Chavez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

KELLY C.1, )

)

Plaintiff, )

)

v. ) CIVIL NO. 1:22cv62

)

KILOLO KIJAKAZI, Acting )

Commissioner of Social Security, )

)

Defendant. )

OPINION AND ORDER

This matter is before the court for judicial review of a final decision of the defendant

Commissioner of Social Security Administration denying Plaintiff's application for Supplemental

Security Income under Title XVI of the Social Security Act. Section 405(g) of the Act provides,

inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript

of the record including the evidence upon which the findings and decision complained of are

based. The court shall have the power to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without

remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to

any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).

The law provides that an applicant for disability benefits must establish an "inability to

engage in any substantial gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to last for a continuous period of no less than 12

months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment

is "an impairment that results from anatomical, physiological, or psychological abnormalities

1 For privacy purposes, Plaintiff’s full name will not be used in this Order.

which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques."

42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It

must be shown that the impairment is severe enough to preclude the plaintiff from engaging in

substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372

U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that

the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds

v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).

Given the foregoing framework, "[t]he question before [this court] is whether the record

as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.

Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786

(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting

Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,

552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,

42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also

Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).

In the present matter, after a hearing, the Administrative Law Judge ("ALJ") made the

following findings:

1. The claimant has not engaged in substantial gainful activity since April 17, 2019,

the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairments: migraine disorder, asthma,

lumbar and cervical degenerative disc disease, neuropathy of the left leg, acoustic

2

neuroma, obesity, social anxiety disorder, generalized anxiety disorder, depressive

disorder and attention deficit hyperactivity disorder (ADHD) (20 CFR

416.920(c)).

3. The claimant does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20 CFR

Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work as defined in

20 CFR 416.967(b) except the claimant can occasionally balance, stoop, kneel,

crouch, crawl and climb ramps and stairs, but can never climb ladders, ropes, or

scaffolds. The claimant should avoid concentrated exposure to extreme heat,

extreme cold, humidity, vibration, fumes, odors, dusts, gases and poor ventilation.

The claimant should avoid unprotected heights, dangerous moving machinery,

operating motorized vehicles, and slippery surfaces. The claimant should avoid

bright, flashing lights like strobe lights and should avoid a very loud work

environment. The claimant can frequently handle and finger with the bilateral

upper extremities. The claimant can perform work requiring simple instructions

and routine, repetitive tasks (defined as tasks and instructions that can be learned

through short demonstration, up to and including one month). The claimant

cannot perform work requiring a specific production rate, such as assembly line

work. The claimant can meet production requirements that allow a flexible and

goal oriented pace. The claimant can maintain the focus, persistence,

concentration, pace and attention to engage in such tasks for two-hour increments,

for eight-hour workdays, within the confines of normal work breaks and lunch

periods. The claimant can make only simple work-related decisions. The claimant

can respond appropriately to predictable, routine changes in the workplace. The

claimant can have frequent interaction with supervisors, coworkers and the

general public, and contact with supervisors still includes what is necessary for

general instruction, task completion or training.

5. The claimant is unable to perform any past relevant work (20 CFR 416.965).

6. The claimant was born on March 29, 1983 and was 36 years old, which is defined

as a younger individual age 18-49, on the date the application was filed (20 CFR

416.963).

7. The claimant has at least a high school education (20 CFR 416.964).

8. Transferability of job skills is not an issue in this case because the claimant’s past

relevant work is unskilled (20 CFR 416.968).

3

9. Considering the claimant’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10. The claimant has not been under a disability, as defined in the Social Security Act,

since April 17, 2019, the date the application was filed (20 CFR 416.920(g)).

(Tr. 18-33).

Based upon these findings, the ALJ determined that Plaintiff was not entitled to benefits,

leading to the present appeal.

Plaintiff filed her opening brief on July 28, 2022. On October 19, 2022 the defendant

filed a memorandum in support of the Commissioner’s decision, to which Plaintiff replied on

November 14, 2022. Upon full review of the record in this cause, this court is of the view that the

Commissioner’s decision should be affirmed.

A five step test has been established to determine whether a claimant is disabled. See

Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 2290-

91 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test

as follows:

The following steps are addressed in order: (1) Is the claimant

presently unemployed? (2) Is the claimant's impairment "severe"?

(3) Does the impairment meet or exceed one of a list of specific

impairments? (4) Is the claimant unable to perform his or her

former occupation? (5) Is the claimant unable to perform any other

work within the economy? An affirmative answer leads either to

the next step or, on steps 3 and 5, to a finding that the claimant is

disabled. A negative answer at any point, other than step 3, stops

the inquiry and leads to a determination that the claimant is not

disabled.

Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162

4

n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). In the present

case, Step 5 was the determinative inquiry.

In support of remand, Plaintiff broadly argues that the ALJ’s decision is not supported by

substantial evidence. Plaintiff contends that the ALJ cherry-picked the evidence, overemphasized

daily activities, ignored evidence, and “played doctor”.

Plaintiff asserts that the ALJ improperly relied upon selective portions of a September 20,

2019 exam, and dismissed evidence in the record showing the functional limitations of Plaintiff’s

migraines. However, a review of the ALJ’s decision shows that she considered more than the

single September 2019 examination in evaluating Plaintiff’s migraines (Tr. 15-33). The ALJ

found Plaintiff’s migraines to be a severe impairment at step two, and noted Plaintiff’s allegations

of 8-10 migraines per month that sometimes lasted for days (Tr. 18, 22 (referring to hearing

testimony at Tr. 48-49, 85-86)). The ALJ also noted that Plaintiff reported only seeking

emergency room care once or twice for her migraines in 2021 (Tr. 25 (citing Tr. 49)). The record

does not contain many longitudinal treatment records regarding Plaintiff’s migraines, but the ALJ

discussed the available evidence. She noted a June 2019 treatment record where Plaintiff reported

having two to three smaller headaches a week, with major headaches twice a month that

awakened her from her sleep with nausea, vomiting, and light sensitivity (Tr. 23 (citing Tr. 488)).

At that appointment, Plaintiff also complained of pain in her left leg, and the examination

showed tenderness there and in her left occipital region (Tr. 23 (citing Tr. 489)). Plaintiff’s gait

was antalgic and tests showed neuropathy in her left leg, but her leg strength was normal (Tr. 23

(citing Tr. 489, 492)).

The ALJ discussed Plaintiff’s September 2019 consultative examination, performed by

5

Abdail Jan, M.D. (Tr. 23). The ALJ noted Plaintiff’s report of migraines following removal of a

tumor through cyber knife surgery (Tr. 23 (citing Tr. 465)). She also noted that Plaintiff reported

quite a few migraine days a month, and that she was currently experiencing a migraine during the

consultative examination (Tr. 23 (citing Tr. 465)). Despite the migraine, the ALJ noted that

Dr. Jan observed Plaintiff to be cooperative and not in acute distress (Tr. 23 (citing Tr. 468)).

Further, she did not display any vision problems or ask to have the lighting turned down (Tr. 23

(citing Tr. 468)). Her examination was generally normal, with Plaintiff exhibiting no gross

motor focal deficits, normal memory and attention span, normal gait, posture, muscle strength,

and heel/toe and tandem walking (Tr. 23-24 (citing Tr. 468)). Plaintiff also demonstrated normal

range of motion in most areas, but she refused to perform full range of motion tests on her low

back, and she had limitations in her shoulders, knees, and hips (Tr. 24 (citing Tr. 468-70)).

Dr. Jan noted that Plaintiff gave poor effort during the examination (Tr. 23-24 (citing Tr. 468)).

Dr. Jan provided a medical source statement noting Plaintiff’s allegation that she can sit

for 90 minutes and stand for 20 minutes, and walk for 0 blocks before having to stop due to pain

(Tr. 28 (citing Tr. 469)). He noted Plaintiff’s normal fine motor skills and handling of objects,

normal concentration, social interaction, remote and recent memory, hearing, speech, and vision,

and opined that she could carry 20 pounds short distances (Tr. 28 (citing Tr. 469)). Dr. Jan

further noted that Plaintiff could not carry 20 pounds long distances, but could lift 10 pounds

over her head (Tr. 28 (citing Tr. 469)).

The ALJ found Dr. Jan’s opinion only partially persuasive as it was poorly supported and

only somewhat consistent with the record (Tr. 28). She noted that Dr. Jan appeared to base his

opinions regarding Plaintiff’s ability to sit, stand, and walk almost solely on Plaintiff’s subjective

6

report of her limitations (Tr. 28 (citing Tr. 469)). However, the ALJ acknowledged other portions

of the opinion that appeared to be based on the examination, such as Plaintiff’s ability to carry 20

pounds for a short distance (Tr. 28 (citing Tr. 469)).

