Evans v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAWN M. EVANS, : CIVIL NO.: 1:21-cv-00554

:

Plaintiff, : (Magistrate Judge Schwab)

v. :

:

:

KILOLO KIJAKAZI,1 :

Acting Commissioner of :

Social Security, :

:

Defendant. :

MEMORANDUM OPINION

I. Introduction.

In this social security action, Plaintiff Dawn M. Evans seeks judicial review

of the final decision of the Commissioner of Social Security (“Commissioner”)

denying her claim for disability insurance benefits under Title II of the Social

Security Act. We have jurisdiction under 42 U.S.C. § 405(g). For the reasons set

1 Kilolo Kijakazi is now the Acting Commissioner of Social Security, and

she is automatically substituted as the defendant in this action. See Fed. R. Civ. P.

25(d) (providing that when a public officer sued in his or her official capacity

ceases to hold office while the action is pending, “[t]he officer’s successor is

automatically substituted as a party”); 42 U.S.C. § 405(g) (“Any action instituted

in accordance with this subsection shall survive notwithstanding any change in the

person occupying the office of Commissioner of Social Security or any vacancy in

such office.”).

forth below, we will vacate the Commissioner’s decision and remand the case to

the Commissioner for further proceedings.

II. Background and Procedural History.

We refer to the transcript provided by the Commissioner. See docs. 14-1 to

14-7.2 On February 19, 2016, Evans protectively filed3 an application for disability

insurance benefits, alleging that she has been disabled since April 1, 2013. Admin.

Tr. at 287–88. After a hearing, and by a decision dated March 9, 2018,

Administrative Law Judge Michele Stolls denied Evan’s claim. Id. at 201–21.

Evans appealed that decision to the Appeals Council, which vacated the

decision of Administrative Law Judge Stolls and remanded the case to a different

administrative law judge. Id. at 222–27. The Appeals Council remanded the case

“for resolution of the following issues”:

2 Because the facts of this case are well known to the parties, we do not

repeat them here in detail. Instead, we recite only those facts that bear on Evans’s

claims.

3 “Protective filing is a term for the first time an individual contacts the

Social Security Administration to file a claim for benefits.” Stitzel v. Berryhill, No.

3:16-CV-0391, 2017 WL 5559918, at *1 n.3 (M.D. Pa. Nov. 9, 2017). “A

protective filing date allows an individual to have an earlier application date than

the date the application is actually signed.” Id. Here, Evans’s application for

benefits is dated February 22, 2016. See Admin. Tr. at 287. But there are

references in the record to the filing date as February 19, 2016. See id. at 189, 200.

And February 19, 2016, is the date identified by Administrative Law Judge Stolls

as the date that Evans protectively filed her application. Id. at 204.

• The Administrative Law Judge adjudicated from the

claimant’s alleged onset date of April 1, 2013 through the

date last insured of December 31, 2016, but did not address

the issue of reopening. The claimant filed a prior application

for a Period of Disability and Disability Insurance Benefits

on August 27, 2015, alleging an onset date of September 24,

2013. An initial determination was made on November 13,

2015, which became final and binding per 20 CFR 404.987.

A prior final determination may be reopened only under

limited circumstances defined by regulation (20 CFR

404.988). Here, the Administrative Law Judge invades a

period previously determined without adequately considering

whether re-opening is appropriate. Further clarification of

the applicable period at issue is necessary. If any of the

period previously determined or decided for the claimant’s

prior applications is considered here, additional clarification

of what the regulatory basis is for re-opening will also be

required.

• In assessing the claimant’s mental residual functional

capacity, the Administrative Law Judge found the claimant

can have “relatively few work place changes” (Finding 4).

The phrase “relatively few work place changes” does not

represent a clear function-by-function assessment of the

claimant’s remaining ability to do work-related mental

activities as required by Social Security Ruling 96-8p.

Furthermore, the Administrative Law Judge found the

claimant has mild limitation in adapting or managing oneself

in the workplace, which indicates the claimant is not as

limited in her ability to adapt to changes as found by the

Administrative Law Judge. Therefore, further evaluation of

the claimant’s residual functional capacity is necessary.

• The hearing decision indicates, “The record, including the

treatment of her mental health impairments and her activities

of daily living as reported in her function report, supports

moderate limitations” in understanding, remembering, or

applying information. It is unclear from the rationale

provide why the treatment of her mental impairment and

which activities of daily living supports this finding.

Therefore, further consideration is needed.

• At step 5 of the sequential evaluation process, the

Administrative Law Judge found the claimant could perform

the work of laundry worker/folder and cited to Dictionary of

Occupational Titles code 396.687-018. This Dictionary of

Occupational Titles, however, code does not exist. Further

evaluation is necessary.

