Latulippe v. SSA CV-95-82-SD 03/07/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Henry Latulippe
v. Civil No. 95-82-SD
Commissioner, Social Security Administration
O R D E R
Pursuant to section 20 5 (g) of the Social Security Act, 42
U.S.C. § 405(g), plaintiff Henry Latulippe seeks judicial review
of a final decision of the Commissioner of the Social Security
Administration,1 rendered following a remand order issued by this
court. Presently before the court are (1) plaintiff's motion to
reverse the Secretary's decision and (2) defendant's motion to
affirm the Secretary's decision.
1The court notes that on March 31, 1995, the Social Security Administration was separated from the Department of Health and Human Services, becoming an autonomous agency. Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, § 106(d)(2), 108 Stat. 1464, 1477 (1994). The Commissioner of Social Security has therefore been substituted for the Secretary of Health and Human Services as the defendant in this action. However, because all the events relevant here occurred prior to the change, in this order the court will refer to the defendant as Secretary from this point on. Background2
Plaintiff Henry Latulippe was born on May 1, 1947, and has
completed an eighth-grade level of education. Transcript (Tr.)
193, 230. He has worked in the past as an auto body shop
operator and owner, as well as a construction foreman. Tr. 230.
Latulippe has a history of coronary artery disease, Tr. 394,
and other ailments. In March and April of 1986, he was treated
and hospitalized for chest pain on three occasions and diagnosed
with acute coronary insufficiency, arterial hypertension,
psoriasis, gout, and exogenous obesity. Tr. 250, 263. On
April 29, 1986, plaintiff was admitted to the Massachusetts
General Hospital, where he received angioplasty surgery.3 Tr.
343.
In January of 1988, plaintiff was treated for alcohol,
cocaine, and polydrug dependence at St. Joseph Hospital in
Nashua, New Hampshire, and was diagnosed with, among other
things, anxiety depression. Tr. 298. In May of that same year,
plaintiff was hospitalized again for chest pains. Tr. 309.
Subsequent to his hospitalization, plaintiff's reports of chest
2A more thorough recitation of the facts can be found in the Report and Recommendation of Magistrate Judge Barry dated March 30, 1993.
3Angioplasty is a procedure to open clogged blood vessels. See B o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 79-80 (W . B . Saunders Co., 28th ed. 1994) .
2 pain continued in December of 1988, Tr. 352-53, and again in
April of 1990, after he inhaled smoke from a fire in his family's
store, Tr. 358-59.
Following further complaints of chest pain and a
recatheterization which revealed significant stenosis (or
occlusion) in seven blood vessels, Tr. 396-97, Latulippe
underwent guadruple bypass surgery on December 26, 1990, Tr. 386.
Procedural History
On April 23, 1990, plaintiff filed an application for a
period of disability and for disability insurance benefits,
alleging an inability to work since April 28, 1988. Tr. 193-95.
Plaintiff had previously filed two other such applications on
December 21, 1988, Tr. 141, and June 22, 1989, Tr. 170, each also
alleging an inability to work since April 28, 1988. The initial
application was denied on February 9, 1989. Tr. 160. Although
undated, the denial of the second application appears to have
occurred in November of 1989. Tr. 10, 183, 465.
On August 14, 1991, a de novo hearing was held on
plaintiff's April 1990 application before an Administrative Law
Judge (ALJ) .4 Tr. 43. At such hearing, the ALJ heard testimony
4Plaintiff's April 1990 application was initially denied on June 14, 1990, Tr. 205, and upon reconsideration by the Secretary on November 28, 1990, Tr. 220.
3 from plaintiff, Tr. 51-107, plaintiff's wife Nancy Grassman, Tr.
107-24, and Ralph Richardson, a vocational expert (VE), Tr. 127-
39. In a decision dated February 11, 1992, the ALJ stated that
his assessment was limited to the period of time when claimant's
second application for benefits was denied, November 1989,
through June 30, 1990, the date he was last insured for
disability insurance benefits. Tr. 10.
The ALJ went on to find that Latulippe's eligibility for
benefits could proceed along steps one through four of the
seguential evaluation process. Tr. 20-21. Such process, set
forth at 20 C.F.R., ch. Ill, §§ 404.1520 and 416.920, is
summarized as follows: (1) The Secretary determines whether the
claimant is currently involved in substantial gainful activity.
