Latulippe v. SSA CV-95-82-SD 03/07/96 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Henry Latulippe

v. Civil No. 95-82-SD

Commissioner, Social Security Administration

O R D E R

Pursuant to section 20 5 (g) of the Social Security Act,

(g), plaintiff Henry Latulippe seeks judicial review

of a final decision of the Commissioner of the Social Security

Administration,1 rendered following a remand order issued by this

court. Presently before the court are (1) plaintiff's motion to

reverse the Secretary's decision and (2) defendant's motion to

affirm the Secretary's decision.

1The court notes that on March 31, 1995, the Social Security Administration was separated from the Department of Health and Human Services, becoming an autonomous agency. Social Security Independence and Program Improvements Act of 1994,

(d)(2),

, 1477 (1994). The Commissioner of Social Security has therefore been substituted for the Secretary of Health and Human Services as the defendant in this action. However, because all the events relevant here occurred prior to the change, in this order the court will refer to the defendant as Secretary from this point on. Background2

Plaintiff Henry Latulippe was born on May 1, 1947, and has

completed an eighth-grade level of education. Transcript (Tr.)

193, 230. He has worked in the past as an auto body shop

operator and owner, as well as a construction foreman. Tr. 230.

Latulippe has a history of coronary artery disease, Tr. 394,

and other ailments. In March and April of 1986, he was treated

and hospitalized for chest pain on three occasions and diagnosed

with acute coronary insufficiency, arterial hypertension,

psoriasis, gout, and exogenous obesity. Tr. 250, 263. On

April 29, 1986, plaintiff was admitted to the Massachusetts

General Hospital, where he received angioplasty surgery.3 Tr.

343.

In January of 1988, plaintiff was treated for alcohol,

cocaine, and polydrug dependence at St. Joseph Hospital in

Nashua, New Hampshire, and was diagnosed with, among other

things, anxiety depression. Tr. 298. In May of that same year,

plaintiff was hospitalized again for chest pains. Tr. 309.

Subsequent to his hospitalization, plaintiff's reports of chest

2A more thorough recitation of the facts can be found in the Report and Recommendation of Magistrate Judge Barry dated March 30, 1993.

3Angioplasty is a procedure to open clogged blood vessels. See B o r l a n d 's I l l u s t r a t e d M e d i c a l D i c t i o n a r y 79-80 (W . B . Saunders Co., 28th ed. 1994) .

2 pain continued in December of 1988, Tr. 352-53, and again in

April of 1990, after he inhaled smoke from a fire in his family's

store, Tr. 358-59.

Following further complaints of chest pain and a

recatheterization which revealed significant stenosis (or

occlusion) in seven blood vessels, Tr. 396-97, Latulippe

underwent guadruple bypass surgery on December 26, 1990, Tr. 386.

Procedural History

On April 23, 1990, plaintiff filed an application for a

period of disability and for disability insurance benefits,

alleging an inability to work since April 28, 1988. Tr. 193-95.

Plaintiff had previously filed two other such applications on

December 21, 1988, Tr. 141, and June 22, 1989, Tr. 170, each also

alleging an inability to work since April 28, 1988. The initial

application was denied on February 9, 1989. Tr. 160. Although

undated, the denial of the second application appears to have

occurred in November of 1989. Tr. 10, 183, 465.

On August 14, 1991, a de novo hearing was held on

plaintiff's April 1990 application before an Administrative Law

Judge (ALJ) .4 Tr. 43. At such hearing, the ALJ heard testimony

4Plaintiff's April 1990 application was initially denied on June 14, 1990, Tr. 205, and upon reconsideration by the Secretary on November 28, 1990, Tr. 220.

3 from plaintiff, Tr. 51-107, plaintiff's wife Nancy Grassman, Tr.

107-24, and Ralph Richardson, a vocational expert (VE), Tr. 127-

39. In a decision dated February 11, 1992, the ALJ stated that

his assessment was limited to the period of time when claimant's

second application for benefits was denied, November 1989,

through June 30, 1990, the date he was last insured for

disability insurance benefits. Tr. 10.

