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Chavez v. Berryhill

United States Court of Appeals, Seventh Circuit

July 18, 2018

Kelly J. Chavez, Plaintiff-Appellant,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued June 6, 2018

          Appeal 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.

          Before Wood, Chief Judge, and Kanne and Scudder, Circuit Judges.


         When a 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.

         We 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.


         Kelly 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.

         In 2010 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. § 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 RFC—her 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.

         The ALJ 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.").

         Understanding 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.

         To 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.

         The VE 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.

         The DOT 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.

         The 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 ...

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