Lucinda Mitchell v. Kilolo Kijakazi
20-2897
| 7th Cir. | Jul 22, 2021Background
- Mitchell applied for DIB/SSI alleging disability from May 1, 2013 (fibromyalgia, arthritis, carpal tunnel, chronic pain/fatigue, back pain, sleep issues); application denied and appealed to an ALJ.
- At hearing a vocational expert (VE) opined on three hypotheticals describing varying upper‑extremity and crouching limitations; VE identified weight recorder, front desk clerk, and furniture rental clerk as available jobs (various national counts).
- The ALJ found Mitchell able to perform light work with restrictions: never crouch, no overhead reaching, only occasional handling/fingering/feeling bilaterally, frequent non‑overhead reaching; concluded at Step Five that Mitchell could perform other work and denied benefits.
- The VE testified her opinions were consistent with the Dictionary of Occupational Titles (DOT), but said the DOT does not address directional reaching, dominance, or job counts, and that her testimony on those points rested on her experience.
- Mitchell challenged on appeal that the ALJ violated SSR 00‑4p by relying on VE testimony that conflicted with the DOT (specifically crouching for furniture rental clerk and handling for weight recorder/front desk clerk); the district court affirmed.
- The Seventh Circuit held the ALJ erred in relying on VE testimony about furniture rental clerk without resolving an apparent DOT conflict, but deemed that error harmless because the remaining supported jobs (weight recorder and front desk clerk) provided a sufficient occupational base; substantial evidence therefore supports the decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ violated SSR 00‑4p by relying on VE testimony that conflicts with the DOT | Mitchell: ALJ failed to ask follow‑up and resolve obvious DOT conflicts (crouching, handling) | ALJ/Commissioner: ALJ asked about consistency; VE explained DOT omissions and relied on her experience; ALJ reasonably relied where VE supplied specific job information | ALJ erred as to furniture rental clerk (DOT requires occasional crouch) but for weight recorder/front desk clerk the VE supplied reasonable explanation; SSR 00‑4p satisfied for those jobs; error harmless overall |
| Whether Step Five is supported by substantial evidence given VE’s inaccurate consistency statement | Mitchell: VE’s inaccurate statement that testimony was DOT‑consistent makes her testimony unreliable and Step Five unsupported | Commissioner: One erroneous VE statement does not vitiate the rest of her testimony; claimant did not challenge VE’s qualifications or offer contrary evidence; Biestek permits relying on VE testimony | Substantial evidence supports Step Five. ALJ could rely on VE testimony about weight recorder and front desk clerk; overall decision affirmed |
Key Cases Cited
- Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008) (ALJ must resolve apparent conflicts between VE testimony and DOT)
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (administrative findings may be supported by reliable VE testimony)
- Weatherbee v. Astrue, 649 F.3d 565 (7th Cir. 2011) (small numbers of jobs nationally can constitute a sufficient occupational base)
- Jones v. Astrue, 619 F.3d 963 (8th Cir. 2010) (expert testimony that job can be performed below DOT requirements can be reasonable)
- Brown v. Colvin, 845 F.3d 247 (7th Cir. 2016) (limits on relying on VE testimony that recharacterizes exertional level without quantifying job counts)
- Liskowitz v. Astrue, 559 F.3d 736 (7th Cir. 2009) (ALJ may credit VE testimony when claimant does not challenge its evidentiary basis)