Paula Graves v. Carolyn Colvin, Acting Cmsnr
2016 U.S. App. LEXIS 17241
| 5th Cir. | 2016Background
- Paula Sue Graves applied in August 2011 for disability insurance benefits and SSI, alleging anxiety, depression, and intellectual disability.
- The Social Security Administration denied benefits; Graves requested a hearing before an ALJ and was represented by counsel.
- At the hearing a vocational expert (VE) testified about specific jobs and estimated their availability nationally and in Texas; the ALJ relied on that testimony to find Graves could perform other work.
- The ALJ found Graves had the residual functional capacity to perform certain jobs with an ability to alternate sitting and standing and concluded at step five that she was not disabled.
- The Appeals Council denied review; the district court affirmed the ALJ’s decision, and Graves appealed to the Fifth Circuit raising only the SSR 00-4p issue (ALJ’s duty to ask whether VE testimony conflicts with the DOT).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ALJ erred by not asking the VE on the record if her testimony was consistent with the DOT per SSR 00-4p | Graves: ALJ had affirmative duty under SSR 00-4p; failure requires reversal | Commissioner: Error was harmless because Graves did not identify any actual DOT conflict or show prejudice | Court: ALJ erred by not asking, but error was harmless because Graves failed to show any inconsistency or prejudice; decision affirmed |
Key Cases Cited
- Bowling v. Shalala, 36 F.3d 431 (5th Cir. 1994) (standard for judicial review of SSA disability determinations)
- Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000) (claimant must show prejudice from ALJ’s failure to develop the record)
- Kemp ex rel. Kemp v. Colvin, 743 F.3d 630 (8th Cir. 2014) (ALJ’s affirmative duty to inquire about VE–DOT conflicts under SSR 00-4p)
- Terry v. Astrue, 580 F.3d 471 (7th Cir. 2009) (harmless-error approach where no actual VE–DOT conflict exists)
- Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007) (procedural SSR 00-4p errors can be harmless if no conflict or VE provides support)
- Shinseki v. Sanders, 556 U.S. 396 (U.S. 2009) (burden on the attacking party to show an error is harmful)