Davis v. Commissioner of Social Security

Filing 27

ORDER AND OPINION granting 19 Plaintiff's Motion for Summary Judgment; and denying 24 Defendant's Motion for Summary Affirmance and REMANDS this matter pursuant to Sentence Four of 42 USC Section 405(g). Entered by Magistrate Judge Jonathan E. Hawley on 5/17/2016. (RK, ilcd)

E-FILED

Tuesday, 17 May, 2016 01:35:44 PM
Clerk, U.S. District Court, ILCD

IN THE
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
ELIZABETH A. DAVIS,
Plaintiff,
v.

Case No. 1:15-cv-01121-JEH

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Order and Opinion
Now before the Court is the Plaintiff’s Motion for Summary Judgment
(Doc. 19), the Defendant’s Motion for Summary Affirmance (Doc. 24), and the
Plaintiff’s Reply (Doc. 26). For the reasons stated herein, the Court GRANTS the
Plaintiff’s Motion for Summary Judgment, DENIES the Defendant’s Motion for
Summary Affirmance, and REMANDS this matter for proceedings consistent
with this opinion. 1
I
On September 30, 2003, Davis was determined disabled as of March 27,
2003. On June 9, 2011, Davis was determined to no longer be disabled as of June
2011. A state agency disability hearing was held and the determination that
Davis was no longer disabled as of June 2011 was upheld on reconsideration. On
February 1, 2013, Davis filed a request for hearing concerning her application for
disability insurance benefits (DIB). A hearing was held before the Honorable
John M. Wood (ALJ) on June 6, 2013 during which time Davis appeared without
counsel and when informed of her right to counsel, she explained that she would
References to the pages within the Administrative Record will be identified by AR [page number]. The
Administrative Record appears as (Doc. 12) on the docket.
1

1

like to seek an attorney. The ALJ gave Davis 30 days to look for an attorney
rather than proceed with the hearing that day. On December 5, 2013, the ALJ
resumed a second hearing and Davis was again unrepresented. Davis did not
object to the ALJ proceeding with the hearing at that time. Davis and Vocational
Expert James Ragains (VE) testified at that hearing.

Following the second

hearing, the ALJ determined on January 21, 2014 that Davis’s disability ended as
of June 1, 2011. Her request for review by the Appeals Council was denied on
January 30, 2015, making the ALJ’s Decision the final decision of the
Commissioner. Davis filed the instant civil action seeking review of the ALJ’s
Decision on March 26, 2015.
II
At the time Davis was determined disabled as of March 2003, she had the
medically determinable impairments of nephrotic syndrome, diabetes, adrenal
insufficiency, and depression. Her nephrotic syndrome was found to medically
equal Section 6.06 of 20 C.F.R. Part 404, Subpart P, Appendix 1. She had kidney
and pancreas transplants in 2004 and 2005.
When she was determined to no longer be disabled as of June 2011, Davis
was 29 years old living in Peoria, Illinois. There was a period of time during
which she lived with a boyfriend, but otherwise Davis lived alone.

At the

December 5, 2013 hearing, Davis testified that she lived with her two cats in a
ground floor apartment. She testified that her upstairs neighbor would bring her
meals to eat and would go shopping with her to help carry her bags.
Davis testified about a job she had working on her computer at home that
lasted for eight work days. She quit during the training phase of the job because
she was so far behind, did not understand it, and started to get migraines. She
also testified that about two to three years before the hearing, Davis worked as a
babysitter. Davis explained that she did not feel she could do any other type of
2

job because if she stood on her feet for eight hours her feet would swell, if she
were around other people in a “big situation” she would experience anxiety, and
if she were around other people who were sick she would get sick because of her
low immune system.
She stated that she sometimes became dizzy when showering and so
would have to go lay down. She spent her days listening to music, painting,
playing games on the computer, watching TV, and trying to read. Davis testified
that she had a boyfriend with whom she spent most days of the week at each
other’s homes.
The ALJ then questioned the VE, James Ragains. The ALJ asked whether
the qualifications that were set forth in the VE’s resume were current and correct,
and the VE replied they were. The VE also testified that he did not discuss the
merits of the case with Davis or the ALJ prior to the hearing, he was familiar
with the jobs that existed in the region (the State of Illinois), and he had reviewed
the exhibits in the file pertaining to Davis’s past work activity and heard Davis’s
testimony.
The VE next testified about Davis’s prior job which he identified as a
telephone solicitor according to the Dictionary of Occupational Titles (DOT)
which was a semi-skilled, sedentary job. The ALJ then asked the VE:
Q.

