Matthews v. Commissioner of Social Security
OPINION AND ORDER: The ALJ's decision wasn't supported by substantial evidence at Step 5 and REVERSES the decision of the Commissioner and REMANDS for proceedings consistent with this opinion. The court DENIES Ms. Matthews's motion to supplement (Doc. No. 27 ) as unnecessary. Signed by Judge Robert L Miller, Jr on 8/1/2022. (asd)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
AMY M. MATTHEWS,
Acting Commissioner of Social
Cause No. 2:21-CV-193 RLM-JPK
ORDER AND OPINION
Amy M. Matthews seeks judicial review of the final decision of the
Commissioner of Social Security denying her application for disability benefits
under Title II and Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq.
The court has jurisdiction over this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3). The court heard argument on July 25, 2022, and now REVERSES
and REMANDS the Commissioner’s decision, and DENIES Ms. Matthews’s
motion to supplement [Doc. No. 27] as unnecessary.
Amy Matthews filed a Title II application for Disability Insurance Benefits
and a protective application for Title XVI Supplemental Security Income on July
27, 2018, for a period of disability beginning May 25, 2018. Ms. Matthews’s
applications were denied initially and upon reconsideration. Ms. Matthews
requested a hearing, which was held by video on March 10, 2020, in Valparaiso,
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and received a supplemental telephonic hearing on June 30, 2020. Julie Bose, a
vocational expert, testified at the first hearing. Ms. Matthews, Dr. James Todd (a
medical expert), and Donna Toogood (a vocational expert) all testified at the
supplemental hearing. Counsel represented Ms. Matthews at the supplemental
hearing. Ms. Matthews submitted additional records after the hearing and the
ALJ admitted them into the record. The ALJ issued an unfavorable decision to
Ms. Matthews on September 14, 2020. The ALJ concluded that:
1. Ms. Matthews met the insured status requirements of the Social
Security Act through December 31, 2024.
2. Ms. Matthews hadn’t engaged in substantial gainful activity since
May 25, 2018, the alleged onset date. 20 C.F.R. §§ 404.1571 et seq.,
416.971 et seq.
3. Ms. Matthews had the following severe impairments: recurrent
arrhythmias, fibromyalgia, post-traumatic stress disorder,
bereavement disorder, and anxiety disorder. 20 C.F.R. §§
4. Ms. Matthews didn’t have impairments that were severe enough,
either singularly or in combination, to meet or medically equal any
of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. The ALJ considered recurrent arrhythmias (Listing 4.05),
inflammatory arrhythmias (Listing 14.09), and all mental
impairments (section 12.00 of Appendix 1). 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926.
5. Ms. Matthews has the residual functional capacity to lift and carry
20 pounds occasionally and 10 pounds frequently, to sit, stand, and
walk for 6 hours each in an 8-hour workday, and to push and pull
as much as she can lift and carry, with the following additional
limitations. She can occasionally climb ramps and stairs, but never
climb ladders, ropes, or scaffolds. She can occasionally balance,
stoop, kneel, crouch, and crawl. She can never work at unprotected
heights or around moving mechanical parts. She can never operate
a motor vehicle. She can have no concentrated exposure to dust,
odors, fumes, and pulmonary irritants, extreme cold, extreme heat,
vibration, or loud noise environments without the use of hearing
protection. She can perform simple, routine tasks. She can
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occasionally interact with supervisors, co-workers, and the public,
and such contact must be brief and superficial (defined as no lower
than an 8 in terms of the 5th digit of the DOT Code).
6. Ms. Matthews is unable to perform any past relevant work. 20
C.F.R. §§ 404.1565, 416.965.
7. Ms. Matthews was born on May 16, 1976, and was 42 years old,
which is defined as a younger individual age 18–49, on the alleged
disability onset date. 20 C.F.R. §§ 404.1563, 416.963.
