                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 12-2100


JEFFERY S. GUITON,

                Plaintiff – Appellant,

           v.

CAROLYN W. COLVIN, Acting Commissioner of Social Security
Administration,

                Defendant – Appellee.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cv-00822-JAB-LPA)


Argued:   September 19, 2013                 Decided:   November 7, 2013


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Judge Agee joined.       Judge Davis wrote a separate
opinion concurring in the judgment.


ARGUED: B. Michel Phillips, MARTIN & JONES, Decatur, Georgia,
for   Appellant.      Jason    W.   Valencia,   SOCIAL   SECURITY
ADMINISTRATION, Boston, Massachusetts, for Appellee.    ON BRIEF:
Charles L. Martin, Decatur, Georgia; J. Kevin Morton, Winston-
Salem, North Carolina, for Appellant.    Gill P. Beck, Assistant
United States Attorney, Civil Division, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

     Jeffery       S.       Guiton     appeals     the    district          court’s     order

affirming the Commissioner of Social Security’s termination of

his disability insurance benefits.                       Guiton contends that the

decision    to     terminate          his    benefits      is       not     supported     by

substantial      evidence,       and     that     the    Administrative         Law     Judge

(“ALJ”)    erred       in   crediting       testimony     by    a    Vocational       Expert

(“VE”) regarding the number of existing jobs in the economy that

Guiton could perform.                We agree with the district court that

substantial evidence supports the Commissioner’s termination of

Guiton’s benefits and find no error in the ALJ’s reliance on the

VE’s testimony.         Accordingly, we affirm.



                                             I.

     Guiton,       a    North        Carolina     resident,         first     applied     for

benefits on July 31, 2000, after a doctor diagnosed him with a

malignant brain tumor.               Finding that Guiton was disabled within

the meaning of the Social Security Act, the Commissioner awarded

benefits.      In October 2003, following a continuing disability

review, the Commissioner found that Guiton’s condition was “no

longer severe enough to be considered disabling,” and terminated

Guiton’s benefits.           Tr. 55. 1

     1
         “Tr.” refers to the administrative record transcript.


                                              3
        Guiton appealed the termination of his benefits first to a

state agency hearing officer, and then to an ALJ.                         The ALJ held

a hearing and affirmed the Commissioner’s determination.                            After

the Appeals Council denied review, Guiton sought review of the

ALJ’s       decision    in    the     U.S.      District   Court    for     the    Middle

District of North Carolina.                  Pursuant to a consent order, the

district court reversed the termination of Guiton’s benefits and

remanded to the Commissioner.                    The ALJ held a second hearing,

and again found that Guiton was no longer disabled within the

meaning of the Social Security Act.

     The ALJ adhered to the eight-step analytical framework that

governs        administrative             reevaluation     of      Social         Security

disability awards. 2              See 20 C.F.R. § 404.1594(f).             As relevant

here, the ALJ assessed whether Guiton had experienced medical

improvement related to his ability to work; whether he continued

to   suffer      from        an    impairment       sufficiently        severe     to   be

considered       disabling;         and    if    not,   whether    he    retained       the

residual functional capacity (“RFC”) to perform work that exists

in significant numbers in the national economy.                     See id.




        2
       This eight-step analysis essentially incorporates the more
familiar five-step analysis governing the initial determination
of   whether   a   claimant  is   disabled.      See  20   C.F.R.
§ 404.1520(a)(4).



                                                4
      The ALJ found that Guiton had indeed experienced medical

improvement related to his ability to work.                 Although Guiton had

not worked during the period of disability, he had undergone

surgery to remove his brain tumor and had not suffered a seizure

since 2000.       The ALJ found that Guiton continued to suffer from

several medically determinable impairments (including a seizure

disorder,   lumbar     disc   disease,      low      intellect,   and     a    memory

disorder), but that these impairments were not severe enough to

be    considered      disabling        under        the     applicable        federal

regulations.      Specifically, the ALJ rejected Guiton’s claim that

his   condition     qualified     as   mental       retardation   under       Listing

12.05C, 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.05C, because he

failed to establish (a) an onset of impairment before age 22, as

the listing requires, and (b) the requisite deficits in adaptive

functioning.

