Anders v. Berryhill
688 F. App'x 514
| 10th Cir. | 2017Background
- Anders applied for disability insurance benefits alleging fibromyalgia, diabetes, vision degeneration, hepatitis C, chronic back pain, and neck nerve damage with an amended onset date of March 2011 (age 50); claim denied by ALJ at step five.
- ALJ found severe impairments (diabetes and degenerative spine disease) but not listing-level; assessed RFC for a reduced range of unskilled, light work with strict limits (lifting ~8.5 lbs occasionally, sitting max 60 minutes at a time up to 6 hours/day, standing/walking 15 minutes at a time up to 6 hours/day, cane, sit/stand option, frequent near acuity only).
- ALJ concluded Anders could not perform past work and consulted a VE, who identified three light, unskilled jobs (gluer, cleaner/polisher, inspector/hand packager), estimating ~50,000 each then reducing to 10,000 each (total 30,000) to account for RFC limitations.
- ALJ accepted the VE’s reduced numbers as a significant national occupational base and found Anders not disabled; Appeals Council denied review after Anders submitted additional job-number evidence; district court affirmed.
- On appeal, Anders challenged (1) reliance on a cleaner/polisher job that conflicts with DOT vision requirement, (2) VE/ALJ deviation from OOH educational description for inspector/hand packager, (3) deviation from DOT lifting/‘light work’ criteria and whether that erosion required applying sedentary-grid rule per POMS, and (4) reliability of the VE’s job-number sources (OES, OEQ, Job Browser Pro).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ erred relying on cleaner/polisher job that DOT lists as requiring constant near acuity when RFC limited to frequent near acuity | Anders: ALJ relied on a DOT-conflicting job without seeking VE explanation | Commissioner: Concedes error for this job but says other two jobs suffice | Court: Concedes that job was not viable but harmless because two other jobs supported step five finding |
| Whether ALJ needed VE explanation for deviation from OOH educational description for inspector/hand packager | Anders: OOH describes ‘‘quality control inspectors’’ as often requiring HS diploma; VE/ALJ deviated without explanation | Commissioner: OOH description not equivalent to DOT job; no apparent conflict requiring explanation | Court: No meaningful conflict between DOT job description and OOH generic title; explanation not required |
| Whether ALJ improperly classified work as light despite RFC lifting/standing limits and whether POMS required using sedentary grid rule due to "significant erosion" | Anders: RFC essentially sedentary; 80% erosion significant under POMS so ALJ should have applied sedentary-grid rule | Commissioner: RFC spans reduced light work (standing/walking up to 6 hours with intermittent sitting); ALJ properly consulted VE to assess erosion | Court: RFC is reduced light (not sedentary); ALJ permissibly used VE to quantify erosion and relied on resulting significant national job numbers; no POMS violation |
| Whether VE’s job-number testimony (sources: OES, OEQ, Job Browser Pro) was unreliable and insufficient to support step five | Anders: VE’s raw numbers conflict with BLS/OES/Job Browser Pro and ALJ failed to reconcile | Commissioner: VE used multiple vocational resources (OEQ/CPS and OES) and explained erosion based on experience; Job Browser Pro not a listed official source | Court: VE’s use of OEQ and experience rendered her estimates sufficiently reliable; Job Browser Pro is not an administratively noticed source and did not rebut VE testimony |
Key Cases Cited
- Barnett v. Apfel, 231 F.3d 687 (10th Cir. 2000) (standard of review and substantial-evidence framework for SSA appeals)
- Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999) (ALJ must obtain reasonable explanation from VE for conflicts with DOT)
- Herrmann v. Colvin, 772 F.3d 1110 (7th Cir. 2014) (VE reliance on Occupational Employment Quarterly is common practice)
- McNamar v. Apfel, 172 F.3d 764 (10th Cir. 1999) (role and deference to POMS in processing claims)
- Ramey v. Reinertson, 268 F.3d 955 (10th Cir. 2001) (deference to POMS unless arbitrary or contrary to law)
- Stump v. Gates, 211 F.3d 527 (10th Cir. 2000) (appellate waiver for arguments raised first in reply brief)
- Murrell v. Shalala, 43 F.3d 1388 (10th Cir. 1994) (issues insufficiently developed are forfeited on appeal)