation dictated by any Seventh Circuit case. K. Harris, 2008 WL 410577, at *8. Moreover, that interpretation has been rejected in other cases, including T. Harris v. Astrue, 646 F. Supp. 2d 979 (N.D. Ill. 2009). In that case, as in K. Harris, the ALJ asked the VE, before she testified, "to tell the court about differences between her impressions and those of the DOT." Id. at 988-89. Unlike the court in K. Harris, however, the T. Harris court rejected the notion that the timing of the ALJ's inquiry violated SSR 00-4p:

The ALJ satisfied his duty to affirmatively ask whether any inconsistencies between the VE's testimony and information in the DOT existed. Before allowing the VE to state her opinion as to the plaintiff's RFC [residual functional capacity] with respect to the DOT, he asked her to consider the DOT's dictates and to highlight any differences. Plaintiff cites an unpublished district court case [K. Harris] to support her argument that posing a hypothetical question asking a VE to identify discrepancies between her expert opinion and the DOT prior to her testimony is legally insufficient. However, while recognizing an affirmative duty to inquire into possible discrepancies between a VE's testimony and the DOT, the Seventh Circuit has not established a singular method by which ALJs must elicit potential conflicts. Therefore, the ALJ satisfied this duty by asking the VE at the onset to describe her findings and to note where she differs from the DOT.

Id. at 995 (footnotes omitted); see Williams v. Astrue, No. 1:08-cv-477-ftm-29SPC, 2009 WL 2045339 at, *2 (M.D. Fla. July 8, 2009) (holding that pre-testimony inquiry is sufficient).

Given the plain language of the Ruling, this Court agrees with those in T. Harris and Williams that SSR 00-4p does not require post-testimony inquiry. Thus, the ALJ's pre-testimony inquiry in this case satisfied his duty under the Ruling.

Plaintiff also contends that the ALJ's hypothetical question to the VE was flawed because it did not include the limitation of light exertion work, which the ALJ included in his RFC finding. See Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002) (stating that hypothetical questions must include "all limitations supported by medical evidence in the record" (emphasis original)). However, the finding itself ...


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