United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
Dustin Atchley filed a complaint appealing the final decision
of Nancy A. Berryhill,  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.
parties' JSMF (Docket 14) is incorporated by reference.
Further recitation of salient facts will be included in this
analysis where appropriate.
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)).
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).
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 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.” (Docket 15 at p. 2).
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. 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
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 ...