8. Ms. Matthews has at least a high-school education. 20 C.F.R. §§
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that Ms. Matthews is “not disabled,”
whether or not she has transferable job skills. S.S.R. 82-41; 20
C.F.R. § 404, Subpt. P, App. 2.
10. Considering Ms. Matthews’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that Ms. Matthews can
perform. Considering the vocational expert’s testimony that Ms.
Matthews would be able to perform light occupations with an SVP
of two, she could perform jobs such as cleaner (about 220,000
positions in the national economy), mail clerk (about 13,000 jobs in
the national economy), and marker (about 125,000 jobs in the
11. Ms. Matthews wasn’t under a disability as defined by the Social
Security Act from May 25, 2018, through the date of the decision.
The ALJ concluded that Ms. Matthews wasn’t entitled to disability benefits
because she wasn’t disabled within the meaning of the Social Security Act. The
ALJ’s decision became the final decision of the Commissioner when the Appeals
Council denied her request for review. Sims v. Apfel, 530 U.S. 103, 107 (2000);
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). This appeal followed.
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STANDARD OF REVIEW
“The Social Security Act, 42 U.S.C. § 405(g), requires the Commissioner's
findings to be sustained if supported by substantial evidence.” Rohan v. Chater,
98 F.3d 966, 970 (7th Cir. 1996). Substantial evidence “means—and means
only—‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). A reviewing
court can’t reweigh the evidence, make independent findings of fact, decide
credibility, or substitute its own judgment for that of the Commissioner. Simila
v. Astrue, 573 F.3d 503, 513 (7th Cir. 2009); Powers v. Apfel, 207 F.3d 431, 434–
435 (7th Cir. 2000). Instead, the court conducts “a critical review of the evidence,
considering both the evidence that supports, as well as the evidence that detracts
from, the Commissioner’s decision.” Briscoe v. Barnhart, 425 F.3d 345, 351 (7th
Cir. 2005) (internal quotations omitted). While the ALJ isn’t required “to address
every piece of evidence or testimony presented, she must provide a ‘logical bridge’
between the evidence and the conclusions so that [the court] can assess the
validity of the agency’s ultimate findings and afford the claimant meaningful
judicial review.” Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
Ms. Matthews argues the ALJ’s decision was unsupported based on: (1)
the ALJ’s assessment and consideration of mental limitations; (2) the ALJ’s
assessment of Ms. Matthews’s subjective symptoms; (3) substantial evidence the
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ALJ should’ve addressed but didn’t; (4) the ALJ’s assessment of Ms. Matthews’s
fibromyalgia; and (5) issues with the vocational expert’s testimony at Step 5.
Ms. Matthews first argues that the decision is unsupported because the
ALJ didn’t properly account for mental limitations related to pace in the residual
functional capacity and hypothetical questions posed to the vocational expert.
She says the ALJ should have imposed limitations that specifically addressed
pace because the ALJ found moderate limitations in concentration, persistence,
and pace at Step 3. She further contends that she should have had a pace
limitation based on evidence of her anxiety, dizziness, poor sleep, fatigue, pain,
and headaches, which would make it difficult to stay on task and maintain pace.
She cites a state agency opinion that she had moderate limitations in pace and
points out that any error would be prejudicial because the vocational expert
testified that attendance problems more than twice a month would preclude
The Commissioner responds that none of the evidence Ms. Matthews cites
shows that greater limitations are needed or that limitations specifically
connected to pace are required. So according to the Commissioner, Ms.
Matthews didn’t meet her burden of presenting evidence of a pace-related
limitation. See Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“The claimant
bears the burden of submitting medical evidence establishing her impairments
and her residual functional capacity.”) (citing 20 C.F.R. §§ 404.1512(a), (c), (b),
404.1545(a)(3)). The Commissioner addresses the state agency consultant’s
opinion by arguing that the ALJ properly paid greater attention to the narrative
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portion of the opinion. The narrative portion incorporated the checkbox
limitation about pace and focused more on the complexity of tasks, saying that
Ms. Matthews could attend to tasks long enough to complete them. The
Commissioner adds that any medically documented limitations were accounted
for with the limitations the ALJ did impose—simple routine tasks, and
limitations on interactions with others.
