Romine v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court DENIES the relief requested in Plaintiff's Opening Brief 12 and AFFIRMS the decision of the Commissioner of Social Security. Signed by Judge Joseph S Van Bokkelen on 5/8/24. (nhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
TIMOTHY R.
Plaintiff,
v.
MARTIN O'MALLEY, Commissioner
of the Social Security Administration,
Defendant.
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CAUSE NO.: 1:23-CV-155-JVB
OPINION AND ORDER
Plaintiff Timothy R. seeks judicial review of the Social Security Commissioner’s decision
denying his applications for disability insurance benefits and supplemental security income and
asks this Court to reverse that decision and remand this matter to the agency. For the reasons below,
the Court denies Plaintiff’s request and affirms the decision of the Social Security Commissioner.
PROCEDURAL BACKGROUND
In Plaintiff’s December 28, 2020 applications for benefits, he alleged that he became
disabled on June 9, 1975. A prior unfavorable decision was issued on May 4, 2020. An
administrative hearing was held on May 25, 2022 hearing, and the Administrative Law Judge
(ALJ) issued her decision on August 25, 2022. In that decision, the ALJ found that Plaintiff had
the severe impairments of generalized anxiety disorder, post-traumatic stress disorder (PTSD), a
bipolar II disorder, depression, and a schizoaffective disorder, depressed type. (AR 19). The ALJ
determined that Plaintiff did not have an impairment or combination of impairments that met or
medically equaled a listed impairment, and further determined that Plaintiff had the residual
functional capacity (RFC) to perform a full range of work at all exertional levels subject to several
non-exertional limitations. The ALJ determined that Plaintiff could not perform his past relevant
work but was able to perform the job requirements of the representative occupations of kitchen
helper, hospital cleaner, and counter supply worker, which combined have 220,000 jobs in the
national economy. As a result, the ALJ found Plaintiff to not be disabled from May 5, 2020—the
day after the prior unfavorable decision—through August 25, 2022, the date of the ALJ’s decision.
This decision became final when the Appeals Council denied Plaintiff’s request for review.
STANDARD OF REVIEW
This Court has authority to review the Commissioner’s decision under 42 U.S.C. § 405(g).
The Court will ensure that the ALJ built an “accurate and logical bridge” from evidence to
conclusion. Thomas v. Colvin, 745 F.3d 802, 806 (7th Cir. 2014). This requires the ALJ to
“confront the [plaintiff’s] evidence” and “explain why it was rejected.” Thomas v. Colvin, 826 F.3d
953, 961 (7th Cir. 2016). The Court will uphold decisions that apply the correct legal standard and
are supported by substantial evidence. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th
Cir. 2005). Evidence is substantial if “a reasonable mind might accept [it] as adequate to support
[the ALJ’s] conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971).
DISABILITY STANDARD
The Commissioner follows a five-step inquiry in evaluating claims for disability benefits
under the Social Security Act. 20 C.F.R. § 1520(a)(4). The first step is determining whether the
claimant is engaged in substantial gainful activity. If the claimant is, then the claimant is found to
be not disabled. Id. § 1520(a)(4)(i). The remaining steps are:
whether the claimant has a severe impairment; whether the claimant’s impairment
is one that the Commissioner considers conclusively disabling; if the claimant does
not have a conclusively disabling impairment, whether [they] can perform [their]
past relevant work; and whether the claimant is capable of performing any work in
the national economy.
Kastner v. Astrue, 697 F.3d 642, 646 (7th Cir. 2012) (index numbers omitted). The claimant bears
the burden of proof at every step except step five. Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir.
2000).
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ANALYSIS
At step five, the ALJ determined that there are jobs that exist in significant numbers in the
national economy which Plaintiff is able to perform. The Commissioner has the burden of
establishing that this is so. Chavez v. Berryhill, 895 F.3d 962, 963 (7th Cir. 2018). Plaintiff argues
that the ALJ’s finding at step five is not supported by substantial evidence because it is based on
the unreliable testimony of the vocational expert (VE). Specifically, Plaintiff argues that no
substantial evidence supports the VE’s estimates of the number of jobs in the national economy
for the representative occupations that the VE testified that a person with Plaintiff’s RFC could
perform.
ALJs commonly rely on the testimony of vocational experts, who are experienced in job
placement, in making the step five determination. Chavez v. O’Malley, 96 F.4th 1016, 1021 (7th
Cir. 2024). “To make their assessment, vocational experts may rely on a variety of sources and
tools, as well as their knowledge of the job market, experience placing individuals in jobs, and
surveys of employers.” Id. (citing Biestek v. Berryhill, 587 U.S. ___, 139 S.Ct. 1148, 1152-53
(2019)). The Job Browser Pro SkillTRAN software is a “widely used, commercially available
resource[]” that helps convert the Social Security Administration’s Dictionary of Occupational
Titles categorization system to the Bureau of Labor Statistics’ Standard Occupational
Classification system, which is necessary because only the latter provides job numbers. Id. at 1022.
