United States District Court, E.D. Wisconsin
MARGARET ASH, et. al. Plaintiffs,
CAROLYN W. COLVIN, Defendant.
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS (DKT. NO. 19), DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (DKT. NO. 13), STAYING PLAINTIFFS’ MOTION TO CERTIFY CLASS (DKT. NO. 9), AND GRANTING PLAINTIFFS’ MOTION TO FOR LEAVE TO AMEND THE COMPLAINT (DKT. NO. 29)
HON. PAMELA PEPPER UNITED STATES DISTRICT JUDGE
On February 5, 2015, thirty-five plaintiffs filed a complaint against Carolyn W. Colvin, the Acting Commissioner of the Social Security Administration (“SSA”), alleging that she violated the plaintiffs’ “due process in the conduct of adult disability hearings in Indiana, Illinois and Wisconsin as it relates to vocational testimony.” Dkt. No. 1. The plaintiffs ask the court to determine whether the Commissioner has “a clandestine policy of denying fair disability hearings in violation of the Social Security Act, the Administrative Procedure Act, and the Due Process Clause of the Fifth Amendment.” Id. at ¶63. Specifically, the plaintiffs challenge an alleged policy of denying claimants’ requests that vocational experts produce the evidence that supports their testimony and conclusions provided at the administrative hearing.
On March 17, 2015, the plaintiffs filed a motion to certify class under Fed.R.Civ.P. 23(b)(2), Dkt. No. 9, and a combined motion for preliminary injunction and expedited discovery, Dkt. No. 13. On April 17, 2015, the Commissioner filed a motion to dismiss. Dkt. No. 19. On December 8, 2015, the plaintiffs filed a motion to amend the complaint. Dkt. No. 29. The parties have fully briefed the motions.
Because of the nature of this suit, the court will provide an overview of the Social Security administrative process, including a history of recent case law addressing vocational expert testimony at the administrative hearing.
A. Social Security “Disability” Defined
The SSA provides “disability insurance benefits and supplemental security income to persons who have a ‘disability.’” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citing 42 U.S.C. §§423(d)(2)(A), 1382c(a)(3)(B)). To qualify as “disabled, ” the claimant must demonstrate a “physical or mental impairment or impairments . . . of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Id. The Social Security Act further “defines ‘disability’ as the ‘inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.’” Id. at 23.
B. The Administrative Process
When applying for Social Security benefits, claimants face a complex administrative review process. 20 C.F.R. §404.900. First, the claimant receives an initial determination. If that determination is unfavorable, the claimant may request that the SSA reconsider the decision. If the claimant is dissatisfied with the reconsideration, the claimant then may request a hearing before an administrative law judge (“ALJ”). If the claimant is not satisfied with the ALJ’s decision, the claimant “may request that the Appeals Council review the decision.” 20 C.F.R. §404.900(a)(1)-(5). If claimant has completed steps one through four, the fifth step is for the claimant to “request judicial review by filing an action in a Federal district court.” Id.
C. The Administrative Hearing
In evaluating a claim for disability benefits, the ALJ follows a five-step, sequential process, asking:
(1) Has the claimant engaged in substantial gainful activity since his alleged onset of disability?
(2) If not, does he suffer from a severe, medically determinable impairment?
(3) If so, does that impairment meet or equal any impairment listed in SSA regulations as presumptively disabling?
(4) If not, does he retain the residual functional capacity (“RFC”) to perform his past work?
(5) If not, can he perform other jobs existing in significant numbers?
E.g., Villano v. Astrue, 556 F.3d 558, 561 (7th Cir. 2009).
If it appears at any step that the claimant is or is not disabled, the analysis ends. 20 C.F.R. §404.1520(a)(4). “The claimant bears the burden of proof at steps one through four, after which at step five the burden shifts to the Commissioner.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005).
