11-2121-cv
Brault v. Social Security Administration




                          UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                           _____________________

                                               August Term, 2011

              (Argued: May 22, 2012                                     Decided: June 29, 2012)

                                             Docket No. 11-2121-cv
                                           _____________________

                                               GEORGE BRAULT,

                                                             Plaintiff-Appellant,

                                                      -v.-

                             SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,

                                                          Defendant-Appellee.
                                           _______________________
Before:
                   B.D. PARKER, HALL, WALLACE,1 Circuit Judges.
                                   _______________________

          Plaintiff-Appellant appeals from the district court’s affirmance of the decision of the

Commissioner of Social Security denying his application for disability benefits. We hold that

the Commissioner’s determination was supported by substantial evidence, and, as a matter of

first impression in this Circuit, that the administrative law judge was not required to state

expressly his reasons for accepting a vocational expert’s challenged testimony.

          AFFIRMED.



          1
          The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
                              _______________________

               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.
                                   _______________________

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

                                                 2
government had retained, that Brault was “capable of making a successful adjustment to other

work that exists in significant numbers in the national 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).




       2
         Before the ALJ, his counsel in fact called it a Daubert objection, even though the rule of
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), does not apply in Social
Security administrative proceedings. See infra Section II.B.1.
       3
         In response to a second hypothetical with additional physical limitations, the VE pared
the number of occupations down to two, but the ALJ did not rely on the second hypothetical, and
no one argues he should have.
                                                3
       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 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

                                                 4
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 of jobs related to that DOT code.”4

       Brault’s counsel addressed most of these points while cross-examining the VE. While

acknowledging Brault’s objections, however, the VE denied having reported the numbers for the

entire SOC. Instead, he claimed to have “reduced” the numbers from “the entire [SOC] code” to

only count “jobs . . . that I know exist.” With the ALJ’s permission, Brault’s counsel submitted

additional briefing fully setting forth his objections to the VE’s SOC-to-DOT mapping

methodology.

       The ALJ never directly responded to those objections. Instead, about a month after the

hearing, the ALJ issued a ruling which relied on the VE’s testimony, agreed that positions

existed in the eight DOT positions the VE had identified at the numbers the VE had given, and

denied Brault’s application for benefits.

       Brault appealed to the district court, which rejected Brault’s challenge to the reliability of

the VE’s testimony, noting that it was appropriate for the VE to consult the OEQ in rendering his

       4
          Brault’s argument to the ALJ was somewhat inartful. But he stumbled onto a classic
academic problem with data aggregation—a many-to-one mapping, such as the one the VE used
to associate DOT titles to SOC codes, necessarily creates information loss. See generally Guy H.
Orcutt, et al., Data Aggregation and Information Loss, 58 Am. Econ. Rev. 773 (1968); Margaret
St. Pierre & William P. LaPlant, Jr., Issues in Crosswalking Content Metadata Standards
(National Information Standards Organization White Paper, 1998). If, for example, ten DOT
codes map to a single SOC code, saying there are 100,000 total positions available in that SOC
code gives no information at all about how many positions each of the ten DOT codes
contributed to that total. This becomes a problem if DOT titles with different exertion or skill
levels map to the same SOC code. In such a situation, the OEQ apparently uses a rough
weighted average algorithm—if ten DOT codes correspond to one SOC code, and four of those
codes are light-duty, unskilled positions, then the OEQ will list 40% of the positions available in
that SOC as light-duty, unskilled positions. That estimate may deviate significantly from the
actual number of existing positions.

                                                 5
testimony. See Brault v. Soc. Sec. Admin., Comm’r, No. 1:10-CV-112(JGM), 2011WL1135014,

at *3-4 (D. Vt. March 24, 2011). It affirmed the Commissioner’s decision as supported by

substantial evidence. Brault timely appeals.

