Kelly J. Chavez, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.
June 6, 2018
from the United States District Court for the Northern
District of Indiana, Fort Wayne Division. No. 1:16-cv-314-WCL
- William C. Lee, Judge.
Wood, Chief Judge, and Kanne and Scudder, Circuit Judges.
SCUDDER, CIRCUIT JUDGE.
person applies for disability benefits, the Social Security
Administration evaluates that person's capacity to work
and, at the fifth and final step of the analysis, assesses
whether significant numbers of jobs exist that someone with
those abilities and limitations could per- form. This
determination is consequential: answering no means the
claimant is disabled and entitled to supplemental income,
whereas a yes answer results in a denial of benefits. At this
final step, the agency bears the burden of showing that
suitable jobs exist in significant numbers. The vocational
ex- pert enlisted by the agency to estimate the number of
jobs suitable for Kelly Chavez offered two vastly different
projections-testifying that for one particular job there were
either 800 or 108, 000 existing positions. The vocational
expert preferred the larger estimate, and the administrative
law judge who presided over Chavez's hearing agreed with
that choice. In the end, the ALJ denied Chavez's claim
for benefits, and the district court affirmed.
vacate the ALJ's decision at step five. The decision was
not supported by substantial evidence because the ALJ failed
to ensure that the vocational expert's job estimates were
reliable. To the contrary, the vocational expert offered no
affirmative explanation for why his estimates (or the method
that produced them) were reliable and instead reached that
conclusion through a process of elimination-by determining
that the estimates yielded by an alternative method seemed
too low. By affording such broad deference to the vocational
expert's chosen estimates, the ALJ relieved the agency of
its evidentiary burden at the final step of the disability
analysis and impermissibly shifted the burden to Chavez.
Chavez has severe impairments. In 2007, at the age of 21, she
was diagnosed with a brain tumor and underwent five
surgeries. Around this time, Chavez began feeling depressed
and anxious. She struggled to maintain enough concentration
to complete simple household tasks like loading a dishwasher.
Chavez also suffered from migraine headaches, back pain
(caused by degenerative disc disease), and numbness in her
feet and hands. Perhaps owing to becoming sick at such a
young age, Chavez has no prior work experience.
Chavez applied for supplemental security income, alleging
that she had been disabled since 2007. Eventually she
received a hearing before an ALJ. At step one of the
five-step disability analysis delineated in 20 C.F.R. Â§
416.905(a), the ALJ found that Chavez had not worked since
applying for benefits. At steps two and three, the ALJ
concluded that Chavez had several severe impairments, but
found that none matched or equaled the impairments listed in
20 C.F.R. Part 404, Subpart P, Appendix 1, that presumptively
establish that a claim- ant is disabled. The ALJ then
assessed Chavez's residual functional capacity or RFCâher
ability to work on a sustained basis despite the limitations
caused by her impairments, as required by 20 C.F.R. §
416.920(e)-and found that Chavez was quite limited. She could
perform only simple, routine tasks with significant
restrictions imposed on how much she could lift and carry.
The ALJ further specified that Chavez could work only in an
unchanging environment that neither proceeded at a fast pace
nor required more than brief interactions with colleagues or
the public. At step four, therefore, the ALJ determined that
Chavez could perform a limited range of light work. None of
these findings is at issue in this appeal.
then proceeded to step five. Because Chavez had no past work
experience, the question became whether she was able to do
any work in light of her RFC, age, and education. See 20
C.F.R. § 416.960(c)(1). At this step, the agency bore
the burden of demonstrating the existence of significant
numbers of jobs in the national economy that Chavez could
per- form. See id. § 416.960(c)(2);
McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir.
2004) ("It is the Commissioner's burden at Step 5 to
establish the existence of a significant number of jobs that
the claimant can perform.").
how the agency generally approaches its burden at step five
provides essential context for this appeal. The agency does
not tally the number of job openings at a given time, but
rather approximates the number of positions that exist,
whether vacant or filled, and without regard to the location
of the work and a claimant's likelihood of being hired.
