Defendant argues that the testimony of a vocational expert is
controlling notwithstanding contradictory provisions in the DOT.
(Doc. 15, at 13.) In addition, Defendant notes that the DOT
provides a disclaimer which warns that it is not an exhaustive
resource and may not coincide in every respect in all localities
or establishments. (Id.) Also, the DOT is only one source
among others which the Commissioner may take administrative
notice as to occupational issues. (Id.) Finally, the Defendant
argues that the regulations and rulings state that vocational
testimony may be needed when determining complex vocational
issues. (Id. at 14.)
The circuits are split as to how expert vocational testimony
should be handled. Defendants and the Magistrate Judge rely on
Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610
(6th Cir. 1995) arguing that the ALJ may rely on the testimony
of the vocational expert even if the testimony is inconsistent
with the job descriptions in the DOT. See also Jones v. Apfel,
190 F.3d 1224, 1229-30 (11th Cir. 1999) (agreeing with Sixth
Circuit that when vocation expert's testimony conflicts with
DOT, vocational expert's testimony "trumps" DOT), cert.
denied, 529 U.S. 1089, 120 S.Ct. 1723, 146 L.Ed.2d 644 (2000).
Their rationale was that the DOT "is not the sole source of
admissible information concerning jobs." Jones, 190 F.3d at
1230 (quoting Barker v. Shalala, 40 F.3d 789, 795 (6th Cir.
1994)). On the other hand, the Tenth Circuit held that the ALJ
"must investigate and elicit a reasonable explanation for any
conflict between the Dictionary and expert testimony before the
ALJ may rely on the expert's testimony as substantial evidence
to support a determination of nondisability." Haddock v.
Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999); see also
Montgomery v. Chater, 69 F.3d 273, 276 (8th Cir. 1995);
Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
Defendant cites the Third Circuit decision of Wright v.
Sullivan, 900 F.2d 675, 684 (3d Cir. 1990) arguing that the
Third Circuit accepted the vocational expert's testimony despite
a conflict with the DOT. In Wright, the claimant suggested
that her work as a rape counselor could not be considered
substantial gainful employment because the job was not listed in
the DOT. The Third Circuit held that the DOT was not a
comprehensive source and just because the job was not listed in
the DOT, did not mean that the job did not exist. Id.
In this case, however, the vocational expert did not provide
examples of employment which were not listed in the DOT. Instead
the vocational expert provided examples of employment which were
listed as semi-skilled positions in the DOT when asked for
examples of unskilled positions, identifying a DOT number which
does not exist and providing positions in reasoning development
categories which did not pertain to the hypothetical posed by
the ALJ, thereby creating a conflict between his testimony and
the DOT. The ALJ should develop the record and explain any
conflicts before relying on the vocational expert's testimony in
order to meet the substantial evidence standard. See Burnett,
220 F.3d at 124-26. Given the Third Circuit's recent decisions
in Fargnoli and Burnett emphasizing the duty of the ALJ to
develop the record and to consider all relevant evidence in
making his/her determinations, I agree with the Tenth Circuit
and holds that the ALJ must develop the record and explain the
inconsistencies between the vocational expert's testimony and
the DOT further.
In this case, although I find that there was substantial
evidence for the ALJ to
give limited weight to Plaintiffs treating physicians, the ALJ's
decision not to award disability benefits to Plaintiff was not
supported by substantial evidence. First, the testimony of
Plaintiff's lay witness corroborated or bolstered the Plaintiffs
claim that he was disabled by supporting both Plaintiff's
credibility and his physician's conclusions. It is unclear
whether or not the witness' testimony was credited or simply
ignored because the ALJ failed to expressly give the reasons why
he discounted Ms. Flanger's testimony, Cotter, 642 F.2d at
705. Because the ALJ failed to resolve a conflict created by
countervailing evidence, the ALJ's determination is not
supported by substantial evidence. Grant v. Commissioner, Soc.
Sec. Admin., 111 F. Supp.2d 556, 569 (M.D.Pa. 2000) (Muir, J.).
Second, I find that the ALJ should apply a five point standard
error to Plaintiff's I.Q. scores. In addition, the ALJ did not
explain his reasoning or provide support with respect to
Plaintiffs mental impairments and why he found that Plaintiff
did not meet or equal the requirements of the Listing of
Impairments under § 12.05(C).
Third, Magistrate Judge Blewitt did not err in failing to give
controlling weight to Plaintiffs treating physicians since the
ALJ did provide ample support and adequately explained the
evidence. As a result, the ALJ's determination was supported by
Finally, I disagree with Magistrate Judge Blewitt in his
finding that the ALJ did not err in relying on the testimony of
the vocational expert even though it conflicted with the DOT.
Since I rely on the holding of the Tenth Circuit decision in
Haddock, as well as the Third Circuit's recent decisions in
Fargnoli and Burnett, I hold that the ALJ must develop the
record and explain any conflicts between the DOT and the
testimony of the vocational expert. As the record reveals error
on the part of the ALJ and the magistrate judge, the case will
be remanded to the Commissioner for further proceedings
consistent with this opinion.
An appropriate order will follow.
NOW, this __ day of August, 2001, IT IS HEREBY ORDERED that:
1. The Report and Recommendation of Magistrate
Judge Thomas M. Blewitt (Doc. 10) is ADOPTED in
part and NOT ADOPTED in part.
2. Plaintiffs Motion for Summary Judgment (Doc. 11)
3. Defendant's Motion for Summary Judgment (Doc.
14) is DENIED.
4. This matter is REMANDED to the Commissioner
pursuant to 42 U.S.C. § 405(g).
5. The Commissioner shall hold another disability
benefits hearing and shall reconsider steps three
through five (3-5) of the disability determination
process consistent with this Memorandum and Order.
6. The Clerk of Court is directed to close this
*fn2 The regulations require that where verbal, performance and
full-scale I.Q. scores are provided, the lowest I.Q. score be
used to determine if the plaintiff is intellectually impaired.
20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.00(D)(6)(c).
*fn3 The "severity" test applied by these circuits parallels
the language of step-two of the five step analysis which
considers whether the claimant has a severe impairment or
combination of impairments which causes more than minimal
restrictions on the capacity for basic work activity.
20 C.F.R. § 416.920.
*fn4 Plaintiff also submits the opinion of Dr. Hodge (Doc. 11
at 14; Doc. 17 at 7; R. 373) stating that Plaintiff can never
work again. However, according to Defendant, this opinion was
not submitted to the ALJ and cannot be considered on substantial
evidence review. See Jones v. Sullivan, 954 F.2d 125, 128 (3d
Cir. 1991). Plaintiff does not dispute this. As a result, I will
not consider Dr. Hodge's opinion.