II.    Discussion

       When we review the Commissioner’s denial of Social Security benefits, “our focus is not

so much on the district court’s ruling as it is on the administrative ruling.” Schaal v. Apfel, 134

F.3d 496, 500-01 (2d Cir. 1998). Indeed, “[i]t is not our function to determine de novo whether

[a plaintiff] is disabled.” Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). Instead, “we conduct a

plenary review of the administrative record to determine if there is substantial evidence,

considering the record as a whole, to support the Commissioner’s decision and if the correct

legal standards have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009); see also

42 U.S.C. § 405(a) (on judicial review, “[t]he findings of the Commissioner of Social Security as

to any fact, if supported by substantial evidence, shall be conclusive.”).

       Substantial evidence is “more than a mere scintilla.” Moran, 569 F.3d at 112 (quotation

marks omitted). “It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. (quotation marks omitted and emphasis added). But it is

still a very deferential standard of review—even more so than the “clearly erroneous” standard.

See Dickinson v. Zurko, 527 U.S. 150, 153 (1999). The substantial evidence standard means

once an ALJ finds facts, we can reject those facts “only if a reasonable factfinder would have to

conclude otherwise.” Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994) (emphasis added

and quotation marks omitted); see also Osorio v. INS, 18 F.3d 1017, 1022 (2d Cir. 1994) (using

the same standard in the analogous immigration context).



                                                 6
       Brault argues the ALJ erred by relying on VE testimony which Brault considers of

dubious reliability. According to Brault, once that testimony had been challenged, the ALJ was

required: (1) to grant an opportunity to inspect and challenge the proffered evidence and (2) if

the ALJ relied on the challenged evidence, to explain why the challenge was rejected. Brault

claims to find support in Seventh Circuit case law, but he candidly acknowledges a split among

our sister circuits on the matter—one we have yet to address. Compare Bayliss v. Barnhart, 427

F.3d 1211 (9th Cir. 2005) with McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004). We address

his arguments in reverse order.

       A.      Statement of Reasons

       There is no question that the ALJ, in his written ruling, did not mention Brault’s

objection to the VE’s testimony. In accepting that testimony, the ALJ necessarily rejected

Brault’s grievances, but Brault argues this implied rejection was insufficient—the ALJ needed to

do more. In his view, he was owed an explanation.

       He claims support from Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002),

purporting to quote from what he characterizes as the Seventh Circuit’s holding that, when an

expert’s conclusions have been challenged, ALJs must “make an inquiry” and “explain how any

conflict that has been indentified [sic] was resolved.” This is a misquotation and

mischaracterization of the Seventh Circuit’s language. The actual unaltered quotation is from a

Social Security ruling that the court is discussing in its opinion—a ruling it cited only by way of

analogy. See Donahue, 279 F.3d at 446. Nor do McKinnie, 368 F.3d at 911, and Lawrence v.

Astrue, 337 F. App’x 579, 585 (7th Cir. 2009) (unpublished), which Brault also cites, support his

argument.



                                                 7
       This outcome, of course, is no surprise. An ALJ does not have to state on the record

every reason justifying a decision. “Although required to develop the record fully and fairly, an

ALJ is not required to discuss every piece of evidence submitted.” Black v. Apfel, 143 F.3d 383,

386 (8th Cir. 1998). “An ALJ’s failure to cite specific evidence does not indicate that such

evidence was not considered.” Id. (citation omitted). That principle holds true not just for Social

Security determinations, but also the determinations of other agencies, see, e.g., Chen v. United

States Department of Justice, 471 F.3d 315, 341 (2d Cir. 2006) (immigration), and even some

decisions of the federal district courts, see, e.g., United States v. Fernandez, 443 F.3d 19, 31 (2d

Cir. 2006) (sentencing).

       Assuming the ALJ had to consider Brault’s objection to the VE’s testimony, we are

satisfied that he did so. There is no requirement that the ALJ discuss his specific analysis of it.

       B.      Opportunity to Challenge

               1.      Nature of the Right

       Furthermore, the proposition that the ALJ was required to inquire into Brault’s objection,

whether or not the ALJ discussed it on the record, is dubious.