20 C.F.R. Ch. Ill, § 404.1520. (2) If the claimant is not so
involved, the Secretary considers whether the claimant has a
"severe impairment" which significantly hinders his physical or
mental ability to engage in basic work activities. Id. The
claimant must prove that his impairment prevents him from
performing his former type of work. Gray v. Heckler, 760 F.2d
369, 371 (1st Cir. 1985) (citing Goodermote v. Secretary, 690
F.2d 5, 7 (1st Cir. 1975)). (3) If the claimant suffers from a
severe impairment, then the inguiry is whether the claimant has
an impairment which (a) meets a durational reguirement and (b) is
4 listed in Appendix 1 of the regulations. 20 C.F.R., Ch. Ill, §
404.1520. (4) In the event that a claimant does not have an
impairment specifically listed in Appendix 1, the inquiry is
whether, despite the claimant's severe impairment, he has the
residual functional capacity to perform his past work. Id. (5)
If the claimant is unable to perform his past work, the Secretary
has the burden of showing that other work exists in the national
economy which the claimant can perform. Heggartv v. Sullivan,
947 F .2d 990, 995 (1st Cir. 1991).
The ALJ concluded, among other things, that (1) at step one,
plaintiff had not engaged in substantial gainful activity since
April 28, 1988, Tr. 20; (2) at step two, plaintiff's heart
condition and obesity represented a severe impairment during the
period from claimant's alleged onset date through June 30, 1990,
Tr. 16, 21; (3) at step three, plaintiff does not have an
impairment or combination of impairments listed in, or medically
equal to, one listed in the Secretary's listing of impairments,5
Tr. 21; and (4) at step four, claimant is unable to perform his
past relevant work, id. The ALJ also concluded that plaintiff's
residual functional capacity for the full range of sedentary work
is reduced by his exertional limitations and that claimant "has
an eighth grade education, is not illiterate and does not have
5See Appendix 1 to 20 C.F.R. Part 404, Subpart P.
5 significant difficulty with reading and writing." Id. The ALJ
ultimately found that the claimant was not entitled to benefits
because the Secretary met its burden at step five of showing the
existence of jobs in the regional or national economy that
claimant was capable of performing. Tr. 22. A VE testified that
these jobs included security guard, automobile dispatcher, self-
service gas station attendant, and parking lot attendant. Id.
On August 26, 1992, the Appeals Council denied plaintiff's
reguest for review of the ALJ's decision, thereby rendering the
ALJ's decision the final decision of the Secretary of Health and
Human Services. Tr. 4-5.
Plaintiff subseguently moved to reverse--and defendant moved
to affirm--the decision of the Secretary. On appeal to the
district court, plaintiff argued, among other things, that "the
jobs identified by the VE were improperly classified,
exertionally unsuitable and ignored plaintiff's educational
limitations." Tr. 480. This court affirmed the Report and
Recommendation of United States Magistrate Judge William H.
Barry, Jr., in which he denied both motions and remanded the
action to the Secretary to consider evidence of plaintiff's
disability from February 9, 1989, to June 30, 1990. See Order,
May 3, 1993 (Loughlin, S.J.); Report and Recommendation, March
30, 1993.
6 The Appeals Council issued an order on July 13, 1993,
remanding the case to an ALJ for further proceedings "consistent
with" the order of the district court. Tr. 610. Following
remand, a supplemental hearing was held at which the ALJ heard
testimony of plaintiff's sister, Virginia Nadeau. Tr. 668-84.
After this hearing, the ALJ issued a decision on February 17,
1994, again finding claimant not entitled to a period of
disability or to disability insurance benefits. Tr. 434. On
December 21, 1994, the Appeals Council denied plaintiff's reguest
for review, thereby rendering the ALJ's decision the final
decision of the Secretary. Tr. 411-12.
In the present action, Latulippe moves for an order
reversing the Secretary's final decision.6 His general
contention is that he is eligible for benefits at step five of
the seguential evaluation process because "no jobs exist[] in the
regional or national economy which he can perform at his reduced
range sedentary work capacity." Plaintiff's Memorandum at 1-2.
