“There is no official source of number of jobs 14 for each job classification in the Dictionary of Occupational 15 Titles…”
How later courts described this case
- “There is no official source of number of jobs 14 for each job classification in the Dictionary of Occupational 15 Titles…”
Written by the judges who cited it.
The opinion
1 FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
2 Dec 16, 2025
3 SEAN F. MCAVOY, CLERK
UNITED STATES DISTRICT COURT
4 EASTERN DISTRICT OF WASHINGTON
5
6 MARTIN M.,1 No. 1:25-cv-03085-EFS
7 Plaintiff,
ORDER RULING ON CROSS
8
v. MOTIONS FOR REMAND
9 AND REMANDING FOR
FRANK BISGNANO, CALCULATION OF
10 Commissioner of Social Security, BENEFITS FROM FEBRUARY
2016 TO MAY 2021
11 Defendant.
12
13
Plaintiff Martin M. appeals the denial of benefits by the
14
Administrative Law Judge (ALJ). The parties agree the ALJ erred in
15
16 his five-step evaluation, but the parties disagree about the appropriate
17 remedy. After reviewing the record and relevant authority, the Court
18
19
20
21 1 To address privacy concerns, the Court refers to Plaintiff by first
22
name and last initial or as “Plaintiff.” See LCivR 5.2(c).
23
1 remands the case for calculation of benefits for the at-issue period of
2 February 9, 2016, to May 31, 2021.
3
I. Background
4
The Court notes that Plaintiff’s appeal comes before the Court
5
with a long history and after Plaintiff has appeared at no less than four
6
separate hearings, and after two separate remand orders entered by
7
8 this Court.
9 Plaintiff alleges disability due to degenerative joint disease,
10
psychotic disorder, bipolar disorder, depressive disorder, anxiety
11
disorder, post-traumatic stress disorder (PTSD), and drug addiction in
12
remission.
13
Due to his physical and mental conditions and reduced
14
15 functioning, Plaintiff protectively filed for disability insurance benefits
16 and supplemental security income benefits on April 25, 2016, alleging
17
an amended onset date of February 9, 2016.2 Plaintiff’s claims were
18
denied at the initial level and reconsideration levels, and Plaintiff
19
20
21
22
2 AR 52, 265, 274.
23
1 requested an ALJ hearing.3 After a hearing before ALJ Marie Palachuk
2 on June 18, 2018, ALJ Palachuk issued an unfavorable decision on
3
August 23, 2018.4 The Appeals Council denied review on June 14,
4
2019.5 Plaintiff appealed to this Court, and the case was remanded by
5
the Court on September 11, 2020.6 While Plaintiff’s claim was pending
6
before the Court, he filed a new claim on February 24, 2020, alleging
7
8 an onset date of October 1, 2019.7
9 On November 16, 2021, Plaintiff attended a second hearing before
10
ALJ C. Howard Prinsloo.8 On December 22, 2021, ALJ Prinsloo issued
11
a partially favorable decision, which found Plaintiff disabled on June
12
21, 2021.9 On June 22, 2022, the Appeals Council remanded the case
13
14
15
3 AR 134, 145, 1564, 165, 166.
16
4 AR 15-37, 40-62.
17
5 AR 1-8.
18
6 AR 739-767.
19
20 7 AR
21 8 AR 658-678.
22
9 AR 794-835.
23
1 back for further proceedings, and held that the finding of disability
2 from November 16, 2021, forward would be affirmed but the finding of
3
non-disability prior to that day was reversed.10
4
On July 27, 2023, Plaintiff appeared before ALJ Prinsloo for what
5
was the third administrative hearing, and second hearing with ALJ
6
Prinsloo.11 On September 22, 2023, ALJ Prinsloo issued a partially
7
8 favorable decision finding Plaintiff was not disabled prior to June 1,
9 2021.12 Plaintiff appealed to this Court and on March 25, 2024, the
10
Court remanded the case for further proceedings upon stipulation of
11
the parties.13
12
On October 31, 2024, Plaintiff appeared with his attorney before
13
ALJ Laura Valente for his fourth hearing.14 Plaintiff appeared to
14
15
16
17
10 AR 768-775.
18
11 AR 679-697.
19
20 12 AR 623-657, 1819-1853.
21 13 AR 1854-1855, 1856-1857.