The substantial evidence standard that ALJ decisions are held to means that, when relying
on VE testimony, an ALJ must “ensure that the [vocational expert’s job number estimate] is the
product of a reliable method.” Id. (quoting Fetting v. Kijakazi, 62 F.4th 332, 339 (7th Cir. 2023))
(alteration in original). That is, the VE’s testimony “must be supported with evidence sufficient to
provide some modicum of confidence in its reliability,” which translates to giving “enough detail
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for [the Court] to understand the sources of his data and the general process he adopted.” Id.
(quoting Fetting, 62 F.4th at 339; Hohman v. Kijakazi, 72 F.4th 248, 254 (7th Cir. 2023))
(alteration in original).
At the administrative hearing, Plaintiff’s representative asked the VE what methodology
he used “to get from the Bureau of Labor Statistic numbers to the national numbers for job
classifications.” (AR 61). The VE stated that he uses Job Browser SkillTRAN “to further
extrapolate the numbers.” Id. He clarified, when asked, that he did not know the mathematical
equation SkillTRAN uses in crafting its estimated job numbers. Id. at 61-62. Plaintiff’s
representative objected to the use of SkillTRAN estimates, referencing Alaura v. Colvin, 797 F.3d
503 (7th Cir. 2015). (AR 62). The ALJ asked about other VEs’ usage of SkillTRAN, and the VE
said that it “is commonly used among vocational experts and people in the field that deal with job
placement and job numbers.” Id.
Plaintiff’s representative objected “to those Step Five numbers [testified to by the VE]
based on the reasoning outlined in the [Alaura] case.” Id. at 62. In that case, the Seventh Circuit
questioned the “equal distribution” method of
divid[ing] the number of jobs in the broad category [of jobs] that includes the
narrow category of jobs that the applicant can perform by the number of narrow
categories in the broad category, thus assuming that each narrow category has the
same number of jobs as each other narrow category—which is preposterous.
Alaura v. Colvin, 797 F.3d 503, 508 (7th Cir. 2015) (citation and italics omitted). The ALJ credited
Plaintiff with objecting “to the methodologies and job numbers used by the vocational expert as
they related to the finding of other work in the national economy.” (AR 16). The ALJ denied the
objection, noting that the VE testified to using SkillTRAN, a common method among VEs. Id.
The ALJ found that the VE “is a highly qualified expert in the area of vocational rehabilitation[,]
and his professional knowledge and experience is sufficient basis for his testimony.” Id. The ALJ
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also found SkillTRAN to provide reliable job information, noting that the program compiles
information from the Dictionary of Occupational Titles, the Occupational Outlook Handbook,
Occupational Employment Statistics, and the census, all of which the ALJ can take administrative
notice of by regulation. Id.; see also 20 C.F.R. § 404.1566(d).
The ALJ “determined that the vocational expert’s testimony is consistent with the
information contained in the Dictionary of Occupational Titles,” subject to a difference regarding
the kitchen helper job that the VE testified about at the hearing, and the ALJ found “the impartial
vocational expert’s testimony to be reasonable, based on [his] research and experience in the
vocational field.” (AR 82).
As an initial matter, the Court notes that the objection presented at the hearing by reference
to Alaura, is hard to follow. The court in Alaura reasoned that the equal distribution method of
estimating job numbers is “preposterous,” but the VE did not use that method here, instead relying
on the SkillTRAN program to derive those numbers. That is, this objection “did not give the ALJ
any reason to believe that [the VE’s] testimony might be unreliable” because the reasoning of
Alaura was inapplicable to the method testified to Chavez, 96 F.4th at 1026. The Court adopts the
ALJ’s understanding, unchallenged by Plaintiff, that Plaintiff’s objection was “to the
methodologies and job numbers used by the vocational expert as they related to the finding of
other work in the national economy.” (AR 16).
Plaintiff argues that the VE did not adequately explain how that Standard Occupational
Classification codes were matched to Dictionary of Occupational Titles numbers. The VE testified
that he used the SkillTRAN program but did not explain how that program estimates numbers, and
the VE did not comment on why he uses SkillTRAN other than to say that the program is
commonly used by his colleagues. While the VE’s testimony is not long, the ALJ (and the Court)
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can understand the VE’s general process and the source of his data. The testimony of the VE at
the hearing was sufficient for the ALJ to “provide some modicum of confidence” in the reliability
of the job number estimates he provided. Chavez, 96 F.4th at 1022 (quoting Fetting, 62 F.4th at
339).