6Latulippe also filed with this court a Motion to Reopen the Commissioner's Decision on January 3, 1994; said motion was denied on February 1, 1995.
7 Discussion
1. Standard of Review
Pursuant to the Social Security Act, the court may "enter,
upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Secretary,
with or without remanding the cause for a rehearing." 42 U.S.C.
§ 405(g) (Supp. 1994).
When reviewing a Social Security disability determination,
the factual findings of the Secretary "shall be conclusive if
supported by 'substantial evidence.'" Irlanda Ortiz v.
Secretary, 955 F.2d 765, 769 (1st Cir. 1991) (guoting 42 U.S.C. §
405(g)). "[S]ubstantial evidence" means "'more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adeguate to support a conclusion.'" Richardson
v. Perales, 402 U.S. 389, 401 (1971) (guoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)); Rodriguez v. Secretary,
647 F .2d 218, 222 (1st Cir. 1981).
However, substantial evidence "is something less than the
weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency's finding from being supported by
substantial evidence." Consolo v. Federal Maritime Comm'n, 383
U.S. 607, 620 (1966) (citing NLRB v. Nevada Consolidated Copper
8 Corp., 316 U.S. 105, 106 (1942)). Moreover, the decision of the
Secretary must be affirmed, "even if the record arguably could
justify a different conclusion, so long as it is supported by
substantial evidence." Rodriguez Pagan v. Secretary, 819 F.2d 1,
3 (1st Cir. 1987), cert, denied, 484 U.S. 1012 (1988) (citing
Lizotte v. Secretary, 654 F.2d 127, 128 (1st Cir. 1981)).
It is incumbent on the Secretary "to determine issues of
credibility and to draw inferences from the record evidence."
Irlanda Ortiz, supra, 955 F.2d at 769 (citing Rodriguez, supra,
647 F.2d at 222). Moreover, "the resolution of conflicts in the
evidence is for the Secretary, not the courts." Id.; Evangelista
v. Secretary, 826 F.2d 136, 141 (1st Cir. 1987); see also Sitar
v. Schweiker, 671 F.2d 19, 22 (1st Cir. 1982); Burgos Lopez v.
Secretary, 747 F.2d 37, 40 (1st Cir. 1984).
Since determinations regarding factual issues and the
credibility of witnesses are entrusted to the Secretary, whose
findings should be accorded great deference, see, e.g.,
Frustaglia v. Secretary, 829 F.2d 192, 195 (1st Cir. 1987), the
court "'must uphold the Secretary's findings . . . if a
reasonable mind, reviewing the evidence in the record as a whole,
could accept it as adeguate to support his conclusion.'" Irlanda
Ortiz, supra, 955 F.2d at 769 (guoting Rodriguez, supra, 647 F.2d
at 222).
9 2. Plaintiff's New Evidence
In the district court's order of May 3, 1993 (Loughlin,
S.J.) (hereinafter "Original Order"), the court remanded the case
to the Secretary "to consider evidence of the plaintiff's
disability from February 9, 1989[,] to June 30, 1990," thereby
ostensibly reopening the entire record. Original Order at 9.
The crux of the issue presently before the court is whether the
district court intended by this statement to reopen the entire
record, or whether, instead, the court simply instructed the ALJ
to consider--or clarify whether he had considered--specific
evidence relating to a limited time period. The text of the
opinion, as well as that of the Report and Recommendation of the
magistrate judge and the motions submitted by the parties at the
time, lead this court to conclude that the purpose and scope of
the remand was solely for the ALJ to consider medical evidence
relating to the period between February and November of 1989.7
7A more thorough explanation can be found in the court's order of May 3, 1993. Briefly, the issue before the court concerned the ALJ's assertion that he was assessing disability from November 1, 1989, though June 30, 1990, and was therefore apparently not reopening plaintiff's second application of disability, which was denied in November of 1989. The court found that the ALJ had applied the wrong standard in deciding against reopening plaintiff's second application. Therefore, the court remanded the action back to the ALJ to apply the correct standard. If the ALJ decided to reopen the plaintiff's second application, the court further ruled the ALJ should consider medical evidence dating from the denial of plaintiff's first application, which occurred February 9, 1989. According to the
10 The conclusion is buttressed by the following statement in the
May 3, 1993 order:
Although the Secretary contends that the ALJ considered all of the medical evidence submitted by plaintiff for the period prior to the expiration of his period of insured status, it is not clear from the record, especially because of the ALJ's statement that he was not reopening plaintiff's prior application, what weight if any the ALJ gave to that particular evidence for the period of plaintiff's prior application in making his findings.