22
14 AR 1794-1818.
23
1 testify, and a vocational expert also testified.15 On January 7, 2025,
2 following the hearing, and in response to objections raised by Plaintiff’s
3
counsel regarding vocational expert testimony, the ALJ sent
4
interrogatories to the vocational expert to complete.16 On February 5,
5
2025, the vocational expert returned the interrogatories which
6
recanted his hearing testimony and instead stated that a person given
7
8 the ALJ’s formulated RFC would not be able to work at any job
9 available in the national economy17 On March 17, 2025, ALJ Valente
10
issued an unfavorable decision, finding that Plaintiff was not disabled
11
during the relevant period of February 9, 2016 to May 31, 2021.18
12
Plaintiff then filed this action.
13
ALJ Valente found:
14
15 • Step one: Plaintiff met the insured status requirements of
16 the Social Security Act through September 30, 2016.
17
18
15 Id.
19
20 16 AR 2028-2032.
21 17 AR 2033-2036.
22
18 AR 1759-1793.
23
1 • Step one: Plaintiff had not engaged in substantial gainful
2 activity since the amended alleged onset date of February 9,
3
2016.
4
• Step two: Plaintiff had the following medically determinable
5
severe impairments: degenerative joint disease, psychotic
6
disorder, bipolar disorder, depressive disorder, anxiety
7
8 disorder, PTSD, and drug addiction in remission.
9 • Step three: Plaintiff did not have an impairment or
10
combination of impairments that met or medically equaled
11
the severity of one of the listed impairments. Specifically,
12
the ALJ noted that she considered Listings 1.15, 1.16, 12.04,
13
12.06, and 12.15.
14
15 • RFC: Plaintiff had the RFC to perform light work except
16 that:
17
[S]tanding and walking, combined, was limited to 2
18 hours; and sitting was limited to 6 hours. Bilateral
upper extremity overhead reaching was limited to
19 occasional. Right lower extremity pushing and pulling,
such as for operation of foot pedals, was occasional. The
20
claimant must avoid concentrated exposure to
temperature extremes, vibrations and hazards.
21
Posturals were all occasional, and he should never
22 climb ladders, ropes or scaffolds. [Plaintiff] was capable
of simple tasks. [Plaintiff] should have no interaction
23
1 with the general public. He was able to interact
occasionally with coworkers and supervisors. He was
2 able to adapt to simple workplace changes.
3
• Step four: Plaintiff has no past relevant work.
4
• Step five: considering Plaintiff’s RFC, age, education, and
5
work history, Plaintiff could perform work that existed in
6
significant numbers in the national economy, such as a
7
8 Basket Filler (DOT 529.687-010), Egg Sorter (DOT 529.687-
9 074), and Garment Sorter (DOT 222.687-014).19
10
Plaintiff now appeals ALJ Valente’s denial of disability and asks
11
for an immediate award of benefits.20 The Commissioner concedes the
12
ALJ erred when relying upon the vocational expert’s later recanted
13
hearing testimony at step five, but the Commissioner asks the Court to
14
15 remand the matter for further administrative proceedings because
16 there are evidentiary conflicts that must be resolved by the ALJ.21
17
18
19
20 19 AR 1768-1780.
21 20 ECF Nos. 1, 8, 13.
22
21 ECF No. 12.
23
1 II. Analysis
2 A. Remand Standard
3
When a harmful error occurs in the administrative proceeding,
4
remand for further administrative proceedings is the usual course
5
absent rare circumstances.22 Three factors must be satisfied for the
6
court to consider remand for payment of benefits:
7
8 (1) the record has been fully developed and further
administrative proceedings would serve no useful purpose;
9 (2) the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical
10
opinion; and (3) if the improperly discredited evidence were
11 credited as true, the ALJ would be required to find the
claimant disabled on remand.23
12
13 When these factors are satisfied, the decision whether to remand for
14
benefits or further proceedings is within the court’s discretion, as it “is
15
16
17
18
22 Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th
19
20 Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744
21 (1985)).
22
23 Id. at 1101; Garrison v. Colvin, 759 F. 3d 995, 1010 (9th Cir. 2014),
23
1 a fact-bound determination that arises in an infinite variety of
2 contexts.”24
3
B. Remand Analysis – Error at Step Five
4
The parties agree the second factor is satisfied: the ALJ erred in
5
relying upon the testimony of the vocational expert (VE) that there
6
were jobs available in the national economy which Plaintiff could
7
8 perform. Specifically, the parties agree that the ALJ failed to
9 adequately explain why she relied upon the vocational expert’s hearing
10
testimony that Plaintiff could perform the three jobs of basket filler,
11
egg sorter, and garment sorter, rather than the expert’s later written
12
statement that there were no jobs that fit within the hypothetical.
