Weatherbee v. Astrue
649 F.3d 565
| 7th Cir. | 2011Background
- Weatherbee sustained serious injuries in a June 2006 motorcycle crash and remains with multiple impairments affecting attention, balance, memory, headaches, and dominant-arm use.
- He applied for SSI and DIB in July 2006; initial SSA denial followed by a reconsideration denial in 2007.
- An ALJ hearing occurred on December 1, 2008, with Weatherbee, his mother, and a VE testifying; ALJ instructed the VE to rely on the DOT and resolve conflicts. The VE testified Weatherbee could perform unskilled sedentary work, including inspector, office clerk, and production jobs, with approximate national totals provided for each category.
- The ALJ accepted the VE’s testimony and found Weatherbee not disabled; the Appeals Council denied review, making the ALJ’s decision final; the district court affirmed, and Weatherbee appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Inquire consistency of VE with DOT before relying on testimony | Weatherbee argues failure to require DOT consistency check after VE test. | Astrue argues ruling 00-4p requires inquiry before relying, timing not fixed. | ALJ’s timing satisfied 00-4p; no temporal rule applied. |
| Whether VE testimony conflicted with DOT and was properly resolved | Weatherbee claims discrepancies between VE’s clerk/production jobs and DOT were unresolved. | Astrue contends no apparent conflict; VE testimony aligned with DOT by DOT categories. | No apparent conflict; ALJ could rely on VE testimony. |
| Whether the identified jobs exist in significant numbers | Weatherbee contends VE’s numbers are insufficient to meet significance. | Astrue argues the combined totals (clerk, production, inspector) exceed the significance threshold. | Jobs exist in significant numbers; ALJ’s step-five finding supported. |
Key Cases Cited
- Skinner v. Astrue, 478 F.3d 836 (7th Cir. 2007) (substantial evidence standard in disability determinations)
- Jens v. Barnhart, 347 F.3d 209 (7th Cir. 2003) (role of VE and DOT in step-five analysis)
- Briscoe v. Barnhart, 425 F.3d 345 (7th Cir. 2005) (burden-shifting across the sequential steps)
- Liskowitz v. Astrue, 559 F.3d 736 (7th Cir. 2009) (significance of number-of-jobs standard at step five)
- Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008) (requirement to resolve conflicts between VE and DOT)