Plaintiff does not challenge the ALJ’s finding that Dr. Jan’s opinion was partially

persuasive. Rather, she argues that the ALJ determined that her migraines were not disabling

based solely upon her normal functioning during Dr. Jan’s examination. However, as noted, there

is a sparse treatment record regarding Plaintiff’s migraines and she testified that she had only

been to the emergency room for migraines once or twice in 2021 (Tr. 25 (citing Tr. 49)). Plaintiff

does not point to any specific evidence regarding migraines that the ALJ failed to consider, nor

does she cite to any treatment record showing that her migraines caused greater functional

limitations. See Gedatus v. Saul, 994 F.3d 893, 905 (7th Cir. 2021) (plaintiff “failed to show how

medically determinable impairments caused any limitations beyond those the ALJ found”); Karr,

989 F.3d at 513 (Plaintiff failed to carry her burden “by not identifying any objective evidence in

the record corroborating” her claim). In light of the minimal treatment evidence, it was proper for

the ALJ to consider Plaintiff’s demonstrated functional ability during an active migraine, where

she testified that migraines caused disabling photophobia, nausea, and vomiting (compare Tr. 23,

25, 48-49 with Tr. 468-69).

The ALJ also considered Plaintiff’s activities of daily living (Tr. 22-23, 25-26). The ALJ

noted Plaintiff’s testimony that she sometimes went to the store with her daughter, where she

used a power cart; she used a chair to shower; she was able to fold laundry or help cut vegetables

or fruit while sitting in a chair; and she did not drive long distances and always drove with

someone (Tr. 22 (citing hearing testimony at 46-47, 50-53, 86-87, 90-91)). Plaintiff also stated

7

that she was able to grocery shop with her mother up to three times per week (Tr. 25, (citing Tr.

370)). The ALJ further noted that during Plaintiff’s mental and physical consultative

examinations, she reported that she was able to prepare and fix meals, interact with people in

person or online, dress herself, and get her children ready for school (Tr. 23, 25 (citing Tr. 466,

474)).

Based on this evidence, the ALJ found that Plaintiff’s reported daily activities were

inconsistent with her allegations about the intensity of her migraines (Tr. 25). She noted that if

Plaintiff’s migraines were as intense and limiting as she alleged, it is unlikely that she would be

able to perform her activities on a daily and routine basis (Tr. 25 (citing Tr. 474)). Specifically,

Plaintiff reported headaches three times per week and more severe migraines twice a month, with

post migraine symptoms of being in a dense fog such that she could not communicate with

people (Tr. 23, 25, 48-49, 488). But the ALJ pointed out that those allegations were inconsistent

with Plaintiff’s report that she was able to grocery shop up to three times per week for an hour

(Tr. 25 (citing Tr. 371)). Further, the ALJ noted the inconsistency between Plaintiff’s alleged

inability to communicate post-migraine, and her report of interacting with others on a daily basis

online or in person (Tr. 25, 48-49, 474).

Plaintiff asserts that the ALJ did not properly consider her limitations or the fact that she

needed help to accomplish her daily activities. Specifically, Plaintiff asserts that the ALJ ignored

her allegations that she never drives alone, she had to shop with her mother while using a power

cart, and her daily routine included significant amounts of sleeping/lying down in the dark.

Contrary to Plaintiff’s argument, the ALJ expressly referenced each of those reported limitations

in her decision (see Tr. 22, 25 (noting Plaintiff and her mother stated that she “always drives with

8

someone;” she “uses a power cart” at the store; she “grocery shop[s] with her mother up to three

times a week for an hour;” and migraines caused “light sensitivity”)). Clearly, the ALJ did not

ignore evidence or overemphasize Plaintiff’s activities.

Plaintiff, in her reply brief, faults the ALJ for not analyzing whether Plaintiff would be

off-task more than 15% of the workday, or miss more than one day of work per month. Plaintiff

contends that experiencing two or more severe headaches a month would be work preclusive.

However, the ALJ discussed Plaiintiff’s allegations as to the frequency and intensity of her

migraines and found that her allegations were inconsistent with the record (Tr. 23-25). As the

ALJ fully supported her findings, substantial evidence supports the finding, and this Court will

not re-weigh the evidence on this point.

Plaintiff also argues that the ALJ improperly “diagnosed” stress as the cause of her

headaches. However, it was Plaintiff’s treating neurologist who stated that “stress and anxiety

dominate and are likely responsible [for] 30-50% of her headaches,” and who recommended

treatment with medication, hydration, sleep, and stress management (Tr. 20, 23, 25 (citing Tr.

