Albright v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

DARRYL DEAN ALBRIGHT, )

Plaintiff, )

)

v. ) CAUSE NO.: 1:20-CV-438-JPK

)

KILOLO KIJAKAZI, Acting Commissioner of )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Darryl Dean

Albright, and Plaintiff’s Opening Brief [DE 20]. Plaintiff requests that the decision of the

Administrative Law Judge denying his claim for disability insurance benefits be reversed and

remanded for further administrative proceedings. For the following reasons, the Court grants

Plaintiff’s request.

PROCEDURAL BACKGROUND

On April 8, 2019, Plaintiff filed an application for disability insurance benefits, alleging

disability as of September 14, 2017. The application was denied initially and on reconsideration.

Plaintiff requested a hearing, which was held before an Administrative Law Judge (ALJ) on April

8, 2020. On May 12, 2020, 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, 2018.

2. The claimant did not engage in substantial gainful activity during the period

from his alleged onset date of March 21, 2018 through his date last insured of

December 31, 2018.

3. Through the date last insured, the claimant had the following severe

impairments: peripheral vestibulopathy, chronic obstructive pulmonary disease

(COPD), fibromyalgia, degenerative disc disease of the lumbar and cervical spine,

migraine, coronary artery disease status post myocardial infarction and coronary

artery bypass grafting and stenting, ischemic cardiomyopathy, hypertension,

obesity, history of right humeral head and right patellar fracture, anxiety,

depression, and posttraumatic stress disorder (PTSD).

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 he could have

occasionally used foot controls. He could have never climbed ladders, ropes, or

scaffolds, but could have occasionally climbed ramps and stairs, balanced, stooped,

kneeled, crouched, and crawled. He could have frequently reached with the

dominant right upper extremity in front and/or laterally and occasionally reached

overhead with the dominant right upper extremity. He must have avoided

concentrated exposure to fumes, odors, dust, gases, and poor ventilation. He must

have avoided unprotected heights, moving mechanical parts, and operating a motor

vehicle. He could not work in a very loud environment. The claimant could have

performed work requiring simple instructions and routine, repetitive tasks. He

could not have performed work requiring a specific production rate, such as

assembly-line work. He could have made only simple work-related decisions. He

could have maintained attention and concentration for two-hour segments. He

could have responded appropriately to predictable, routine changes in the

workplace. He could have had frequent interaction with supervisors apart from

what was necessary for general instruction, task completion or training. He could

have had frequent interaction with coworkers and the general public.

6. Through the date last insured, the claimant was unable to perform any past

relevant work.

7. The claimant was born [in 1969] and was 49 years old, which is defined as

a younger individual age 45-49, on the date last insured.

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 was not under a disability, as defined in the Social Security

Act, at any time from March 21, 2018, the alleged onset date, through December

31, 2018, the date last insured.

(AR 17-291).

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 the ALJ’s finding at step five was not supported by substantial

evidence, because the VE did not identify a significant number of jobs available to Plaintiff in the

national economy, and the methodology used to estimate the number of jobs available was flawed.

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.

§ 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.

A. Significant Number of Jobs

Plaintiff first argues that the VE did not identify a “significant number of jobs” in the

national economy that he could perform. 20 C.F.R. § 416.960(c). The VE identified three

representative jobs that Plaintiff could do considering his RFC: Information Clerk (an estimated

15,000 jobs in the national economy), Document Copier Preparer (45,000 jobs), and Charge

Account Clerk (14,700 jobs). (AR 67). The VE’s testimony emphasized that these were examples

within a “category” of unskilled, sedentary jobs that Plaintiff could perform. (Id.). The ALJ

accordingly found that significant jobs existed in the national economy that Plaintiff could

perform. (AR 28).

Although his counsel did not make this specific objection at the hearing, Plaintiff now

argues that the total number of jobs identified by the VE (74,700, counting all three sample jobs),

was not a significant number. The Seventh Circuit Court of Appeals has not clearly defined what

counts as a significant number of jobs. In Primm v. Saul, 789 F. App’x 539 (7th Cir. 2019), the

Seventh Circuit held that 110,000 jobs nationally was “enough to support the ALJ’s finding,”

quoting a previous holding that “1,000 jobs is a significant number.” 789 F. App’x at 546 (quoting

Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009)). Drawing on the same line of cases, the

Seventh Circuit has held that 55,000 jobs “is a significant number of jobs in the national economy.”

