Social Security is publishing Ruling AR-14-1(8) today, acquiescing to Brock v. Astrue, 674 F.3d 1062 (8th Cir. 2012). According to Social Security:
The Court of Appeals for the Eighth Circuit concluded that the ALJ [Administrative Law Judge] erred by relying solely on the Grid rules to determine that Brock could adjust to work existing in significant numbers in the national economy. The Court held that ``[b]ecause the ALJ determined that Brock suffered from severe mental impairments, the ALJ should have consulted a [VE] in determining whether Brock had the RFC to perform other jobs that exist in significant number in the national economy.''
Well, Duhhhhhhh. Most ALJ's that I know wouldn't do it any other way.
ReplyDeleteunless the only mental limitation was something limiting him to unskilled work--since all jobs at Step 5 have to be unskilled, there's no need for a VE, no?
ReplyDeleteI don't think so as we give mental limitations that may lead to unskilled work, but sometimes even with mental limitations, it may not lead to unskilled work. In other words, a person that could only work occasionally with the public or co-workers due to mental impairments might still be able to do skilled or semi-skilled work, or work that their skills might transfer to. Further I don't thinkw ecan take judicial notice that there are unskilled jobs out there that satisfy our RFC. WE also need a VE to give us the number of jobs in the National economy so we may determine if it is a significant number of jobs or not. I also like/need a VE to help me classify the claimant's past work. I feel like I am talking in circles or incoherently. I think I need to go to lunch.
ReplyDeleteI'm sorry in rereading this I should have said that there are also jobs at Step 5 that are skilled or semi-skilled. If the claimant has transferrable skills and the RFC doesn't eliminate it, the VE can give us a semi or skilled job at Step 5.
ReplyDeleteI should have been more clear. What I meant was that if the only nonexertional/mental limitation was that work must be unskilled, wouldn't an ALJ be able to do a direct application of the Grids since all jobs at Step 5 (minus PRW or trsfbl skills) we would put someone to are unskilled?
ReplyDeleteI doubt this is the specific fact pattern of the case giving rise to this AR. It probably involved an RFC with multiple mental lims that definitely should have VE testimony. I should just read the case, huh?
Sounds to me similar to the Sykes Rule in the 3rd Circuit.
ReplyDelete