Id. at 224–25. And the Appeals Council ordered the Administrative

Law Judge to do the following:

• Consider whether reopening of the November 13, 2015

determination is applicable per 20 CFR 404.988.

• Further evaluate the claimant’s mental impairments in

accordance with the special technique described in 20 CFR

404.1520a, documenting application of the technique in the

decision by providing specific findings and appropriate

rationale for each of the functional areas described in 20

CFR 404.1520a(c).

• Give further consideration to the claimant’s maximum

residual functional capacity and provide appropriate

rationale with specific references to evidence of record in

support of the assessed limitations (20 CFR 404.1545;

Social Security Ruling 85-16, 96-8p).

• If warranted by the expanded record, obtain supplemental

evidence from a vocational expert to clarify the effect of the

assessed limitations on the claimant’s occupational base

(Social Security Ruling 85-15). The hypothetical questions

should reflect the specific capacity/limitations established by

the record as a whole. The Administrative Law Judge will

ask the vocational expert to identify examples of appropriate

jobs and to state the incidence of such jobs in the national

economy (20 CFR 404.1566). Further, before relying on the

vocational expert evidence the Administrative Law Judge

will identify and resolve any conflicts between the

occupational evidence provided by the vocational expert and

information in the Dictionary of Occupational Titles and its

companion publication, the Selected Characteristics of

Occupations (Social Security Ruling 00-4p).

Id. at 225. Before the Appeals Council, Evans also raised a challenge under the

Appointments Clause of the United States Constitution to the manner in which the

Administrative Law Judge was appointed. Id. Observing that remand to a different

Administrative Law Judge cures any such defect, the Appeals Council remanded

the case to a different Administrative Law Judge. Id. at 225–26. And the Appeals

Counsel directed that the new Administrative Law Judge “offer the claimant an

opportunity for a hearing, take any further action needed to complete the

administrative record, and issue a new decision.” Id. at 226.

After remand, on February 26, 2020, Evans appeared with counsel at a

hearing before Administrative Law Judge Paula Garrety (hereafter “the ALJ”). Id.

at 44–79. At that hearing, Evans amended her alleged onset date to January 15,

2016. Id. at 48. Evans testified at the hearing as did a vocational expert. Id. at 51–

79. The ALJ subsequently determined that Evans had not been disabled from

January 15, 2016 (the amended alleged onset date), through December 31, 2016

(the date last insured). Id. at 35–36. And so, she denied Evans benefits. Id. Evans

appealed the ALJ’s decision to the Appeals Council, which denied her request for

review on January 28, 2021. Id. at 1–7. This makes the ALJ’s decision the final

decision of the Commissioner subject to judicial review by this Court.

In March 2021, Evans, through counsel, began this action by filing a

complaint claiming that the Commissioner’s decision is not supported by

substantial evidence and contains errors of law. Doc. 1 ¶¶ 18, 19. She requests that

the court reverse the Commissioner’s decision and award her benefits, or in the

alternative, remand the case to the Commissioner for further proceedings. Id. at 3

(Wherefore Clause).

The parties consented to proceed before a magistrate judge pursuant to 28

U.S.C. § 636(c), and the case was referred to the undersigned. Doc. 12. The

Commissioner then filed an answer and a certified transcript of the administrative

proceedings. Docs. 13, 14. The parties filed briefs, see docs. 17, 20, 21, and this

matter is ripe for decision.

III. Legal Standards.

A. Substantial Evidence Review—the Role of This Court.

When reviewing the Commissioner’s final decision denying a claimant’s

application for benefits, “the court has plenary review of all legal issues decided by

the Commissioner.” Ficca v. Astrue, 901 F. Supp. 2d 533, 536 (M.D. Pa. 2012).

But the court’s review of the Commissioner’s factual findings is limited to whether

substantial evidence supports those findings. See 42 U.S.C. § 405(g); Biestek v.

Berryhill, 139 S. Ct. 1148, 1152 (2019). “[T]he threshold for such evidentiary

sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Substantial evidence

“means—and means only—‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id. (quoting Consol. Edison Co. of

New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).

Substantial evidence “is less than a preponderance of the evidence but more

than a mere scintilla.” Jesurum v. Sec’y of U.S. Dep’t of Health & Human Servs.,

48 F.3d 114, 117 (3d Cir. 1995). A single piece of evidence is not substantial

evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict

created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993).