Original Order at 8.
In its Original Order, the district court also explicitly
affirmed several of the ALJ's findings. For example, the court
found that substantial evidence supported the ALJ's finding that
plaintiff was not illiterate. Original Order at 6-7. The court
further opined,
the ALJ's findings with respect to plaintiff's physical and educational limitations and the effect those limitations may have on plaintiff's performance of jobs in the national economy, being substantially supported by the record, reguire the court to affirm that part of the decision of the Secretary finding plaintiff capable of performing work in the national economy.
Original Order at 7.
report and recommendation of the magistrate, this evidence could potentially aid plaintiff in proving disability for the entire time period (through June 30, 1989) because plaintiff suffered from a "degenerative" condition. See Report and Recommendation, Tr . 47 6.
11 Upon further consideration, the court modified its ruling,8
but reaffirmed that the Secretary had properly concluded that
plaintiff could perform the job of auto dispatcher. Order of
July 26, 1993 (Loughlin, S.J.) at 4. In so ruling, the court
considered plaintiff's capabilities in light of the reasoning,
mathematical, and language development skills reguired by the
job. Given the explicit findings within both orders, the most
logical interpretation of the remand order is that the court
intended to affirm the Secretary's finding as to plaintiff's non
illiteracy, but nonetheless remanded the cause back to the
Secretary to clarify whether it had considered medical evidence
relating to the period from February through November 1989.9
Plaintiff argues that the ALJ had the discretion to consider
"new and material" evidence of plaintiff's illiteracy during the
supplemental hearing. This presents a potentially difficult
Specifically, the court found that certain jobs identified by the VE--that of security guard, self-service station attendant, and parking lot attendant--reguired exertional levels beyond plaintiff's capabilities. Order of July 26, 1993 (Loughlin, S.J.) at 6.
9In his report of February 17, 1994, the ALJ clarified that he had considered this evidence in his earlier report: "[T]he prior decision erroneously stated that the agency denial of the claimant's prior June 22, 1989 application was not reopened. Such reopening, however, was intended and effectuated by the Administrative Law Judge." Tr. 422. Accordingly, this correction by the ALJ renders the district court's prior concerns moot, and would by itself justify affirmance.
12 question: whether the ALJ can properly consider new and material
evidence bearing on an issue already decided by the district
court and beyond the scope of the remand order. Rather than
directly resolve this issue, the court will take the liberty of
determining, in the first instance, whether the evidence
plaintiff seeks to introduce is new and material.
The court's decision to make the newness/materiality
determination, rather than to send the case back to the
Secretary, is supported by a number of considerations. First,
the court has the power to make the newness/materiality
determination as part of the remand powers conferred by sentence
six of section 405(g).10 In addition, given the scope of the
10The Social Security Act's judicial review provisions authorize two, and only two, forms of remand--so-called "fourth sentence remands" and "sixth sentence remands." See Melkonyan v. Sullivan, 501 U.S. 89, 97-99 (1991). Under the fourth sentence of section 405(g), a court may enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." Accordingly, the significant feature of a sentence four remand is that it is made in conjunction with a substantive ruling by the district court to either affirm, modify, or reverse the Secretary's decision. In contrast, the sixth sentence of section 405(g) describes an "entirely different kind of remand." Id. at 98 (quotation omitted). This form of remand is implicated upon discovery of new and material evidence that (1) was previously unavailable to the claimant during the administrative proceeding and (2) has the potential to change the outcome of that proceeding. Id. In order to justify such a remand, the evidence cannot be merely cumulative, but, rather, must meaningfully relate to the basis of the earlier decision. Evangelista, supra, 826 F.2d at 140-41. In addition, to avoid a "yo-yo effect, " the claimant must articulate good cause to justify his prior failure to present the
13 remand order, the court cannot find that the ALJ committed a
legal error warranting remand when it deferred to the district
court's prior ruling. Indeed, good authority supports that the
ALJ does not have the power to consider evidence beyond that
contemplated by the remand order:11
Where a court finds that the Secretary has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. . . . Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.
