McHerrin v. Astrue - ED Pa. - August 31, 2010
http://www.paed.uscourts.gov/documents/opinions/10D0930P.pdf
The court affirmed the magistrate's recommendation for a remand because of the ALJ's failure to resolve a discrepancy about RFC involving testimony of the VE and information in the DOT.
SSR 00-4P Defines the Procedure the ALJ Must Follow When the VE’s Testimony Conflicts with the DOT.
SSR-04p is a self-promulgated Social Security ruling that interprets Social Security regulations 20 C.F.R. § 404.1566(d),(e) and § 416.966(d),(e). Social Security rulings are binding at all levels of the adjudicative process. Walton v. Halter, 243 F.3d 703 (3d Cir. 2001). The specific purpose of adopting SSR 00-4p was to clarify Social Security’s standards for identifying and resolving conflicts between “occupational evidence provided by a VE or VS and information in the DOT.” SSR 00-4p. SSR 00-4p states that the Commissioner primarily relies on the DOT for information about the requirements of work in the national economy, and on testimony by the VE to resolve complex vocational issues. The ruling states that evidence provided by a VE during an administrative hearing should be consistent with the occupational information supplied by the DOT. Id. SSR 00-4p further provides that “[n]either the DOT nor the VE or VS evidence automatically ‘trumps’ when there is a conflict.” Id. Rather, the ALJ “must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than the DOT information.” Id. In this Circuit, courts have interpreted this ruling to mean that the ALJ has an affirmative duty to ask a VE if a conflict exists between his opinion and the DOT before relying on the VE’s testimony. Walker v. Astrue, 2010 WL 3167557, *5-6 (E.D. Pa. Aug. 10, 2010).
The Third Circuit has held that failure of the ALJ to comply with the requirements in SSR 00-4p to fully develop the record may result in remand of a claim by the district court where the VE’s testimony is inconsistent with the DOT and there is no other substantial evidence in the record to support the ALJ’s decision, Rutherford, 399 F.3d at 557.
