# Eidenier v. Commissioner of Social Security

> District Court, N.D. Indiana · January 19, 2022

URL: https://www.frixlaw.com/law-library/cases/10162075

## Case

- **Court:** District Court, N.D. Indiana
- **Decided:** January 19, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10162075

## How later opinions describe it (automated extraction)

- describing SkillTRAN as an example of the “occupational density method,” distinct from equal distribution

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DARYL G. EIDENIER, )
Plaintiff, )
)
v. ) CAUSE NO.: 1:20-CV-277-JPK
)
KILOLO KIJAKAZI, Acting Commissioner of )
Social Security Administration, )
Defendant. )

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 3], filed by Plaintiff Daryl G. Eidenier,
and Plaintiff’s Opening Brief [DE 24]. Plaintiff requests that the decision of the Administrative
Law Judge denying his claim for disability insurance benefits be reversed and remanded for an
award of benefits or, in the alternative, for a new hearing. For the following reasons, the Court
remands this matter for further administrative proceedings.
PROCEDURAL BACKGROUND
On November 24, 2017, Plaintiff filed an application for disability insurance benefits,
alleging disability as of August 1, 2009. The application was denied initially and on
reconsideration. Plaintiff requested a hearing, which was held before an Administrative Law Judge
(ALJ) on July 10, 2019. On September 13, 2019, the ALJ issued an unfavorable decision, making
the following findings:
1. The claimant last met the insured status requirements of the Social Security
Act on December 31, 2014.
2. The claimant has not engaged in substantial gainful activity during the
period from his alleged onset date of August 1, 2009 through his date last insured
of December 31, 2014.
3. Through the date last insured, the claimant had the following severe
impairments: cervical and lumbar degenerative disc disease with history of cervical
fusions at C4-5 and C6-7, degenerative disc disease of the thoracic spine, post-
traumatic stress disorder (PTSD), depression, degenerative changes to the bilateral
shoulders, left cubital tunnel syndrome, and carpal tunnel syndrome.
4. Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the [ALJ found] that,
through the date last insured, the claimant had the residual functional capacity to
perform sedentary work as defined in 20 CFR 404.1567(a) except the claimant
could have stood and/or walked for six hours and could have sat for six hours and
could never have climbed ladders, ropes, or scaffolds. The claimant could have
occasionally climbed ramps and stairs, and could have occasionally balanced,
stooped, knelt, crouched, and crawled. He could have performed occasional
overhead reaching with the bilateral upper extremities and could have performed
frequent reaching in all other directions. The claimant could have frequently
handled and fingered with his non-dominant upper extremity. He could have
performed simple, routine, and repetitive tasks with no production rate pace-like
assembly-line work, with only occasional simple work-related decision-making.
The claimant could have maintained attention and concentration for two-hour
segments. He could have responded appropriately to occasional, predictable
changes in the workplace. The claimant could have had occasional interactions with
supervisors apart from what was necessary for general instruction, task completion,
or training, and could have had occasional interactions with coworkers and the
general public. The claimant could not have performed tandem tasks.
6. Through the date last insured, the claimant was unable to perform any past
relevant work.
7. The claimant was born [in 1967] and was 47 years old, which is defined as
a younger individual age 18-44, on the date last insured. The claimant subsequently
changed age category to a younger individual age 45-49.
8. The claimant has at least a high school education and is able to communicate
in English.
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant has transferable job
skills.
10. Through the date last insured, considering the claimant’s age, education,
work experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed.
11. The claimant has not been under a disability, as defined in the Social
Security Act, at any time from August 1, 2009, the alleged onset date, through
December 31, 2014, the date last insured.
(AR 15-251).
The Appeals Council declined to assume jurisdiction, leaving the ALJ’s decision the final
decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Plaintiff filed this civil action
pursuant to 42 U.S.C. § 405(g) for review of the Agency’s decision.
The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.
Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and
42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the Agency’s final decision.
42 U.S.C. § 405(g). The question before the Court is not whether the claimant is in fact disabled,
but whether the ALJ’s decision “applies the correct legal standard and is supported by substantial
evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g). Under

§ 405(g), the Court must accept the Commissioner’s factual findings as conclusive if they are
supported by substantial evidence, which is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.
2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
The Court reviews the entire administrative record but does not re-weigh the evidence,
resolve conflicts in evidence, or substitute its judgment for that of the ALJ. See McKinzey v. Astrue,

1 Page numbers in the Administrative Record (AR) refer to the page numbers assigned by the filer, which is found on
the lower right corner of the page, and not the page number assigned by the Court’s CM/ECF system.
641 F.3d 884, 890 (7th Cir. 2011) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th
Cir. 2003)). However, “if the Commissioner commits an error of law,” the Court may reverse the
decision “without regard to the volume of evidence in support of the factual findings.” White v.
Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir.