But in an adequately developed factual record, substantial evidence may be

“something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent [the ALJ’s] finding

from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm’n,

383 U.S. 607, 620 (1966). “In determining if the Commissioner’s decision is

supported by substantial evidence the court must scrutinize the record as a whole.”

Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The question before this court, therefore, is not whether Evans was disabled,

but whether substantial evidence supports the Commissioner’s finding that she was

not disabled and whether the Commissioner correctly applied the relevant law.

B. Initial Burdens of Proof, Persuasion, and Articulation.

To receive benefits under Title II of the Social Security Act, a claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of

any medically determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R.

§ 404.1505(a). To satisfy this requirement, a claimant must have a severe physical

or mental impairment that makes it impossible to do his or her previous work or

any other substantial gainful work that exists in the national economy. 42 U.S.C.

§ 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Further, to receive disability insurance

benefits under Title II of the Social Security Act, a claimant must show that he or

she contributed to the insurance program, is under retirement age, and became

disabled prior to the date on which he or she was last insured. 42 U.S.C. § 423(a);

20 C.F.R. § 404.131(a).4

4 “Disability insurance benefits are paid to an individual if that individual is

disabled and ‘insured,’ that is, the individual has worked long enough and paid

social security taxes.” Jury v. Colvin, No. 3:12-CV-2002, 2014 WL 1028439, at *1

The ALJ follows a five-step sequential-evaluation process to determine

whether a claimant is disabled. 20 C.F.R. § 404.1520(a). Under this process, the

ALJ must sequentially determine: (1) whether the claimant is engaged in

substantial gainful activity; (2) whether the claimant has a severe impairment;

(3) whether the claimant’s impairment meets or equals a listed impairment;

(4) whether the claimant is able to do his or her past relevant work; and

(5) whether the claimant is able to do any other work, considering his or her age,

education, work experience, and residual functional capacity (“RFC”). 20 C.F.R.

§ 404.1520(a)(4)(i)–(v).

The ALJ must also assess a claimant’s RFC at step four. Hess v. Comm’r of

Soc. Sec., 931 F.3d 198, 198 n.2 (3d Cir. 2019). The RFC is ‘“that which an

individual is still able to do despite the limitations caused by his or her

impairment(s).’” Burnett v Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)

(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999)); see also 20

C.F.R. § 404.1545(a)(1). In making this assessment, the ALJ considers all the

claimant’s medically determinable impairments, including any non-severe

n.5 (M.D. Pa. Mar. 14, 2014) (citing 42 U.S.C. §§ 415(a), 416(i)(1)). “The last

date that an individual meets the requirements of being insured is commonly

referred to as the ‘date last insured.’” Id. (citing 42 U.S.C. § 416(i)(2)). Here, the

ALJ determined that Evans met the insured-status requirements through December

31, 2016. Admin. Tr. at 24.

impairment identified by the ALJ at step two of his or her analysis. 20 C.F.R.

§ 404.1545(a)(2).

“The claimant bears the burden of proof at steps one through four” of the

sequential-evaluation process. Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 634 (3d

Cir. 2010). But at step five, “the Commissioner bears the burden of establishing

the existence of jobs in the national economy that an individual with the claimant’s

impairments is capable of performing.” Zirnsak v. Colvin, 777 F.3d 607, 616 (3d

Cir. 2014).

The ALJ’s disability determination must also meet certain basic substantive

requisites. Most significantly, the ALJ must provide “a clear and satisfactory

explication of the basis on which” his or her decision rests. Cotter v. Harris, 642

F.2d 700, 704 (3d Cir. 1981). “The ALJ must indicate in his decision which

evidence he has rejected and which he is relying on as the basis for his finding.”

Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F. 3d 429, 433 (3d Cir. 1999). The

“ALJ may not reject pertinent or probative evidence without explanation.” Johnson

v. Comm’r of Soc. Sec., 529 F.3d 198, 204 (3d Cir. 2008). Otherwise, ‘“the

reviewing court cannot tell if significant probative evidence was not credited or

simply ignored.’” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d at 705).

IV. The ALJ’s Decision.

On March 9, 2020, the ALJ denied Evans’s claim for benefits. Admin. Tr. at

19–43. She proceeded through the five-step sequential-evaluation process.

At step one of the sequential-evaluation process, the ALJ found that Evans

had not engaged in substantial gainful activity since the amended alleged onset

date of January 15, 2016. Id. at 25.

At step two of the sequential-evaluation process, the ALJ found that Evans

had the following severe impairments: mood disorder, anxiety, obsessive-

compulsive disorder, and post-traumatic stress disorder. Id. at 25. She also found

that although Evans had a history of substance abuse, Evans had been on a

Suboxone program since 2011, and, thus, her past substance abuse does not qualify

as a severe impairment. Id. at 25.

