Gerald Overman applied for Social Security disability insurance benefits and supplemental security income payments, claiming that he was unable to work due primarily to fatigue related to Graves’ disease, anemia, and vision problems. After conducting a hearing an Administrative Law Judge (“ALJ”) denied benefits, relying on testimony by a vocational expert (“VE”) to find that, though Overman could not return to his past work, he could perform a significant number of other available jobs. On review by the district court, the court found that substantial evidence supported the ALJ’s conclusion. In this appeal, Overman challenges the ALJ’s reliance on the VE’s testimony. We will discuss the record that was before the ALJ prior to addressing those contentions.
Overman, currently 58 years old, is a high-school graduate. For fifteen years before the alleged onset of disability, he worked at a resort. His duties included maintaining and repairing the golf course irrigation system, setting up for conventions, and performing other small repairs. In 2003 Overman began to feel overheat
Overman reported his symptoms to his treating physician, Dr. John McKevett, and was referred to an endocrinologist who diagnosed Overman with Graves’ disease, a form of hyperthyroidism that may cause weight loss, tremulousness, and weakness, among other symptoms. Sted-man’s Medioal DICTIONARY 557, 928 (28th ed.2006). Graves’ disease is chronic, but the symptoms are treatable. See Mayo-Chnic.com, Graves’ Disease (July 6, 2007), http://www.mayoclinic.com/he alth/graves-disease/DS00181/DSECTION=treat-ments-and-drugs. He also was diagnosed with anemia, which frequently causes fatigue and lethargy in its sufferer. Sted-MAN’S MEDICAL DICTIONARY at 78.
Overman began radioactive iodine therapy for his Graves’ disease in late December 2003. He filed his application for benefits shortly thereafter. The therapy initially alleviated some of Overman’s symptoms, but then instead of producing too much thyroid hormone, Overman began producing too little, a condition called hypo thyroidism, which (like hyper thy-roidism) often causes fatigue and muscle weakness. Stedman’s Medioal Dictionary at 939, 1277. (Roughly 70% of patients treated with radioactive iodine experience this overcorrection of thyroid function, after which they usually require lifelong thyroid hormone replacement therapy.) Endocrinologists tested Overman’s thyroid function every four to eight weeks throughout 2004 and sent the results to Dr. McKevett, who prescribed a thyroid-hormone replacement drug called Syn-throid. After taking Synthroid for two weeks, Overman told Dr. McKevett that he still tired easily but his energy level was “slowly but surely improving.” At the same visit, the doctor noted “moderate generalized weakness,” but stated that this was also “slowly improving.” Dr. McKevett’s records reflect that Overman’s dosage of Synthroid was adjusted several times over the next 18 months. But by the end of that period, Dr. McKevett still had not determined the correct dosage and attributed Overman’s continued fatigue to “not being conditioned” to the medication. As for Overman’s anemia, the records do not mention any treatment for that ailment, and Overman did not know at the time of his hearing whether he was still anemic.
Overman also submitted records from his optometrist and opthalmologist concerning his vision problems. The opthal-mologist reported that Overman suffered from “pathologic myopia,” glaucoma, and cataracts. He said that Overman’s visual acuity of 20/80 made “any visual task difficult” and his eyesight would continue to deteriorate. His optometrist reported that Overman had “open angle” glaucoma and myopic degeneration resulting in “poor vision in general” and “almost no night vision.” Both doctors 'agreed that Over-man’s vision would likely worsen over time. The medical records show that Ov-erman’s diabetes and hypertension were, for the most part, well-controlled during the alleged period of disability.
At the hearing before the ALJ in November 2005, Overman testified that he was still taking Synthroid for his thyroid condition but that his doctor had not yet determined the correct dosage. He also testified that he took medication for his diabetes but was not insulin-dependent. He said that he was nearsighted, wore glasses, and could watch TV as long as he
Dr. Julianne Koski, a family practitioner and agency consultant, also testified at the hearing. Having reviewed Overman’s medical records, Dr. Koski concurred that Overman suffered from Graves’ disease, severe myopia with glaucoma, diabetes, and hypertension. She testified that it was difficult to determine Overman’s corrected visual acuity from his medical records, but she guessed that it was no better than 20/100 when corrected with glasses. She also concurred that he suffered from cataracts, which, in her opinion, were not yet “visually significant.” Dr. Koski opined that none of Overman’s impairments met or equaled Social Security medical listings, so she analyzed how, in her view, his ailments impacted his residual functional capacity. She said that Over-man could not perform work requiring fine discrimination or significant reading, should stay away from hazards and extreme temperatures, should avoid all ropes and scaffolding and climb ladders only occasionally, should never lift more than fifty pounds but could lift twenty pounds “on a more frequent basis,” and should not do any repetitive over-the-shoulder lifting. She did not recommend any limitations on Overman’s ability to sit or stand.