1997)). At a minimum, an ALJ must articulate his analysis of the evidence in order to allow the
reviewing court to trace the path of his reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). The ALJ also has a
basic obligation to develop a full and fair record and “must build an accurate and logical bridge
between the evidence and the result to afford the claimant meaningful judicial review of the
administrative findings.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability,” which is defined as an inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be expected to result

in death or that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). The ALJ follows a five-step inquiry to determine
whether a claimant is disabled: (1) whether the claimant has engaged in substantial gainful activity
since the alleged onset of disability, (2) whether the claimant has a medically determinable
impairment or combination of impairments that is severe, (3) whether the claimant’s impairment
or combination of impairments meets or medically equals the criteria of any presumptively
disabling impairment listed in the regulations, (4) if the claimant does not meet a listing, whether
he is unable to perform his past relevant work, and (5) if the claimant is unable to perform past
relevant work, whether he is unable to perform any work in the national economy. See 20 C.F.R.
§§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
Prior to step four, the ALJ determines the claimant’s residual functional capacity (RFC),
which “is an administrative assessment of what work-related activities an individual can perform

despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001). An affirmative
answer at either step three or step five leads to a finding of disability. Briscoe ex rel. Taylor v.
Barnhart, 524 F.3d 345, 352 (7th Cir. 2005); 20 C.F.R. § 404.1520(a)(4). The claimant bears the
burden of proving steps one through four, whereas the burden at step five is on the ALJ.
Zurawski v. Halter, 245 F.3d 881, 885-86 (7th Cir. 2001).
ANALYSIS
Plaintiff asserts that (1) the RFC was flawed because it did not include a limitation relating
to cervical movement and allowed for “frequent” handling and fingering; and (2) the ALJ’s finding
at step five was not supported by substantial evidence. The Court addresses the arguments in turn.
A. RFC

At step two, the ALJ found that Plaintiff suffered from two “severe impairments” relating
to his back: cervical and lumbar degenerative disc disease with history of cervical fusions at C4-5
and C6-7, and degenerative disc disease of the thoracic spine. (AR 17). Plaintiff first argues that
the RFC did not adequately address his back problems because it did not include a limitation
relating to cervical flexion, extension, or rotation.
In forming the RFC, the ALJ considered the medical evidence of Plaintiff’s back conditions
at length. She summarized findings indicating that Plaintiff consistently reported back and neck
pain, with limited range of motion, and imaging reports showing mild degeneration of Plaintiff’s
spine. (AR 21 citing AR 293, 298-300, 307-312, 400-417, 647). The ALJ also considered the
opinions of two reviewing state agency doctors, and two consultative examiners who examined
Plaintiff personally. All four doctors considered Plaintiff’s history of back issues and
recommended corresponding limitations, although none recommended a limitation specific to
cervical movement. (AR 70-73 (M. Brill), 87-90 (M. Ruiz), 293-96 (Vijay Kamineni), 308-311

(B. T. Onamusi). No other medical opinions were presented. Ultimately, the ALJ found that
“[g]iven the claimant’s observed physical deficits, continued pain symptoms, and multi-level
degenerative disc disease findings,” he should be limited to sedentary work with some postural
limitations. (AR 22). These limitations were ultimately more restrictive than those suggested by
the doctors. See id.
Plaintiff first argues that because the ALJ acknowledged his back conditions as “severe
impairments” at step two, the absence of a specific cervical limitation contradicts that finding,
because it implies that these impairments did not affect his ability to work. Pl. Br. (ECF 24) at 9-
122; see 20 C.F.R. § 404.1520(c) (a “severe impairment” is one that “significantly limits your
physical or mental ability to do basic work activities”). But the ALJ did include many limitations

explicitly linked to his back issues, in the form of sedentary work plus limitations on climbing,
balancing, stooping, kneeling, crouching, crawling, and reaching. (AR 20). Although Plaintiff
disagrees with the scope of the limitations, the ALJ’s findings are entirely consistent with her step
two finding that Plaintiff’s back conditions were severe impairments.
More importantly, the medical opinions either supported the ALJ’s restrictions or
recommended looser restrictions than the ALJ imposed. All four doctors acknowledged Plaintiff’s
cervical pain and range of motion issues, but all of them concluded that he could do at least