Okay. All right - - all right. Let me then ask you some
hypothetical questions. And please disregard any information
you may have gathered from reading the file or listening to
the testimony, other than that which I give you a hypothetical
[sic]. Assume the past work activity, same as the claimant’s
exertional capacity limited to light work with the need to be
able to alternate sitting and standing periodically throughout
the day. Not necessarily a will [sic], but if circumstances
would allow, so that by the end you can sit about half the
time. And stand about half the time, if desired with no
climbing of ladders, ropes, or scaffolds. Other postural
3

A.
Q.

A.

A.
A.

A.
A.

Q.
A.

functions could be performed occasionally. You need to avoid
environmental hazards, such as unprotected heights, and
dangerous machinery, and also the need to avoid
concentrated exposure to pulmonary irritants. The limitations
could be performed as a simple and repetitive tasks [sic] that
would involve little or no change in work routine. No
interaction with the general public, and occasional interaction
with coworkers, and supervisors. First of all, of course, all
that past work activity would be precluded, right?
Yes it would, your honor.
Oh, if we now add the vocational factors by assuming that the
hypothetical individual is move - - is of the claimant’s age,
education, and work history. Would there be any unskilled
jobs in the state of Illinois that such a person could perform?
Yes, sir, there would be some unskilled work in the state of
Illinois. And I can testify to those. And also tell you that I
don’t think these jobs would be unique to the Illinois
economy. They would exist in other regions of the nation.
***
Unfortunate [sic] to population. But one example at the light
exertional level is a mail sorter.
***
Also alternate - - alternatively noted as a male [sic] clerk.
That’s 209.987-026. In Illinois now there are about 3,700 of
those jobs being done. It would be an estimate for me to say
there would need to be a reduction in those numbers, though,
when you factor in that sit/stand option.
***
Maybe two thirds of those jobs would be eliminated.
***
A second example would be an office helper, which is 239.567010. And there are about 4,700 of those jobs being done now
in Illinois. And again you would need to reduce those
numbers, similarly as before because of the sit/stand option.
***
What about if I reduce the exertional capacity to sedentary,
and kept everything else the way it was? What - - would
there be jobs at that point?
Yes, sir, there would be jobs, unskilled jobs at the sedentary
level. It could be learned within 30 days of on-the-job
4

A.
Q.
A.
Q.

A.

Q.
A.
Q.

Q.
A.
A.

training, or orientation, such as, for example, a type of general
office clerk work as a document preparer, microfilming.
That’s the DOT title, 249.587-018. There are about 2,800 of
those jobs in Illinois. Another example would be final
assembler, 713.687-018 is the code, which is about 1,700 of
those jobs in Illinois. And I’m of the opinion based on my
experience and my training that I don’t think there’d be any
real significant or any reduction in those numbers with the
need for a - - to alternate from sitting to standing - ***
- - as you described.
What - - this particular assembling job, what is it that the
person assembles, what’s - Optical goods.
***
All right. With regards to these jobs that we’ve discussed,
how many absences per month would an employer typically
tolerate from an employee. [sic] And have them keep their
job?
And my answer is prefaced on experience and training since
the DOT is silent on that type of issue. My opinion would be
no than [sic] one absence, perhaps, per month would be
tolerated.
Okay. And is your testimony consistent with the Dictionary
of Occupational Titles?
Other than my answer to that last question, and also the
answers based on the sit/stand option.
Okay. And if someone in from [sic] this area wanted to be
able to, you know, find these kind - - assuming there’d be - might be vacancies, assume - - find these kinds of jobs - ***
- - so it would be more particular in a job search. Was there
any sort of resources they could utilize to be able to do that?
Yes, sir, the Illinois Department of Employment Security
would be one resource - ***
- - which anyone is a resident of the state and can qualify for
those services. And also the Division of Rehabilitation
Services, which is part of the Department of Human Services
in the state of Illinois.
5

A.