Plaintiff next argues that, in addition to using the SkillTRAN program, the VE performed
an initial extrapolation of the data. Plaintiff contends that the methodology behind this initial
extrapolation was not disclosed and is an error that requires remand. The transcript of the
administrative hearing records the following colloquy between Plaintiff’s representative and the
VE:
Q: . . . What methodology do you use to get from the Bureau of Labor Statistic
numbers to the national numbers for job classifications?
A: I use Job Browser SkillTRAN to further extrapolate the numbers.
Q: And do you know what the mathematical equation, or how they break that down,
to just [INAUDIBLE].
A: Well, they rely on an industry based formula. They determine where jobs are
likely to be found in certain industries, and they do take – add up from the Bureau
of Labor Statistics to help them do that. And then, you know, some DOT titles are
thrown out. So it’s a mix of some industries may hire, you know, certain employees
that they need to do certain jobs, where others don’t. So they use that type of
distribution and they come up with the job estimates, you know, based on that. I
don’t know if I’m being clear. But that’s the process that they go through to come
up with the estimates.
REP: Okay. All right. Thank you. . . .
(AR 61-62). Plaintiff’s argument hinges on the word “further” in the phrase “to further extrapolate
the numbers.” Plaintiff insists this implies the existence of a prior extrapolation. Though the VE’s
answer would have been clearer without the word “further,” in context, the VE’s answer does not
require the existence of any extrapolation between the gathering of the Bureau of Labor’s statistic
numbers and the SkillTRAN process. The Court notes that Plaintiff’s representative at the hearing
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did not object or indicate confusion regarding this statement. Looking at the transcript, it appears
that the representative adopted the same interpretation that the ALJ later did—that the only method
that needed to be examined based on this statement was the SkillTRAN program. This argument
of a possible interpretation of the VE’s testimony does not negate that the ALJ’s decision is based
on substantial evidence.
Plaintiff asserts that the ALJ’s rationale for accepting the VE’s testimony does not pass
muster. The ALJ wrote that she found “the impartial vocational expert’s testimony to be
reasonable, based on [his] research and experience in the vocational field.” (AR 82). Plaintiff
believes that the VE’s knowledge and experience in general are inapplicable to the specific
question of whether to accept the VE’s specific testimony on estimated job numbers for Plaintiff.
However, the Seventh Circuit recently held that a VE does not need to explicitly tie their
professional experience to their job number estimates for their testimony to constitute substantial
evidence. Chavez, 96 F.4th at 1023. The ALJ asked the VE about the accuracy of his resume and
his familiarity with Social Security definitions and Plaintiff’s vocational background. (AR 56-57).
Plaintiff had no objections to the witness’s ability to testify as a VE. (AR 57-58). The VE’s
research and experience in the field comprise substantial evidence on which the ALJ can accept
the VE’s testimony, including job number estimates.
Citing Ruenger v. Kijakazi, 23 F.4th 760, 763 (7th Cir. 2022), Plaintiff maintains that a
“cogent and thorough” explanation of the VE’s methodology is required, and the ALJ did not
require the VE to provide one before accepting his testimony The ALJ asked the VE about his
resume and inquired into how the VE derived his job number estimates. The VE explained that, as
is common in his field, he used the SkillTRAN program to translate between the Dictionary of
Occupational Titles and Standard Occupational Classification systems. Aside from his linguistic
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argument about the word “further,” which the Court has rejected, Plaintiff has not explained what
more was needed before, in his view, the ALJ could accept the VE’s testimony.
Plaintiff also faults the ALJ for finding that SkillTRAN provides reliable job estimates.
While Plaintiff has a point that the ALJ appears to have gathered information from outside the
administrative record about where SkillTRAN compiles its information from, the ALJ specifically
found that the VE’s experience and professional knowledge were a “sufficient basis for his
testimony.” (AR 16). That is, assuming that the ALJ’s finding that SkillTRAN is a reliable provider
of job information based on its sources is in error, the error is harmless because the ALJ explicitly
identified an alternate ground for the same holding: the VE’s testimony, which was supported by
the VE’s professional knowledge and experience.
The Court’s review of an ALJ’s decision is deferential, and Plaintiff has not identified a
sufficient basis on which to disturb the decision, which is supported by substantial evidence.
CONCLUSION
For these reasons, the Court hereby DENIES the relief requested in Plaintiff’s Opening
Brief [DE 12] and AFFIRMS the decision of the Commissioner of Social Security.
SO ORDERED on May 8, 2024.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN, JUDGE
UNITED STATES DISTRICT COURT
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