2 The pages of Plaintiff’s opening brief are misnumbered, with the first page labeled as page 5; when citing to
Plaintiff’s opening brief, the Court will refer to the page numbers generated by CM/ECF, which are found in the
header at the top of each page.
sedentary work, and none of them concluded that he needed this additional limitation. For example,
Dr. Onamusi examined Plaintiff and specifically noted limited range of motion in the areas of
cervical flexion, extension, and torsion (AR 309, 311), but concluded that he could still do “light
physical demand level activities” as defined in the Dictionary of Occupational Titles3. (AR 310).

Given that these doctors specifically considered the implications of Plaintiff’s cervical limitations,
and in the absence of medical opinion to the contrary, the ALJ was justified in relying on their
opinions. “When no doctor’s opinion indicates greater limitations than those found by the ALJ,
there is no error.” Dudley v. Berryhill, 773 F. App’x 838, 843 (7th Cir. 2019) (citing Rice v.
Barnhart, 384 F.3d 363, 370 (7th Cir. 2004)).
Next, Plaintiff argues the ALJ should have imposed greater restrictions on Plaintiff’s
handling and gripping. At step two, the ALJ found Plaintiff’s left cubital tunnel syndrome and
carpal tunnel syndrome to be severe impairments. (AR 17). At step three, she discussed the
corresponding medical evidence, noting that Plaintiff underwent surgery to his left arm and wrist
in May 2016, after the date last insured of December 31, 2014. (AR 22). Medical records prior to

the date last insured were sparse and indicated mild findings and conservative treatment to his left
arm and wrist. (Id. citing AR 838, 874, 910). Based on this record, and particularly the absence of
records showing severe limitations during the time Plaintiff was insured, she found Plaintiff’s
impairments could be accommodated by a limitation to “frequent” handling and fingering with his
non-dominant arm4. Id. This was again more restrictive than any of the doctors recommended, in

3 “Light” work “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing
up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do
substantially all of these activities.” 20 C.F.R. § 404.1567(b).

4 The Court infers that the “non-dominant arm” refers to Plaintiff’s left arm, the arm that required surgery.
part because the examining doctors’ opinions had been issued before Plaintiff had his surgery. (See
AR 23, 293, 308).
Plaintiff argues that the RFC limitations were inadequate, but he cites to no evidence that
the ALJ failed to consider.5 While Plaintiff believes the ALJ should have given more significance

to the surgery after the period of insurance, that alone is not a basis for remand, because the ALJ
considered that evidence and explained why she did not see it that way. See Eichstadt v. Astrue,
534 F.3d 663, 667 (7th Cir. 2008) (an ALJ must consider post-dated evidence, but should weigh
its relevance to the period at issue). The ALJ built a logical bridge from the limited records
regarding Plaintiff’s gripping and handling prior to the date last insured, to a conclusion that
comported with the evidence from that period and remains uncontroverted by any medical opinion
in the record. Knox v. Astrue, 327 F. App’x 652, 657-58 (7th Cir. 2009). The Court will not re-
weigh the evidence or substitute its own judgment. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003).
B. Step 5 Analysis

Plaintiff also takes issue with the ALJ’s findings at step five. Specifically, he argues that
the methodology used by the vocational expert to estimate the number of jobs available to Plaintiff
was flawed; that the expert misidentified some of the jobs that were supposedly available to
Plaintiff; and that the total estimated number of jobs available (120,000) was not “significant.”
The Court addresses only the methodology argument because that issue compels remand.
At step five, if an individual is to be found not disabled, the ALJ must demonstrate that
there are a significant number of jobs in the national economy the claimant can perform. 20 C.F.R.