See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §
416.966(a). In the same vein, the regulations direct that
other factors of clear import to anyone pursuing employment,
such as economic conditions or an employer's hiring
practices, are not to affect step-five estimates of job
numbers. See id. § 416.966(c). The design of
these limitations is clear: they establish a framework for
approximating the availability of suitable alternative work
that the agency can apply across massive volumes of
applications for disability benefits.
obtain a job-number estimate at Chavez's hearing, the ALJ
followed the common path of seeking the assistance of a
vocational expert. See 20 C.F.R. § 416.966(e)
(authorizing use of a VE and other specialists to aid with
step five assessments). VEs tend to have master's degrees
in vocational rehabilitation or psychology and often work in
the field of job placement. The agency expects VEs to testify
objectively and impartially about the exertional requirements
of various jobs and their frequency in the national economy.
See Soc. Sec. Admin., Vocational Expert Handbook, 9-10 (Aug.
2017). Doing so requires a VE to be familiar with and draw
from various sources of occupational information produced by
the Department of Labor, Social Security Administration,
Census Bureau, and state employment studies. Amy E. Vercelli,
Consultation in Social Security Disability Law, in
Foundations of Forensic Vocational Rehabilitation 311, 318-21
(Rick H. Robinson ed., 2014). The VE selected to assist the
ALJ at Chavez's hearing had three decades of experience
as a vocational consultant. The parties stipulated to the
VE's qualifications as an expert, and those
qualifications are not at issue here.
testified that someone with Chavez's abilities,
limitations, and impairments could perform "unskilled
work" at a "light level," including, for
example, working as a "bench assembler,"
"domestic laundry worker," or "hand
packager." If these job titles sound obscure, that is a
fair reaction, as they come from a 1977 publication of the
Department of Labor known as the Dictionary of
Occupational Titles, regularly abbreviated as the DOT.
The Social Security Administration's regulations
authorize the agency to "take administrative notice of
reliable job information" from the DOT, among other
publications. 20 C.F.R. § 416.966(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.
divides jobs into groups and then lists and describes
particular job titles within each group. The title
"domestic laundry worker" (DOT 302.685-010), for
example, is situated in group 302 ("Private Family
Launderers"), which contains one other job title,
"ironer" (DOT 302.687-010). U.S. Department of
Labor, I Dictionary of Occupational Titles 302 (4th ed.
1991). Other DOT groups are much larger. For instance, a
"bench assembler" (DOT 706.684-022), another job
that the VE identified as suitable for Chavez, is listed as
one of 59 job titles in the group "Metal Unit Assemblers
and Adjusters, Not Elsewhere Classified." U.S.
Department of Labor, II Dictionary of Occupational Titles 706
(4th ed. 1991). The third job the VE identified, DOT
920.687-122, which he called a "hand packager," is
actually entitled "machine- pack assembler" and
exists only in the artillery industry. Id. at 937.
That job is one of 109 titles in group 920, "Packaging
Occupations." Id. at 931-38.
Department of Labor last revised the DOT in 1991. Recognizing
the outdated nature of many of the DOT's job descriptions
and titles, the Social Security Administration has been
working (since 2008) on a new resource that better reflects
the jobs that exist in today's economy. The agency has
announced that it anticipates replacing the DOT with the
Occupational Information System in 2020. Soc. Sec. Admin.,
Occupational Information System Project,
html (last visited July 18, 2018). Courts including our
own have invited this development. See, e.g., Dimmett v.
Colvin, 816 F.3d 486, 489 (7th Cir. 2016) (encouraging
agency to complete its efforts to replace DOT in light of its
"obsolescence"); Browning v. Colvin, 766
F.3d 702, 709 (7th Cir. 2014) ("No doubt many of the
jobs [in the DOT] have changed and some have disappeared. We
have no idea how vocational experts and ...