At step three of the sequential-evaluation process, the ALJ found that Evans

did not have an impairment or combination of impairments that met or medically

equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at

25–27. Specifically, that ALJ considered Listings 12.04, 12.06, and 12.15. Id.

The ALJ then determined that Evans had the RFC “to perform a full range of

work at all exertional levels” but with some nonexertional limitations. Id. at 27.

She determined that Evans “could not have more than superficial contact with the

public and coworkers[,]” and that Evans “could perform no more than simple,

routine and repetitive tasks.” Id. And she determined that Evans “could not

perform any assembly line production work.” Id. The ALJ also limited Evans “to

work in which she performs the same job duties on a day-to-day basis.” Id. In

making this RFC assessment, the ALJ reviewed Evans’s assertions and testimony,

her treatment records, her daily activities, and the opinion evidence in the record.

Id. at 28–34.

At step four of the sequential-evaluation process, the ALJ found that Evans

was unable to perform her past relevant work as a cashier/stock clerk. Id. at 34.

At step five of the sequential-evaluation process, considering Evan’s age,

education, work experience, and RFC, as well as the testimony of a vocational

expert, the ALJ found that there were jobs—such hand packager, laundry worker,

and sorter—that exist in significant numbers in the national economy that Evans

could perform. Id. at 35.

In sum, the ALJ concluded that Evans was not disabled from January 15,

2016 (the amended alleged onset date) through December 31, 2016 (the date last

insured. Id. at 35. Thus, she denied Evans’s claim for benefits. Id. at 36.

V. Discussion.

Evans raises the following claims: (1) the Commissioner’s decision is

constitutionally defective and should be reversed because the Commissioner—

under whom the ALJ issued the final decision—served a longer term that the

president and was removable only for cause in violation of separation of powers;

(2) the ALJ erroneously assigned little weight to her treating physician; (3) the ALJ

erroneously rejected the assessments of the consultative psychologist; (4) the ALJ

failed to present to the vocational expert a hypothetical question that contained all

her credibly established limitations; and (5) the vocational expert’s testimony did

not provide substantial evidence of jobs existing in significant numbers that she

could perform.5 We start with the last claim, and we conclude that remand is

required because that ALJ’s conclusion that there are jobs existing in significant

numbers in the national economy that Evans could perform, which finding was

based on the testimony of the vocational expert, is not supported by substantial

evidence. Because we conclude that remand is warranted based on this claim, we

do not reach Evans’s other claims.6

5 Evans combines the last two claims under one heading. See doc 17 at 4.

Although both claims concern the testimony of the vocational expert, the two

claims are very different. Thus, we break them out as separate claims.

6 “Plaintiff’s additional claims of error may be remedied through the case’s

treatment on remand.” Brown v. Saul, No. CV 3:18-1619, 2020 WL 6731732, at *7

(M.D. Pa. Oct. 23, 2020), report and recommendation adopted, 2020 WL

6729164, at *1 (M.D. Pa. Nov. 16, 2020). “A remand may produce different

results on these claims, making discussion of them moot.” Id.

Evans claims that that the vocational expert’s testimony does not provide

substantial evidence of jobs existing in significant numbers that she could perform.

To set the stage for the discussion of this claim, we begin by setting forth the

vocational expert’s testimony and the ALJ’s decision regarding job numbers.

Then, after setting forth what the Commissioner’s burden entails regarding job

numbers, we conclude that here the ALJ’s decision in that regard, which was based

on the vocational expert’s testimony, is not supported by substantial evidence.

Finally, we conclude that remand to the Commissioner for further proceedings is

appropriate.

A. The Vocational Expert’s Testimony and the ALJ’s Decision.

The vocational expert testified at the administrative hearing. Admin. Tr. at

68–77. Based on a hypothetical question posed by the ALJ, the vocational expert

testified that a hypothetical individual of the same age as Evans and with the same

education, work history, and limitations that the ALJ outlined could not do Evans’s

past relevant work. Id. at 68–69. One of the limitations that the ALJ included in

his hypothetical was that the individual be limited to “work that is essentially

performed without change or alteration on a day-to-day basis.” Id. at 69. The

vocational expert testified that an individual with such a limitation would also not

be able to do other work. Id. But after the ALJ clarified that the limitation meant

only that the person would “basically perform the same job every day[,]” the

vocational expert testified that there were other jobs that the hypothetical

individual could perform:

A Okay, yes, the person is looking at the same types of job

duties on a day-to-day basis then we’re basically looking at

unskilled work. That would exist at various exertional levels

within the economy. Representative examples, one

representative example would be a hand packager. The SVP

level would be a 2. One moment, national numbers, 700,560,

Pennsylvania would be 24,550. A DOT would be 920.587-018.