1. Resources Used by ALJs at Step Five
At step five in the disability determination process, the ALJ determines whether the claimant can perform other jobs existing in significant numbers in the national economy. 20 C.F.R. §404.1520(a)(4)(v). When the ALJ determines what “jobs exist in the national economy (in significant numbers either in the region where [the claimant lives] or in several regions of the country), ” the ALJ “take[s] administrative notice of reliable job information available from various government and other publications.” 20 C.F.R. §404.1566(d). The regulations provide a non-exhaustive list of publications on which the ALJ may rely at step five:
(1) Dictionary of Occupational Titles, published by the Department of Labor;
(2) County Business Patterns, published by the Bureau of the Census;
(3) Census Reports, also published by the Bureau of the Census;
(4) Occupational Analyses, prepared for the Social Security Administration by various State employment agencies; and
(5) Occupational Outlook Handbook, published by the Bureau of Labor Statistics.
20 C.F.R. §404.1566(d)(1)-(5). The ALJ may employ a vocational expert “[i]f the issue in determining whether [the claimant is disabled] is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue.” 20 C.F.R. §404.1566(e).
At step five, “ALJs often rely heavily on two sources . . . to determine whether the government has met its burden: the [Dictionary of Occupational Titles] and Vocational Experts.” Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). The Department of Labor publishes the Dictionary of Occupational Titles (DOT), and it “provides standardized occupational information, including the most typical characteristics of jobs as they exist throughout the American economy.” Id. “It classifies jobs based on a number of factors, such as worker actions, exertional level and skill requirements in order to facilitate the placement of applicants in positions that match their qualifications.” Id. Federal regulations require ALJs “to take administrative notice of the DOT.” Id. (citing 20 C.F.R. §404.1566(d)(1); 20 C.F.R. §416.966(d)(1)).
In addition to the DOT, ALJs rely on vocational experts (“VEs”), who “supplement the information provided in the DOT by providing an impartial assessment of the types of occupations in which claimants can work and the availability of positions in such occupations.” Id. (citing Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009)). ALJs have the discretion to employ VEs at administrative hearings. If the ALJ decides to use a VE, “he must make sure that the testimony comports with the rules set forth in the Commissioner’s Social Security Rulings.” Id.
Social Security Ruling 96-9p allows for the use of VEs in complex cases. The ruling defines “vocational expert” as a “professional who provide[s] impartial expert opinion during the hearings and appeals process either by testifying or by providing written responses to interrogatories.” Id. at n.8. The court may use a VE “before, during or after a hearing, ” but whenever the court uses a VE, the claimant “has the right to review and respond to the VE evidence prior to the issuance of the decision, ” and “[t]he VE’s opinion is not binding on an adjudicator, but must be weighed along with all other evidence.” Id. Parties may ask the VE to produce
[a]ny or all of the following: An analysis of the impact of the RFC upon the full range of sedentary work, which the adjudicator may consider in determining the extent of the erosion of the occupational base, examples of occupations the individual may be able to perform, and citations of the existence and number of jobs in such occupations in the national economy.
2. Inconsistencies Between the DOT and VE Testimony
Vocational experts often rely on the Department of Labor’s Dictionary of Occupational Titles, but “[c]ourts disagree about the appropriate interaction between the Dictionary and a vocational expert.” Donahue v. Barnhart, 279 F.3d 441, 444-45 (7th Cir. 2002). Sometimes the DOT and the VE testimony conflict, and some claimants have limited access to the materials the VEs use to support his or her testimony.
a. Access to VE Testimony: The “Available on Demand” Rule
In Britton v. Astrue, 521 F.3d 799, 803 (7th Cir. 2008), the Seventh Circuit addressed whether a claimant should “have had more access to the VE’s data.” The claimant argued “that the Commissioner failed to satisfy his step-five burden of ‘providing evidence’ demonstrating that other work the claimant can perform ‘exists in significant numbers in the national economy.’” Id. (quoting 20 C.F.R. §404.1560(c)(2) and citing Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005)). The Seventh Circuit noted:
When the Commissioner satisfies this burden through expert testimony from a VE, that testimony must be reliable. A finding based on unreliable VE testimony is equivalent to a finding that is not supported by substantial evidence and must be vacated. We have held that any data or reasoning underlying the VE’s bottom line must be available on demand so that the claimant may test the reliability of the VE’s testimony.
