Posted: Wed Mar 17, 2010 06:39 pm Post subject: Havill case - VE testimony - helpful case
Attorney Thomas Krause had a nice win recently in the Northern District of Iowa.
You may wish to read it with care if you have ever wondered how to deal with the usual nonsensical and unsupported VE testimony that is the mainstay of the Commissioner's medical-vocational framework.
I have posted it here: http://ssaconnect.com/tfiles/Havill.pdf It is also available on Lexis at:
Havill v. Astrue, 2010 U.S. Dist. LEXIS 18939 (N.D. Iowa Mar. 3, 2010)
Here are some of the issues addressed. You may wish to read the case to see how they were resolved and why the District Court paid the case.
Quote:
"Havill continues to argue that the ALJ erred in relying on the VE’s testimony. He
argues that “[w]hen there is an apparent unresolved conflict between vocational expert
testimony and the [Dictionary of Occupational Titles], the ALJ must elicit a reasonable
explanation for the conflict before relying on the vocational expert testimony to support
a determination or decision that the individual is or is not disabled[, and] [t]he ALJ must
explain in his decision how he resolved the conflict.” Doc. No. 7, p. 8 (citing SSR 00-4p;
Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 979 (8th Cir4. 2003); Closson v. Astrue,
No. C06-4095-MWB, 2008 WL 504013 (N.D. Iowa Feb. 21, 2008); SSR 96-8p).
Havill argues further that although the Eighth Circuit Court of Appeals has provided
little guidance on what evidence is required to support a vocational expert’s testimony, the
Seventh Circuit Court of Appeals has. He relies on Donahue v. Barnhart, 279 F.3d 441,
446-47 (7th Cir. 2002), to support his argument that in the present case, the ALJ failed to
make the proper inquiry to determine whether the VE’s conclusions were reliable. Doc.
No. 7. In Donahue, the court held that when the basis of a VE’s conclusions is questioned
at the hearing where the VE testifies, “then the ALJ should make an inquiry (similar
though not necessarily identical to that of Rule 702) to find out whether the purported
expert’s conclusions are reliable.” Donahue, 279 F.3d at 446. The court cited Social
Security Ruling 00-4p, which requires an ALJ to explain how any conflict between the
VE’s testimony and the Dictionary of Occupational Titles has been resolved. Id."
. . .
"In the present case, Havill does not expressly argue that the DOT is controlling.
Instead, he argues the ALJ erred in failing to reconcile the fact that the VE’s departure
from the DOT was largely unsupported. The VE testified that her estimated numbers of
jobs available to someone with Havill’s specific limitations were based on her experience
in placing individuals in jobs, job openings she sees in the newspaper, and two or three
phone calls with potential employers over a period of five years. The court finds the VE
failed to support her opinions with adequate data or reasoning. See McKinnie v. Barnhart,
368 F.3d 907, 910-11 (7th Cir. 2004) (“We have held that any data or reasoning
underlying the VE’s bottom line must be ‘available on demand’ so that the claimant may
test the reliability of the VE’s testimony.”) (quoting Donahue, 279 F.3d at 446)."
Attorney Krause can be contacted at:
Thomas A. Krause
Attorney at Law
Thomas A. Krause, P.C.
4211 Grand Avenue, Suite 1
Des Moines, Iowa 50312
Phone: (515) 897-4117 _________________ David Traver
Attorney
Traver & Traver, S.C.
P.O. Box 459
Eagle, WI 53119
262-594-2096 (work)
david[at]traverlaw.com
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