The ALJ went on to find that Latulippe's eligibility for

benefits could proceed along steps one through four of the

seguential evaluation process. Tr. 20-21. Such process, set

forth at 20 C.F.R., ch. Ill, §§ 404.1520 and 416.920, is

summarized as follows: (1) The Secretary determines whether the

claimant is currently involved in substantial gainful activity.

20 C.F.R. Ch. Ill, § 404.1520. (2) If the claimant is not so

involved, the Secretary considers whether the claimant has a

"severe impairment" which significantly hinders his physical or

mental ability to engage in basic work activities. Id. The

claimant must prove that his impairment prevents him from

performing his former type of work. Gray v. Heckler,

(1st Cir. 1985) (citing Goodermote v. Secretary,

(1st Cir. 1975)). (3) If the claimant suffers from a

severe impairment, then the inguiry is whether the claimant has

an impairment which (a) meets a durational reguirement and (b) is

4 listed in Appendix 1 of the regulations. 20 C.F.R., Ch. Ill, §

404.1520. (4) In the event that a claimant does not have an

impairment specifically listed in Appendix 1, the inquiry is

whether, despite the claimant's severe impairment, he has the

residual functional capacity to perform his past work. Id. (5)

If the claimant is unable to perform his past work, the Secretary

has the burden of showing that other work exists in the national

economy which the claimant can perform. Heggartv v. Sullivan,

947 F .2d 990, 995 (1st Cir. 1991).

The ALJ concluded, among other things, that (1) at step one,

plaintiff had not engaged in substantial gainful activity since

April 28, 1988, Tr. 20; (2) at step two, plaintiff's heart

condition and obesity represented a severe impairment during the

period from claimant's alleged onset date through June 30, 1990,

Tr. 16, 21; (3) at step three, plaintiff does not have an

impairment or combination of impairments listed in, or medically

equal to, one listed in the Secretary's listing of impairments,5

Tr. 21; and (4) at step four, claimant is unable to perform his

past relevant work, id. The ALJ also concluded that plaintiff's

residual functional capacity for the full range of sedentary work

is reduced by his exertional limitations and that claimant "has

an eighth grade education, is not illiterate and does not have

5See Appendix 1 to 20 C.F.R. Part 404, Subpart P.

5 significant difficulty with reading and writing." Id. The ALJ

ultimately found that the claimant was not entitled to benefits

because the Secretary met its burden at step five of showing the

existence of jobs in the regional or national economy that

claimant was capable of performing. Tr. 22. A VE testified that

these jobs included security guard, automobile dispatcher, self-

service gas station attendant, and parking lot attendant. Id.

On August 26, 1992, the Appeals Council denied plaintiff's

reguest for review of the ALJ's decision, thereby rendering the

ALJ's decision the final decision of the Secretary of Health and

Human Services. Tr. 4-5.

Plaintiff subseguently moved to reverse--and defendant moved

to affirm--the decision of the Secretary. On appeal to the

district court, plaintiff argued, among other things, that "the

jobs identified by the VE were improperly classified,

exertionally unsuitable and ignored plaintiff's educational

limitations." Tr. 480. This court affirmed the Report and

Recommendation of United States Magistrate Judge William H.

Barry, Jr., in which he denied both motions and remanded the

action to the Secretary to consider evidence of plaintiff's

disability from February 9, 1989, to June 30, 1990. See Order,

May 3, 1993 (Loughlin, S.J.); Report and Recommendation, March

30, 1993.

6 The Appeals Council issued an order on July 13, 1993,

remanding the case to an ALJ for further proceedings "consistent

with" the order of the district court. Tr. 610. Following

remand, a supplemental hearing was held at which the ALJ heard

testimony of plaintiff's sister, Virginia Nadeau. Tr. 668-84.

After this hearing, the ALJ issued a decision on February 17,

1994, again finding claimant not entitled to a period of

disability or to disability insurance benefits. Tr. 434. On

December 21, 1994, the Appeals Council denied plaintiff's reguest

for review, thereby rendering the ALJ's decision the final

decision of the Secretary. Tr. 411-12.

In the present action, Latulippe moves for an order

reversing the Secretary's final decision.6 His general

contention is that he is eligible for benefits at step five of

the seguential evaluation process because "no jobs exist[] in the

regional or national economy which he can perform at his reduced

range sedentary work capacity." Plaintiff's Memorandum at 1-2.