      With respect to the onset of Guiton’s impairment, the ALJ

concluded that Guiton’s brain tumor and related surgeries (which

occurred after age 22) had negatively affected his IQ.                        The ALJ

credited    the    written    submission       of    John    Bevis,   a   licensed

psychological      associate, 3   who   opined       that    Guiton’s     pre-tumor


      3
       In North Carolina, a licensed psychological associate is
“[a]n individual to whom a license has been issued pursuant to
[the North Carolina Psychology Practice Act] . . . and whose
license permits him or her to engage in the practice of
psychology.” N.C. Gen. Stat. § 90-270.2(7). Licensure requires
(Continued)
                                        5
intellectual      abilities    had    likely     been   in    the    “borderline”

range, which, the ALJ noted, is “outside the range for mental

retardation and [Listing] 12.05C.”              Tr. 19.      The ALJ found that

the   record   evidence       was    consistent     with      this   evaluation,

specifically relying on the absence of any notation in Guiton’s

school records that he was mentally retarded, and pointing out

that the low marks Guiton received in school tended to coincide

with extended absences and poor effort.

      The ALJ also found that Guiton had failed to demonstrate

the   requisite    deficits    in    adaptive    functioning.         Questioning

Guiton’s claim that he is illiterate, the ALJ noted that Guiton

often received “satisfactory” and “commendable” marks in school

for reading, and that one report card indicated he was able to

read at “level 8.”        Tr. 20.      Additionally, the ALJ found that

Guiton “washed his own clothes and dishes, cooked, vacuumed,

helped his father and mowed the lawn with a riding mower.”                   Tr.

20.   The ALJ noted that Guiton lived alone at the time of the

hearing, and found that he was able to “perform[] routine daily

activities without difficulty.”          Tr. 20.

      Concluding that Guiton had not met the requirements of a

disability listing, the ALJ proceeded to the final two steps of



either a master’s degree or a specialist degree in psychology.
Id. § 90-270.11(b).



                                        6
the analysis.        First, the ALJ found that Guiton retained the RFC

to    perform    light     work.        The   ALJ    discounted    the    opinions   of

several       treating     physicians         that    Guiton’s     condition     would

prevent him from sustaining full-time employment.                         Instead, the

ALJ credited the statements of nonexamining state agency medical

consultants who opined that Guiton could perform light work.

The ALJ explained that this conclusion was more consistent with

the evaluations of other physicians who had examined Guiton, as

well as with other evidence in the record.

       Finally,      the    ALJ    concluded         that,   given   Guiton’s     age,

education, work experience, and RFC, he was able to perform work

that exists in significant numbers in the economy.                            The ALJ

credited the testimony of a state VE 4 who testified that Guiton

was    able     to   perform      the    requirements        of   three    occupations

identified in the Dictionary of Occupational Titles (“DOT”). 5                       To



       4
       VEs are “persons who have, through training and experience
in vocational counseling or placement, an up-to-date knowledge
of job requirements, occupational characteristics and working
conditions, and a familiarity with the personal attributes and
skills necessary to function in various jobs.”         Wilson v.
Califano, 617 F.2d 1050, 1053 (4th Cir. 1980).      VEs routinely
“assist the ALJ in determining whether there is work available
in the national economy which [a] particular claimant can
perform.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989).
       5
       The DOT is a reference published by the U.S. Department of
Labor that lists and describes various jobs.      Its use in the
disability review process is authorized by regulation.     See 20
C.F.R. § 404.1566(d).



                                              7
conclude that each of these occupations exists in significant

numbers in both the North Carolina and national economies, the

VE relied on the Occupational Employment Quarterly (“OEQ”), a

commercial publication that employs government data to provide

statistics regarding the number of available jobs by census-

coded occupational category.

     Having proceeded through the eight-step analysis, the ALJ

concluded that Guiton was no longer disabled within the meaning

of the Social Security Act, and was therefore not entitled to

benefits.

     In   response,      Guiton   filed    this    action     in   the   district

court, seeking review of the Commissioner’s termination of his

benefits.     A   magistrate      judge    found   that     the    decision   was

supported by substantial evidence and recommended affirming the

Commissioner’s determination.             The district court adopted the

magistrate judge’s opinion and granted judgment on the pleadings

to the Commissioner.       Guiton appeals.



                                     II.

     This   court   is    authorized      to   review   the    Social    Security

Commissioner’s termination of benefits under 42 U.S.C. § 405(g).

In doing so, we “must uphold the factual findings of the [ALJ]

if they are supported by substantial evidence and were reached

through application of the correct legal standard.”                  Hancock v.

                                       8
Astrue,    667     F.3d      470,    472   (4th        Cir.   2012)    (alteration    in

original)       (internal     quotation       marks       omitted).       “Substantial

evidence is such relevant evidence as a reasonable mind might

accept    as     adequate      to    support       a    conclusion.”       Johnson    v.

