Barrett v. Barnhart, 355 F.3d 1065 (7th Cir. 2004)

January 22, 2004

Decision from Judge Posner which points out the need to cross-ex VEs regarding the basis for numbers in response to hypothetical questions. Also notes the need for connecting the evidence to a finding that the claimant is not disabled:

A vocational expert can testify to the number of light jobs in Wisconsin, since “light” work is a defined term. But here he was asked to determine the number of jobs in a subclass of light work, namely the jobs that don’t require standing for more than two hours at a stretch, or normal hearing. For him to offer the number 24,500 with no indication of how he adjusted the numbers in the dictionary to reflect Barrett’s diminished capacity leaves us in the dark about the actual basis of his testimony, as in Ragsdale v. Shalala, 53 F.3d 816, 821 (7th Cir. 1995). However, because Barrett’s lawyer did not question the basis for the vocational expert’s testimony, purely conclusional though that testimony was, any objection to it is forfeited. Donahue v. Barnhart, supra, 279 F.3d at 446; compare Morrison v. Apfel, 146 F.3d 625, 628-29 (8th Cir. 1998).

The duty of explanation is summed up here:

The cumulative effect of the administrative law judge’s errors and omissions was to fail to build a rational bridge from the evidence to the finding that Barrett was not totally disabled. E.g., Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (per curiam); Steele v. Barnhart, supra, 290 F.3d at 941; Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Green v. Apfel, supra, 204 F.3d at 781; Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001); see generally Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990); Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 191 (4th Cir. 2000).

Comments on this entry are closed.

Previous post:

Next post: