Johnson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

KARLA J.1 , )

)

Plaintiff, )

)

v. ) CASE NO. 3:20-CV-1051-MGG

)

KILOLO KIJAKAZI2, Acting )

Commissioner of the Social Security )

Administration, )

)

Defendant.

OPINION AND ORDER

Plaintiff Karla J. (“Ms. J.”) seeks judicial review of the Social Security

Commissioner’s decision denying Ms. J.’s application for Disability Insurance Benefits

(“DIB”) and Supplemental Security Income (“SSI”) under Title II and Title XVI of the

Social Security Act (“Act”). This Court may enter a ruling in this matter based on the

parties’ consent pursuant to 28 U.S.C. § 636(c)(1) and 42 U.S.C. § 405(g). [See DE 7]. For

the reasons discussed below, the Court REMANDS the Commissioner’s decision.

I. OVERVIEW OF THE CASE

Ms. J. filed an application for DIB and SSI on August 8, 2018, alleging a disability

onset date of February 1, 2016. Ms. J.’s application was denied both initially on

February 27, 2019, and upon reconsideration on June 4, 2019. Following a hearing on

1 To protect privacy interests, and consistent with the recommendation of the Judicial Conference, the

Court refers to the plaintiff by first name and last initial only.

2 Kilolo Kijakazi is now the Acting Commissioner of Social Security and is automatically substituted as a

party pursuant to Fed. R. Civ. P. 25(d).

March 10, 2020, an Administrative Law Judge (“ALJ”) issued a decision on March 27,

2020, which affirmed the Social Security Administration’s denial of benefits. The ALJ’s

decision became the final decision of the Commissioner when the Appeals Counsel

declined review on October 26, 2020. [DE 14 at 6]. See Fast v. Barnhart, 397 F.3d 468, 470

(7th Cir. 2005); 20 C.F.R. §§ 404.981, 416.1481.

Ms. J. timely sought judicial review of the Commissioner’s decision on October

28, 2020. Ms. J. filed her opening brief on November 1, 2021, and the Commissioner filed

her Memorandum in Support of Decision on December 9, 2021. This matter became ripe

on December 23, 2021, when Ms. J. filed her reply brief.

II. APPLICABLE STANDARDS

A. Disability Standard

To qualify for DIB, a claimant must be “disabled” as defined under the Act. A

person is disabled under the Act if “he or she has an inability to engage in any

substantial gainful activity [“SGA”] by reason of a medically determinable physical or

mental impairment which can be expected to last for a continuous period of not less

than twelve months.” 42 U.S.C. § 423(d)(1)(A). Substantial gainful activity is defined as

work activity that involves significant physical or mental activities done for pay or

profit. 20 C.F.R. § 404.1572.

The Commissioner’s five-step sequential inquiry in evaluating claims for DIB

and SSI under the Act includes determinations as to: (1) whether the claimant is

engaged in SGA; (2) whether the claimant’s impairments are severe; (3) whether any of

the claimant’s impairments, alone or in combination, meet or equal one of the Listings

in Appendix 1 to Subpart P of Part 404; (4) whether the claimant can perform his past

relevant work based upon his RFC; and, if not, (5) whether the claimant is capable of

performing other work. 20 C.F.R. §§ 404.1520; 416.9203. The claimant bears the burden

of proof at every step except Step Five, where the burden of proof shifts to the

Commissioner. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000), as amended (Dec. 13,

2000).

B. Standard of Review

This Court has authority to review a disability decision by the Commissioner

pursuant to 42 U.S.C. § 405(g). However, this Court’s role in reviewing social security

cases is limited. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The question on judicial

review is not whether the claimant is disabled; rather, the Court considers whether the

ALJ used “the correct legal standards and [whether] the decision is supported by

substantial evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2007).

The Court must uphold the ALJ’s decision so long as it is supported by

substantial evidence. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014) (citing Simila v.