Barnhart, 434 F.3d 650, 653 (4th Cir. 2005) (internal quotation

marks omitted).             When reviewing for substantial evidence, we

will     not    reweigh      conflicting          evidence    or   make    credibility

determinations.           Hancock, 667 F.3d at 472.                   Rather, “[w]here

conflicting evidence allows reasonable minds to differ as to

whether    a    claimant      is    disabled,       the   responsibility       for   that

decision       falls   on    the    [ALJ].”        Id.    (alteration     in   original)

(internal quotation marks omitted).



                                           III.

       On appeal, Guiton challenges the Commissioner’s termination

of his benefits in three respects.                     Guiton argues: (1) that the

ALJ erred in finding that he failed to satisfy the requirements

of Listing 12.05C, because the ALJ wrongly concluded that the

onset of his disability occurred after age 22 and improperly

determined that he had not demonstrated deficits in adaptive

functioning; (2) that, by substituting his evaluation of the

evidence and the opinion of nonexamining state agency medical

consultants for the opinions of treating physicians, the ALJ

erred in finding that Guiton retained the RFC to perform light

                                              9
work; and (3) that the ALJ erred in crediting the VE’s job

numbers    because      they     were    based     on     a   flawed     statistical

methodology.

                                         A.

       We have considered Guiton’s first two arguments and, for

the reasons stated by the magistrate judge and adopted by the

district court, find them to be without merit.                     See Guiton v.

Astrue, No. 1:08CV822, 2012 WL 1267856 (M.D.N.C. Apr. 16, 2012).

As the magistrate judge explained, the ALJ thoroughly analyzed

the testimony and available evidence, and reasonably concluded

that   Guiton   (1)     failed    to    meet   the      requirements     of    Listing

12.05C; and (2) retained the RFC to perform light work.                             In

challenging     these     findings,      Guiton      essentially       asks    us   to

“reweigh conflicting evidence, make credibility determinations,

[and] substitute our judgment for that of the [ALJ].”                         Hancock,

667 F.3d at 472 (alteration in original) (internal quotation

marks omitted).       This we are not authorized to do.                  We instead

hold that the ALJ’s findings with respect to these issues are

supported by substantial evidence.

                                         B.

       Guiton’s third argument requires further discussion.                         At

the last of the eight steps, the Commissioner bears the burden

of demonstrating that work the claimant can perform exists in

significant     numbers    in    the    national     economy.      See    20    C.F.R.

                                         10
§ 404.1594(f); id. § 404.1560(c)(2).                      Guiton submits that the

ALJ erred in concluding that the Commissioner satisfied this

burden, arguing that the ALJ impermissibly credited testimony by

the   VE    regarding        job    statistics         that     were     insufficiently

specific.

      During the administrative hearing, the VE testified that

Guiton     is   able    to   perform     at    least      three   occupations.        She

identified these occupations by DOT code: bench assembler (DOT

706.684-022);          assembler       arranger        (DOT       739.687-010);       and

agricultural sorter (DOT 529.687-186).                    The VE then reported the

number     of   existing     jobs   in    the       North     Carolina    and   national

economies for each of these occupations, gleaning the numbers

from the OEQ.          As Guiton points out, however, the OEQ reports

job numbers by census code, not by DOT code.                        Census codes are

broader designations than DOT codes, and a single census code

may comprise numerous DOT-coded occupations. 6                      Guiton therefore

argues     that   the    job   numbers        the    VE     reported     from   the   OEQ

overstate the actual number of jobs in the economy available to

him, because they likely include many jobs associated with DOT-

coded occupations he is unable to perform.                      Guiton contends that

without some reliable methodology for determining the number of

      6
       For example, Guiton points out that the DOT code for bench
assembler is one of 1,687 DOT codes included within a single
census code.



                                              11
jobs corresponding to the specific DOT-coded occupations the VE

identified,      it   was   error   for    the   ALJ    to   credit    the     VE’s

testimony.

     We   have    not   previously    addressed        the   issue    of   a   VE’s

reliance on job numbers from the OEQ, and it appears that only

one other circuit has done so directly. 7          In Liskowitz v. Astrue,

559 F.3d 736 (7th Cir. 2009), the Seventh Circuit considered a

similar argument regarding the specificity of OEQ job numbers.

