01-2044 Donahue v. Barnhart

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“It turns out that whoever wrote the Dictionary believes that basic literacy (defined as a vocabulary of 2,500 words, the ability to read about 100 words a minute, and the ability to print simple sentences) is essential for every job in the economy, and that janitors require a higher level (the ability to read about 200 words per minute). See Dictionary at classifications 382, 358.687-010, 381.687-014, 381.687-018, 382.664-101 (discussing various janitorial classifications), and Appendix C pp. 1010-11 (literacy for all jobs). The vocational expert obviously did not agree.”

“The position articulated in [Smith v. Shalala, 46 F.3d 45 (8th Cir. 1994) that the Dictionary always wins is untenable. Smith itself gave no reason for a flat rule, and the eighth circuit sensibly has retreated in more recent cases. See Young v. Apfel, 221 F.3d 1065 (8th Cir. 2000); Jones v. Chater, 72 F.3d 91 (8th Cir. 1995); Montgomery v. Chater, 69 F.3d 273 (8th Cir. 1995). Smith would make the Dictionary of Occupational Titles anindependent source of listed impairments, giving the Dictionary’s team of authors a power that Congress has bestowed on the Commissioner of Social Security. The editorial board of the Dictionary has not been nominated by the President or confirmed by the Senate. The Dictionary is published by the Department of Labor as a tool; it does not purport to contain rules of law, and no statute or regulation gives it binding force. The Commissioner of Social Security is entitled to examine independently those questions covered by the Dictionary – something that the Dictionary itself proclaims when observing that users should rely on better data if they have any in their own possession. See Dictionary at xiii. To go by the record of this case (and many others), that caution is prudent. Donahue had a job for a long time despite his poor reading skills. (One wonders how Donahue can be “illiterate” if he could take and pass the tests required of truck drivers, but the parties make nothing of this.) Indeed, people who arrive in the United States without even the ability to recognize the Latin alphabet often find work. So the alj must be entitled to accept testimony of a vocational expert whose experience and knowledge in a given situation exceeds that of the Dictionary’s authors.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Curran, J., Easterbrook, J.