Id. (emphasis added, internal quotation marks and citations omitted). In McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004), the Seventh Circuit held that such evidence is not “available on demand” when the ALJ asks the claimant to pay the VE for the production of the evidence or for a report supporting the VE’s testimony. In Britton, the VE “brought substantial . . . materials with her to the hearing and was willing to provide a selection-those portions on which she relied-to” the claimant. Britton, 521 F.3d at 804. On the record, at the ALJ hearing, the claimant’s attorney rejected the offer. The court found that this satisfied the “available on demand” requirement.
The Seventh Circuit didn’t stop with that finding, however. Instead, they closed Britton by addressing “the lack of pretrial discovery in Social Security hearings” which “can make the task of cross-examining a VE quite difficult.” Id. The Seventh Circuit promulgated the “available on demand” rule in order “to facilitate cross-examination and testing of the VE’s reliability.” Id. The court emphatically declared, “[W]e refuse to endorse a system that drags out every Social Security hearing to an interminable length.” Id. The court then “encourage[d] ALJs and the Social Security bar to cooperate in such a way that makes data underlying VE testimony available on demand without making every hearing impossibly long.” Id. What does that mean? The court provided some examples: “Perhaps brief recesses should be provided so attorneys can examine the sources relied upon by VEs, ” or “the claimant’s attorney should have access to copies of the pages of those sources on which the VE relied, ” or “an attorney who wants to make an argument based on data unavailable at the hearing should have the opportunity to do so by supplementing the record after the hearing.” Id. These “suggestions” should “achieve the proper balance between the needs of the claimant to effectively cross-examine the VE and the needs of the Commissioner to hold efficient hearings.” Id.
b. Social Security Rulings: ALJs Must Probe and Resolve Inconsistencies
Social Security Ruling 00-4p “clarifies” the Social Security Administration’s “standards for use of vocational experts (VEs) who provide evidence at hearings before administrative law judges . . . and other reliable sources of occupational information in evaluation of disability claims.” SSR 00- 4p. Specifically, the ruling requires
that before relying on VE . . . evidence to support a disability determination or decision, our adjudicators must:
• Identify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the Dictionary of Occupational Titles (DOT), including its companion publication, the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO), published by the Department of Labor, and
• Explain in the determination or decision how any conflict that has been identified was resolved.
Id. The SSA acknowledged that “[i]n making disability determinations, we rely primarily on the DOT . . . for information about the requirements of work in the national economy, ” and that it “most often use[s] VEs to provide evidence at a hearing before an ALJ.” Id.
Ruling 00-4p provides that any “evidence provided by a VE generally should be consistent with . . . the DOT, ” but it places a duty on the ALJ, “[a]t the hearings level . . . to fully develop the record, ” which includes an inquiry “on the record, as to whether or not there is such consistency.” Id. If the ALJ determines that an inconsistency exists, the SSA does not provide a preference between the DOT and the testimony of a VE: “Neither . . . automatically ‘trumps’ when there is a conflict.” Id. The ALJ has a duty to “resolve the conflict by determining if the explanation given by the VE . . . is reasonable and provides a basis for relying on the VE . . . rather than on the DOT information.” Id.