5 In support of this argument, Plaintiff cited to two pages in the administrative record. Pl. Br. at 13 (citing AR 314,
357). Both pages discuss the pre-operation and post-operation procedures for his 2016 surgery. The ALJ discussed
this surgery (AR 22), and Plaintiff does not describe how these pages support greater limitations than the RFC.
§ 416.960(c); Chavez v. Berryhill, 895 F.3d 962, 964 (7th Cir. 2018). The ALJ must support the
step five conclusion with “substantial evidence,” meaning “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019). The testimony of a vocational expert (“VE”) can count as substantial evidence, based on

factors such as the expert’s credentials, qualifications, and experience, and the content and clarity
of the testimony. Id. The ALJ is entitled to rely on a VE’s testimony unless the claimant objects to
it at the hearing. Mitchell v. Kijakazi, No. 20-2897, 2021 WL 3086194, at *3 (7th Cir. July 22,
2021); Coyier v. Saul, 860 F. App’x 426, 428 (7th Cir. 2021). A claimant objecting to the VE’s
estimate of jobs in the national economy must make a specific objection and “develop an argument
or question the VE [ . . . ] about [the] methodology.” Coyier, 860 F. App’x at 428. If an appropriate
objection is made, the substantial evidence threshold requires the ALJ to “ensure that the
approximation is the product of a reliable method.” Brace v. Saul, 970 F.3d 818, 821 (7th Cir.
2020) (quoting Chavez, 895 F.3d at 968). This inquiry is made on a case-by-case basis, weighing
whatever “markers of reliability” appear in the record to determine whether the testimony qualifies

as substantial evidence. Biestek, 139 S. Ct. at 1157.
This case reflects an ongoing discussion among courts in the Seventh Circuit about how
availability of jobs is estimated. ALJs and VEs typically refer to specific jobs by the names and
numbers identified in the Dictionary of Occupational Titles (“DOT”), published by the Department
of Labor. For example, within Standard Occupational Classification (“SOC”) code 313 (“Chefs
and Cooks, Hotels and Restaurants”), there are 25 different occupations with unique DOT codes
(e.g., 313.381-010 (“BAKER”); 313.381-014 (“PIZZA BAKER”); 313.381-018 (“PASTRY
COOK APPRENTICE”)).6 The DOT describes job duties and requirements but does not indicate

6 See https://occupationalinfo.org/defset5_2413.html (last visited January 18, 2022).
the prevalence of those jobs within the national economy. A separate publication, the Department
of Labor’s compilation of Occupational Employment Statistics7, provides estimates about the
prevalence of certain jobs, but classifies jobs more broadly than the DOT code. The upshot is that
VEs often must estimate how many specific positions are available based on estimates of broader

categories. See Chavez, 895 F.3d at 965-66.
Two methods of estimation have attracted particular attention within Seventh Circuit case
law. One is the “equal distribution” method, which assumes that if there are a certain number of
jobs within a particular SOC category, those jobs are spread equally among the various DOT jobs
that make up that category. The Seventh Circuit has criticized this approach:
[I]t does not take much knowledge of job markets to know that, while certain jobs
may exist in large numbers (for example, a “pizza baker,” DOT 313.381-014, who
“prepares and bakes pizza pies”), others clearly do not (such as a “chef de froid,”
DOT 313.281-010, who designs “artistic food arrangements for buffets in formal
restaurants” including “mold[ing] butter into artistic forms”). Or, by way of a
second example, take “Cashiers and Tellers” [. . .] Of the 28 positions included in
that group, six exist only in the racing industry, with five of those six existing only
at horse-racing tracks. It seems unlikely that over 20% of all cashier and teller jobs
in today’s economy are at racetracks.
Id. at 966 (citation omitted) (listing cases). However, the Seventh Circuit has not conclusively
rejected the approach as unreliable. Coyier, 860 F. App’x at 428 (7th Cir. 2021) (holding that
Chavez “did not enjoin the use of the equal-distribution method”). VEs have also used a statistical
database, Job Browser Pro (also known as “SkillTRAN,” the name of the company that produces
it), which estimates employment numbers and “[cross-references] to all major national
occupational coding systems.”8 Although SkillTRAN appears to be a commonly used database,
the ALJ must still elicit “substantial evidence” showing that the way the VE used the program was
reliable. See Dawn L. C. v. Comm’r of Soc. Sec., No. 3:20-CV-00626-GCS, 2021 WL 4488421, at

7 See https://www.bls.gov/oes/tables.htm (last visited January 18, 2022).
8 See https://skilltran.com/index.php/products/pc-based-solutions/job-browser-pro (last visited January 18, 2022).
*6-7 (S.D. Ill. Sept. 24, 2021) (compiling numerous cases discussing vocational experts’ use of
SkillTRAN). The VE does not have to “reveal the precise mechanics and statistical model
involved,” Bruno v. Saul, 817 F. App’x 238, 243 (7th Cir. 2020), but must “provide some modicum
of confidence in its reliability.” Brace v. Saul, 970 F.3d 818, 822 (7th Cir. 2020).