The Commissioner is right that the ALJ properly considered mental
limitations. The evidence Ms. Matthews cites doesn’t connect clearly or directly
to pace. The conditions described, like anxiety, poor sleep, and dizziness, might
lead to pace problems, but they don’t guarantee issues with pace, so the ALJ
didn’t need to make that inference. Nor was it error to find moderate limitations
at Step 3 but not include a specific pace limitation in the residual functional
capacity. The residual functional capacity is a separate and more specific
determination than Step 3. Mapes v. Berryhill, No. 1:16-cv-03329, 2017 U.S.
Dist. LEXIS 111166, at *14 (S.D. Ind. July 18, 2017) (citing S.S.R. 96-8p). The
ALJ crafted a more specific residual functional capacity, limiting Ms. Matthews
to “simple, routine tasks,” and “occasional interact[ions] with supervisors, coworkers, and the public.” [R. 33]. The ALJ must address all mental limitations
but needn’t use specific terminology. O’Connor-Spinner v. Astrue, 627 F.3d 614,
619 (7th Cir. 2010). Ms. Matthews hasn’t pointed to evidence that would require
a pace-specific limitation that the ALJ ignored or otherwise shown that the ALJ
erred in considering her mental limitations.
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Ms. Matthews next argues the ALJ improperly considered her subjective
symptoms in several ways.
Ms. Matthews first argues the ALJ used improper “boilerplate language”
indicating the ALJ used the wrong standards to assess her subjective symptoms.
Ms. Matthews concedes that boilerplate language alone isn’t reason to reverse
an ALJ’s denial of benefits. The specific language from the ALJ’s decision was
that “the claimant’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely consistent with the medical
evidence and other evidence.” [R. 33].
Ms. Matthews is correct that the language the ALJ used is disfavored, e.g.,
Lafayette v. Berryhill, 743 F. App’x 697, 699 (7th Cir. 2018), but the language
doesn’t amount to error in this case because it is just the start of the ALJ’s more
thorough analysis of Ms. Matthews’s subjective symptoms. So, even if the
language suggests the ALJ assessed her subjective symptoms with the wrong
standard, Ms. Matthews doesn’t explain how the ALJ’s specific analysis of the
evidence proves the wrong standard.
Ms. Matthews also argues the ALJ erred by ignoring the effects of her
medications. Ms. Matthews testified that she takes four prescriptions that cause
sleep problems at night and drowsiness during the day, and cited evidence from
medical providers who had to tinker with various medications, like one
prescribed for insomnia.
While an ALJ might do best by addressing every medication and
medication side effect, Cosby v. Berryhill, No. 16 C 11504, 2017 WL 4237048,
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at *4 (N.D. Ill. Sept. 25, 2017), an ALJ needn’t discuss each piece of evidence.
Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002). The ALJ didn’t specifically
discuss Ms. Matthews’s medications, but discussed fatigue, drowsiness, and
other related symptoms while evaluating Ms. Matthews’s subjective symptoms.
The ALJ’s decision not to specifically identify Ms. Matthews’s medications as a
cause of some of the symptoms the ALJ addressed doesn’t amount to error.
Ms. Matthews makes another argument about the sporadic and episodic
nature of her symptoms and her daily activities. These arguments are difficult to
assess as Ms. Matthews’s briefing seems to have been copied almost entirely
from another judicial opinion. See Anthony S. v. Saul, No. 18 CV 50220, 2020
WL 30601, at *2–5 (N.D. Ill. Jan. 2, 2020). A parenthetical record citation
purports that Ms. Matthews said, “Some days I am ok and some days I am not
ok,” but that phrase doesn’t come from any citation to Ms. Matthews’s record—
it seems to have been in the record in Anthony S. v. Saul. Id. at *4. 1 This suggests
to the court that this argument isn’t developed as fully as it could be for Ms.