       Currently, such a “duty to inquire” exists only in the Seventh Circuit. In Donahue, the

Seventh Circuit drew inspiration from Fed. R. Evid. 702 and Daubert. See 279 F.3d at 446.

While recognizing that Rule 702 does not apply in disability proceedings, the court held that the

spirit of Rule 702 did. In that court’s view, “the idea that experts should use reliable methods

. . . plays a role in the administrative process because every decision must be supported by

substantial evidence,” and thus evidence is per se not substantial if “vital testimony has been

conjured out of whole cloth.” Donahue, 279 F.3d at 446. Therefore in the Seventh Circuit, if the

basis of a vocational expert’s conclusions is questioned, “the ALJ should make an inquiry

                                                  8
(similar though not necessarily identical to that of Rule 702) to find out whether the purported

expert’s conclusions are reliable.” Id. McKinnie built upon this precedent by requiring that a VE

make his or her data “available on demand” if it is challenged. 368 F.3d at 911. Lawrence

reemphasized the rule of McKinnie but explained that the failure to provide data is subject to

harmless error review. See 337 F. App’x at 586.

       The Donahue rule, however, has not been a popular export. See Babb v. Astrue, 2:10-

CV-49-DBH, 2010 WL 5465839, at *3 (D. Me. Dec. 29, 2010), report and recommendation

adopted, CIV. 10-49-P-H, 2011 WL 672438 (D. Me. Feb. 16, 2011) (disagreeing with Donahue);

Pritchett v. Astrue, No. 5:09-CV-144 (CAR), 2009 WL 4730326, at *3-*4 (M.D. Ga. Dec. 4,

2009) (same); Masters v. Astrue, No. 07-123-JBC, 2008 WL 4082965, at *4 n.8 (E.D. Ky. Aug.

29, 2008) (same). And the Ninth Circuit’s Bayliss decision, while not explicitly rejecting

Donahue, reached a conclusion necessarily in conflict with it. See 427 F.3d at 1218 (“A VE’s

recognized expertise provides the necessary foundation for his or her testimony. Thus, no

additional foundation is required.”). In fact, no court outside the Seventh Circuit has agreed with

Donahue and its offspring.

       And there appear to be good reasons to question Donahue’s approach. Donahue relied

heavily on the principles, if not the actual authority, of Fed. R. Evid. 702 and Daubert, 509 U.S.

579. See Donahue, 279 F.3d at 446. But Congress has provided, quite clearly, that the Federal

Rules of Evidence do not apply in Social Security proceedings. 42 U.S.C. § 405 (“Evidence may

be received at any hearing before the Commissioner of Social Security even though inadmissible

under rules of evidence applicable to court procedure.”); see also Richardson v. Perales, 402

U.S. 389, 400-01 (1971) (“[S]trict rules of evidence, applicable in the courtroom, are not to

operate at social security hearings . . . . [A]dministrative procedure, and these hearings, should

                                                 9
be understandable to the layman claimant, should not necessarily be stiff and comfortable only

for the trained attorney, and should be liberal and not strict in tone and operation. This is the

obvious intent of Congress so long as the procedures are fundamentally fair.”). It is unclear,

therefore, why the Seventh Circuit would acknowledge in Donahue that ALJs are not bound by

the Rules of Evidence, but then turn around and require ALJs to hew so closely to Daubert’s

principles.

       It is also unclear, given our standard of review, why a Daubert-like hearing is even

useful. As deferential as the “substantial evidence” standard is, it is also extremely flexible. It

gives federal courts the freedom to take a case-specific, comprehensive view of the

administrative proceedings, weighing all the evidence to determine whether it was “substantial.”

Other federal courts have proven the validity of this approach—while declining to impose a strict

Daubert rule, reviewing the entirety of a VE’s testimony, including the expert’s methods, to

make sure it rose to the level of “substantial” evidence. See, e.g., Palmer v. Astrue, No. 1:10-

CV-151-JGM, 2011 WL 3881024, at *6 (D. Vt. Sept. 2, 2011).