Astrue, 573 F.3d 503, 513 (7th Cir. 2009)). Substantial evidence must be “more than a

scintilla but may be less than a preponderance.” Skinner v. Astrue, 478 F.3d 836, 841 (7th

Cir. 2007). Substantial evidence has also been understood as “such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

Perales, 402 U.S. 389, 401 (1971); see also Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir.

3 Regulations governing applications for DIB and SSI are nearly identical and are found at 20 C.F.R. § 404

and 20 C.F.R. § 416, respectively. Going forward, this Opinion and Order will only refer to 20 C.F.R. § 404

unless explicit distinction between the DIB and SSI regulations is necessary.

2017). The Supreme Court has also noted that “substantial evidence” is a term of art in

administrative law, and that “whatever the meaning of ‘substantial’ in other contexts,

the threshold for such evidentiary sufficiency is not high” in social security appeals.

Biesek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). The Court reviews the entire

administrative record to determine whether substantial evidence exists, but it may not

reconsider facts, reweigh the evidence, resolve conflicts of evidence, decide questions of

credibility, or substitute its judgment for that of the ALJ. Young v. Barnhart, 362 F.3d 995,

1001 (7th Cir. 2004).

On the other hand, an ALJ’s decision cannot stand if it lacks evidentiary support

or inadequately discusses the issues. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003).

At a minimum, the ALJ must articulate her analysis of the record to allow the reviewing

court to trace the path of her reasoning and to be assured the ALJ has considered the

important evidence in the record. Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002). The

ALJ is not required to address every piece of evidence in the record so long as she

provides a glimpse into the reasoning behind his analysis to build the requisite “logical

bridge” from the evidence to his conclusions. Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.

2008). Building a logical bridge requires the ALJ to “confront the evidence in [the

plaintiff’s] favor and explain why it was rejected.” Thomas v. Colvin, 826 F.3d 953, 961

(7th Cir. 2016); Moore v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (citing Indoranto v.

Barnhart, 374 F.3d 470, 474 (7th Cir.2004)). Likewise, the ALJ cannot “cherry-pick” facts

from the record to support a finding of non-disability. Denton v. Astrue, 596 F.3d 419,

425 (7th Cir. 2010). Furthermore, an ALJ may not disregard a line of evidence that is

contrary to her findings. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001). If the ALJ

fails in her responsibility to build a logical bridge between the evidence and her

conclusions, the case must be remanded. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.

1996).

Where the ALJ’s decision is not supported by substantial evidence, remand is

typically the appropriate remedy. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 355 (7th

Cir. 2005). Conversely, "[a]n award of benefits is appropriate only where all factual

issues have been resolved and the 'record can yield but one supportable conclusion.'" Id.

(quoting Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)).

III. ANALYSIS

A. The ALJ’s Decision

Ms. J.’s hearing before an ALJ on her applications for DIB and SSI occurred on

March 10, 2020, in Valparaiso, Indiana. On March 27, 2020, the ALJ issued his written

decision finding that Ms. J. was not disabled, conducting the requisite five-step analysis

for evaluating claims for disability benefits. 20 C.F.R. §404.1520.

At Step One, an ALJ’s inquiry focuses on whether a claimant is engaging in

substantial gainful activity. Here, the ALJ determined that Ms. J. had not engaged in

substantial gainful activity since February 1, 2016. [DE 14 at 22].

At Step Two, an ALJ’s inquiry focuses on whether a claimant’s impairments are

severe. For an impairment to be considered severe, an impairment or combination of

impairments must significantly limit the claimant’s ability to perform basic work-

related activities. 20 C.F.R. § 404.1521. Here, the ALJ found that Ms. J. suffers from the

severe impairments of asthma, chronic obstructive pulmonary disease (“COPD”),

seizure disorder, obesity, degenerative disk disease of the lumbar spine, anxiety

disorder, depressive disorder, post-traumatic stress disorder (“PTSD”), and

schizoaffective disorder [Id.]. These impairments are considered “severe” because they

significantly limit Ms. J.’s ability to perform basic work activities [Id.]. See 20 C.F.R. §§

404.1520(c).