6Latulippe also filed with this court a Motion to Reopen the Commissioner's Decision on January 3, 1994; said motion was denied on February 1, 1995.

7 Discussion

1. Standard of Review

Pursuant to the Social Security Act, the court may "enter,

upon the pleadings and transcript of the record, a judgment

affirming, modifying, or reversing the decision of the Secretary,

with or without remanding the cause for a rehearing."

(g) (Supp. 1994).

When reviewing a Social Security disability determination,

the factual findings of the Secretary "shall be conclusive if

supported by 'substantial evidence.'" Irlanda Ortiz v.

Secretary,

(1st Cir. 1991) (guoting

(g)). "[S]ubstantial evidence" means "'more than a mere

scintilla. It means such relevant evidence as a reasonable mind

might accept as adeguate to support a conclusion.'" Richardson

v. Perales,

(1971) (guoting Consolidated Edison

Co. v. NLRB,

(1938)); Rodriguez v. Secretary,

647 F .2d 218, 222 (1st Cir. 1981).

However, substantial evidence "is something less than the

weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an

administrative agency's finding from being supported by

substantial evidence." Consolo v. Federal Maritime Comm'n,

(1966) (citing NLRB v. Nevada Consolidated Copper

8 Corp.,

(1942)). Moreover, the decision of the

Secretary must be affirmed, "even if the record arguably could

justify a different conclusion, so long as it is supported by

substantial evidence." Rodriguez Pagan v. Secretary,

(1st Cir. 1987), cert, denied,

(1988) (citing

Lizotte v. Secretary,

(1st Cir. 1981)).

It is incumbent on the Secretary "to determine issues of

credibility and to draw inferences from the record evidence."

Irlanda Ortiz, supra,

(citing Rodriguez, supra,

647 F.2d at 222). Moreover, "the resolution of conflicts in the

evidence is for the Secretary, not the courts." Id.; Evangelista

v. Secretary,

(1st Cir. 1987); see also Sitar

v. Schweiker,

(1st Cir. 1982); Burgos Lopez v.

Secretary,

(1st Cir. 1984).

Since determinations regarding factual issues and the

credibility of witnesses are entrusted to the Secretary, whose

findings should be accorded great deference, see, e.g.,

Frustaglia v. Secretary,

(1st Cir. 1987), the

court "'must uphold the Secretary's findings . . . if a

reasonable mind, reviewing the evidence in the record as a whole,

could accept it as adeguate to support his conclusion.'" Irlanda

Ortiz, supra,

(guoting Rodriguez, supra, 647 F.2d

at 222).

9 2. Plaintiff's New Evidence

In the district court's order of May 3, 1993 (Loughlin,

S.J.) (hereinafter "Original Order"), the court remanded the case

to the Secretary "to consider evidence of the plaintiff's

disability from February 9, 1989[,] to June 30, 1990," thereby

ostensibly reopening the entire record. Original Order at 9.

The crux of the issue presently before the court is whether the

district court intended by this statement to reopen the entire

record, or whether, instead, the court simply instructed the ALJ

to consider--or clarify whether he had considered--specific

evidence relating to a limited time period. The text of the

opinion, as well as that of the Report and Recommendation of the

magistrate judge and the motions submitted by the parties at the

time, lead this court to conclude that the purpose and scope of

the remand was solely for the ALJ to consider medical evidence

relating to the period between February and November of 1989.7

7A more thorough explanation can be found in the court's order of May 3, 1993. Briefly, the issue before the court concerned the ALJ's assertion that he was assessing disability from November 1, 1989, though June 30, 1990, and was therefore apparently not reopening plaintiff's second application of disability, which was denied in November of 1989. The court found that the ALJ had applied the wrong standard in deciding against reopening plaintiff's second application. Therefore, the court remanded the action back to the ALJ to apply the correct standard. If the ALJ decided to reopen the plaintiff's second application, the court further ruled the ALJ should consider medical evidence dating from the denial of plaintiff's first application, which occurred February 9, 1989. According to the

10 The conclusion is buttressed by the following statement in the

May 3, 1993 order:

Although the Secretary contends that the ALJ considered all of the medical evidence submitted by plaintiff for the period prior to the expiration of his period of insured status, it is not clear from the record, especially because of the ALJ's statement that he was not reopening plaintiff's prior application, what weight if any the ALJ gave to that particular evidence for the period of plaintiff's prior application in making his findings.