A second example would be a laundry worker. In the DOT this

is described, it’s a medium job. It’s unskilled. The SVP would

be a 2. National numbers would be 209,350. Pennsylvania

would be 7,460. A DOT would be 361.685-018. One moment,

a third example, a sorter position. In the DOT this is described

as a light, unskilled job. The SVP is a 2. National numbers are

230,760. I’m sorry, one second, Pennsylvania 3,520. A DOT

is 222.687-014.

Q And are these jobs [t]hat you’ve identified are they

generally consistent with the definitions contained in the DOT?

A Yes, Judge.

Id. at 69–70. Evans’s attorney then questioned the vocational expert about the

limitation regarding changes or alterations in the work day-to-day, which, in turn,

lead to further questions from the ALJ and further testimony about that from the

vocational expert. Id. at 70–74. Then, after asking the vocational expert

hypothetical questions with different limitations, id. at 74–75, Evans’s attorney

questioned the vocational expert about the numbers for the three jobs she had

identified:

Q Okay, I think this is my last question. The numbers you

gave us both nationally and statewide for the three job titles that

you testified would be possible under the Judge’s hypothetical

as amended, hand packager –

A I’m sorry, I didn’t hear the last part of what you said.

Q I’m referring now to the three jobs you testified to. You

gave us numbers, national and state numbers.

A Yes.

Q For three specific job titles, hand packager, laundry

worker and sorter you gave us DOT numbers.

A Yes.

Q The numbers of jobs, both in the nation and in the state

that you testified to are those numbers of those particular jobs

or are they in fact numbers of the occupational group to which

each of them belong?

A Oh, I’m sorry, I didn’t understand what you said at first.

No, they should be the numbers for those particular jobs, yes.

Q How are those derived?

A I use two sources. I use the Bureau of Labor Market

Statistics as well as using SkillTRAN which provides

information regarding the incidence of numbers per DOT.

Q But it’s my understanding that the statistics you’re

referring to are kept for an occupational group that would

include, for example, with hand packagers, a number of other

jobs that are in the same group and that that’s how the jobs are

assessed in terms of numbers in the national economy. Is that

not true?

A Yes, that’s correct.

Q So then there are 700,560 jobs in the group that includes

hand packager in the United States. Is that correct?

A Yes.

Q But not specifically 700,560 hand packager positions,

correct?

A Right, well, yes, I know what you mean, yes, correct.

ATTY: Okay, I don’t have further questions for the vocational

expert, Your Honor.

Id. at 75–77. The ALJ did not ask the vocational expert any other questions. Id. at

77–79 (asking Evans (but not the vocational expert) some other questions before

closing the hearing).

Despite the vocational expert’s testimony that the numbers that she had

given for the three jobs she had identified were not, in fact, numbers for only those

jobs and despite the fact that the ALJ asked no further questions of the vocational

expert about job numbers, the ALJ, in her decision, relied on the vocational

expert’s testimony regarding job numbers:

Through the date last insured, the claimant’s ability to perform

work at all exertional levels was compromised by nonexertional

limitations. To determine the extent to which these limitations

eroded the occupational base of unskilled work at all exertional

levels, the Administrative Law Judge asked the vocational

expert whether jobs existed in the national economy for an

individual with the claimant’s age, education, work experience,

and residual functional capacity. The vocational expert testified

that given all of these factors the individual would have been

able to perform the requirements of representative occupations

such as a hand packager (DOT# 920.587-018 with 700,550 jobs

in the national economy), a laundry worker (DOT# 361.685-

018 with 209,350 jobs in the national economy) and a sorter

(DOT# 222,687-014 with 230,750 jobs in the national

economy).

Pursuant to SSR 00-4p, the undersigned has determined that the

vocational expert’s testimony is consistent with the information

contained in the Dictionary of Occupational Titles (DOT).

Further, the vocational expert indicated that there would be

some changes in unskilled jobs, but they would be rare and not

significant in her experience, as the day to day job duties would

remain the same. As such, this additional testimony is not

inconsistent with the DOT, although it is not specifically

identified by the publication. As such the vocational expert

testified the jobs noted above could be performed with the

above limitations.

Id. at 35. The ALJ then concluded that Evans “was capable of making a successful

adjustment to other work that existed in significant numbers in the national

economy.” Id.