Repeatedly, Ruling 00-4p places a duty on the ALJ “to ask about any possible conflict between the VE . . . and information provided in the DOT, ” when such evidence relates to “the requirements of a job or occupation.” Id. Specifically, the ALJ “will [a]sk the VE . . . if the evidence he or she has provided conflicts with the information provided in the DOT, ” and, “[i]f the VE’s evidence appears to conflict with the DOT, the adjudicator will obtain a reasonable explanation for the apparent conflict.” Id. (emphasis added). “When the vocational evidence provided by a VE . . . is not consistent with information in the DOT, the adjudicator must resolve this conflict before relying on the VE . . . to support a determination . . . that the individual is or is not disabled.” Id. Specifically, the ruling requires the ALJ to “explain in the determination or decision how he or she resolved the conflict, ” and the ALJ “must explain the resolution of the conflict irrespective of how the conflict was identified.” Id.
3. District Court and Seventh Circuit Evaluation of Vocational Expert Testimony
a. Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008)
In Overman v. Astrue, the ALJ asked the VE if “his testimony was consistent with the DOT.” The VE said it was, and the claimant’s attorney cross-examined the witness. The Seventh Circuit, however, found that the testimony actually did conflict with the DOT. Although the ALJ had complied with SSR 00-4p by asking the VE about potential conflicts, the ALJ did not complete the second step of the inquiry: he did not obtain from the VE “‘a reasonable explanation for the . . . conflict’” or include analysis of the conflict in his written decision. Id. at 462-63 (quoting SSR 00-4p). “SSR 00-4p imposes an affirmative duty on the ALJ to inquire into and resolve apparent conflicts, ” and “a claimant’s failure to raise a possible violation of SSR 00-4p . . . does not forfeit the right to argue later that a violation occurred.” Id. at 463 (emphasis in original) (citing Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006)).
The Seventh Circuit emphasized that “Prochaska makes clear that the ALJ’s affirmative duty extends beyond merely asking the VE whether his testimony is consistent with the DOT; the ALJ must also elicit a reasonable explanation for any discrepancy.” Overman, 546 F.3d at 463 (internal quotation marks and citation omitted) (emphasis added). The court also noted that the claimant’s counsel’s failure to raise these issues on cross-examination was “not without consequence.” Id. At the appellate level, the claimant had to show “that the conflicts were obvious enough that the ALJ should have picked up on them without any assistance, for SSR 00-4p requires only that the ALJ investigate and resolve apparent conflicts.” Id. (citations omitted).
b. Weatherbee v. Astrue, 649 F.3d 565 (7th Cir. 2011)
Three years later, in Weatherbee v. Astrue, the Seventh Circuit held that SSR 00-4p “only requires ALJs to inquire about conflicts ‘before relying’ on a VE’s testimony.” 649 F.3d 565, 570 (emphasis in original) (quoting SSR 00-4p). Although the court did “not specify whether this inquiry should (or must) occur before or after a VE testifies, ” the court declined to find that it required “ALJs to inquire about conflicts between a VE’s testimony and the DOT after the VE provides her substantive testimony.” Id. (citations omitted) (emphasis added).
The Weatherbee court also determined that Ruling 00-4p only requires ALJs to resolve “apparent conflicts, ” or conflicts that are “‘so obvious that the ALJ should have picked up on [it] without any assistance.’” Id. (quoting Overman, 546 F.3d at 463). “When there is an apparent conflict, ALJs are required to obtain reasonable explanations for the conflict.” Id. An ALJ does not have “to wholly disregard a VE’s testimony because part of it disagrees with the DOT, but Ruling 00-4p . . . require[s] ALJs to resolve discrepancies between the two before relying on the conflicting testimony.” Id. at 569.
c. Roxbury v. Colvin, No. 13-C-1385, 2014 WL 4115862 (E.D. Wis. Aug. 19, 2014)
“SSR 00-4p seeks to maintain consistency between VE testimony and the DOT not only to ensure that the ALJ has before him probative evidence of jobs that the claimant can actually do but also as a means of ensuring the reliability of the VE’s testimony.” Roxbury, 2014 WL 4115862, at *9 (citation omitted). In Roxbury, the court found that the ALJ “impeded” the claimant’s “efforts to challenge the basis for the VE’s conclusions.” Id. Prior to the administrative hearing, the claimant’s attorney “requested the issuance of a subpoena duces tecum requiring the VE to bring with him documents upon which he may rely in forming his opinion, but the ALJ denied that request as unnecessary.” Id. at *3 (internal quotation marks and citations omitted). The ALJ told the claimant that his attorney “could question the VE about where his statistical or job information came from” at the hearing, but the ALJ emphasized “that the VE was not being called as a statistician or census taker.” Id.