13
14 1. Legal Standard
15 At step five, the ALJ has the burden to identify specific jobs
16
existing in substantial numbers in the national economy that claimant
17
18
19
20
21 24 Id. at 1100 (quoting Harman v. Apfel, 211 F.3d 1172, 1177 (9th Cir.
22
2000)).
23
1 can perform despite their identified limitations.25 At an administrative
2 hearing, an ALJ may solicit vocational expert testimony as to the
3
availability of jobs in the national economy.26 A vocational expert’s
4
testimony may constitute substantial evidence of the number of jobs
5
that exist in the national economy.27 The ALJ’s decision regarding the
6
number of alternative occupations must be supported by substantial
7
8 evidence.28
9 At step five, the ALJ considers the claimant’s background and
10
RFC, along with the testimony of the vocational expert, to decide
11
whether the claimant can perform available jobs notwithstanding his
12
13
14
15
16
25 Johnson v. Shalala, 50 F.3d 1428, 1432 (9th Cir. 1995). See 20 C.F.R.
17
§ 416.920(g).
18
26 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 2011).
19
20 27 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).
21 28Farias v. Colvin, 519 F. App’x 439, 440 (9th Cir. 2013) (unpublished).
22
See Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).
23
1 functional limitations.29 If the vocational expert’s “opinion that the
2 applicant is able to work conflicts with, or seems to conflict with, the
3
requirements listed in the Dictionary, then the ALJ must ask the
4
expert to reconcile the conflict before relying on the expert to decide if
5
the claimant is disabled”:30
6
For a difference between an expert’s testimony and
7
the Dictionary’s listings to be fairly characterized as a
8 conflict, it must be obvious or apparent. This means that the
testimony must be at odds with the Dictionary’s listing of
9 job requirements that are essential, integral, or expected.
This is not to say that ALJs are free to disregard
10
the Dictionary’s definitions or take them with a grain of
11 salt—they aren't. But tasks that aren’t essential, integral,
or expected parts of a job are less likely to qualify as
12 apparent conflicts that the ALJ must ask about. Likewise,
where the job itself is a familiar one—like cashiering—less
13
scrutiny by the ALJ is required.31
14
15
16
29 20 C.F.R. §§ 416.920(g), 416.960(c); Tackett v. Apfel, 180 F.3d 1094,
17
1100 (9th Cir. 1999); Hill, 698 F.3d at 1161.
18
30 Gutierrez v. Colvin, 844 F.3d 804, 807 (9th Cir. 2016).
19
20 31 Id. at 808; see also SSR 00-4p (“When a [vocational expert] . . .
21 provides evidence about the requirements of a job or occupation, the
22
adjudicator has an affirmative responsibility to ask about any possible
23
1 The ALJ—and the reviewing court—are to consider not only the
2 Dictionary and SCO, but also common experience, to determine
3
whether there is an apparent conflict.32
4
2. The ALJ’s Findings
5
The ALJ articulated her reasoning as follows:
6
7 Although categorized as light jobs by the DOT, which
generally requires standing and walking for a significant
8 portion of an 8-hour workday, the vocational expert
testified that these positions could be performed in the
9
seated position, as these jobs are typically performed in
the seated position, and he provided the example of how
10
an egg sorter performs his or her duties. The vocational
11 expert testified that he has observed these jobs and
performed job analyses of these jobs for over 40 years.
12 Aside from this discrepancy, the vocational expert stated
that his testimony was consistent with the Dictionary of
13
Occupational Titles (DOT) and Selected Characteristics
14 of Occupations (SCO), which the undersigned finds
reasonable.
15
16
17
conflict between that [vocational expert] . . . evidence and information
18
provided in the [Dictionary].”).
19
20 32 Lamear v. Berryhill, 865 F.3d 1201, 1205–06 (9th Cir. 2017); see also
21 SSR 00-4p (requiring the ALJ to consider the Dictionary and SCO);
22
SSR 83-14 (referencing the Dictionary and SCO).
23
1 After the hearing, the undersigned requested that the
vocational expert provide answers to a vocational
2 interrogatory in compliance with Social Security Ruling 24-
3p. Ex. 33E; 34E. Although the vocational expert indicated
3
on the interrogatory that an individual could not perform
4 any occupations with jobs that exist in the national
economy, he provided testimony at the hearing that the
5 claimant could perform the representative occupations
identified above, which the undersigned finds more
6
persuasive, as he had an opportunity to clarify any
questions he had at the hearing, whereas he did not explain
7
the discrepancy on the interrogatory. Ex. 34E/3; Hearing
8 Testimony.
9 Pursuant to SSR 24-3p, the vocational expert also identified
the data sources he relied on and provided his general
10
approach to estimating job numbers. The vocational expert
11 reported that he relied on the Dictionary of Occupational
Titles (DOT), the Selected Characteristics of Occupations
12 Defined in the Dictionary of Occupational Titles (SCO),
which he supplemented with information provided by the
13
U.S. Bureau of Labor Statistics (BLS) and Skill Tran-Job
Browser Pro, and electronic vocational tool that provides
14
DOT specific, full-time occupational estimates of jobs across
15 the U.S. economy. Ex. 16E/2. With respect to his general
approach to estimating job numbers, the vocational expert
16 reported that he relied on the DOT, the U.S. Bureau of
Labor Statistics, the U.S. Bureau of Labor Statistics
17
Crosswalk to DOT, and Occupational Outlook to analyzing
18 jobs. Ex. 34E/4. Based on the above information, the
vocational expert’s testimony is accepted in accordance with
19 SSR 24-3p.33
20
21
22
33 AR 1780-1781.
23
1 The Court notes that the limitations articulated and explained
2 by the ALJ in the written interrogatories propounded to the
3
vocational expert are identical to those contained in the formulated
4
RFC.
5
3. Relevant Testimony and Facts
6
7 i. The VE’s hearing testimony
8 At the hearing, the following exchange took place between the VE
9
and Plaintiff’s counsel:
10
Q Okay. With the jobs you cited earlier, what was the
11 source for the job numbers you provided us?
12 A The Bureau of Labor Statistics primarily and they
have the American community crossblocks matrix -- the
13
occupational crossblocks in 2020 and that's directed from
14 the Office of Occupational Statistics and Employment
Projections.
15
Q Okay. And does that source provide numbers on an
16
individual DOT basis?
17
A Yes, Sir. They have a 50C code that crosswalks to
18 the DOT. And if you want to inquire, go ahead and contact
the DLS and DBC and they can do that.
19
Q. Okay. So, the numbers are provided from the SOC
20
code and then you're saying that this source then narrows it
21 down to the specific DOT code?
22 A Yes, that’s my understanding from speaking to
them. I visited their office in the past when I've been in D.C.
23
1
Q Okay. And that's the American Community
2 Crosswalk. Is that what you called it?
3
A DLS Labor Statistics in the American Community
4 Crosswalk, yes. And occupational crosswalk of the Office of
Occupational Projections and Employment Statistics.
5
Q Okay. And the jobs that you cited, are they full-time
6
only jobs or have they been -~ is that something that's clear
from the Source?34
7
8 ii. Counsel’s objection to the VE’s hearing testimony
9 On November 4, 2024, Plaintiff’s counsel filed a written objection
10
to the VE’s testimony. The letter stated:
11
The VE’s testimony regarding job numbers cannot be relied
12 upon. There are no statistics that directly track the
employment numbers under the Dictionary of Occupational
13
Titles (DOT). E.g. Browning v. Colvin, 766 F.3d 702, 709
(7th Cir. 2014) (“There is no official source of number of jobs
14
for each job classification in the Dictionary of Occupational
15 Titles…”).35
16 He went to argue further:
17
The VE described that his methodology involved utilizing
18 data from the BLS and the “crosswalk” for the American
19
20 34 AR 1816-1817.
21 35 AR 2022-2023.
22
23
1 Community Surveys matrix to reach his employment
measure. Different programs and surveys for job data will
2 classify their job data differently, and a division of the BLS
publishes “crosswalks” to allow comparison and analyses
3
between these different classification systems. See
4 https://bls.gov/emp/documentation/crosswalks.htm The
Bureau of Labor Statistics (BLS) and State Workforce
5 Agencies (SWAs) work together in a federal-state
cooperative program to generate the Occupational
6
Employment Statistics (OES) program using the Standard
Occupational Classification (SOC) system—but all OES
7
estimates are of SOC occupations, and not by DOT codes.