B. Substantial evidence does not support the Commissioner’s Step 5

finding regarding other work.

The Social Security Act provides that an individual is disabled only if she

cannot do her previous work and if she cannot “engage in any other kind of

substantial gainful work which exists in the national economy, regardless of

whether such work exists in the immediate area in which [s]he lives, or whether a

specific job vacancy exists for [her], or whether [s]he would be hired if [s]he

applied for work.” 42 U.S.C.A. § 423(d)(2)(A). And the Act further provides that

“[f]or purposes of the preceding sentence (with respect to any individual), ‘work

which exists in the national economy’ means work which exists in significant

numbers either in the region where such individual lives or in several regions of

the country.” Id. Accordingly, “[a]t the fifth step, the Commissioner bears the

burden of proving that, considering the claimant’s residual functional capacity,

age, education, and past work experience, she can perform work that exists in

significant numbers in the regional or national economy.” Boone v. Barnhart, 353

F.3d 203, 205 (3d Cir. 2003) (footnote omitted). That inquiry has two

components: one focused on the kind of jobs available to the claimant, and the

other focused on the number of such jobs. Biestek, 139 S. Ct. at 1152. “The ALJ

need[s] to identify the types of jobs [the claimant] could perform notwithstanding

his disabilities.” Id. “And the ALJ need[s] to ascertain whether those kinds of jobs

‘exist[] in significant numbers in the national economy.’” Id. (quoting 20 C.F.R.

§§ 404.1560(c)(1), 416.960(c)(1)).

Vocational expert testimony may provide substantial evidence to support an

ALJ’s findings at Step 5. See Zirnsak, 777 F.3d at 616 (“The Commissioner can

also rely on testimony from a VE to meet its step-five evidentiary burden.”). And

it often does. But not always. See e.g. Boone, 353 F.3d at 211 (3d Cir. 2003)

(concluding that the vocational expert’s “testimony does not constitute substantial

evidence that Boone can perform a significant number of jobs that exist in the

economy, and the record does not otherwise contain that evidence”); see also

Biestek, 139 S. Ct. at 1157 (rejecting categorical rule that would have provided that

whenever a vocational expert refuses to disclose the data underlying her opinion,

that opinion does not meet the substantial-evidence standard, and instead observing

that “[s]ometimes an expert’s withholding of such data, when combined with other

aspects of the record, will prevent her testimony from qualifying as substantial

evidence[,]” . . . “[b]ut sometimes the reservation of data will have no such

effect”); Ruenger v. Kijakazi, 23 F.4th 760, 762–64 (7th Cir. 2022) (concluding

that the ALJ’s conclusion that there were a significant number of jobs in the

national economy for the claimant to perform was not supported by substantial

evidence where the manner in which the vocational expert obtained her job

numbers was unclear and where the vocational expert failed to justify the

methodology that she used to obtain those numbers); Goode v. Comm’r of Soc.

Sec., 966 F.3d 1277, 1278–83 (11th Cir. 2020) (concluding that substantial

evidence did not support the ALJ’s finding that there were a significant number of

jobs in the national economy that the claimant could perform where “[t]he

vocational expert’s testimony as to available jobs, on which the ALJ relied, was

significantly and admittedly flawed”); Chavez v. Berryhill, 895 F.3d 962, 963 (7th

Cir. 2018) (concluding that the ALJ’s decision at Step 5 “was not supported by

substantial evidence because the ALJ failed to ensure that the vocational expert’s

job estimates were reliable”).

Whether vocational expert testimony provides substantial evidence for an

ALJ’s decision is a “case-by-case” inquiry. Biestek, 139 S. Ct. at 1157. The

inquiry “takes into account all features of the vocational expert’s testimony, as well

as the rest of the administrative record.” Id. “And in so doing, it defers to the

presiding ALJ, who has seen the hearing up close.” Id.

Vocational Experts “may use a wide range of data sources and

methodologies to generate job-number estimates.” White v. Kijakazi, 44 F.4th 828,

834 (9th Cir. 2022) (citing cases describing different sources and methods used by

vocational experts); see also Ruenger, 23 F.4th at 761–62 (same). “The Social

Security Administration’s regulations authorize the agency to ‘take administrative

notice of reliable job information’ from the DOT, among other publications.”

Chavez, 895 F.3d at 965 (citing 20 C.F.R. § 416.966(d)(1)); see also 20 C.F.R.

§ 404.1566 (d)(1). “As a result, in cases like these, the DOT is a source that VEs

regularly canvass to identify job titles suitable for a claimant.” Id.

“Aside from being three decades old, the DOT presents other difficulties.”