Sullivan v. Hudson, 490 U.S. 877, 885-86 (1989) (citations
omitted) (emphasis added). Finally, it is beyond peradventure
that the interests of all involved can be best served by the
court's immediate attention to the matter, and would be
significantly less served by yet another remand to the ALJ.
Plaintiff asserts that his school records and an evaluation
performed in 1993 by Dr. Scott N. Andrews, a psychologist, Tr.
606-08, constitute "new and material" evidence, although he
evidence to the ALJ. Id. at 141.
11This proposition is further supported by the plain language of section 405(g), which provides that the Secretary's findings are conclusive if supported by substantial evidence, which this court has already found in the original order.
14 admits that it "fortifies" earlier testimony by him, his wife,
and his sister that he can't read. Plaintiff's Memorandum at 10.
The school records showed, inter alia, that Latulippe failed most
of his classes when he was in grades six through eight and that
he left school in the middle of the eighth grade because of
scholastic difficulty. Tr. 601. Dr. Andrews' report documents
plaintiff's performance on tests designed to evaluate reading,
writing, and language development, and concludes that he is
illiterate. Tr. 608. The ALJ declined plaintiff's reguest to
consider this evidence because the district court had already
affirmed the ALJ's prior determination that Latulippe was not
illiterate. Tr. 423.
The court agrees with the defendant that (1) plaintiff had
ample opportunity to present this evidence at the initial
hearings before the Secretary, at which the literacy issue was
fully developed, and fails here to offer an adeguate explanation
of why the evidence was not produced before; and (2) the issues
raised by plaintiff have been previously considered, analyzed,
and ruled on by both the magistrate judge and the districtcourt.
It follows that this evidence is not "new and material,"
justifying a remand order from this court.
In an apparent attempt to sidestep the "new and material"
reguirement, plaintiff makes two further arguments. First,
15 plaintiff contends that under the regulations governing the scope
of the administrative hearing following a remand by a federal
court, any issue relating to plaintiff's claim may be considered
by the ALJ, whether ornot it was raised in the prior
administrative proceedings, see 20 C.F.R. § 404.983 (1995).
Another regulation apropos to the issue is 20 C.F.R. § 404.977,
which provides,
§ 404.977 Case remanded by Appeals Council.
(b) Action by administrative law judge on remand. The administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order.
20 C.F.R. § 407.977 (emphasis added). The court's interpretation
of these regulations is that, while an ALJ has the discretion to
consider matters outside that which is specified in a remand
order, such regulations would not apply here, where the district
court has previously ruled that plaintiff's non-illiteracy is
supported by substantial evidence. Indeed, to reopen the
literacy issue after the federal court had already ruled that
this finding was supported by substantial evidence (and the
Appeals Council's remand essentially incorporated the district
court's order) most likely would represent an action
16 "inconsistent with" the Appeals Council's remand order and would
thus be in direct contravention of 20 C.F.R. § 404.977(b).
Second, plaintiff, noting that the ALJ discusses Dr.
Andrews' evaluation in his February 17, 1994, decision, contends
the ALJ thereby reopened the issue of plaintiff's literacy as a
matter of administrative discretion. This assertion is
problematic for two reasons. As discussed above, it is unlikely
that the ALJ would have the power to exercise such discretion in
the instant case, given the district court's findings. In
addition, the ALJ's explicit statement that he was deferring to
the district court ruling on the issue of literacy negates any
suggestion of reopening.
Accordingly, as the ALJ neither reopened--nor had the
authority to reopen--the issue of claimant's literacy, the court
is inclined to here incorporate the prior ruling affirming the
ALJ's decision on this issue. However, before doing so, the
court will consider one last possible window of opportunity for
the plaintiff. The Seventh Circuit has recognized that under
certain unusual circumstances a court may depart from the law of
the case. Under the doctrine of the law of the case, "[a]n
administrative agency is bound on remand to apply the legal
principles laid down by the court . . . ." Chicago & N.W.