In this case, the VE identified three examples of jobs that Plaintiff could do considering his
RFC: Polishing Machine Operator (29,000 jobs in the national economy), Sorting Machine
Operator (22,000 jobs), and Wire Insulator (16,500 jobs). (AR 53-54). The VE estimated that there
were 120,000 jobs, in total, that Plaintiff could perform in the national economy. Id. Questioned
by Plaintiff’s counsel and the ALJ regarding the methodology he used, the VE testified as follows:
[Plaintiff’s counsel]: All right, and what methodology do you use to get from the
Bureau of Labor Statistic numbers to the national numbers for job classifications?
[VE]: Well, two main statistical sources I use are SkillTRAN, Job Browser Pro, as
well as United Statistical Publishing. There is no source that collects job incidence
numbers directly by DOT code, so basically it’s just an estimate of the number of
DOT codes from occupational information gathered for a larger code.
P: Okay, so they don’t use any certain mathematical equation or equal distribution
that you know of?
VE: Well, it’s going to -- it varies some depending on the number of DOT codes
within the, you know, SOC code or census code. But in general it is, you know,
simply looking at the -- well, the way they collect the information is simply looking
at the numbers and dividing it by the number of DOT codes.
P: Okay, but that’s done by those applications, not, you don’t have to do any of that
yourself.
VE: Well, I make some adjustment to the numbers, sure, based on, you know,
looking at -- like for example, you know, DOT codes within a specific larger code,
I mean, there might be jobs that, you know, I think like don’t exist, for example,
like, you know, Microfilm Document Preparer. Not that there are none, but there
certainly aren’t as many as they were, you know, 10 or 20 years ago.
P: Sure. Do you have a certain mathematical equation that you use to apply in those
situations?
VE: Not a certain general one, no.
. . .
[ALJ]: Do other vocational experts use those two, Skill Browser and United
Statistical Publication?
VE: They do, yes, the same sources I cite.
(AR 58-59). Plaintiff objected to the VE’s testimony, arguing that in effect, the VE used the equal
distribution method, and therefore the estimate was not reliable.9 The ALJ overruled the objection,
finding that the VE’s “job information” was reliable based on his experience, professional
knowledge, and reliance on recognized sources.10 (See AR 25-26). Plaintiff now repeats the same
argument here. The Commissioner responds that the equal distribution method has not been fully
rejected by the Seventh Circuit, that the VE did not use the method because SkillTRAN does not
rely on that approach, and that many courts have approved VE estimates that relied on SkillTRAN.
Although the Commissioner asserts that SkillTRAN does not rely on the equal distribution

method11, the VE seemed to suggest that it did, or that he was unaware whether it did. (AR 59
(“But in general it is, you know, simply looking at the -- well, the way they collect the information
is simply looking at the numbers and dividing it by the number of DOT codes.”) (emphasis added)).
In a recent case in this district, the court observed that U.S. Publishing, the other source mentioned
in the VE’s testimony, likely uses equal distribution for its estimates. See Jones v. Saul, No. 1:19-
CV-494-PPS, 2021 WL 100357, at *3 (N.D. Ind. Jan. 12, 2021). The VE did not explain this point

9 At the hearing, Plaintiff specifically based his objection on Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015), in which
the Seventh Circuit described the equal distribution method as “preposterous” and any estimate relying on it as “likely
to be a fabrication.” Id. at 508. Plaintiff appeared to assume, based on the VE’s testimony, that the equal distribution
method was used. See (AR 58-59). The Court’s basis for remand is not premised on that assumption. Nonetheless,
remand is appropriate because the objection itself triggered the ALJ’s broader obligation to “ensure that the
approximation is the product of a reliable method.” See Brace, 970 F.3d at 821-23.

10 For example, the ALJ found that the VE properly relied on “job information available from various governmental
and other publications.” (AR 26). The ALJ’s reasons will be discussed more fully below.