***
So and they explicitly deal with persons who have physical
and or mental issues, which affect their ability to work. And
helping those people get back to work, or get to work.

AR 68-72.
III
In his Decision, the ALJ detailed Davis’s medically determinable
impairments at the time of her most recent favorable medical decision finding
her disabled (September 30, 2003), her disability end date of June 1, 2011, and the
medical evidence which established that as of June 1, 2011, Davis’s medically
determinable impairments were history of kidney and pancreas transplants,
hypertension, history of adrenal insufficiency, depression, and anxiety with
periodic migraines manifesting later.

When discussing whether Davis’s

impairments or combination of impairments met or medically equaled the
severity of a listed impairment, the ALJ noted that Davis established “at most
moderate difficulties in maintaining concentration, persistence, or pace.” AR 21.
The ALJ crafted the following Residual Functional Capacity (RFC):
Based on the impairments present as of June 1, 2011, the claimant
had the residual functional capacity to perform sedentary work as
defined in 20 CFR 404.1567(a) except the work must allow for
alternating between sitting and standing periodically for equal
amounts of time if desired, occasional climbing of ramps and stairs,
balancing, stooping, kneeling, crouching, and crawling, no climbing
of ladders, ropes, or scaffolds, no concentrated exposure to
pulmonary irritants, and no work at unprotected heights or around
unprotected hazardous machinery. The work must be simple and
repetitive in nature with little or no change in work routine and no
more than occasional interaction with coworkers or supervisors and
no work with the public.
AR 23. In making that finding, the ALJ discussed Davis’s testimony and her
friend Angie Qualls’s testimony before the disability hearing officer on
6

November 19, 2012 and the disability hearing officer’s own notes from that date.
The ALJ also detailed Davis’s testimony before him at the December 2013
hearing. He included a list of Davis’s reported daily activities and how she
accomplished them.

The ALJ considered the medical records pertaining to

Davis’s follow up appointments about her transplants and her mental health
records. The ALJ recited the results of state agency evaluations done on May 24,
2011 and May 26, 2011 as well as state agency medical and psychological
consultation results dated June 6, 2011, June 8, 2011, July 26, 2011, and July 27,
2011.
Particularly with regard to the ALJ’s discussion of the state agency
psychological consultant’s assessments, the ALJ included that the consultants
indicated that Davis had moderate difficulties in maintaining concentration,
persistence, or pace and one indicated moderate difficulties in maintaining social
functioning. The ALJ also detailed that the VE testified that an individual with
Davis’s age, education, work experience, and RFC, would be able to perform the
requirements of representative occupations such as general office clerk
(document preparation clerk) or final assembler. For the former job the ALJ
indicated 2,800 sedentary jobs in Illinois and for the latter job the ALJ indicated
1,700 jobs in Illinois. The ALJ explained that the VE’s testimony was consistent
with the information contained in the DOT except that his opinion on the
sit/stand option was based on experience. Lastly, the ALJ stated:
Based on the testimony of the vocational expert, the undersigned
concludes that as of June 1, 2011, the claimant is capable of making a
successful adjustment to work that existed in significant numbers in
the national economy. A finding of “not disabled” is therefore
appropriate under the framework of the above-cited rule.
AR 32.
7

IV
Davis alleges the following five errors: 1) the ALJ erred by not properly
developing the record; 2) the Commissioner cannot sustain her Step 5 burden of
proving a significant number of jobs 2; 3) the ALJ failed to properly assess
credibility; 4) the ALJ’s functional capacity finding lacked a supported record
basis; and 5) the ALJ failed to properly accommodate limitations in
concentration, persistence, or pace.
The Court's function on review is not to try the case de novo or to supplant
the ALJ's findings with the Court's own assessment of the evidence. See Schmidt
v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000); Pugh v. Bowen, 870 F.2d 1271 (7th Cir.
1989). Indeed, "[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive."