Conversely, an impairment is considered non-severe when the medical evidence

establishes only a slight abnormality or combination of slight abnormalities that would

have no more than a minimal effect on the claimant’s ability to perform basic work

functions. See, e.g., 20 C.F.R. § 404.1522; S.S.R. 85-28, 1985 WL 56856 (Jan. 1, 1985). Here,

the ALJ found that that Ms. J. had the following non-severe medically determinable

impairments: headaches, obstructive sleep apnea (“OSA”), and edema [Id. at 23].

At Step Three, the ALJ found that none of Ms. J.’s severe impairments, nor any

combination of her impairments, meet or medically equal the severity of one of the

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 [Id.]. Specifically, the

ALJ found that Ms. J. failed to meet the listing for disorder of the spine, chronic

respiratory disorders, asthma, or epilepsy [Id.]. In support of these findings, the ALJ

found that Ms. J.’s pulmonary function tests are not at listing level and that she did not

have the requisite amount of asthma exacerbations [Id.]. During her hospitalization in

September 2019, the records reflected that Ms. J. was not compliant with her prescribed

medication and continued to smoke [Id.].

Likewise, the ALJ found the severity of Ms. J.’s mental impairments did not meet

or equal the criteria under SSR 12.03, 12.04, 12.06, and 12.15 [Id. at 24]. However, in

analyzing the Part B criteria, the ALJ found that Ms. J.’s mental impairments cause

moderate limitations in understanding, remembering, and applying information,

moderate limitations in interacting with others, moderate limitations in concentrating,

persisting, or maintaining pace, and moderate limitations in adapting or managing

oneself [Id.]. The ALJ also found that Ms. J.’s mental impairments did not cause at least

two “marked” limitations or one “extreme” limitation, and that neither the “paragraph

B” nor the “paragraph C” were satisfied [Id.].

At the Step Four analysis, the ALJ considered Ms. J.’s residual functional capacity

(“RFC”). A claimant’s RFC includes limitations for all medically determinable

impairments, including non-severe impairments. 20 C.F.R. § 404.1545(a)(2). The RFC is

the most that the individual can do despite her limitations. 20 C.F.R. § 404.1545(a). To

determine a claimant’s RFC, the ALJ must consider the claimant’s symptoms, their

intensity, persistence, and limiting effects, and the consistency of these symptoms with

the objective medical evidence and other evidence in the record. 20 C.F.R. §

404.1545(a)(1). Physical exertion levels in an RFC are classified as either sedentary, light,

medium, heavy, or very heavy. 20 C.F.R. § 404.1567. Here, the ALJ found that Ms. J. has

the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and

416.967(a), with the following additional limitations:

[C]laimant can occasionally climb ramps and stairs; and occasionally

balance, stoop, kneel, crouch, and crawl…[and] can occasionally work in

extreme cold; extreme heat; humidity and wetness; and fumes, odors,

dust, and pulmonary irritants…[C]laimant can never climb ladders, ropes

or scaffolds…can never work at unprotected heights or around dangerous

machinery with moving mechanical parts…[and] can never operate a

motor vehicle as part of her work-related duties…[C]laimant is limited to

simple work-related decisions; and simple, routine tasks with no assembly

line work or strictly enforced daily production quotas…[C]laimant can

occasionally interact with the general public, coworkers, and

supervisors…[C]laimant must be allowed to shift positions between

sitting and standing for 1-2 minutes at a time after 60 minutes while

remaining on task…[C]laimant must use a portable oxygen tank.

[Id. at 25].

Ms. J. had prior work experience as a cashier, unskilled/light (DOT #211.462-

010) and as a stock clerk, semi-skilled/heavy (DOT #299.367-014). However, based on

the ALJ’s determination of her RFC, the ALJ found that Ms. J. was unable to perform

past relevant work as actually or general performed [Id.]. Accordingly, the ALJ moved

on to last step in the five-step sequential analysis.