Collins v. Berryhill, 743 F. App’x 21, 25 (7th Cir. 2018) (citing Brown v. Colvin, 845 F.3d 247,

255 (7th Cir. 2016), which in turn relies on Liskowitz). But the underlying statement that “1,000

jobs is a significant number” was made in the context of a regional economy, namely “the

Milwaukee area.” See Liskowitz, 559 F.3d at 743. Several courts have reasoned that because Primm

and Collins are based on a holding about regional significance, the numbers in those cases do not

determine a precise threshold for significance in the national economy. See Milhem v. Kijakazi,

No. 1:20-CV-488-SLC, 2022 WL 263444, at *3 (N.D. Ind. Jan. 28, 2022) (discussing the

“vulnerabilities” of Primm and Collins). At least two courts in this district have declined to rely

on Primm and Collins for that reason. See James A. v. Saul, 471 F. Supp. 3d 856, 860 (N.D. Ind.

2020) (finding that 14,500 jobs was not significant and reliance on Primm for argument to the

contrary was “suspect”); Sally S. v. Berryhill, No. 2:18-CV-460, 2019 WL 3335033, *11-12 (N.D.

Ind. July 23, 2019) (finding that 120,350 jobs was not a significant number, and that cases

involving regional numbers were unpersuasive in assessing significance in the national economy).

Notwithstanding this ambiguity, it appears to the Court that the holding in Collins – that

“55,000 . . . is a significant number of jobs in the national economy” – is the clearest expression

of the Seventh Circuit’s view on this question. 743 F. App’x at 25. The Court is persuaded that the

larger number presented in this case, 74,700, is also a significant number of jobs. In addition, the

weight of case law, even among courts acknowledging the “vulnerabilities” in Primm and Collins,

supports a conclusion that 74,700 jobs in the national economy is significant.2

2 See, e.g., Zych v. Comm’r of Soc. Sec., No. 1:20-CV-00414-SLC, 2021 WL 5319880, at *4-5 (N.D. Ind. Nov. 16,

2021) (acknowledging issues with Primm and Collins, but finding that 41,000 jobs was significant and citing numerous

cases in which lower estimates were found significant); Engel v. Kijakazi, No. 20-CV-1206-SCD, 2021 WL 4843871,

at *11-12 (E.D. Wis. Oct. 18, 2021) (finding that 23,000 jobs was significant and citing numerous cases in which

lower estimates were found significant); Knapp v. Saul, No. 1:20-CV-00011-PPS-SLC, 2021 WL 536121, at *5 (N.D.

Plaintiff does not point to any special circumstances in this case that would suggest a

different conclusion. The 74,700 jobs were only examples of clerical jobs the VE thought Plaintiff

could do. If Plaintiff could do those jobs, there would almost certainly be others available. See

Engel v. Kijakazi, No. 20-CV-1206-SCD, 2021 WL 4843871, at *12 (E.D. Wis. Oct. 18, 2021)

(finding that 23,000 jobs was significant, noting that “those jobs are merely representative of the

types of jobs someone with [the claimant’s] limitations could perform”). As the ALJ observed,

these kinds of jobs are not “isolated” to a particular part of the country (AR 28 citing 20 C.F.R. §

404.1566), so there is no apparent reason why these jobs and similar jobs would not be available

to Plaintiff. See Angela L. v. Saul, No. 1:20-CV-00481-SEB-DML, 2021 WL 2843207, at *6 (S.D.

Ind. July 7, 2021) (finding that 53,200 jobs was significant: “We can take judicial notice of the

fact that an office machine operator or photocopying machine operator is the type of clerical

occupation that is likely well-dispersed throughout several regions throughout the nation.”). The

Court finds that notwithstanding Plaintiff’s objection about the reliability of the estimate (see

infra), 74,700 is a significant number of jobs available to Plaintiff in the national economy, and

there is no reversible error on that basis.

