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Atchley v. Berryhill

United States District Court, D. South Dakota, Western Division

March 23, 2017

DUSTIN WILLIAM ATCHLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Plaintiff Dustin Atchley filed a complaint appealing the final decision of Nancy A. Berryhill, [1] the Acting Commissioner of the Social Security Administration, finding him not disabled. (Docket 1). Defendant denies plaintiff is entitled to benefits. (Docket 11). The court issued a briefing schedule requiring the parties to file a joint statement of material facts (“JSMF”). (Docket 13). The parties filed their JSMF. (Docket 14). In lieu of filing a motion to reverse the Commissioner and supporting brief as directed by the court, plaintiff filed a request that the court take judicial notice of certain United States Bureau of Labor statistical data. (Docket 15). At the same time, plaintiff moved to extend the deadlines established by the briefing schedule pending resolution of the judicial notice request. (Docket 16). The court granted the motion to extend the original deadlines and directed briefing on plaintiff's judicial notice request. (Docket 17). Briefing is complete and the request is ripe for resolution. For the reasons stated below, plaintiff's request for judicial notice is denied.

         ANALYSIS

         The parties' JSMF (Docket 14) is incorporated by reference. Further recitation of salient facts will be included in this analysis where appropriate.

         Mr. Atchley asks the court to take judicial notice of the data reported by the “Bureau of Labor Statistics―Employment Projections . . . Table 1.11 Educational attainment for workers 25 years and older by detailed occupation, 2012-13” (“Educational Attainment Data”). (Docket 15 at p. 1; see also 15-1). Mr. Atchley asserts this information “is a proper subject of judicial notice because it is not subject to reasonable dispute, because it can be accurately and readily determined from a source whose accuracy cannot reasonably be questioned.” (Docket 15 at p. 1) (referencing Fed.R.Evid. 201(b)(2)).

         Plaintiff claims the Educational Attainment Data “is not subject to reasonable dispute because as a matter of law, [the Social Security Administration] takes administrative notice of job information from governmental publications including publications by the Bureau of Labor Statistics.” Id. (referencing 20 CFR § 404.1566(d)). Mr. Atchley claims this “information is material because the Social Security Act and SSA's regulation require the ALJ to specifically find, before denying a claim at step five, that a claimant is able to perform ‘work which exists in significant numbers either in the region where such individual lives or in several regions of the country.' ” Id. at p. 2 (citing 42 U.S.C. § 423(d)(2); 20 CFR § 404.1560).

         At the administrative hearing, a vocational expert (“VE”) testified in response to a hypothetical question posed by the Administrative Law Judge (“ALJ”) regarding Mr. Atchley's residual functional capacity (“RFC”). The VE opined there were positions regionally[2] which plaintiff could perform, particularly: “500 routing clerks, 300 mail clerks, and 300 inserting machine operators.” Id. at p. 2 (referencing Docket 14 ¶ 4 [referencing AR at pp. 65-66]). Mr. Atchley argues “[t]he ALJ did not ask the VE, and the VE did not opine, the degree to which the numbers of jobs would be eroded because of Plaintiff's limited education.”[3] (Docket 15 at p. 2).

         According to Mr. Atchley, the Educational Attainment Data provides critical information regarding the number of jobs identified by the VE where the worker does not have a high school diploma.[4] That data is summarized as follows:

2.5 percent of postal service clerks do not have a high school diploma. (Docket 15-1 at p. 14);
3.4 percent of postal service mail sorters, processors, and processing machine operators do not have a high school diploma. Id.;
13.2 percent of shipping, receiving, and traffic clerks do not have a high school diploma. Id.;
8.2 percent of mail clerks and mail machine operators (except postal service) do not have a high school ...

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