Noting that OEQ job numbers include both full-time and part-time

positions--and contending that only full-time positions suffice

to carry the Commissioner’s burden--the claimant in that case

argued that the ALJ should not have credited the job numbers a




     7
       In Brault v. Social Security Administration Commissioner,
683 F.3d 443 (2d Cir. 2012), the Second Circuit described, in a
footnote, a similar argument to the one raised here, made by the
claimant in that case before an ALJ. Id. at 443, 447 n.4 (per
curiam).    The claimant had disputed the reliability of job
numbers that a VE derived from a newer version of the OEQ on the
basis that it reported job numbers by standard occupational
classification (“SOC”) code rather than DOT code.     SOC codes,
like the census codes involved here, may each comprise numerous
DOT codes.   Id.   The court acknowledged that this “many-to-one
mapping” problem might cause a VE’s job estimates to “deviate
significantly from the actual number of existing positions.”
Id.   On appeal, however, the claimant argued only that the ALJ
had not provided him a sufficient opportunity to challenge the
VE’s testimony, and that the ALJ had not adequately explained
its reasoning.   Rejecting these arguments, the court left the
merits of the ALJ’s reliance on the VE’s testimony “for another
day and a closer case.” Id. at 450.



                                      12
VE   reported    because     the      VE    had    not     further     identified     the

percentage of the jobs that were full-time.                      Id. at 743-44.

       The court rejected this challenge.                   Acknowledging that the

OEQ is a “source on which VEs customarily rely,” id. at 744, the

court determined that requiring more specific numbers would lead

to “significant practical problems,”                      id. at 745.         The court

explained that because “no government data source contains” the

full-time-only data that the claimant was requesting, insisting

that a VE produce such data would “impose impossible burdens on

the VE.”     Id. at 745.        A VE, after all, is “not . . . a census

taker or statistician.”              Id. at 743.          The court thus found no

error in the ALJ’s reliance on the VE’s testimony.

       Similar   considerations            guide     us     here.        As    the    ALJ

explained, the DOT-specific job numbers Guiton would have the VE

provide    simply   do   not    exist:       “There       apparently     is    no    data,

updated on a regular basis, available through either a public or

private    source[],     that    reports         numbers    of    jobs   by    DOT   code

number.”     Tr. 34.       Guiton does not dispute this observation.

Thus, if we required a VE to produce job statistics specific to

the DOT-coded occupations a claimant can perform, it is unlikely

that   the   Commissioner       would       ever    succeed       in   satisfying     her

burden.      This   cannot      be    the    result       the    regulations    intend.

Indeed, that the data Guiton requests does not exist “is a sign

that [Guiton] expects too much,” and like the Seventh Circuit,

                                            13
we    decline   to     “impose    impossible      burdens   on    the   VE.”       See

Liskowitz, 559 F.3d at 745.

       In this case, the VE cited the existence of 26,330 jobs in

North Carolina and 825,000 jobs in the United States that Guiton

could    perform.       Tr.    624.     Even   assuming     these     numbers     were

overinclusive,         far    smaller    figures    would     still     suffice     to

satisfy the Commissioner’s burden.                 See Hicks v. Califano, 600

F.2d 1048, 1051 n.2 (4th Cir. 1979) (holding that 110 jobs in

the claimant’s state was a significant number).                       We hold that

the    job   numbers     the     VE   provided,    although      perhaps   somewhat

imprecise,      were    sufficiently      reliable     to   support      the    ALJ’s

conclusion.



                                         IV.

        For the reasons stated above, we affirm the decision of the

district court.

                                                                           AFFIRMED




                                          14
DAVIS, Circuit Judge, concurring in the judgment:

       I write separately to express my discomfort with the ALJ’s

acceptance of the vocational expert’s uncritical reliance on the

Occupational        Employment     Quarterly            (“OEQ”)    to     calculate       the

number of jobs available in the economy. Under the legal regime

applicable     in     this    case,      once      a     claimant       such    as     Guiton

establishes that he has some limitations and cannot perform his

past work, “the burden shifts to the Commissioner to produce

evidence that other jobs exist in the national economy that the

claimant can perform considering h[is] age, education, and work

experience.” Hancock v. Astrue, 667 F.3d 470, 472-73 (4th Cir.

2012)   (internal      quotation        marks     omitted).       “This    is     generally

done    through     testimony      of    a    vocational          expert.”       Harvey   v.

Heckler, 814 F.2d 162, 164 (4th Cir. 1987). Jobs exist in the

national economy if they are available in “significant numbers

either in the region where such individual lives or in several

regions of the country.” 42 U.S.C. § 423(d)(2)(A). See also 20

C.F.R. § 404.1566.