Goode, 966 F.3d at 1281. “DOT codes, for example, do not provide statistical

information about the number of jobs available in the national economy.” Id. “And

while the Government collects job data, it does so at an aggregated group level,

rather than by DOT occupation, which renders estimating the number of jobs

available in the economy for a given DOT occupation no easy task.” Purdy v.

Berryhill, 887 F.3d 7, 15 (1st Cir. 2018). Thus, vocational experts “must look to

other sources . . . to find employment statistics.” Goode, 966 F.3d at 1281.7

Here, as set forth above, the vocational expert in this case testified that she

relied on two sources for her job numbers—“the Bureau of Labor Market

Statistics” and “SkillTRAN,” which she initially testified “provides information

regarding the incidence of numbers per DOT.” Admin. Tr. at 76. And after

Evans’s attorney asked the vocational expert if the numbers she had provided were

for the particular jobs she identified or, instead, for the occupational groups to

which those particular jobs belonged, she said “they should be for those particular

jobs . . . .” Id. But on further questioning by Evans’s attorney about how those

7 Some of the commonly used other sources, however, do “not compile data

by DOT codes, but rather through the Standard Occupational Classification (SOC)

system[,]” which “groups together detailed occupations with similar job duties.”

Goode, 966 F.3d at 1281. “As a result, a single SOC group may contain multiple

DOT occupations.” Id. And “[t]he use of one system to supply the job titles and

another to provide the number of jobs creates a matching problem: a one-to-one

correlation does not exist.” Chavez, 895 F.3d at 965. “When a VE identifies an

SOC code and the number of jobs in that code, that number approximates (at best)

the number of positions within a DOT job group—not the specific DOT job title

that the VE identified as suitable for a particular claimant.” Id. at 965–66. To

address this matching problem, “when asked to estimate jobs in the national

economy, VEs normally use one of two methods: the equal distribution method or

the occupational density method.” Engel v. Kijakazi, No. 21-CV-1042-BHL, 2022

WL 10073443, at *3 (E.D. Wis. Oct. 17, 2022). Here, the parties do not address

which method (if either) the vocational expert used in this case, and we need not

delve into that issue.

numbers were derived, the vocational expert conceded that the numbers she

provided applied to occupational groups that included the specific jobs she had

cited as well as other jobs in the same occupational group. Id. at 76–77. The ALJ

did not further question the vocational expert to attempt to clarify her testimony or

methodology. And ignoring the vocational expert’s concession that the numbers

she gave were for occupational groups, not specific jobs, the ALJ cited the

numbers given by the vocational expert as numbers for the specific jobs identified

by the vocational expert. Id. at 35. Although the substantial-evidence standard is a

low bar, as to the number of jobs that exist in the national economy that Evans can

perform, even that low bar has not been met here.

The Commissioner contends that the vocational expert was not required “to

provide the exact number of jobs available for each job.” Doc. 20 at 34–35 (citing

20 C.F.R. § 404.1566(b), which requires “a significant number of jobs”). We

agree. “The VE is not required to perform a literal headcount of jobs in existence;

she must only advance a reasonable approximation.” Peterson v. Kijakazi, No. 20-

CV-1139-BHL, 2022 WL 14787607, at *3 (E.D. Wis. Oct. 26, 2022). But the

problem with the vocational expert’s testimony in this case is not that she failed to

pinpoint an exact number of jobs. She provided exact numbers. But then she

retreated from that testimony, admitting that the numbers that she provided were

for broader categories of jobs, not the jobs that she had specifically identified.

Thus, “the issue in this case is not that the expert failed to provide specific

numbers, but that her testimony contained inconsistencies and lacked the clarity

needed for the ALJ to have confidence in her estimates.” Ruenger, 23 F.4th at 763–

64; see also Goode, 966 F.3d at 1284–85 (concluding that “when an ALJ at step

five relies on the testimony of a vocational expert for the number of jobs in the

national and regional economies that a claimant could perform, that testimony

cannot be both internally inconsistent and incomplete”).

Although the Commissioner admits that “there is no specific sources that

will identify the actual number of jobs for a specific job title,” she suggests that

here the vocational expert “testified that there is work available under the broader

categories, the job numbers are significant, and this indicates that there exists in the

national economy jobs that Plaintiff can perform with the ALJ’s RFC

determination.” Doc. 20 at 35.8 But given that the vocational expert retreated from

8 The Commissioner cites Craigie v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987),

suggesting that in that case the Third Circuit concluded that “substantial evidence

supported [the] ALJ’s RFC where [the] VE indicated there were about 200 jobs

available in the national economy that the plaintiff could perform.” Doc. 20 at 35.