489-90)). Thus, the ALJ did not “diagnose” the cause of Plaintiff’s headaches or prescribe

treatment—she accurately summarized what was in the treatment record (Tr. 20, 23, 25 (citing Tr.

489-90)). See Olsen v. Colvin, 551 F. App’x 868, 875 (7th Cir. 2014) (ALJ did not interpret

medical evidence where she accurately summarized the results of medical testing). Based on this

evidence, the ALJ reasonably incorporated limitations to reduce anxiety and stress into the RFC

finding (Tr. 21, 25).

Plaintiff argues that the ALJ does not address the remaining 50-70% of Plaintiff’s alleged

migraines and the limiting effect of those headaches on Plaintiff’s ability to work. However, as

9

there was no evidence as to the cause of the remaining headaches, there were no additional

limitations for te ALJ to incorporate into the RFC. In any event, as the ALJ found that Plaintiff’s

migraines were not as limiting as alleged, there was no basis for the ALJ to include additional

migraine-related limitations into the RFC.

Plaintiff also argues that the ALJ improperly interpreted medical evidence to analyze

her ability to stand and walk, and the significance of her lack of muscular atrophy. However, the

ALJ properly reviewed and summarized the record, in which Plaintiff demonstrated the ability to

heel/toe and tandem walk, and her gait was stable and sustainable without an assistive device (Tr.

23-24 (citing Tr. 466, 468)). Again, the ALJ did not interpret the evidence but accurately cited to

Plaintiff’s ability to stand and walk during her consultative examination with Dr. Jan, and she

considered that evidence in finding that Plaintiff could perform a reduced range of light work (Tr.

23-24). See DuCharme v. Kijakazi, No. 21-2204, 2022 WL 328974, at *3 (7th Cir. Aug. 11,

2022) (no error where ALJ reviewed medical records in determining the RFC).

The ALJ also noted Dr. Jan’s observation that Plaintiff did not have muscular atrophy,

and she noted that atrophy is a common side effect of prolonged lack of muscle use in order to

avoid pain (Tr. 26, 468). Plaintiff contends that the ALJ “is not qualified to discuss muscular

atrophy and no medical source is given for their assertions on the condition” (Pl. Br. 17).

However, the ALJ’s discussion of atrophy is consistent with the agency’s Social Security Ruling

(SSR) 16-3p, which recognizes that:

[A]n individual with reduced muscle strength testing who indicates

that for the last year pain has limited his or her standing and

walking to no more than a few minutes a day would be expected to

have some signs of muscle wasting as a result. If no muscle wasting

were present, we might not, depending on the other evidence in the

10

record, find the individual’s reduced muscle strength on clinical

testing to be consistent with the individual’s alleged impairment-

related symptoms.

SSR 16-3p. Under these guidelines, the ALJ properly considered Plaintiff’s lack of muscular

atrophy in evaluating her alleged inability to stand and walk for prolonged periods (Tr. 26). Lauer

v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (“SSRs are interpretive rulings intended to offer

guidance to agency adjudicators. While they do not have the force of law or properly promulgated

notice and comment regulations, the agency makes SSRs ‘binding on all components of the

Social Security Administration.’”)

Plaintiff also contends that the ALJ improperly interpreted her poor effort during Dr. Jan’s

examination as evidence that she could perform light work. She speculates that “[i]t is not only

logical, but highly likely the poor effort was a symptom of the migraine” (Pl. Br. 19-20).

However, while the ALJ referenced Plaintiff’s poor effort during the examination, she also noted

that during the same examination, Dr. Jan observed that Plaintiff had full muscle strength in her

arms and legs, and full grip strength in her hands (Tr. 26, 28-29 (citing Tr. 468)). Moreover, in

addition to that examination, the ALJ discussed a June 2019 examination where Plaintiff

demonstrated generally normal motor power and muscle tone in her arms and legs (Tr. 27 (citing

Tr. 489)). Based on that evidence, it was reasonable for the ALJ to determine that Plaintiff could

perform the lifting requirements of light work (Tr. 21). Beyond speculation, Plaintiff fails to show

that she was more limited. Karr, 989 F.3d at 513 (it is plaintiffs’ burden to identify objective

evidence corroborating her claims).

Plaintiff also asserts that her moderate limitations in interaction are not adequately

addressed by the ALJ’s RFC finding limiting her to frequent interaction with supervisors,

11

coworkers, and the general public. She maintains that the ALJ failed to acknowledge her repeated

diagnoses of general anxiety, depression, and social anxiety, but the ALJ expressly found each of

those impairments severe (Tr. 18). The ALJ also discussed treatment records, noting Plaintiff’s

reports of a poor stress response, anxiety in large crowds, and the fact that anxiety and stress

triggered her migraines (Tr. 19-20, 23 (citing Tr. 465, 488)). However, Plaintiff was generally

noted to be cooperative, with normal mood and affect during examinations (Tr. 19, 23 (citing Tr.