Transp. Co. v. United States, 574 F.2d 926, 930 (7th Cir. 1978)
17 (citation omitted). Such "legal principles" include both the
applicable legal doctrine and the sufficiency of the evidence
relevant to that doctrine. Id. The law of the case controls,
however, only in the absence of a compelling reason to depart
from it, such as the existence of "substantial new evidence
introduced after the first review," or "a conviction on the part
of the second reviewing court that the decision of the first was
clearly erroneous." Id.12 (citations omitted); accord Angevine
v. Sullivan, 881 F.2d 519, 521 (7th Cir. 1989) (applying law of
the case doctrine to social security case).
Even under the law of the case doctrine espoused by the
Seventh Circuit, plaintiff has not succeeded in demonstrating
that a reversal of the ALJ's decision on the literacy issue is
warranted. As the court opined previously, although it
contradicted the testimony of the claimant and that of his wife,
the ALJ's determination that the plaintiff was not illiterate was
supported by substantial evidence. Original Order at 5-6. The
court's reasoning was based on the observation that plaintiff had
an eighth-grade education and was owner of an auto body shop for
ten years in which he employed four persons, as well as on the
12Another reason would be a Supreme Court decision after the first review that contradicts the decision of that review.
18 definition of illiteracy provided by federal regulations.13
Original Order at 6.
Thus, to summarize, from this court's review, there was no
clear error in the Original Order affirming the Secretary's
finding of nonilliteracy. Furthermore, plaintiff's evidence of
his past educational records and the report of Dr. Andrews are
not sufficiently material or new to permit remand, as there
already exists a developed record on the issue of plaintiff's
illiteracy, and plaintiff fails to provide an adeguate
explanation for why the "new" evidence was not previously
submitted.
3. Vocational Expert's Testimony
Finally, plaintiff contends that substantial evidence does
not support the ALJ's determination (finding 12) that plaintiff
can perform the job of auto dispatcher.14 Tr. 433.
1320 C.F.R. § 404.1564(b) provides in relevant part:
Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.
14Plaintiff does not contest, here, the ALJ's finding that the job of auto dispatcher exists in numbers significant in the national economy.
19 Specifically, plaintiff challenges the V E 's description of the
job as "unskilled." Such an error by the VE would be significant
because the ALJ found plaintiff did not possess transferable
skills to meet the entry reguirements of skilled or semi-skilled
work (finding 10). Tr. 433.
Plaintiff's point is well taken. The Secretary defines
unskilled work as work that can be learned in thirty days, see 20
C.F.R. § 404.1568(a), but the D ictionary of Occupational T itles (4th
ed. 1991) (DOT) provides that the specific vocational preparation
(SVP) for the position of motor vehicle dispatcher15 is 5, which
reguires from six months to one year of training, see DOT at 216,
1009. Thus, the V E 's testimony contradicts the DOT.
However, given the posture of the case and plaintiff's
failure to raise the issue earlier, the court cannot credit
plaintiff's argument that the V E 's error is so serious as to
warrant remand and/or reversal. The VE testified at the initial
hearing held before the ALJ on August 14, 1991. Tr. 43, 124-38.
At that time, plaintiff was represented by experienced and able
counsel, who was given the opportunity to pose his own
hypothetical guestions, cross-examine the VE, and inguire into
15The DOT lists the motor vehicle dispatcher job at 249.167- 014 .
20 the source of the V E 's testimony. Plaintiff's counsel did not
object to the V E 's characterization of the auto dispatcher job as
"unskilled." Tr. 128. Since that time, plaintiff has filed at
least four discrete motions with this court that related, at
least in part, to the adequacy of the V E 's testimony.
Plaintiff's Motion for Reversal and Benefits, filed Feb. 11,
1993; Plaintiff's Objection to the Magistrate's Report and
Recommendation, filed April 19, 1993; Plaintiff's Motion for
Reconsideration, filed June 21, 1993; and Plaintiff's Motion to
Reopen, filed Jan. 3, 1994. In each of said motions, plaintiff
specifically challenged the ALJ's conclusion that he was capable
of performing the job of auto dispatcher, and plaintiff often
cited to the DOT to support his arguments.