Matthews’s circumstances. 2 To the extent Ms. Matthews makes an argument
Ms. Matthews’s brief eventually cites Anthony S. v. Saul, but without clearly
attributing any rule or argument to Anthony S. v. Saul. [Doc. No. 20 at 7–9]. By not
using quotation marks for text copied verbatim and by placing short citations after
several sentences that come from Anthony S. v. Saul, Ms. Matthews’s brief doesn’t
properly explain how it used Anthony S v. Saul in presenting an argument to the court.
Aside from potentially undermining Ms. Matthews’s position, presenting another’s
analysis as one’s own raises other questions about plagiarism and professional ethics.
See Consol. Paving, Inc. v. Cnty. of Peoria, Ill., No. 10-CV-1045, 2013 WL 916212, at
*5–6 (C.D. Ill. Mar. 8, 2013) (“Case law is meant to support an attorney’s arguments,
but borrowed analysis, and especially quoted material, must be cited.”); A.L. v. Chi. Pub.
Sch. Dist. No. 299, No. 10 C 494, 2012 WL 3028337, at *6 (N.D. Ill. July 24, 2012) (“Not
only does Plaintiff’s counsel lift the legal standards set forth in those decisions, but
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about her own circumstances, she doesn’t cite evidence establishing that the
episodic or sporadic nature of her symptoms or evidence about her daily
activities were an elephant in the room that the ALJ needed to address.
Next, Ms. Matthews argues the ALJ’s subjective symptom analysis relied
on outdated evidence. The ALJ found Dr. Todd persuasive. Dr. Todd relied at
least in part on the state agency consultants’ opinions. The state agency
consultants didn’t have access to a trove of new records, though, so Ms.
Matthews argues Dr. Todd’s opinion was outdated, leaving the subjective
symptom analysis unsupported. See Lambert v. Berryhill, 896 F.3d 768, 776
(7th Cir. 2018).
The ALJ didn’t only consider Dr. Todd’s testimony but considered the laterintroduced evidence and explained its consistency with the state agency
opinions. So even if Dr. Todd’s testimony could’ve been more up to date, the ALJ
didn’t rely on Dr. Todd’s testimony without knowing of the new evidence or
without being able to consider how new evidence might compare to Dr. Todd’s
testimony. In any event, the symptoms Ms. Matthews described in the new
evidence are many of the same conditions described in earlier opinions, so she
hasn’t shown how they’re “new, significant medical diagnoses [that] reasonably
could have changed the reviewing physician’s opinion.” Id.
Ms. Matthews takes issue with Dr. Todd’s testimony for another reason—
she argues Dr. Todd testified that if he considered Ms. Matthews’s subjective
counsel additionally presents unaltered case specific analysis from those cases without
attribution, including application of law to fact and distinguishing of authority.”).
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symptoms, he’d have to opine she was disabled, and also that Dr. Todd’s opinion
couldn’t be relied on since he didn’t adequately consider her subjective
symptoms. Her first argument doesn’t show error because it misapprehends the
record: Dr. Todd didn’t testify that any consideration of Ms. Matthews’s
subjective symptoms would lead to an opinion that she was disabled—he opined
that if her subjective symptoms were the only thing he considered, despite their
having little to no grounding in objective evidence, that he’d have to opine that
she was disabled. [R. 114]. The second argument appears to copy verbatim from
another court opinion 3 and takes issues with specific statements by Dr. Todd
but doesn’t explain how that would make the ALJ’s decision unsupported.
Reversal is not warranted based on Dr. Todd’s testimony.