Original Order at 8.

In its Original Order, the district court also explicitly

affirmed several of the ALJ's findings. For example, the court

found that substantial evidence supported the ALJ's finding that

plaintiff was not illiterate. Original Order at 6-7. The court

further opined,

the ALJ's findings with respect to plaintiff's physical and educational limitations and the effect those limitations may have on plaintiff's performance of jobs in the national economy, being substantially supported by the record, reguire the court to affirm that part of the decision of the Secretary finding plaintiff capable of performing work in the national economy.

Original Order at 7.

report and recommendation of the magistrate, this evidence could potentially aid plaintiff in proving disability for the entire time period (through June 30, 1989) because plaintiff suffered from a "degenerative" condition. See Report and Recommendation, Tr . 47 6.

11 Upon further consideration, the court modified its ruling,8

but reaffirmed that the Secretary had properly concluded that

plaintiff could perform the job of auto dispatcher. Order of

July 26, 1993 (Loughlin, S.J.) at 4. In so ruling, the court

considered plaintiff's capabilities in light of the reasoning,

mathematical, and language development skills reguired by the

job. Given the explicit findings within both orders, the most

logical interpretation of the remand order is that the court

intended to affirm the Secretary's finding as to plaintiff's non­

illiteracy, but nonetheless remanded the cause back to the

Secretary to clarify whether it had considered medical evidence

relating to the period from February through November 1989.9

Plaintiff argues that the ALJ had the discretion to consider

"new and material" evidence of plaintiff's illiteracy during the

supplemental hearing. This presents a potentially difficult

Specifically, the court found that certain jobs identified by the VE--that of security guard, self-service station attendant, and parking lot attendant--reguired exertional levels beyond plaintiff's capabilities. Order of July 26, 1993 (Loughlin, S.J.) at 6.

9In his report of February 17, 1994, the ALJ clarified that he had considered this evidence in his earlier report: "[T]he prior decision erroneously stated that the agency denial of the claimant's prior June 22, 1989 application was not reopened. Such reopening, however, was intended and effectuated by the Administrative Law Judge." Tr. 422. Accordingly, this correction by the ALJ renders the district court's prior concerns moot, and would by itself justify affirmance.

12 question: whether the ALJ can properly consider new and material

evidence bearing on an issue already decided by the district

court and beyond the scope of the remand order. Rather than

directly resolve this issue, the court will take the liberty of

determining, in the first instance, whether the evidence

plaintiff seeks to introduce is new and material.

The court's decision to make the newness/materiality

determination, rather than to send the case back to the

Secretary, is supported by a number of considerations. First,

the court has the power to make the newness/materiality

determination as part of the remand powers conferred by sentence

six of section 405(g).10 In addition, given the scope of the

10The Social Security Act's judicial review provisions authorize two, and only two, forms of remand--so-called "fourth sentence remands" and "sixth sentence remands." See Melkonyan v. Sullivan,

(1991). Under the fourth sentence of section 405(g), a court may enter "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." Accordingly, the significant feature of a sentence four remand is that it is made in conjunction with a substantive ruling by the district court to either affirm, modify, or reverse the Secretary's decision. In contrast, the sixth sentence of section 405(g) describes an "entirely different kind of remand."

(quotation omitted). This form of remand is implicated upon discovery of new and material evidence that (1) was previously unavailable to the claimant during the administrative proceeding and (2) has the potential to change the outcome of that proceeding.

In order to justify such a remand, the evidence cannot be merely cumulative, but, rather, must meaningfully relate to the basis of the earlier decision. Evangelista, supra,

. In addition, to avoid a "yo-yo effect, " the claimant must articulate good cause to justify his prior failure to present the

13 remand order, the court cannot find that the ALJ committed a

legal error warranting remand when it deferred to the district

court's prior ruling. Indeed, good authority supports that the

ALJ does not have the power to consider evidence beyond that

contemplated by the remand order:11

Where a court finds that the Secretary has committed a legal or factual error in evaluating a particular claim, the district court's remand order will often include detailed instructions concerning the scope of the remand, the evidence to be adduced, and the legal or factual issues to be addressed. . . . Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review.