The district court took issue with this, because in Britton, the Seventh Circuit had held that the “available on demand” rule served to facilitate cross-examination. Id. at *9 (quoting Britton, 521 F.3d at 804). “Pre-hearing guesswork and post-hearing written submissions are no substitute for counsel’s ability to ask the VE precisely where in his data he found evidence of a specific number of jobs.” Id. The court found that “the ALJ failed to meaningfully address [the claimant’s] challenges to the date the VE said he used.” Id. at *10. Further, the VE did not “demonstrate a reliable method for extracting specific numbers from the data, ” and “his testimony regarding his methodology was vague.” Id.
The Roxbury court found that any expert should “‘offer good reason to think that his approach produces an accurate estimate using professional methods, ” but “[i]t is not sufficient for an expert to simply invoke his own expertise or experience, ” and an “expert who cannot or will not explain his conclusions should not be allowed to give expert testimony.” Id. at 11. (citations omitted). The court remanded the case for a more sufficient step-five determination, finding that “the VE’s admitted contradiction, the ALJ’s refusal to require production of the VE’s data, the serious doubts” raised by the claimant’s attorney, “and the VE’s inability to cogently explain his method, ” resulted in a decision not supported by substantial evidence. Id.
d. Barnica v. Colvin, No. 13-C-1012, 2014 WL 4443279 (E.D. Wis. Sept. 9, 2014)
In Barnica v. Colvin, the district court addressed the testimony of and the evidence supporting the opinion of a VE. The claimant had requested that the ALJ issue a subpoena “requir[ing] the VE to bring documents supporting his opinion to the hearing, ” specifically objecting to the VE testifying unless he provided “valid, reliable data of some sort to support such testimony.” Id. (internal quotation marks and citation omitted). The ALJ rejected the request, and the VE did not produce any such evidence at the hearing.
The district court determined “that a blanket request in advance for documents does not mean that the attorney ‘[challenged] the foundation of the vocational expert’s opinions.’” Id. at *8 (quoting McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004)). In Barnica, the claimant’s attorney did not challenge the VE’s findings at the hearing, and instead posed hypothetical questions to the VE “based on various limitations counsel believed were justified” and that were “premised on the VE’s expertise.” Id. The court interpreted this as counsel’s recognition “that the VE had a firm basis for his opinions because [counsel attempted] to use the . . . testimony to support his client’s purposes.” Id. The court then admonished the claimant for attempting to “have it both ways, ” noting that “[g]iven the absence of any objections, the ALJ was in no position to do anything but rely on the VE’s testimony, since it had not been challenged. A challenge in the district court more than a year later is hardly the forum for such an argument.” Id.
The claimant also challenged the VE’s use of the Dictionary of Occupational Titles. The court noted, “No one doubts that the DOT is old and that jobs have changed since it was last updated in 1991.” Id. However, it “is still routinely used in Social Security cases, and [the claimant] has not identified any precedent in which a VE’s use of the DOT was reversible error.” Id. Again, the court admonished counsel for not raising these issues when cross-examining the VE at the administrative hearing:
The time to raise such issues would be while the VE was actually testifying about the number and kinds of jobs available. Instead . . . by asking the VE hypothetical questions based on [the claimant’s] limitations, counsel appeared to have conceded the VE’s expertise and the foundation for his opinions.
e. Hill v. Colvin, 807 F.3d 862 ...