1 : open to view : VISIBLE
The changes were readily apparent.
2 : clear or manifest to the understanding
for reasons that are apparent
3 : appearing as actual to the eye or mind
was in apparent danger
4 : manifest to the senses or mind as real or true on the basis of evidence that may or may not be factually valid
died of an apparent heart attack
The air of spontaneity is perhaps more apparent than real.—J. R. Sutherland
5 law : having an indefeasible right to succeed to a title or estate
The first definition gives the example "readily apparent." Open to view or visible, with the example, implies obviousness. If the instruction is to resolve "conflict (or obvious conflict)" then the parenthetical expression with the disjunctive "or" makes little sense. "Apparent" cannot mean "obvious" in this context because it is either redundant or offers a disjunctive and more restrictive option.
The same problem applies to the use of clear or manifest. The "or" statement is more restrictive than the original use of unmodified "conflict." The fifth definition does not fit the context presented.
The third and fourth definitions of "apparent" add an alternative. "Appearing as actual to the eye or mind" and "manifest to the senses or mind ... that may or may be factually valid" put in a different concept -- the perceived conflict might be wrong. An apparent danger does not require a true threat to person or property. An apparent conflict does not imply that a myocardial infarct occurred. Those expressions require reasonable perception but not a probability or certainty of that perception.
The Vocational Expert Handbook (SSA 2023) reinforces the presence of a reasonable perception of conflict as the correct construct of "apparent conflict." The VE Handbook (p. 40, n.50) describes the reasoning level 3 issue:
An occupation with reasoning level 3 requires individuals to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” It could be argued that occupations requiring reasoning level 3 are too complex for an individual limited to “simple” or “repetitive” tasks. Therefore, an apparent conflict exists.
And there it is. An apparent conflict exists because it could be argued. The proposition that a claimant could reasonably argue a conflict between the DOT and the testimony establishes an apparent conflict. Cases that suggest or hint that an apparent conflict means one that is open, obvious, or so patent that the ALJ could easily discern the presence of a conflict are wrong. Those cases reduce the expression "conflicts (or apparent conflicts)" as redundant or constricted by the disjunctive parenthetical expression. Any reasonable identification of an arguable conflict fits with the plain language of the ruling understood through the lens of dictionary and exemplified by the published VE Handbook places the burden on the ALJ to resolve that conflict sua sponte whether the representative is a potted plant or shouting from the mountain tops.
Drop the mic.
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Suggested Citation:
Lawrence Rohlfing, Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational Information -- Apparent Does Not Mean "Obvious", California Social Security Attorney (October 5, 2023) https://californiasocialsecurityattorney.blogspot.com
The author has been AV-rated since 2000 and listed in Super Lawyers since 2008.
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