Sullivan v. Hudson,

(1989) (citations

omitted) (emphasis added). Finally, it is beyond peradventure

that the interests of all involved can be best served by the

court's immediate attention to the matter, and would be

significantly less served by yet another remand to the ALJ.

Plaintiff asserts that his school records and an evaluation

performed in 1993 by Dr. Scott N. Andrews, a psychologist, Tr.

606-08, constitute "new and material" evidence, although he

evidence to the ALJ. Id. at 141.

11This proposition is further supported by the plain language of section 405(g), which provides that the Secretary's findings are conclusive if supported by substantial evidence, which this court has already found in the original order.

14 admits that it "fortifies" earlier testimony by him, his wife,

and his sister that he can't read. Plaintiff's Memorandum at 10.

The school records showed, inter alia, that Latulippe failed most

of his classes when he was in grades six through eight and that

he left school in the middle of the eighth grade because of

scholastic difficulty. Tr. 601. Dr. Andrews' report documents

plaintiff's performance on tests designed to evaluate reading,

writing, and language development, and concludes that he is

illiterate. Tr. 608. The ALJ declined plaintiff's reguest to

consider this evidence because the district court had already

affirmed the ALJ's prior determination that Latulippe was not

illiterate. Tr. 423.

The court agrees with the defendant that (1) plaintiff had

ample opportunity to present this evidence at the initial

hearings before the Secretary, at which the literacy issue was

fully developed, and fails here to offer an adeguate explanation

of why the evidence was not produced before; and (2) the issues

raised by plaintiff have been previously considered, analyzed,

and ruled on by both the magistrate judge and the districtcourt.

It follows that this evidence is not "new and material,"

justifying a remand order from this court.

In an apparent attempt to sidestep the "new and material"

reguirement, plaintiff makes two further arguments. First,

15 plaintiff contends that under the regulations governing the scope

of the administrative hearing following a remand by a federal

court, any issue relating to plaintiff's claim may be considered

by the ALJ, whether ornot it was raised in the prior

administrative proceedings, see

(1995).

Another regulation apropos to the issue is

,

which provides,

§ 404.977 Case remanded by Appeals Council.

(b) Action by administrative law judge on remand. The administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order.

(emphasis added). The court's interpretation

of these regulations is that, while an ALJ has the discretion to

consider matters outside that which is specified in a remand

order, such regulations would not apply here, where the district

court has previously ruled that plaintiff's non-illiteracy is

supported by substantial evidence. Indeed, to reopen the

literacy issue after the federal court had already ruled that

this finding was supported by substantial evidence (and the

Appeals Council's remand essentially incorporated the district

court's order) most likely would represent an action

16 "inconsistent with" the Appeals Council's remand order and would

thus be in direct contravention of

(b).

Second, plaintiff, noting that the ALJ discusses Dr.

Andrews' evaluation in his February 17, 1994, decision, contends

the ALJ thereby reopened the issue of plaintiff's literacy as a

matter of administrative discretion. This assertion is

problematic for two reasons. As discussed above, it is unlikely

that the ALJ would have the power to exercise such discretion in

the instant case, given the district court's findings. In

addition, the ALJ's explicit statement that he was deferring to

the district court ruling on the issue of literacy negates any

suggestion of reopening.

Accordingly, as the ALJ neither reopened--nor had the

authority to reopen--the issue of claimant's literacy, the court

is inclined to here incorporate the prior ruling affirming the

ALJ's decision on this issue. However, before doing so, the

court will consider one last possible window of opportunity for

the plaintiff. The Seventh Circuit has recognized that under

certain unusual circumstances a court may depart from the law of

the case. Under the doctrine of the law of the case, "[a]n

administrative agency is bound on remand to apply the legal

principles laid down by the court . . . ." Chicago & N.W.