At Step Five, while the burden of proof shifts to the Commissioner, the

Commissioner need only show that the claimant can perform some type of substantial

gainful work existing in the national economy in substantial numbers. 42 U.S.C.

§ 423(d)(2)(A). In this matter, the ALJ asked a vocational expert (“VE”) to testify

regarding which occupations, if any, Ms. J. can perform. See S.S.R. 83-12. Typically, VEs

use information from the Dictionary of Occupational Titles (“DOT”) to inform their

assessments of a claimant’s ability to perform certain types of work. S.S.R. 00-4p, 2000

WL 1898704, at *2 (Dec. 4, 2000). Here, the VE, using the DOT, identified three separate

jobs that Ms. J. could still perform—final assembler (DOT #713.687-018), eyewear

polisher (DOT #713.684-038), and addresser (DOT #209.587-010) —which, respectively,

have 8,280 jobs, 9,090 jobs, and 7,380 jobs in the national economy [Id. at 68]. The ALJ

inquired about what impact of Ms. J. having to wear an oxygen tank would have on the

total available jobs, and the VE replied that the available jobs would be reduced by ten

percent4 [Id. at 70]. As such, the VE testified that there was a total of 22,2755 jobs that

Ms. J. could perform in the national economy.

Concluding that Ms. J. could make an adjustment to other work that existed in

substantial numbers, the ALJ determined that Ms. J. was not under a disability, as

defined in the Act, from her alleged onset date through the date of ALJ’s decision on

May 13, 2020. [Id. at 29]. However, in his decision, the ALJ accepted the VE’s testimony

about the total number of jobs in the national economy – 24,750 – without mentioning

or accounting for the VE’s testimony about the reduced number of jobs available to a

person wearing an oxygen tank [Id. 13].

B. Issues for Review

In her opening brief, Ms. J. argued that remand is required because (1) the

vocational evidence does not meet the Commissioner’s burden at Step Five, and even if

the identified jobs existed as the VE testified, the numbers are too small to be

significant; (2) the ALJ failed to properly consider and explain certain medical opinion

evidence; and (3) the ALJ erred by failing to consider the updated pulmonary function

testing [DE 20 at 11-17].

4 The VE noted that his testimony about the impact of the oxygen tank was based on his 37 years of

experience and not on the DOT [DE 14 at 71].

5 Adding 8,280, 9,090, and 7,380 totals 24,750 jobs. Reducing that amount by ten percent would result in

22,275 available jobs in the national economy.

In the Commissioner’s Response of December 9, 2021, she contends that

substantial evidence in the record supports the ALJ’s decision [DE 21 at 3]. The

Commissioner asserts that the Court should affirm the ALJ’s determination that Ms. J.

could perform representative sedentary jobs that existed in significant numbers in the

national economy [Id.]. Likewise, the Commissioner contends that the ALJ properly

evaluated certain medical opinion evidence and its impact on Ms. J.’s RFC [Id.]. In her

reply, Ms. J. disagrees with the Commissioner’s analysis and requests that the Court

reverse the final agency decision and remand the matter for further proceedings [DE 22

at 3].

Finding that the ALJ did not cite substantial evidence in his step five

determination that Ms. J. could make a successful adjustment to other work that exists

in significant numbers in the national economy, remand is appropriate.

C. Discussion

Ms. J. contends that the record warrants remand because (1) the total number of

jobs available to Ms. J. based upon the ALJs RFC—24,750 nationally – does not

constitute a significant number of jobs to satisfy the Commissioner’s burden at Step

Five, (2) the ALJ failed to properly assess the medical opinion in accordance with the

prevailing rules and regulations; and (3) the ALJ failed to develop the record and obtain

the Plaintiff’s updated pulmonary function testing results [DE 20 at 2].