In fact, in Craigie, the Third Circuit stated that the vocational expert “indicated

there were about 200 jobs in the light exertional category within [the claimant’s]

capabilities in his region” (not in the national economy) and that “[t]his is a clear

indication that there exists in the national economy other substantial gainful work

which Craigie can perform.” 835 F.2d at 58. In any event, unlike in Craigie,

where the vocational expert’s testimony provided a number, here given the

vocational expert’s concession, we do not have a number to work with for the

particular jobs that the vocational expert identified.

the numbers she initially gave, we have no idea from the vocational expert’s

testimony even an approximate number of jobs for the three jobs she identified.

And the fact that she initially provided job numbers that were significant means

nothing. See Engel, 2022 WL 10073443, at *3 (rejecting the Commissioner’s

argument that even if the vocational expert’s “method produced an abnormally

large margin of error, she identified jobs so plentiful (about 584,000) that even the

dregs qualify as significant” and observing that “big numbers mean nothing

without a sound methodology behind them”); Brace v. Saul, 970 F.3d 818, 823

(7th Cir. 2020) (rejecting a similar argument and observing that “[a]n unreliable

job-number estimate cannot be considered reliable merely because it is large”).

Further, the ALJ did not acknowledge that the vocational expert changed her

testimony. Nor did the ALJ explain how the vocational expert’s testimony

supports that the finding that “other work” for Evans “existed in significant

numbers in the national economy.” Admin. Tr. at 35. Instead, the ALJ relied on the

number of jobs in the national economy identified by the vocational expert before

Asserting that the jobs listed by the vocational expert were “only

representative examples—not an exhaustive list—of jobs that [Evans] was capable

of performing[,]” the Commissioner contends that she “has met her burden of

identifying at least one job in the national economy [Evans] can perform.” Id. at

33–35. But at issue here is not whether Evans can perform the identified jobs.

Rather, the question is whether any of those jobs exist in significant numbers in the

national economy.

she admitted that those numbers were not really for the jobs she identified, but,

rather, for broader occupation categories. Given that the ALJ did not

acknowledge, much less address and resolve, the contradiction in the vocational

expert’s testimony, we cannot say that the ALJ’s finding as to significant number

of jobs in the national economy is supported by substantial evidence.

C. Remand is the appropriate remedy.

Because the ALJ’s decision is not support by substantial evidence, the

question then is whether the court should remand the case to the Commissioner for

further proceedings or award benefits to Evans, as she requests in her complaint.

See doc. 1 at 3 (Wherefore Clause) (requesting that the court reverse and set aside

the Commissioner’s decision or, in the alternative, remand the case to the

Commissioner for further proceedings). We conclude that remand is the

appropriate remedy.

Under sentence four of 42 U.S.C. § 405(g), the court has the “power to enter,

upon the pleadings and transcript of the record, a judgment affirming, modifying,

or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” Thus, although a remand is often the

appropriate remedy, the court may also enter an order awarding the claimant

benefits. See Brownawell v. Comm’r of Soc. Sec., 554 F.3d 352, 358 (3d Cir. 2008)

(remanding the case to the district court with directions to enter an order awarding

the payment of benefits); Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)

(same); Podedworny v. Harris, 745 F.2d 210, 223 (3d Cir. 1984) (same). But an

“award [of] benefits should be made only when the administrative record of the

case has been fully developed and when substantial evidence on the record as a

whole indicates that the claimant is disabled and entitled to benefits.” Podedworny,

745 F.2d at 221–22. Whether there has been excessive delay and/or prior remands

also bears on whether to award benefits or to remand for further proceedings. Diaz

v. Berryhill, 388 F. Supp. 3d 382, 391 (M.D. Pa. 2019). “Thus, in practice any

decision to award benefits in lieu of ordering a remand for further agency

consideration entails the weighing of two factors: First, whether there has been an

excessive delay in the litigation of the claim which is not attributable to the

claimant; and second, whether the administrative record of the case has been fully

developed and substantial evidence on the record as a whole indicates that the

claimant is disabled and entitled to benefits.” Id.

Here, there has not been excessive delay in the litigation of Evans’s claim,

and we cannot say that substantial evidence on the record as a whole shows that

Evans was disabled during the relevant time period and entitled to benefits. Thus,

we will remand the case to the Commissioner for further proceedings.

VI. Conclusion.

For the foregoing reasons, we will vacate the decision of the Commissioner

and remand the case to the Commissioner for further proceedings pursuant to

sentence four of 42 U.S.C. § 405(g). An appropriate order follows.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge