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Second Circuit Remands Because of DOT Conflict

Empire Justice Center April 30, 2019

In another recent decision concerning vocational testimony, the Court of Appeals for the Second Circuit chastised the Administrative Law Judge (ALJ) for failing to resolve an apparent conflict between the testimony of the vocational expert (VE) and the Dictionary of Occupational Titles (DOT). Lockwood v. Comm’r of Social Security Administration, 914 F.3d 87 (2d Cir. 2019).

 

Mr. Lockwood had argued the ALJ erred in relying on the VE’s testimony as to jobs he could perform. The ALJ had found Mr. Lockwood suffered from an impairment that required him to avoid all overhead reaching tasks.  Yet according to the DOT, the three jobs to which the VE testified all required frequent or occasional reaching.  The court agreed with Mr. Lockwood’s argument that Social Security Ruling (SSR) 00-4p required the ALJ to probe this apparent conflict.

 

The court rejected the Commissioner’s argument that there was no conflict between the VE’s testimony and the DOT because a job requiring reaching does not necessarily require overhead reaching.  The court did not want to “guess” what the three jobs identified actually required. Rather, it held the Commissioner has an affirmative responsibility to inquire about any possible or apparent conflicts.  The court ruled the ALJ had not met this burden simply by asking the VE if her opinion was consistent with the DOT.  As a result, the court found that the VE’s testimony cannot represent substantial evidence that Mr. Lockwood could perform work in the national economy.  It remanded the claim for the ALJ to conduct the requisite inquiry.

 

More fodder for VE cross-examination?