B. Reliability of Estimate

Next, Plaintiff objects to the estimate on the basis that the VE failed to provide enough

evidence that the method he used was reliable. By way of background, ALJs and VEs often 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

Ind. Jan. 27, 2021), report and recommendation adopted, No. 1:20-CV-11-PPS-SLC, 2021 WL 536483 (N.D. Ind.

Feb. 12, 2021) (67,500 jobs was significant); Joseph M. v. Saul, No. 18 C 5182, 2019 WL 6918281, at *17 (N.D. Ill.

Dec. 19, 2019) (40,000 jobs was significant) (citing Primm).

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”)).3 The DOT describes job

duties and requirements but does not indicate the prevalence of those jobs within the national

economy. A separate publication, the Department of Labor’s compilation of Occupational

Employment Statistics4, 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

3 See https://occupationalinfo.org/defset5_2413.html (last visited March 4, 2022).

4 See https://www.bls.gov/oes/tables.htm (last visited March 4, 2022).

occupational coding systems.”5 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

*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).

At the hearing, the ALJ elicited testimony from the VE regarding the VE’s qualifications

and familiarity with the case. (AR 64-66). The ALJ asked if Plaintiff’s counsel6 had any

“objections to the vocational expert” based on those qualifications, and counsel replied that there

were no such objections. (AR 66). The ALJ then identified the three representative clerical jobs

and corresponding estimates of the number of those jobs in the national economy. (AR 67).

Questioned by Plaintiff’s counsel regarding the methodology used to generate the estimates, the

VE testified as follows:

[Plaintiff’s counsel]: And what methodology do you use to get from Bureau of

Labor statistic numbers to the national numbers for job classification?

[VE]: I use SkillTRAN.

P: Do you know [if they use] equal distribution or what mathematical equation that

they use?

VE: No, I [. . .] don’t know anything more than what you can look up online as far

as how they calculate and then as far as how we do it, we go in by the DOT number

and then look at the different industry codes where the jobs would exist there for

that particular job title and that’s how we come up with the numbers.

5 See https://skilltran.com/index.php/products/pc-based-solutions/job-browser-pro (last visited March 4, 2022).

6 Plaintiff’s attorney before this Court was not the attorney representing him at the administrative hearing.

P: Okay, thank you. . . . Judge, I would just object to the step five numbers based

on the reasoning outlined in the Alvarez7 [] case.

(AR 71). The VE further testified that SkillTRAN is “accepted by other vocational experts.” (Id.).

In the written decision, the ALJ addressed the objection as follows:

The claimant’s representative objected to these job numbers on the ground that the

vocational expert’s methodology for determining numbers of jobs is not reliable.

The undersigned overrules this objection. The vocational expert has professional

knowledge and experience in job placement. The vocational expert also explained

his methodology during the hearing regarding how he acquires job numbers,

including his use of SkillTRAN, which he testified is an acceptable source within

the vocational arena. He also testified that he relied on his knowledge, experiencing

[sic], and training as a vocational expert, which the representative acknowledged

as acceptable based on her failure to object to the vocational expert’s qualifications.

Moreover, there is nothing in the Regulations that require a specific methodology

be used. . . . The undersigned notes that the number of jobs cited by the vocational

expert is an estimate based on reliable information from various sources, including

the DOT, of which the undersigned takes administrative notice. Accordingly, the

vocational expert’s job information is found to be reliable.

(AR 28 (citations omitted)). In briefing before this Court, Plaintiff objects that the VE’s estimate

was either “pulled out of thin air,” or, if there was a formula, the VE’s inability to describe it

prevents meaningful judicial review. Pl. Br. 16-20 [DE 20].

The Commissioner responds that the VE provided a sufficient explanation of the method

used, and that many courts have approved VE estimates that relied on SkillTRAN. Resp. Br. 8-10

[DE 21]. The Commissioner also asserts that SkillTRAN itself does not rely on the equal

distribution method8, and Plaintiff has not disputed that point. Plaintiff’s objection at the hearing

based on Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015), was not exactly on point, because that

7 Plaintiff indicates that this remark was wrongly transcribed, and that counsel was referring to Alaura v. Colvin, 797

F.3d 503 (7th Cir. 2015). The Commissioner does not dispute that characterization, and therefore the Court assumes

that Plaintiff’s counsel based the objection on Alaura.