468, 476)).

The ALJ also acknowledged Plaintiff’s October 2019 mental consultative examination

with Dan Boen, Ph.D., where she reported anxiety and nervousness in social situations, but she

was cooperative and her judgment and insight were normal during the examination (Tr. 24 (citing

Tr. 473-77)). Dr. Boen opined that Plaintiff would have trouble getting along with coworkers, but

no difficulty getting along with a boss (Tr. 477). State agency psychologists Kenneth Neville,

Ph.D., and William Shipley, Ph.D., reviewed the medical record, including Dr. Boen’s

examination report, and opined that Plaintiff had no limitations in interacting with others (Tr.

202, 214-15).

The ALJ properly resolved the conflicting opinion evidence by determining that Plaintiff

had a moderate limitation in interaction, and she accounted for that limitation by restricting

Plaintiff to no more than frequent interaction with others (Tr. 21, 29-30). Garland v. Dai, 141 S.

Ct. 1669, 1677 (2021) (“[A] reviewing court must be mindful too that the agency, like any

reasonable factfinder, is free to credit part of a witness’ testimony without necessarily accepting

it all.”) (citations, alteration, and internal quotation marks omitted). Plaintiff relies on her

subjective reports of limited interaction to argue that the RFC finding was flawed . However,

12

Plaintiff fails to challenge the ALJ’s evaluation of the opinion evidence, or cite to additional

evidence showing that she could not frequently interact with others.

Plaintiff next contends that the vocational expert failed to provide an adequate explanation

for the methodology she used to estimate the number of jobs available at step five. See Chavez v.

Berryhill, 895 F.3d 962, 968-70 (7th Cir. 2018) (the vocational expert must offer “a reasonable

and principled explanation” to support her approximation, but “establishing the reliability of a job

number estimate does not require meeting an overly exacting standard”).

In this case, the ALJ took steps to establish the reliability of job number estimates before

making her determination at step five. After Plaintiff objected to the reliability of the vocational

expert’s testimony at the first administrative hearing, the ALJ agreed that the numbers given

were not reliable, and she ordered a supplemental hearing (Tr. 15, 59-73, 94-99). At the

supplemental hearing, counsel asked the vocational expert about her background, and the

vocational expert testified that she had a Master’s degree in rehabilitation psychology, and

during her studies she took classes in statistics and participated in the preparation of a survey

related to estimating population numbers (Tr. 60-61). Counsel did not object to her

qualifications (Tr. 61).

The ALJ then asked the vocational expert whether there would be any jobs available for a

hypothetical individual with Plaintiff’s age, education, work experience, and residual functional

capacity (Tr. 61-62). The vocational expert testified that the individual could perform jobs such

as cleaner/housekeeper, with 222,000 jobs in the national economy; office helper, with 14,000

jobs in the national economy; and storage rental clerk, with 63,000 jobs in the national economy

(Tr. 62-63).

13

On questioning from Plaintiff’s counsel, the vocational expert stated that the data she

used to provide job numbers was the most recent data available for the year 2021 (Tr. 64). She

explained that in estimating the number of jobs, she used Job Browser Pro, a program which

compiles data by DOT code (Tr. 65). Counsel then asked the vocational expert follow-up

questions regarding Job Browser Pro:

Q: So, tell me what formula Job Browser Pro uses to weigh the numbers in the

SOC codes, to weigh the DOT categories and SOC codes?

A: Now, I would have to read that specifically from the information I have here.

I can’t tell you exactly off hand that particular data.

Q: So, the answer is that you’re sitting there, you don’t know, is that correct?

A: As I’m sitting here right now, correct. I could read the summary and abstract

for SkillTRAN estimating employment numbers, which I have in front of me, but

I don’t know it just off the top of my head.

(Tr. 65). Counsel did not follow-up and ask the vocational expert to read the summary and

abstract. Instead, he objected to the testimony and stated that “the fact that the witness cannot

describe the weighing formula from Job Browser Pro . . . would be insufficient in order to

establish the [re]liability of the numbers” (Tr. 70). He further objected to the weighting of job

numbers, arguing that there was no rational way of severing different skill levels and exertional

jobs within the SOC codes and DOT codes (Tr. 70).

The ALJ noted that she would take those objections into consideration, and she asked

additional questions of the vocational expert (Tr. 70-71). The vocational expert clarified that Job

Browser Pro was capable of separating jobs by DOT title and not by SOC code, meaning that the

program weeded out jobs with differing exertional levels (Tr. 71). She also stated that every

vocational expert that she knows relies upon Job Browser Pro (Tr. 71).

Plaintiff argues that the vocational expert’s testimony was not reliable because “[w]hen

14

pressed, the VE stated they could read a summary and abstract which supposedly explained the

methodology, but this was never done” (Pl. Br. 21-22). However, Plaintiff fails to acknowledge

that the vocational expert offered—twice—to read the summary and abstract, and counsel did not

ask her to do so (Tr. 65, 71). The testimony makes clear that the vocational expert was prepared

to provide the underlying source of her job number data, but counsel declined to pursue the

information further. See Krell, 931 F.3d at 587 (vocational experts are encouraged, but not

required, to have underlying sources available at the hearing) (citing Biestek, 139 S. Ct. 1157).

Moreover, the vocational expert provided uncontradicted testimony that her underlying source,

Job Browser Pro, was generally accepted within the relevant scientific community as a reliable

source for job numbers (Tr. 71). Thus, counsel failed to identify any specific shortcomings in

the formula or job number estimates. See Coyier v. Saul, 860 F. App’x 426, 428 (7th Cir. 2021)

(“Because counsel failed to develop an argument or question the VE any further about his

methodology, the ALJ was entitled to rely on the job-number estimates.”).

Plaintiff argues that requiring her to ask the vocational expert to read the summary and

abstract shifts the burden of proof onto Plaintiff, and it is the Commissioners burden as Step 5.

This is nonsensical. Clearly, the vocational expert explained the basis for the job numbers such

that the ALJ’s decision to accept those numbers was supported by substantial evidence. If

Plaintiff wanted a more thorough explanation, it was up to her to ask. Plaintiff cannot decline an

offer of information and then object that the information was not recited into the record.

As the Commissioner notes, Plaintiff does not point to any indicia of unreliability in the

15

vocational expert’s testimony.2 During the hearing, the ALJ considered counsel’s objection

regarding the “weighting” of job numbers within SOC and DOT codes (Tr. 70-71). In response to

the ALJ’s follow-up questions, the vocational expert clarified that Job Browser Pro was capable

of differentiating job numbers by exertional and skill levels, and the jobs were broken out by

DOT title and not by SOC code (Tr. 71). She also confirmed that the program was commonly

used by vocational experts (Tr. 70-71). Thus, the vocational expert supplied a foundation for her

job number estimate so as to provide a “modicum of confidence in its reliability.” See Chavez,

895 F.3d at 969; Biestek, 139 S. Ct. at 1156-57 (vocational expert testimony may be deemed

reliable “[e]ven without specific data” and “even without significant testing.”).

Here, the vocational expert identified the source for her job number estimates, she

offered to provide additional information on the underlying data source, and she provided a

straightforward explanation for the reliability of the numbers she provided. This testimony was

“the kind of evidence—far more than a mere scintilla—that a reasonable mind might accept as

adequate to support a finding about job availability.” Biestek, 139 S. Ct. at 1155 (internal

quotation marks and citation omitted). The ALJ reasonably overruled Plaintiff’s objections, and

relied on the vocational expert’s testimony at step five (Tr. 31-32). See Bruno v. Saul, 817 F.

App’x 238, 243 (7th Cir. 2020) (even if a vocational expert’s testimony does “not reveal the

precise mechanical and statistical model involved,” it can nonetheless constitute a “reasoned and

2 Plaintiff again accuses the Commissioner of attempting to shift the burden of proof onto

Plaintiff, as it is the ALJ’s job to determine the reliability of the vocational expert’s testimony.

However, the ALJ performed her job and determined that the testimony was reliable. Plaintiff

attempted to contest the ALJ’s determination but failed to show any way that the testimony was

unreliable. This is not an instance of shifting the burden of proof, but merely an instance of

requiring Plaintiff to support her argument with facts, rather than mere speculation.

16

principled explanation” at least by the low substantial evidence standard).

As there is no basis for remand on any of the issues raised by Plaintiff, the decision will be

affirmed.

Conclusion

On the basis of the foregoing, the Decision of the Commissioner is hereby AFFIRMED.

Entered: December 2, 2022.

s/ William C. Lee

William C. Lee, Judge

United States District Court

17