Now plaintiff, represented by the same counsel, comes before
this court for the fifth time--nearly four years after the
testimony in question--offering a brand-new argument as to why
the V E 's testimony was deficient and contrary to the DOT.
Plaintiff provides no reason or excuse for his failure to bring
the matter to the attention of the court sooner. Under these
circumstances, plaintiff has not offered a sufficiently
compelling basis for the court to upset the law of the case set
by the court (Loughlin, S.J.) in the original order and the order
21 on reconsideration. In any case, it is unclear how the court can
give the plaintiff another bite of an apple that has been eaten
and long digested. C f . Evangelista, supra, 826 F.2d at 142-43
(where claimant was able to fairly present his case and ALJ's
decision was based on substantial evidence, appeals court will
not remand for presentation by claimant of arguably "new and
material evidence" in absence of "good cause" adeguate to excuse
failure to offer evidence sooner).
The court rejects plaintiff's argument for an alternative
reason: it is likely that the DOT would not override the V E 's
testimony in the instant situation. The ALJ takes administrative
notice of "reliable job information" available from various
governmental sources, including the DOT. See 20 C.F.R. §
404.1566(d), Subpart P, app. 2, § 200.00(b). However, when
complex issues are raised, for example whether a claimant's work
skills can be used in other work, the Secretary may rely upon a
vocational expert. See 20 C.F.R. § 404.1566(e).16
16The regulations provide in relevant part:
(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental
22 The circuits are divided as to whether--and to what extent--
the DOT should control over contradictory VE testimony. At least
one court has held that an ALJ may rely solely on a vocational
expert's testimony even if it is inconsistent with the DOT. See
Conn v. Secretary, 51 F.3d 607, 610 (6th Cir. 1995) (vocational
expert entitled to describe jobs as "sedentary" despite DOT's
classification of jobs with same names as "light" or "medium");
Logan v. Shalala, 882 F. Supp. 755, 764 (C.D. 111. 1995) ("[T]he
DOT's requirements are not controlling and they are to be applied
in light of the vocational expert's professional knowledge
regarding one's ability to perform an identified job."); see also
Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995) (ALJ may
rely on expert testimony contradicting DOT, "but only insofar as
the record contains persuasive evidence to support the
and other publications. For example, we will take notice of-- (1) Dictionary of Occupational Titles, published by the Department of Labor;
(e) Use of vocational experts and other specialists. If the issue in determining whether you are 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, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.
23 deviation"); but see Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.
1995) ("when expert testimony conflicts with the DOT, the DOT
controls") (and cases cited therein); Tom v. Heckler, 779 F.2d
1250, 1257 n.12 (7th Cir. 1985) (discrepancies should be resolved
in favor of the DOT, particularly when the ALJ "simply appears to
have made a mistake" by relying on the VE testimony over an
inconsistent description in the DOT) .
The instant case presents one of those perhaps rare
situations when the ALJ could properly credit the vocational
expert's professional knowledge in lieu of the DOT. The VE
testified that the job of auto dispatcher is an unskilled
sedentary position that claimant could perform. Tr. 127. This
testimony directly followed his testimony that claimant had
previously performed skilled work, including work as an
automobile body repairman and a construction foreman. Tr. 125-
26. At this point, plaintiff's only contention is that the
dispatcher job is unsuitable because he is not capable of
undergoing the six months of training it reguires. Such
assertion is undermined by plaintiff's prior work history.
Therefore, the record, although not ideal, supports the V E 's
conclusion that plaintiff is capable of performing the dispatcher
job; at a minimum, there is persuasive evidence to support the
24 V E 's departure from the DOT. Accordingly, contrary to
plaintiff's argument here, the Secretary's decision was supported
by substantial evidence.
Conclusion
For the reasons set forth herein, the court denies
plaintiff's Motion for Order Reversing the Decision of the
Secretary (document 9) and grants defendant's Motion for Order
Affirming the Decision of the Secretary (document 11).
SO ORDERED.
Shane Devine, Senior Judge United States District Court
March 7, 1996
cc: Raymond J. Kelly, Esg. David Broderick, Esg.