Transp. Co. v. United States,

, 930 (7th Cir. 1978)

17 (citation omitted). Such "legal principles" include both the

applicable legal doctrine and the sufficiency of the evidence

relevant to that doctrine. Id. The law of the case controls,

however, only in the absence of a compelling reason to depart

from it, such as the existence of "substantial new evidence

introduced after the first review," or "a conviction on the part

of the second reviewing court that the decision of the first was

clearly erroneous." Id.12 (citations omitted); accord Angevine

v. Sullivan,

(7th Cir. 1989) (applying law of

the case doctrine to social security case).

Even under the law of the case doctrine espoused by the

Seventh Circuit, plaintiff has not succeeded in demonstrating

that a reversal of the ALJ's decision on the literacy issue is

warranted. As the court opined previously, although it

contradicted the testimony of the claimant and that of his wife,

the ALJ's determination that the plaintiff was not illiterate was

supported by substantial evidence. Original Order at 5-6. The

court's reasoning was based on the observation that plaintiff had

an eighth-grade education and was owner of an auto body shop for

ten years in which he employed four persons, as well as on the

12Another reason would be a Supreme Court decision after the first review that contradicts the decision of that review.

18 definition of illiteracy provided by federal regulations.13

Original Order at 6.

Thus, to summarize, from this court's review, there was no

clear error in the Original Order affirming the Secretary's

finding of nonilliteracy. Furthermore, plaintiff's evidence of

his past educational records and the report of Dr. Andrews are

not sufficiently material or new to permit remand, as there

already exists a developed record on the issue of plaintiff's

illiteracy, and plaintiff fails to provide an adeguate

explanation for why the "new" evidence was not previously

submitted.

3. Vocational Expert's Testimony

Finally, plaintiff contends that substantial evidence does

not support the ALJ's determination (finding 12) that plaintiff

can perform the job of auto dispatcher.14 Tr. 433.

(b) provides in relevant part:

Illiteracy means the inability to read or write. We consider someone illiterate if the person cannot read or write a simple message such as instructions or inventory lists even though the person can sign his or her name. Generally, an illiterate person has had little or no formal schooling.

14Plaintiff does not contest, here, the ALJ's finding that the job of auto dispatcher exists in numbers significant in the national economy.

19 Specifically, plaintiff challenges the V E 's description of the

job as "unskilled." Such an error by the VE would be significant

because the ALJ found plaintiff did not possess transferable

skills to meet the entry reguirements of skilled or semi-skilled

work (finding 10). Tr. 433.

Plaintiff's point is well taken. The Secretary defines

unskilled work as work that can be learned in thirty days, see

(a), but the D ictionary of Occupational T itles (4th

ed. 1991) (DOT) provides that the specific vocational preparation

(SVP) for the position of motor vehicle dispatcher15 is 5, which

reguires from six months to one year of training, see DOT at 216,

1009. Thus, the V E 's testimony contradicts the DOT.

However, given the posture of the case and plaintiff's

failure to raise the issue earlier, the court cannot credit

plaintiff's argument that the V E 's error is so serious as to

warrant remand and/or reversal. The VE testified at the initial

hearing held before the ALJ on August 14, 1991. Tr. 43, 124-38.

At that time, plaintiff was represented by experienced and able

counsel, who was given the opportunity to pose his own

hypothetical guestions, cross-examine the VE, and inguire into

15The DOT lists the motor vehicle dispatcher job at 249.167- 014 .

20 the source of the V E 's testimony. Plaintiff's counsel did not

object to the V E 's characterization of the auto dispatcher job as

"unskilled." Tr. 128. Since that time, plaintiff has filed at

least four discrete motions with this court that related, at

least in part, to the adequacy of the V E 's testimony.

Plaintiff's Motion for Reversal and Benefits, filed Feb. 11,

1993; Plaintiff's Objection to the Magistrate's Report and

Recommendation, filed April 19, 1993; Plaintiff's Motion for

Reconsideration, filed June 21, 1993; and Plaintiff's Motion to

Reopen, filed Jan. 3, 1994. In each of said motions, plaintiff

specifically challenged the ALJ's conclusion that he was capable

of performing the job of auto dispatcher, and plaintiff often

cited to the DOT to support his arguments.

Now plaintiff, represented by the same counsel, comes before

this court for the fifth time--nearly four years after the

testimony in question--offering a brand-new argument as to why

the V E 's testimony was deficient and contrary to the DOT.