8 Resp. Br. 9 n. 6 [DE 21], 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.

opinion mostly concerned the equal distribution method. See id. at 507-08. Nonetheless, the

objection triggered the ALJ’s obligation to “ensure that the approximation is the product of a

reliable method.” See Brace, 970 F.3d at 821-23 (remanding where VE testimony did not clearly

establish the method used, and counsel objected based on Alaura). On this point, the ALJ’s

findings were not supported by substantial evidence, and the case must be remanded.

The VE testified that she “did not know anything more than what you can look up online”

about SkillTRAN’s methodology. (AR 71). It is not clear whether the VE understood the

methodology and preferred to direct counsel to a more detailed explanation, or whether the VE

believed it was not necessary to understand the methodology because it was available online.

Regardless, it is not clear what online sources the VE was referring to, and they were not entered

into evidence, so ultimately there was no real explanation9 in the record. Jones, 2021 WL 100357,

at *3 (remanding where the VE alluded to a report that addressed the VE’s methodology but “it

appears that neither the ALJ nor [the claimant] had access” to the report). This does not satisfy the

substantial evidence standard. See Ruenger v. Kijakazi, 2022 WL 134748 at *3 (7th Cir. Jan. 14,

2022) (“Although the ALJ asked her to describe her methodology, substantial evidence requires

more. The ALJ must ‘hold the [vocational expert] to account for the reliability of her job-number

estimates.’”) (quoting Chavez, 895 F.3d at 970). It appears that the VE and the ALJ assumed any

method based on SkillTRAN was 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).

9 The VE also stated that “we go in by the DOT number and then look at the different industry codes where the jobs

would exist there for that particular job title and that’s how we come up with the numbers.” (AR 71). This does not

help to explain the VE’s method, except to emphasize the previously accepted point that the VE uses numbers that

SkillTRAN generates. Courts have rejected these kinds of explanations as inadequate. See, e.g., Brace, 970 F.3d at

822 (VE’s vague and “unilluminating” testimony did not meet the substantial evidence standard); Hood v. Saul, No.

1:19-CV-370-TLS, 2021 WL 5002717, at *4 (N.D. Ind. Oct. 28, 2021).

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)

(“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.”).

It is understandable that ALJs, faced with a dispute about methodologies for vocational

estimates, may defer to an expert in that field. However, this must be balanced against a claimant’s

right to understand the basis for the decision, and if appropriate, to meaningfully challenge it.

Recent Seventh Circuit case law has made clear that if there is an objection, VEs must give a

cogent explanation of what they are doing; the fact that a VE is an expert and uses “recognized

sources” is not itself substantial evidence of a reliable method. As described by Judge Scudder:

[N]obody can explain with coherence or confidence what the VE did to arrive at

her job-numbers estimate. To my eye, the VE’s testimony seemed rushed and rote,

as if she expected certain questions and gave hurried and mechanical answers,

without taking care—even in response to repeated objection—to explain what she

did to arrive at the job-numbers estimate or why that method was reliable . . . Faced

with a transcript like this one, attempting to conduct judicial review is an exercise

in futility. That is why we have concluded that substantial evidence did not support

the ALJ’s denial of benefits . . .

At the very least, the record would benefit from everyone slowing down when VEs

take the stand. A disability determination may well mark the difference between

income and no income for the claimant. With so much at stake in these proceedings,

it is essential that a reviewing court be able to decipher the evidentiary record.

Ruenger, 2022 WL 134748 at *4-5 (Jan. 14, 2022) (Scudder, J., concurring).

In this case, the VE’s testimony was “neither cogent nor thorough,” and the method used

remains unclear; therefore, there is not substantial evidence that the estimate was reliable. Brace,

970 F.3d at 822. With due recognition of the efforts of the ALJ and VE, this requires remand.

CONCLUSION

Based on the foregoing, the Court hereby GRANTS the relief sought in Plaintiff’s Opening

Brief [DE 20], 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 4th day of March, 2022.

s/ Joshua P. Kolar

MAGISTRATE JUDGE JOSHUA P. KOLAR

UNITED STATES DISTRICT COURT