The last witness at the hearing was the vocational expert (“VE”), Kenneth Ogren. The ALJ asked the VE, hypothetically, whether a person with a residual functional capacity as described by Dr. Koski' — • including the limitations on reading, fine discrimination, and extreme temperatures — could do any of Overman’s past relevant work. The VE answered that the extreme-temperatures limitation ruled out Overman’s prior work, much of which was performed outdoors. The ALJ then asked, hypothetically, whether there were other jobs in the region that a person with those same limitations could perform. The VE answered that such a person could perform two occupations: “hand packager, and that is at DOT 920.587-018 .... [and] Rack room worker, 920.665-014.” A “hand packager” manually packages materials and products, and a “rack-room worker” tends machines that fill metal kegs with beer in the keg-filling (or racking) room of a brewery; both positions require a “medium” level of exertion.
See
Dep’t of LaboR, DICTIONARY OF OCCUPATIONAL TITLES 932-33 (4th ed. rev.1991),
available at
http://www. oalj.dol.gov/libdot.htm. According to the VE, there were 1,200 and 800 such jobs, respectively, available in Minnesota. (The district court rejected Overman’s argument that the VE should have used a
Overman’s counsel then cross-examined the VE as follows:
Counsel: And then if you assume a person couldn’t do, couldn’t do close up work because of finger problems, hand problems, that sort of thing, would that change your opinion on this?
VE: Yes.
Counsel: How would it change it?
VE: It would eliminate the two jobs. Counsel: Pardon me?
VE: It would eliminate both occupations.
Counsel: And why is that?
VE: Basically you have to have at least some vision to do the packaging I’m talking about and some vision to hang articles on racks.
Counsel: And as I understand the doctor, she was saying he could do things with gross discrimination, but he couldn’t do it with the fíne discrimination?
VE: Yes. That’s the way I understood it too.
Counsel: And as I understand it, that means, and correct me if I’m wrong, he can’t work up close because he can’t really see his hands, is that it?
VE: I guess the way I interpreted that is that he couldn’t do like small assemblies and things like that, smaller type work.
Counsel: Uh-huh. But we’re talking about packaging of objects into a box then versus actual fíne manipulation?
VE: Yes.
Counsel: Then I guess it’s a matter of degree, isn’t it.
VE: Yes.
Counsel: So those may well be eliminated as well?
VE: The smaller parts, yes.
Counsel: By the fact that he’s sitting there trying to do things close up, right? VE: Exactly.
Counsel: All right. And I suppose I would have to, that would also get in to the issue of what’s on the labeling and how you would package it and how it would have to be packaged, that sort of thing.
VE: If he had to read to do it, I would say those jobs would be eliminated, yes. Counsel: So then there would be no jobs in the national economy, if you assume he couldn’t do it because it was close work?
VE: Yeah, I eliminated those possibilities already.
In determining that Overman was not disabled, the ALJ performed the usual five-step sequential analysis.
See
20 C.F.R. §§ 404.1520, 416.920. According to the ALJ, Overman had not engaged in substantial work since his claimed onset date, and he was severely impaired, but none of his impairments were severe enough to presumptively preclude gainful work.
See id.
§ 404, subpt. P, app. 1. The ALJ then found that Overman could perform work of “medium” exertion with limitations virtually identical to those described at the hearing by Dr. Koski, including gross but not fine discrimination, no significant reading tasks, and no extremes of cold or heat. The ALJ concluded that these limitations would preclude Overman’s past relevant work. However, the ALJ found that Overman was not disabled at step five because he could work
The Appeals Council denied Overman’s request for review, making the ALJ’s ruling the Commissioner’s final decision. See,
e.g., Schmidt v. Astrue,
We review the ALJ’s decision deferentially, upholding it if it is supported by substantial evidence.
Skinner v.