As an initial matter, Ms. J. contends that the vocational evidence relied upon by

the ALJ fails to show that Ms. J. can perform a significant number of jobs as a matter of

law. Here, the VE identified three occupations that Ms. J. could still perform based upon

her RFC— final assembler, eyewear polisher, and addresser —which collectively have

24,750 jobs in the nation but only 22,275 jobs when considering those available to a

person wearing an oxygen mask. Moreover, in her reply brief, Ms. J. contends that the

job of addresser6 is “antiquated.” See, Pamela H. v. Kijakazi, No. 5:20-cv-00304, 2021 WL

4307457, at *6 (N.D.N.Y. Sept. 22, 2021). As the court in Pamela H. noted, “the DOT

definitions cited by the vocational expert are comically out of date.” Id. at *6. Clearly,

the position of “addresser” is antiquated, if not obsolete – “the definition of addresser

refers to literally addressing items for mailing by hand or typewriter, which fails to

account for minor recent inventions such as the computer and the internet.” Id. at *6. At

the hearing, the VE did not discuss the number of addresser jobs that actually exist

based on the changes in technology.7

The Commissioner contends that the Seventh Circuit8 has found that the

Commissioner met her burden at Step Five when an ALJ identified 24,750 jobs that a

claimant could perform. See Mitchell v. Kijakazi, No. 20-2897, 2021 WL 3086194, at *3 (7th

Cir. July 22, 2021) (stating that “the ALJ still found that enough jobs—30,000—are

available to [the claimant] to allow her to work”). The Commissioner further supports

her position by citing to Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009), which found

6 DOT 209.587-010 defines the job responsibilities of an “addresser (clerical)” as “[a]ddresses by hand or

typewriter, envelopes, cards, advertising literature, packages, and similar items for mailing [and m]ay

sort mail.”.

7 While a more modernized version of the addresser job may exist in the national economy, it may not be

defined as unskilled.

8 The Commissioner urges this Court to follow the precedent of the Third, Sixth, and Eighth Circuits and

determine that 24,750 jobs in the national economy constitute a significant number. See, Sanchez v. Comm’r

of Soc. Sec., 705 F. App’x 95, 99 (3rd Cir. 2017) (18,000 jobs); Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 905

(6th Cir. 2016) (6,000 jobs); Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997) (10,000). This Court declines

to follow the Commissioner’s suggestion and will rely on the precedent of the Seventh Circuit.

that 4,000 jobs in the Milwaukee area was significant, as well as to Lawrence v. Astrue,

337 F. App’x 579, 583 (7th Cir. 2009) (finding that 15,000 jobs was significant and

referencing precedent finding that even 1,400 jobs can qualify as significant).

Although Ms. J. distinguishes the Commissioner’s precedent indicating that the

history of these cases suggests that the court meant regional, rather national, numbers,

Ms. J. also concedes that courts in the Seventh Circuit have reached differing

conclusions as to how many jobs in the national economy are considered a significant

number. See, e.g., James A. v. Saul, 471 F. Supp. 3d 856, 859 (N.D. Ind. 2020) (finding that

14,500 jobs was not significant in number); see also Sally S. v. Berryhill, No. 2:18-cv-480,

2019 WL 3335033, at *11 (N.D. Ind. July 23, 2019) (finding 120,350 jobs in the national

economy was not sufficient); cf. Joseph M. v. Saul, No. 18 C 5182, 2019 WL 6918281, at *17

(N.D. Ill. Dec. 19, 2019) (finding that jobs totaling 40,000 in the national economy was

sufficient). Significant to this court’s analysis is Gass v. Kijakazi, No. 1:19-cv-404-TLS,

2021 WL 5446734, at *8 (N.D. Ind. Nov. 22, 2021). In Gass, the ALJ had determined that

the claimant was not disabled because he could still perform the jobs of addresser

(29,000 jobs nationally), final assembler (50,000 jobs nationally), and table worker

(24,000 jobs nationally). Id. As the claimant in Gass contended that the addresser and

final assembler jobs were obsolete, the Court then considered whether the 24,000 table

worker jobs – standing along – met the Commissioner’s burden at Step Five. As part of

this analysis, the court summarized the range of conclusions reached by courts in the

Seventh Circuit. Id. First, Gass referenced courts holding that 14,500 jobs, 20,000 jobs,

27,000 jobs, or even 120,350 jobs available in the national economy were not significant.