Plaintiff provides no reason or excuse for his failure to bring

the matter to the attention of the court sooner. Under these

circumstances, plaintiff has not offered a sufficiently

compelling basis for the court to upset the law of the case set

by the court (Loughlin, S.J.) in the original order and the order

21 on reconsideration. In any case, it is unclear how the court can

give the plaintiff another bite of an apple that has been eaten

and long digested. C f . Evangelista, supra,

(where claimant was able to fairly present his case and ALJ's

decision was based on substantial evidence, appeals court will

not remand for presentation by claimant of arguably "new and

material evidence" in absence of "good cause" adeguate to excuse

failure to offer evidence sooner).

The court rejects plaintiff's argument for an alternative

reason: it is likely that the DOT would not override the V E 's

testimony in the instant situation. The ALJ takes administrative

notice of "reliable job information" available from various

governmental sources, including the DOT. See

(d), Subpart P, app. 2, § 200.00(b). However, when

complex issues are raised, for example whether a claimant's work

skills can be used in other work, the Secretary may rely upon a

vocational expert. See

(e).16

16The regulations provide in relevant part:

(d) Administrative notice of job data. When we determine that unskilled, sedentary, light, and medium jobs exist in the national economy (in significant numbers either in the region where you live or in several regions of the country), we will take administrative notice of reliable job information available from various governmental

22 The circuits are divided as to whether--and to what extent--

the DOT should control over contradictory VE testimony. At least

one court has held that an ALJ may rely solely on a vocational

expert's testimony even if it is inconsistent with the DOT. See

Conn v. Secretary,

(6th Cir. 1995) (vocational

expert entitled to describe jobs as "sedentary" despite DOT's

classification of jobs with same names as "light" or "medium");

Logan v. Shalala,

(C.D. 111. 1995) ("[T]he

DOT's requirements are not controlling and they are to be applied

in light of the vocational expert's professional knowledge

regarding one's ability to perform an identified job."); see also

Johnson v. Shalala,

(9th Cir. 1995) (ALJ may

rely on expert testimony contradicting DOT, "but only insofar as

the record contains persuasive evidence to support the

and other publications. For example, we will take notice of-- (1) Dictionary of Occupational Titles, published by the Department of Labor;

(e) Use of vocational experts and other specialists. If the issue in determining whether you are disabled is whether your work skills can be used in other work and the specific occupations in which they can be used, or there is a similarly complex issue, we may use the services of a vocational expert or other specialist. We will decide whether to use a vocational expert or other specialist.

23 deviation"); but see Smith v. Shalala,

(8th Cir.

1995) ("when expert testimony conflicts with the DOT, the DOT

controls") (and cases cited therein); Tom v. Heckler,

, 1257 n.12 (7th Cir. 1985) (discrepancies should be resolved

in favor of the DOT, particularly when the ALJ "simply appears to

have made a mistake" by relying on the VE testimony over an

inconsistent description in the DOT) .

The instant case presents one of those perhaps rare

situations when the ALJ could properly credit the vocational

expert's professional knowledge in lieu of the DOT. The VE

testified that the job of auto dispatcher is an unskilled

sedentary position that claimant could perform. Tr. 127. This

testimony directly followed his testimony that claimant had

previously performed skilled work, including work as an

automobile body repairman and a construction foreman. Tr. 125-

26. At this point, plaintiff's only contention is that the

dispatcher job is unsuitable because he is not capable of

undergoing the six months of training it reguires. Such

assertion is undermined by plaintiff's prior work history.

Therefore, the record, although not ideal, supports the V E 's

conclusion that plaintiff is capable of performing the dispatcher

job; at a minimum, there is persuasive evidence to support the

24 V E 's departure from the DOT. Accordingly, contrary to

plaintiff's argument here, the Secretary's decision was supported

by substantial evidence.

Conclusion

For the reasons set forth herein, the court denies

plaintiff's Motion for Order Reversing the Decision of the

Secretary (document 9) and grants defendant's Motion for Order

Affirming the Decision of the Secretary (document 11).

SO ORDERED.

Shane Devine, Senior Judge United States District Court

March 7, 1996

cc: Raymond J. Kelly, Esg. David Broderick, Esg.

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