As
true,
First, the VE’s testimony that Ov-erman could work as a hand packager or rack-room worker conflicts in several respects with descriptions of those positions in the DOT. Overman, according to the ALJ, must avoid extremes of cold and heat, and his vision problems preclude both fine discrimination and significant reading. A hand packager, however, must deal with extreme heat “frequently” (between one-third to two-thirds of the workday), and “near acuity” — clarity of vision at 20 inches or less — is required “occasionally” (up to one-third of the workday). See Dep’t of LaboR, Selected CHARACTERISTICS of Ocoupations Defined in the Revised Dictionary of Occupational Titles 316, C-3 to C-4, D-l (1993). For a rack-room worker, near acuity is required frequently. See id. at 316, C-3 to C-4. Both positions require workers to read at a rate of 95-120 words per minute and to be able to compare similarities and differences between words and between series of numbers. See Dep’t of Labor, Dictionary Of OCCUPATIONAL Titles at 932-33, 1010-11. The Commissioner concedes on appeal that the VE’s testimony conflicts with the DOT; the issue is whether that conflict necessitates remand.
Overman argues that (1) the ALJ violated Social Security Ruling 00-4p by failing to require the VE to explain the conflict, and (2) the VE’s flawed testimony cannot satisfy the Commissioner’s burden at step five to prove that Overman can perform other jobs despite his limitations. Under SSR 00-4p, an ALJ has an “affirmative responsibility” to ask whether a vocational expert’s evidence “conflicts with information provided in the DOT” before relying on that evidence to support a determina
The Commissioner counters that the conceded conflicts were not obvious and that Overman forfeited any argument under SSR 00-4p because he did not raise it at the hearing. For the latter proposition the Commissioner cites
Donahue v. Barnhart,
Still, the failure of Overman’s counsel to identify the conflicts at the time of the hearing is not without consequence. Over-man now has to argue that the conflicts were obvious enough that the ALJ should have picked up on them without any assistance, for SSR 00-4p requires only that the ALJ investigate and resolve
apparent
conflicts between the VE’s evidence and the DOT. SSR 00-4p;
see also, e.g., Pro-chaska,
Overman identifies two “apparent conflicts” in the VE’s testimony that, in his view, the ALJ was required to investigate further. After testifying on direct that Overman could perform two occupations listed in the DOT despite his limited vision and reading ability, the VE contradicted himself on cross-examination, first by saying that an inability to do “close up work” would eliminate both jobs and second by saying that Overman would be unable to work as a hand packager if that position required reading. The Commissioner argues that Overman’s counsel elicited these seemingly contradictory statements by imposing alternate, more restrictive hypothetical limitations than the ALJ had on direct. According to the Commissioner, counsel’s question about “close up work” introduced a limitation that Overman
Even if this was not the case, Overman also persuasively argues that the ALJ’s ruling is not supported by substantial evidence because it is premised on the VE’s “flawed” testimony. The Commissioner bears the step-five burden of establishing that the claimant can perform other work that “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2);
see also Britton v.
As
true,
The Commissioner argues that the ALJ was entitled to rely on the VE’s testimony in spite of the later-identified conflict with the DOT because an ALJ is permitted to give VE testimony precedence over the DOT. In an appropriate ease this proposition would be correct, but it is not well founded here. An ALJ is free to accept testimony from a VE that conflicts with the DOT when, for example, the VE’s experience and knowledge in a given situation exceeds that of the DOT’s authors,
Donahue,
Finally, the Commissioner argues that the ALJ’s reliance upon the VE’s testimony is not reversible error because an ALJ may rely on a VE’s “bottom-line” or “purely conclusional” testimony, so long as the data and reasoning underlying the opinion are “available on demand.”
Donahue,
But Overman
did
challenge the VE’s testimony. Unlike in
Donahue
and
Barrett,
Overman’s counsel cross-examined the VE and elicited statements that seriously called into question the reliability of the ATE’s bottom-line conclusions. Perhaps Overman’s inquiry into the basis for the ATE’s testimony could have been more thorough. But a disability adjudication is “a hybrid between the adversarial and inquisitorial models,”
Donahue,
The ALJ based his finding that Overman could perform other work entirely on the ATE’s erroneous testimony, and that testimony is not “sufficient for a reasonable person to accept as adequate to support the decision.”
Jens,
Conclusion
For the reasons stated above, the judgment of the district court is Reversed and the case is Remanded for further consideration by the agency.