       Galiotti v. Astrue, 266 F. App’x 66 (2d Cir. 2008) (summary order), while non-

precedential, makes the same point.5 There, the claimant challenged the credibility of a VE’s

testimony because the expert was unable to fully explain how he arrived at the number of certain

jobs in the economy. Id. We explained that the VE, while not providing the specific information

the claimant wanted, “identified the sources he generally consulted to determine such figures.”

Id. We also noted the marked absence of any “applicable regulation or decision of this Court

requiring a vocational expert to identify with greater specificity the source of his figures or to
       5
         We are, of course, permitted to consider summary orders for their persuasive value, and
often draw guidance from them in later cases. See United States v. Payne, 591 F.3d 46, 58 (2d
Cir. 2010).

                                                 10
provide supporting documentation.” Id. We thus affirmed, not on any Daubert basis, but instead

on typical “substantial evidence” grounds. We do the same here.6

               2.      Application

       Yet, although we harbor doubts about the Seventh Circuit’s approach, the extent to which

an ALJ must test a VE’s testimony is best left for another day and a closer case. We do not hold

that an ALJ never need question reliability, and we agree with the Seventh Circuit that evidence

cannot be substantial if it is “conjured out of whole cloth.” See Donahue, 279 F.3d at 446.

There is no need to fully resolve the matter now, however, because, assuming arguendo Brault

had a right to have the ALJ consider his challenge to the VE, that is exactly what the ALJ did.

       At the beginning of the hearing, the ALJ asked the VE to affirm that he would impartially

evaluate the vocational evidence, and that, in the event of conflict between his testimony and the

DOT, he would advise the ALJ “of the differences and the basis for [his] opinion.” The ALJ also

identified a specific issue in Brault’s case where such a conflict might arise. Further, the ALJ

sought and received a stipulation from Brault’s counsel regarding the VE’s expertise and

       6
          For the same reason, we reject Brault’s argument that the ALJ erred by allowing the VE
to provide employment numbers that might have included part-time positions (he offers no proof
at all that the VE’s numbers actually included such positions). We decline to create a per se rule
prohibiting an ALJ from considering part-time positions. See Liskowitz v. Astrue, 559 F.3d 736,
745 (7th Cir. 2009) (“[A] VE may . . . testify as to the numbers of jobs that a claimant can
perform without specifically identifying the percentage of those jobs that are part-time.”). The
ALJ did not need to find specific numbers of jobs—all he was required to do was find that
“substantial” positions exist. There was substantial evidence supporting that finding.
         Brault argues Liskowitz is in conflict with the Eleventh Circuit’s decision in Kelley v.
Apfel, 185 F.3d 1211 (11th Cir. 1999). We disagree. See Liskowitz, 559 F.3d at 745 (“Our
conclusion is not at odds with [Kelley].”). Kelley specifically declined to “confront the issue of
whether part-time work, as opposed to full-time work, will prevent a claimant from being found
disabled at Step Five of the sequential analysis.” 185 F.3d at 1215. And although Kelley stated
in dicta that “a claimant could pass Step Five and be entitled to benefits even though capable of
working on a part-time basis,” id., it never stated part-time work could never count at step five,
and certainly “did not say that a VE may testify only as to the existence of full-time jobs,”
Liskowitz, 559 F.3d at 745.
                                                  11
qualifications. When Brault’s counsel cross-examined the VE, he was given a full opportunity to

explore the limitations of the SOC-to-DOT mapping methodology, including challenging some

of the expert’s specific numbers. After cross-examination, the ALJ permitted counsel to submit

briefing questioning the VE’s “flawed” process. In sum, Brault’s attorney had a full opportunity

to explain his objections in significant detail. Nothing more was required.

III.   Conclusion

       For the foregoing reasons, the judgment of the district court, which affirmed the

Commissioner of Social Security’s denial of Brault’s disability benefits, is affirmed.




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