See id. (internal citations omitted). On the other hand, Gass also discussed courts finding

that jobs existing in numbers ranging from 17,700 to 53,200 in the national economy as

significant. See id. (internal citations omitted). After discussing these differing

conclusions, the court in Gass remanded for further administrative proceedings so that

“the ALJ will have an opportunity to reconsider whether a significant number of jobs

exist in the national economy for the [claimant].” Id. at *9.

Here, based on the parties’ arguments and the record before the Court, the Court

cannot find that 22,275 jobs are insignificant as a matter of law.9 However, “the

governing standard is not whether a jobs number falls above or below a set numerical

value, but whether the substantial evidence supports the VE’s testimony that significant

jobs exist.” Douglas G. v. Kijakazi, No. 19 CV 7033, 2021 WL 3849637, at *4 (N.D. Ill. Aug.

27, 2021). Specifically, Ms. J.’s arguments of obsolescence concerns with the identified

occupations as well as her limitations due to her oxygen tank, suggests that other

factual disputes exist regarding these numbers, which the Court cannot resolve through

its limited review. Young, 362 F.3d at 1001.

Accordingly, as there is no defined threshold regarding what constitutes a

significant number of jobs at Step Five, remand for further administrative proceedings

9 Even accepting the Plaintiff’s assertion that the addresser job is obsolete and not available in the national

economy, the Court would not be able to determine, as a matter of law, that 14,895 jobs were

insignificant. However, it should be noted that the court in James A., 471 F. Supp. 3d at 859, found that

14,500 were not a significant number of jobs in the national economy. See also, John C. v. Saul, 4:19-CV-

041111-SLD-JEH, 2021 WL 794790 at *5 (C.D. Ill. Mar. 2, 2021) (observing that there is no binding

authority that 20,000 is significant); cf. Joseph M. v. Saul, No. 18 C 5182, 2019 WL 6918281, at *17 (N.D. Ill.

Dec. 19, 2019) (finding that 40,000 jobs nationally was sufficient to support the ALJ's alternative Step Five

analysis).

is appropriate. This approach is consistent with other courts facing similar Step Five

arguments when other factual disputes remain. See, e.g., Sally S., 2019 WL 3335033, at

*11 (finding that 120,350 jobs in the national economy was not a significant number and

remanding for further proceedings); Gass, 2021 WL 5446734, at *8 (discussed above);

Kordeck v. Colvin, No. 2:14-cv-431-JEM, 2016 WL 675814, at *9 (N.D. Ind. Feb. 19, 2016)

(discussing obsolescence concerns with jobs identified for the claimant as part of its

remand for further administrative proceedings).

Indeed, it is likely that new VE testimony will be solicited (including the impact

that wearing an oxygen tank has on available jobs). Accordingly, in further

acknowledgement of Ms. J.’s obsolescence concerns, the Court recommends that on

remand, the ALJ also discern whether the jobs identified by the VE still exist in the

national economy, and if so, in what numbers. See Kordeck, 2016 WL 675814, at *9.

Finally, Ms. J. has raised other arguments that the ALJ’s RFC determination is

not supported by substantial evidence for failure to properly weigh certain medical

evidence and failed to consider certain medical evidence about Ms. J.’s worsening

pulmonary condition. Ms. J. is free to raise these issues on remand.

IV. CONCLUSION

Based on the foregoing, the decision of the ALJ is REVERSED and the instant

action REMANDED for further administrative proceedings consistent with this

opinion.

SO ORDERED this 26th day of September 2022.

s/Michael G. Gotsch, Sr.

Michael G. Gotsch, Sr.

United States Magistrate Judge