       In   this    case,    the   ALJ    accepted         the    vocational         expert’s

testimony that Guiton could perform three widely available jobs

listed in the Dictionary of Occupational Titles (“DOT”): bench

assembler,     assembler      arranger,           and    agricultural          sorter.    The

expert said that she obtained the numbers from the privately

published OEQ, which breaks down the number of available jobs by

                                             15
Census Code and exertion subcategory (e.g., “unskilled, light”),

but   not        by    DOT       title.      She    could         not       say    how    the       publisher

calculates            its     numbers.        Guiton’s            counsel          argued       that       this

rendered her testimony unreliable, but the ALJ disagreed. He

reasoned         that       no    “public      or    private            sources      .    .     .   report[]

numbers of jobs by DOT code number,” so the expert “had to rely

on the numbers given in the OEQ.” The ALJ further reasoned that

the expert’s testimony was reliable because “this is an area

where       mathematical               precision          is        virtually            impossible         to

achieve.”

       Guiton         maintains         on    appeal      that          the       vocational        expert’s

testimony         was       unreliable        because         “her       conclusions            [were]      not

found       in    any       publication,           and    [she]          could      not       explain      her

methodology in deriving her conclusions from published data.”

Opening Br. 34. Guiton argues that “OEQ provides job numbers

only for exertional and skill levels by census code, but not by

DOT     code.”          Id.       at    37     (emphasis               in     original).            This    is

significant, he argues, because “[t]he census code that includes

bench assembler . . . includes 1,687 separate DOT occupations--

not 1,687 jobs, but 1,687 occupations.” Id. at 36 (emphasis in

original) (italics omitted). Guiton argues that the OEQ “simply

is    not    specific            enough,”      id.       at       37    (emphasis         omitted),        and

“[w]ithout             testimony          showing             a        reasonable,            repeatable,

verifiable            methodology,           the    DOT       job      numbers       provided         by   the

                                                     16
vocational      expert     are       not   reliable,”        id.   at    39     (emphasis

omitted).

       The Commissioner concedes that “it is impossible to use

binding       precedent        to     adequately       defend      against       Guiton’s

allegations,” as this Court “has not addressed a challenge to a

[vocational      expert’s]          reliance     on    the    OEQ.”     Resp.    Br.    32

(emphasis      omitted).       Nonetheless,      the    Commissioner      argues       that

vocational experts “typically rely on the OEQ,” the information

used in forming an expert opinion need not be admissible, and a

vocational expert need not be able to explain the methodology

behind the OEQ. Id. at 33–34 (emphasis omitted). Surely, the

Commissioner can do better than this.

       Only two circuits--the Second and the Seventh Circuits--

have       discussed     the        OEQ.   In    Brault       v.    Social       Security

Administration Commissioner, the Second Circuit recognized the

OEQ’s “classic academic problem with data aggregation,” i.e.,

the “information loss” that results from “many-to-one mapping.”

683 F.3d 443, 447 n.4 (per curiam). 1


       1
        Brault involved a newer version of the OEQ, the
Occupational Employment Quarterly II, which uses standard
occupational classification (“SOC”) codes. 683 F.3d at 446. Like
the Census Code, standard occupational classification is a
“system . . . used by Federal statistical agencies to classify
workers into occupational categories for the purpose of
collecting, calculating, or disseminating data.” Bureau of Labor
Statistics, “Standard Occupational Classification,” available at
http://www.bls.gov/soc/ (last visited Aug. 19, 2013). “DOT codes
(Continued)
                                            17
      If, for example, ten DOT codes map to a single SOC[2]
      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.

Id. (emphasis added). Nonetheless, the Second Circuit affirmed

the ALJ’s denial of benefits despite the vocational expert’s

reliance on the OEQ; 3 rather than challenge the reliability of

the   publication,   the   appellant    argued   that   the   ALJ   had   been

required to (1) give the appellant “an opportunity to inspect

and challenge the proffered evidence,” and (2) “explain why the

challenge was rejected.” Id. at 448. 4




are much more granular than SOC codes--according to Brault,
there were nearly 13,000 jobs titles in the 1991 edition of the
DOT, but only about 1,000 SOC titles.” Brault, 683 F.3d at 446.
      2
          See supra note 1.
      3
       The vocational expert in Brault “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 [he] kn[e]w exist[ed].’” Brault, 683 F.3d at
447.
      4
       The Second Circuit held that ALJs had no duty to explain.
Brault, 683 F.3d at 449. Assuming without deciding that ALJs
must give claimants a chance to inspect and challenge evidence,
(Continued)
                                   18
     In Liskowitz v. Astrue, the Seventh Circuit observed that