42 U.S.C. §

405(g). Although great deference is afforded to the determination made by the
ALJ, the Court does not "merely rubber stamp the ALJ's decision."

Scott v.

Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). The Court's function is to determine
whether the ALJ's findings were supported by substantial evidence and whether
the proper legal standards were applied. Delgado v. Bowen, 782 F.2d 79, 82 (7th
Cir. 1986).
Substantial evidence is defined as such relevant evidence as a reasonable
mind might accept as adequate to support the decision. Richardson v. Perales, 402
U.S. 389, 390 (1971); Henderson v. Apfel, 179 F.3d 507, 512 (7th Cir. 1999).
Furthermore, determinations of credibility made by the ALJ will not be
overturned unless the findings are clearly erroneous. Anderson v. Bessemer City,

Though Davis identifies the Commissioner’s error at “step 5,” her case involves a decision that Davis’s
disability ended rather than an initial decision that she was not disabled. Therefore, the eight-step process
for her Title II claim for determining whether a claimant who was found disabled continues to be disabled
applies rather than the five-step test used to make the factual determination of whether disability is
established. See infra pgs. 9-11.

2

8

470 U.S. 564, 573 (1985); Imani v. Heckler, 797 F.2d 508 (7th Cir. 1986), cert. denied,
479 U.S. 988 580 (1986).
First, the claimant must be suffering from a 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). Second, a person is disabled only if his
physical or mental impairment or impairments are of such severity that he is
both unable to do his previous work and also cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A).
In determining whether a claimant who was found disabled continues to
be disabled, the ALJ follows an eight-step process for a Title II claim. 20 C.F.R. §
404.1594.
In the first step, the ALJ must determine if the claimant is engaging in
substantial gainful activity (SGA); if so, the claimant is no longer disabled. 20
C.F.R. § 404.1594(f)(1). If the claimant is not engaged in SGA, step two requires
the ALJ to determine whether the claimant has an impairment or combination of
impairments that meets or medically equals the criteria of an impairment listed
in 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant does, his disability
continues. 20 C.F.R. § 404.1594(f)(2).
At step three, the ALJ must determine whether medical improvement has
occurred. 20 C.F.R. § 404.1594(f)(3). Medical improvement is any decrease in the
medical severity of the claimant's impairment(s) that were present at the time of
the most recent favorable medical decision, and medical improvement is
established by improvement in symptoms, signs, and/or laboratory findings. 20
C.F.R. § 404.1594(b)(1).

If medical improvement has occurred, the analysis

proceeds to the fourth step. If not, the analysis proceeds to the fifth step.
9

At step four, the ALJ must determine whether the medical improvement is
related to the ability to work. 20 C.F.R. § 404.1594(f)(4). 3 If so, the analysis
proceeds to step six.
At step five, the ALJ must determine if an exception to medical
improvement applies.

20 C.F.R. § 404.1594(f)(5).

There are two groups of

exceptions. 20 C.F.R. §§ 404.1594(d), (e). If an exception from the first group
applies, the analysis proceeds to the next step. If an exception from the second
group applies, the claimant's disability ends. If no exception applies the
claimant's disability continues.
Step six requires the ALJ to determine whether all the claimant's current
impairments in combination are severe. 20 C.F.R. § 404.1594(f)(6). If all current
impairments in combination do not significantly limit the claimant's ability to do
basic work activities, the claimant is no longer disabled. If they do, the analysis
proceeds to the next step.
At step seven, the ALJ must assess the claimant's residual functional
capacity (RFC) based on the current impairments and determine if she can
perform past relevant work. 20 C.F.R. § 404.1594(f)(7). If the claimant has the
capacity to perform past relevant work, her disability has ended. If not, the
analysis proceeds to the last step.
At the last step, the ALJ must determine whether other work exists that the
claimant can perform, given her RFC and considering her age, education, and
past work experience. 20 C.F.R. § 404.1594(f)(8). If the claimant can perform
other work, she no longer is disabled. If the claimant cannot perform other work,
her disability continues. At this last step, the claimant still has the burden of
proving disability, but a limited burden of going forward with the evidence
Medical improvement is related to the ability to work if it results in an increase in the claimant’s
capacity to perform basic work activities. 20 C.F.R. § 404.1594(b)(3).

3

10

shifts to the Social Security Administration.

To support a finding of non-

disability, the SSA must provide evidence demonstrating that other work exists
in significant numbers in the national economy that the claimant can do, given
the claimant’s RFC, age, education, and work experience.
In the instant case, Davis claims error at Steps 7 and 8.
A
Davis argues that the ALJ did not obtain a valid waiver of counsel and so
the Commissioner bears the burden to establish a fully developed record. She
argues that the ALJ failed in his heightened duty to properly question the VE
about the impact of Davis’s moderate difficulties in maintaining concentration,
persistence, or pace, failed to question the VE to determine how the identified
jobs were compatible with her other mental limitations, failed to develop the
basis for the VE’s testimony in order to determine its reliability, and did not
properly develop the record to resolve obvious inconsistencies between the
Dictionary of Occupational Titles (DOT) and the VE’s testimony. While the
Commissioner concedes that the ALJ did not obtain a valid waiver of counsel
from Davis in this case, the Commissioner argues that such a failure was
harmless because the ALJ nevertheless adequately developed the record. The
Commissioner also argues that the Court can conclude that the 1,700 final
assembler of optical goods jobs testified to by the VE was a “significant number”
in satisfaction of the SSA’s burden at the last step. The Commissioner contends
that the ALJ was permitted to rely on the VE’s testimony where Davis has not
identified any inconsistency between the VE’s testimony and the DOT, and the
DOT cannot conflict with the VE on an issue which it does not address.
An ALJ has a “basic obligation to develop a full and fair record,” which is
particularly so where the claimant is unrepresented by counsel so that the ALJ
has a duty to “scrupulously and conscientiously probe into, inquire of, and
11

explore all relevant facts.” Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997)
(internal citations omitted). However, how much evidence to gather is typically
left to the reasoned judgment of the Commissioner, and a significant omission is
usually required before the court will find that the Commissioner failed to assist
a pro se claimant in developing the record fully and fairly. Luna v. Shalala, 22 F.3d
687, 692 (7th Cir. 1994). Where an ALJ does not obtain a valid waiver, the burden
is on the [Commissioner] to show the ALJ adequately developed the record.
Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994).
Because the Commissioner concedes that the ALJ did not obtain a valid
waiver of counsel from Davis, the Court must only determine whether the ALJ
adequately developed the record. The ALJ did not do so as illustrated by the
testimony he elicited from the VE which is discussed in detail below.
“Ordinarily, an ALJ's hypothetical questions to a VE must include all
limitations supported by medical evidence in the record.” Simila v. Astrue, 573
F.3d 503, 520 (7th Cir. 2009) (internal citation omitted). In other words, an ALJ
must orient the VE to the totality of the claimant’s limitations, including those
pertaining to deficiencies in concentration, persistence, or pace.

O’Connor-

Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010). Here, the ALJ noted more
than once in his Decision that Davis had moderate difficulties in maintaining
concentration, persistence, or pace and he specifically cited to state agency
doctors’ forms wherein they indicated moderate difficulties in certain categories.
The ALJ explained that he “generally agree[d] with the state agency mental
assessments.” AR 29. However, at the hearing, the ALJ did not include in his
hypotheticals to the VE those particular areas in which Davis was determined to
experience moderate difficulty.
In his hypotheticals to the VE, the ALJ went only so far as to ask the VE
about an individual limited to “simple and repetitive tasks that would involve
12

little or no change in work routine” and “no interaction with the general public,
and occasional interaction with coworkers, and supervisors.” AR 68. Notably,
before the ALJ posed the hypothetical to the VE, the ALJ asked that the VE
disregard any information he may have gathered from reading the file or
listening to the testimony other than that which he gave the VE in the
hypothetical.