11 Resp. Br. at 12-13, citing Chavez, 895 F.3d at 966 (describing SkillTRAN as an example of the “occupational
density method,” distinct from equal distribution)); see also Dawn L. C., 2021 WL 4488421, at *6.
any further, so it remains unclear what method was used. And while the VE suggested that he
tweaks the final numbers because there “might be” jobs that are now obsolete, it is unclear if any
such adjustments were made in Plaintiff’s case.12 Instead, it appears that the ALJ and VE assumed
any method based on SkillTRAN would be self-evidently reliable – that is, the “agency [took] a

‘trust me’ approach rather than – as required by the statute and regulations – carrying its burden”
to show the method was reliable. Jones, 2021 WL 100357, at *3 (quoting Brace, 970 F.3d at 823).
The Commissioner notes that courts have repeatedly “upheld a VE’s reliance on
SkillTRAN software.” (Resp. Br. at 12). But this misstates the ALJ’s burden: “[T]he issue here is
not whether SkillTRAN is reliable as a matter of law, but rather whether the VE’s testimony in
this case, drawing in part on the SkillTRAN data, was sufficient to sustain the agency’s step five
burden.” Dunn v. Kijakazi, No. 20-C-1113, 2021 WL 5105169, at *12-14 (E.D. Wis. Sept. 24,
2021). Certainly, a VE’s use of SkillTRAN can contribute to a finding of substantial evidence
when supported by a clear explanation, which does not have to be a statistical treatise. See, e.g.,
Bruno, 817 F. App’x at 243 (“Although the VE’s description did not reveal the precise mechanics

and statistical model involved [with SkillTRAN], it nevertheless constitutes a ‘reasoned and
principled explanation.’”); Khuzaie v. Comm’r of Soc. Sec., No. 1:14-CV-00199-SLC, 2016 WL
1253537, at *11-15 (N.D. Ind. Mar. 30, 2016).
But in a case like this, when the explanation is unclear and leaves doubt about the method
used, the mere fact that SkillTRAN was used is not itself substantial evidence of reliability. See,
e.g., Hood v. Saul, No. 1:19-CV-370-TLS, 2021 WL 5002717, at *4 (N.D. Ind. Oct. 28, 2021)

12 The ALJ downplayed the importance of the estimates for each of the three jobs, because they were merely
representative jobs among the pool of potential jobs available. (AR 26). But the VE testified that there would be “about
120,000 total” jobs in the national economy for Plaintiff, and the three selected jobs accounted for 67,500 of those
jobs. (AR 53-54). It appears that the reliability of estimates for the individual jobs could have a significant influence
on the total number of jobs.
(“Stating that SkillTRAN ‘looks at the percentages’ does not ‘cogently and thoroughly’ explain
the methodology of how the job number estimates were obtained.”); Maples v. Saul, No. 1:20-CV-
157-PPS, 2021 WL 1291766, at *4-6 (N.D. Ind. Apr. 7, 2021); Jones, 2021 WL 100357, at *3;
Westendorf v. Saul, No. 19-CV-1019-JDP, 2020 WL 4381991, at *3-4 (W.D. Wis. July 31, 2020)

(“Job Browser Pro might be a useful tool, but the VE needs to be able to explain how Job Browser
Pro makes its job number estimates, how she used the software to generate her own estimates, and
why she believes those estimates are reliable.”).
The Court does not necessarily accept Plaintiff’s argument that the equal distribution
method, and any variations of it, are irredeemably flawed. Rather, the problem here is that the
VE’s testimony was “neither cogent nor thorough,” and the method he used remains unclear;
therefore, there is not substantial evidence that the estimate was reliable. Brace, 970 F.3d at 822
(“The very existence of this debate [over the method used] confirms our conclusion that the VE’s
testimony does not satisfy the substantial-evidence standard.”). With due recognition of the efforts
of the ALJ and VE, this requires remand.

C. Request for Award of Benefits
Plaintiff requests that the Court reverse and remand for an award of benefits or, in the
alternative, for a new hearing. “Courts have the statutory power to affirm, reverse, or modify the
Social Security Administration’s decision, with or without remanding the case for further
proceedings.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011) (citing 42 U.S.C. § 405(g)).
Nonetheless, “[a]n award of benefits is appropriate . . . only if all factual issues involved in the
entitlement determination have been resolved and the resulting record supports only one
conclusion—that the applicant qualifies for disability benefits.” Id. at 415. Since the basis for
remand does not make clear that Plaintiff is disabled, an award of benefits would not be
appropriate.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS the alternative relief sought in

Plaintiff’s Opening Brief [DE 24], REVERSES the final decision of the Commissioner of Social
Security, and REMANDS this matter for further proceedings consistent with this Opinion and
Order. The Court DIRECTS the Clerk of Court to ENTER JUDGMENT in favor of Plaintiff and
against Defendant.
So ORDERED this 19th day of January, 2022.

s/ Joshua P. Kolar
MAGISTRATE JUDGE JOSHUA P. KOLAR
UNITED STATES DISTRICT COURT

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10162075. Public record. Not legal advice.