the OEQ “seem[s] to be a source on which [vocational experts]

customarily rely.” 559 F.3d 736, 744 (7th Cir. 2009). But the

court found that the appellant had waived the argument that her

vocational expert “should not have relied on the OEQ because it

was published by a private company.” Id. In assessing the more

general (and preserved) challenge that the vocational expert had

not been able “to testify as to the reliability of the data she

used,” 5 the court observed that

     [t]he witness was testifying as a vocational expert,
     not as a census taker or statistician. Indeed, even if
     the [vocational expert] had happened to know something
     about the statistical basis for her testimony, she
     arguably still would not be in a position to fully
     vindicate her conclusions. After all, statisticians
     use arithmetic operations, but few probably have
     studied the foundation of arithmetic in set theory. Is
     the   statistician’s   use  of   arithmetic  therefore
     unjustified? Clearly not.

Id. at 743. 6




the court found that the ALJ had done so. Id. at 450.
     5
       In addition to the OEQ, the vocational expert used sources
published by the U.S. Department of Labor and the Wisconsin
Department of Workforce Development. Liskowitz, 559 F.3d at 743–
44.
     6
       Two other Seventh Circuit opinions make only fleeting
references to the OEQ. See Britton v. Astrue, 521 F.3d 799, 804
(7th Cir. 2008) (per curiam) (rejecting appellant’s claim that
she should have been given access to the entire OEQ, not just
the portion on which the vocational expert had relied, because
the “selections . . . would have allowed [appellant’s counsel]
(Continued)
                                   19
      Guiton’s argument raises real concerns. Although vocational

experts customarily rely on the OEQ, Liskowitz, 559 F.3d at 744,

the   Second       Circuit     has   aptly    noted   that    the     publication’s

utility      in    social    security    proceedings     is    problematic,        see

Brault, 683 F.3d at 447 n.4. The difference between Census Code

data and DOT titles is vast: as Guiton points out, “[t]he census

code that includes bench assembler . . . includes 1,687 separate

DOT occupations.” Opening Br. 36. Moreover, unlike the expert in

Brault, the vocational expert here apparently did not adjust the

OEQ’s numbers to reflect what she knew existed in a particular

market;      rather,     she    apparently      accepted      OEQ’s    numbers     as

accurate without further inquiry.

      I am willing to accept, for this case only, the majority’s

reasoning         that   “[e]ven     assuming     [the     vocational       expert’s

estimates] were overinclusive, far smaller figures would still

suffice to satisfy the Commissioner’s burden.” Ante, at 13. I do

not believe, however, that an attitude reflecting a belief that

the performance of vocational experts in social security cases

“is   good    enough     for   government     work”   should    be    the   test   of




to   sufficiently  test  the   reliability  of   [the  expert’s]
testimony”); Lawrence v. Astrue, 337 F. App’x 579, 583, 586 (7th
Cir. 2009) (noting that the appellant did not challenge the
conclusion of the vocational expert, who had relied in part on
the OEQ).


                                         20
reliability. 7 After all, it is Congress and the Commissioner that

are responsible for seeing to the creation and implementation of

reliable evidentiary standards. Federal courts should not too

willingly   indulge   a   watered   down   application   of   well-settled

evidentiary   reliability     criteria     for   a   discrete   class   of

disfavored cases.

     With these observations, I concur in the judgment.




     7
       And some commentators have recognized the fundamental
problems this attitude may pose for the structure of the social
security regime. See Jon C. Dubin, Overcoming Gridlock: Campbell
After A Quarter-Century and Bureaucratically Rational Gap-
Filling in Mass Justice Adjudication in the Social Security
Administration's Disability Programs, 62 Admin. L. Rev. 937, 966
(2010) (“[T]here are no prescribed standards for job incidence
or non-DOT job characteristics evidence and this evidence is
often produced through questionable job data and unreliable
methodologies.”); Nathaniel O. Hubley, The Untouchables: Why A
Vocational Expert’s Testimony in Social Security Disability
Hearings Cannot Be Touched, 43 Val. U. L. Rev. 353, 393 (2008)
(“With the seemingly high degree of deference given to the ALJ
with regard to evidentiary matters and the relatively broad
credibility granted to the VE’s testimony, the question bound to
arise is whether an adequate level of fairness is afforded
disability claimants.”).



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