Thus, not only did the ALJ fail to include Davis’s moderate

limitations in his hypotheticals, but also by instructing the VE in that way, the VE
was prohibited from considering any moderate limitations Davis had that he
may have absorbed through his own review of the evidence of record or by
listening to Davis’s hearing testimony. See Young v. Barnhart, 362 F.3d 995, 1003
(7th Cir. 2004) (explaining that the ALJ, by circumscribing the exact limitations
the VE was to follow for each question, prohibited the VE from considering
physical, psychological, or cognitive limitations that he may have absorbed
either through reviewing the evidence in the record or by listening to the hearing
testimony).
Davis also correctly faults the ALJ for failing to inquire into the basis for
the VE’s job numbers, especially where the VE provided testimony of his
estimation of the reduction in the number of jobs due to the sit/stand option.
The Seventh Circuit Court of Appeals has previously made clear that “[i]f the
basis of the vocational expert’s conclusions is questioned at the hearing then the
ALJ should make an inquiry to find out whether the purported expert’s
conclusions is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2003)
(internal quotations omitted).

More recently, the Seventh Circuit has

emphasized its “profound doubt” about the source and accuracy of the statistics
of available jobs in the local, state, and national economy to which the VEs testify
in Social Security cases. Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014),
citing Browning v. Colvin, 766 F.3d 702, 708-12 (7th Cir. 2014); see also Alaura v.
13

Colvin, 797 F.3d 503, 507 (7th Cir. 2015) (“We have recently expressed concern
with the source and validity of the statistics that vocational experts trot out in
social security disability hearings”).
The Hermann Court noted that the VE in that case cited the DOT as the
only public source for the numbers and testified that he relied upon his own
knowledge of the industry. Herrmann, 772 F.3d at 1113. The Hermann Court
further noted, however, that the VE did not explain how impressions from
unspecified past experience and knowledge could enable him to determine
numbers of particular jobs, he did not reveal what surveys he had relied upon
and what they had shown, and the VE referred to the DOT which was an
obsolete catalog of jobs that contained no statistics regarding job numbers in a
given category that existed in the local, state, or national economy. Id. at 1113-14.
Here, the VE’s testimony was both equivocal and conclusory. He testified:
A.

A.

A.
A.

A.

[T]here would be some unskilled work in the state of Illinois.
And I can testify to those. And also tell you that I don’t think
these jobs would be unique to the Illinois economy. They
would exist in other regions of the nation.
***
In Illinois now there are about 3,700 of those jobs [mail clerk]
being done. It would be an estimate for me to say that there
would need to be a reduction in those numbers, though, when
you factor in that sit/stand option.
***
Maybe two thirds of those jobs would be eliminated.
***
A second example would be an office helper . . . and there are
about 4,700 of those jobs being done now in Illinois. And
again you would need to reduce those numbers, similarly as
before because of the sit/stand option.
***
. . . And I’m of the opinion based on my experience and my
training that I don’t think there’d be any real significant or
14

Q.
A.

any reduction in those numbers with the need for a - - to
alternate from sitting to standing.
. . . And is your testimony consistent with the Dictionary of
Occupational Titles?
Other than my answer to that last question [about the number
of absences per month], and also the answers based on the
sit/stand option.

AR 69-71. Given that Davis was unrepresented and the VE’s testimony was
merely conclusory on the question of available jobs (and particularly the
available jobs with a sit/stand option), and given the authority discussed above,
the ALJ had an obligation to further question the VE about reliability of his
testimony in order for the ALJ to satisfy his burden to adequately develop the
record. For those reasons, such an obligation arose regardless of the fact that
Davis did not question the basis of the VE’s testimony at the hearing. Of course,
given the ALJ’s failure to probe into the VE’s testimony, the Social Security
Administration also did not satisfy its duty to demonstrate that other work
existed in significant numbers in the national economy that Davis could do with
her RFC, age, education, and work experience. Notably, the Commissioner takes
the position that even if the identified job of microfilming is outdated, the VE
testified that there were 1,700 jobs of final assembler of optical goods in the State
of Illinois which the Court could conclude is a significant number. However, the
Court can do no such thing here where the VE’s testimony was not sufficiently
tested by the ALJ as the ALJ was obliged to do under the particular
circumstances.
The Commissioner’s argument that it was reasonable for the ALJ to rely
upon the VE’s testimony where, for one reason, the VE identified agencies that
would assist individuals with mental or physical limitations find the identified
jobs is simply unpersuasive. The Commissioner does not cite to any authority
15