8 See https://www.bls.gov/oes/oes_emp.htm. The crosswalk
referenced by the VE operates by matching the
9 classification of employment numbers from the “American
Community Surveys” (ACS) with the BLS classification by
10
SOC groups. Therefore, the VE’s methodology was providing
11 an estimate of job numbers for an entire group of
occupations and DOT codes and would not accurately reflect
12 the number of jobs for the specific DOT codes which he
cited.36
13
He went on to note that Skill Tran Job Browser Pro was a version
14
15 of the DOT accepted by the Social Security Administration, according
16 to a memo authored by Susan Swansiger, Director of Division of Field
17
Procedures, and that according to Job Browser Pro there are an
18
estimated 15 positions for a garment sorter, 147 positions for a basket
19
20
21
22
36 AR 2023.
23
1 filler, and 181 positions for an egg candler.37
2 4. Analysis
3
The Commissioner concedes that the VE “essentially recanted his
4
hearing testimony, and opined through interrogatories that there were
5
not jobs Plaintiff could perform in significant numbers within
6
Plaintiff’s residual functional capacity.”38 Elsewhere in his brief, he
7
8 argued that the VE’s hearing testimony was reliable despite the fact
9 that it provides numbers that conflict with those provided by Job
10
Browser Pro, and stated:
11
…the vocational expert explained that the [sic] relied
12 primarily on Bureau of Labor Statistics data but also used
the “American community crossblocks matrix” that provided
13
numbers specific to a DOT code. See AR 1816-17. While it
appears that the vocational expert was referring to the
14
National Employment Matrix, which provides SOC
15 occupation equivalents from the American Community
Survey (ACS), he explained that the sources he used also
16 provided numbers on an individual job basis narrowed down
to the specific DOT code. AR 1816-17.39
17
18
19
20 37 Id.
21 38 ECF No. 12, pgs. 20-21.
22
39 ECF No. 12, pg. 19.
23
1 The Commissioner errs in this argument. The VE did not state
2 that he used methods other than his reliance on the “American
3
community crossblocks matrix.” After Plaintiff’s counsel provided
4
information that this was incorrect the VE recanted his testimony and
5
stated that there were no jobs that fit within the hypothetical.
6
The written interrogatories sent to the VE after the hearing were
7
8 clearly sent as a result of the objections raised by Plaintiff’s counsel
9 and the VE’s responses can be presumed to be based upon the newer
10
information provided. On another record, the Court might provide
11
deference and give a second bite at the apple to allow the ALJ to query
12
the VE further, but on this record it declines to do so. This is the
13
fourth hearing in this matter, and the Court sees no reason to put
14
15 Plaintiff through a fifth hearing when the VE’s reasoning and intent is
16 clear.
17
The Court concludes that the record establishes disability given
18
that the hypothetical considered by the VE is identical to the ALJ’s
19
formulated RFC. In his interrogatory responses, the VE stated given
20
that specific RFC there were no jobs that Plaintiff could perform during
21
22 the relevant period. Remanding the case for further proceedings will
23
1 serve no useful purpose. Accordingly, the Court concludes that
2 Plaintiff has met his burden to establish disability based on the record
3
for the period in question and remands for calculation of benefits.
4
C. Other Issues: The Court finds all other issues moot.
5
Plaintiff argues the ALJ erred in her evaluation of the medical
6
opinions and assessment of Plaintiff’s subjective complaints. Because
7
8 the Court has remanded the case for an award of benefits, these issues
9 are moot.
10
III. Conclusion
11
Remand for an award of benefits is appropriate. Based upon the
12
VE’s interrogatory responses, a person of Plaintiff’s age, education, and
13
past relevant work history, assessed with the limitations determined
14
15 by the ALJ, would not be able to find and sustain work in the national
16 economy. There is no useful purpose in remanding for furthering
17
proceedings.40
18
Accordingly, IT IS HEREBY ORDERED:
19
20
21
22
40 See Vasquez v. Astrue, 572 F.3d 586, 593–94 (9th Cir. 2009).
23
1. The ALJ’s nondisability decision is REVERSED, and this
matter is REMANDED to the Commissioner of Social
Security for a calculation of benefits pursuant to sentence
four of 42 U.S.C. § 405(g) for the period of February 9, 2016,
to May 31, 2021.
2. The Clerk’s Office shall TERM the parties’ briefs, ECF
Nos. 8 and 12, enter JUDGMENT in favor of Plaintiff.
3. The case shall be CLOSED.
IT IS SO ORDERED. The Clerk’s Office is directed to file this
order and provide copies to all counsel.
DATED this 16 day of December, 2025.
awd | ew
EDWARD F. SHEA
Senior United States District Judge
ORDER RULING ON CROSS MOTIONS TO REMAND - 20