683 F.3d 443 (2nd Cir. 2012), 11-2121-cv, Brault v. Social Sec. Admin., Com'r

Docket Nº:11-2121-cv.
Citation:683 F.3d 443
Opinion Judge:PER CURIAM:
Party Name:George BRAULT, Plaintiff-Appellant, v. SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant-Appellee.
Attorney:Anthony B. Lamb, Williston, VT, for Plaintiff-Appellant. Karen B. Burzycki, Special Assistant United States Attorney (Carol L. Shea, Assistant United States Attorney, on the brief) for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Defendant-Appellee.
Judge Panel:Before: B.D. PARKER, HALL, WALLACE,[1] Circuit Judges.
Case Date:June 29, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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683 F.3d 443 (2nd Cir. 2012)

George BRAULT, Plaintiff-Appellant,

v.

SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant-Appellee.

No. 11-2121-cv.

United States Court of Appeals, Second Circuit.

June 29, 2012

Argued: May 22, 2012.

Page 444

[Copyrighted Material Omitted]

Page 445

Anthony B. Lamb, Williston, VT, for Plaintiff-Appellant.

Karen B. Burzycki, Special Assistant United States Attorney (Carol L. Shea, Assistant United States Attorney, on the brief) for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Defendant-Appellee.

Before: B.D. PARKER, HALL, WALLACE,1 Circuit Judges.

PER CURIAM:

Plaintiff-Appellant George Brault appeals from the judgment of the United States District Court for the District of Vermont (Murtha, J.) affirming the decision of the Commissioner of Social Security (" the Commissioner" ) denying Brault's application for disability benefits. We conclude the decision of the administrative law judge (" ALJ" ) was supported by substantial evidence and was not the product of legal error, and affirm the district court's judgment.

I. Background

Brault filed an application for a period of disability and Disability Insurance Benefits in September 2007. He claimed that he became disabled in September 2006 because of nerve damage in his left arm and a cervical spine injury he sustained in a motor-vehicle accident. After his application was denied initially and on reconsideration, he requested an administrative hearing before an ALJ.

The ALJ found that Brault had carried his burden of proof on steps one through four of the five-step process the Commissioner employs to determine disability. See 20 C.F.R. § 404.1520; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004), as amended on reh'g in part, 416 F.3d 101 (2d Cir.2005). At that point, the burden shifted to the Commissioner to show there is other work that Brault can perform. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir.1998). The ALJ concluded, based on the testimony of the vocational expert (" VE" ) the government had retained, that Brault was " capable of making a successful adjustment to other work that exists in significant numbers in the national

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economy." Accordingly, Brault's application was denied.

Although Brault's counsel stipulated to the VE's expertise, he asserted a Daubert -like objection to the VE's actual testimony, contending it was unreliable.2 In response to hypotheticals from the ALJ roughly describing Brault's specific limitations, the VE had identified eight occupations an individual with such limitations could perform.3 He based that determination on his own expertise, as well as on the position descriptions in the Dictionary of Occupational Titles (the " DOT" ), a United States Department of Labor publication. The DOT gives a job type a specific code— for example, " 295.467-026 Automobile Rental Clerk" — and establishes, among other things, the minimum skill level and physical exertion capacity required to perform that job. Because of the detailed information appended to each DOT code, the codes are useful for determining the type of work a disability applicant can perform. In fact, the DOT is so valued that a VE whose evidence conflicts with the DOT must provide a " reasonable explanation" to the ALJ for the conflict. See Social Security Ruling (SSR) 00-4p, Policy Interpretation Ruling: Titles II and XVI: Use of Vocational Expert and Vocational Specialist Evidence, and Other Reliable Occupational Information in Disability Decisions, 2000 WL 1898704 (Dec. 4, 2000).

The DOT, however, just defines jobs. It does not report how many such jobs are available in the economy. Consequently, the VE turned to the Occupational Employment Quarterly II (the " OEQ" ), prepared by a private organization called U.S. Publishing, to assess whether positions exist for each of the eight DOT codes, both in the national economy and in Vermont, Brault's home state. The VE testified that according to the OEQ more than 1,750,000 light-exertion, unskilled, positions exist in the national economy, and more than 3,600 exist in Vermont.

Brault argued, somewhat in passing, that the VE's report improperly counted part-time positions. But his main objection to the VE's testimony was that it did not reliably match the DOT codes to the OEQ data. According to Brault's submissions to the ALJ, the OEQ does not compile data by DOT code, but rather by Standard Occupational Classification System (" SOC" ) code, a new system the Bureau of Labor Statistics has embraced to replace the DOT code regime. SOC codes, however, are not useful for disability proceedings because they do not contain the same detailed occupational information as DOT codes. Thus a VE must use some method for associating SOC-based employment numbers to DOT-based job types. The problem, however, is that DOT codes are much more granular than SOC codes— according to Brault, there were nearly 13,000 job titles in the 1991 edition of the DOT, but only about 1,000 SOC titles.

Citing this inexact matching, Brault submitted a memorandum arguing that " the underlying numbers [are] unscientific and fail to meet the Daubert standard for reliability." According to him, " the numerical data provided by the SOC code do[ ] not enable a vocational expert to accurately determine the number of jobs within that

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SOC code for a particular DOT title." As such, he maintained that the VE " has no scientific basis to break down between the various DOT titles" and to match them to SOC codes. He then explained— without any citation— that an expert " must use a ‘ crosswalk,’ " in other words, a data-matching algorithm, " to cross-reference the occupational detail for a particular DOT code to a SOC code [and then must] use the statistical data to define the number...

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