which provides that as long as a VE testifies as to where or how a claimant can
find the jobs identified, the VE’s testimony is sufficiently reliable. Nor does the
Commissioner, by way of any substantive argument, convince the Court of such
a proposition.
Additionally, the ALJ did not sufficiently develop the record with regard
to the availability of a sit/stand option for the jobs identified by the VE. Davis
argues that the ALJ did not properly resolve the conflict between the VE’s
testimony about a sit/stand option with the identified jobs and the DOT. Davis
contends that it was erroneous for the ALJ to not question the VE about the
adaptability of the work of an optical assembler or microfilm document preparer
to either a seated or standing position. Davis further argues that if she were
sitting and standing for equal amounts of time during the day that would be at
odds with her restriction to sedentary work because such work generally
involves standing or walking no more than two hours in a workday.

The

Commissioner disputes there was any conflict between the VE’s testimony and
the DOT where the DOT does not address sit/stand options and therefore it
could not conflict with the VE on an issue which it does not address. The
Commissioner also argues that Davis has not explained why the height of the
workstation was relevant to her ability to work.
While the Commissioner is technically correct that the VE’s testimony
could not have conflicted with the DOT where the DOT is silent on sit/stand
options, that argument is too literal. So too is the Commissioner’s contention
that Davis has not explained why the height of the workstation was relevant to
her ability to work. First, the Commissioner’s position in this regard is too literal
where, as addressed above, the ALJ had the obligation to further develop the
VE’s testimony regarding both his reliability and the basis for the job numbers he
cited in the face of such conclusory testimony and the fact that Davis was
16

unrepresented. Second, as Davis points out in her Reply, the Commissioner’s
response about the height of the workstation is misdirected. Because the VE’s
testimony was so lacking in detail, the necessary question of whether the number
of identified jobs could be acceptably performed from both a sitting and standing
position (by whomever, not Davis specifically) was left unanswered. Finally,
Davis correctly points out that sitting and standing for equal amounts of time
during the day is, on its face, at odds with the definition of sedentary work
which is defined as standing and walking no more than two hours in an eight
hour work day. See Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citing the
definition for sedentary work at 20 C.F.R. § 404.1567(a) as work a claimant can do
if she can, among other things, occasionally walk or stand for not more than
about two hours of an eight-hour workday). Thus, the fact that the ALJ took at
face value, without any further probing, the VE’s testimony that the sit/stand
option would not have any “real significant” or “any reduction” in the job
numbers again emphasizes the ALJ’s failure in adequately developing the record.
The errors the ALJ committed in failing to develop the record as it pertains
to the VE’s testimony amounted to significant omissions which necessitate
remand.
B
It is unnecessary for the Court to address the remainder of Davis’s
arguments, as the Court has already determined that remand is necessary.
Nonetheless, in light of the fact that the Court is remanding this matter for the
aforementioned reasons, the ALJ shall revisit his credibility assessment,
functional capacity finding, and accommodation of Davis’s limitations in
concentration, persistence, or pace to the extent necessary to ensure that the
testimony he elicits from the VE is sufficient.
17

V
For the foregoing reasons, the Plaintiff’s Motion for Summary Judgment
(Doc. 19) is GRANTED, the Defendant’s Motion for Summary Affirmance (Doc.
24) is DENIED, and this matter is REMANDED pursuant to Sentence Four of 42
U.S.C. § 405(g) for the ALJ to adequately develop the record by properly
fulfilling his obligations to confirm that the VE’s testimony is reliable and to
resolve any conflicts that the VE’s testimony presents.
It is so ordered.
Entered on May 17, 2016.

s/Jonathan E. Hawley
U.S. MAGISTRATE JUDGE

18