Ms. Matthews’s next major argument is that the ALJ ignored substantial
evidence. She seems to argue that the ALJ imposed light work restrictions on
her by ignoring the real definition of light work and how light work might conflict
with Ms. Matthews’s standing limitations. According to Ms. Matthews, the ALJ
said there was “no reason why the act of standing and walking alone, without
having to lift, carry, push, or pull, would be expected of light work.” [Doc. No. 20
at 12]. Ms. Matthews contends, “The ALJ makes no effort to explain how this
would be possible for someone limited to two hours of standing.” Id.
Matthews’s brief appears to copy from Korzeniewski v. Colvin, No. 12 C 6895, 2014
WL 1457854, at *8 (N.D. Ill. Apr. 14, 2014), without proper attribution, as evidenced by
a close parenthesis that’s misplaced in her brief but properly placed in Korzieniewski v.
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This argument is premised on an abbreviated version of what the ALJ said.
The ALJ’s decision said:
The undersigned finds these evidentiary considerations, which fairly
characterize the records a whole and as discussed in more detail
above, to be consistent with Dr. Todd’s proposed limitation to light
work, and therefore only partly consistent with the consultants’
proposed exertional limitations. (In short, the undersigned sees no
reason why the act of standing and walking alone, without having
to lift, carry, push, or pull more than would be expected of light
work, would be expected to exceed her strength, exhaust her, etc.,
in light of these evidentiary considerations.)
[R. 35] (emphasis added).
When the ALJ’s statement is read fully and in context, it’s clear the ALJ
wasn’t proposing that light work never involves lifting or carrying weight. Ms.
Matthews’s argument is premised on a statement the ALJ didn’t make, so the
court finds no error.
Ms. Matthews’s second argument about whether the ALJ ignored
substantial evidence focuses on how the ALJ applied the regulatory factors to
various medical providers’ opinions. See 20 C.F.R. § 404.1520c(c). Ms.
Matthews’s argument contests how the ALJ considered those factors but doesn’t
identify errors that the court could correct without reweighing the evidence. 4 A
reviewing court doesn’t reweigh evidence, so the ALJ’s consideration of medical
providers’ opinions isn’t reason to remand.
Ms. Matthews’s rule statement appears to be copied with some modifications from Lisa
E. v. Comm’r of Soc. Sec., 20-CV-0037MWP, 2021 WL 4472469, at *3–4 (W.D.N.Y. Sept.
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Ms. Matthews’s next major argument is that the ALJ didn’t properly
consider her allegations of fibromyalgia and the alleged severity of her
fibromyalgia symptoms. (Part of this argument comes with her subjective
symptom argument, but the court addresses all fibromyalgia arguments
together). She argues the ALJ improperly discounted alleged symptoms even
though fibromyalgia isn’t measured by objective evidence. See Sarchet v. Chater,
78 F.3d 305, 307 (7th Cir. 1996). She later argues the ALJ improperly ignored
agency standards for assessing fibromyalgia. See S.S.R. 12-2p.
Ms. Matthews argues that the ALJ wrongly discounted her alleged
allegations. Ms. Matthews cites the ALJ’s discussion in which he reported Ms.
Matthews’s tenderness in all 18 tender points, diffuse full-body pain, and
intermittent fatigue, normal strength, sensation, reflexes, joints, and gait, and
noted that Ms. Matthews didn’t report malaise, weight loss, or fevers. [R. 34].
Ms. Matthews contends it was improper to consider objective evidence to
discount her fibromyalgia’s severity, but she isn’t any more specific than
referring to “objective evidence.” [Doc. No. 20 at 7]. The Commissioner responds
that even if the ALJ considered objective evidence, his decision didn’t rely on
those findings as he discussed all sorts of fibromyalgia symptoms.
ALJs must tread carefully when considering objective evidence and
fibromyalgia. See Vanprooyen v. Berrihill, 864 F.3d 567, 572 (7th Cir. 2017). Ms.
Matthews’s argument refers to “objective evidence,” without identifying which
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evidence is particularly troublesome, though. 5 The court can’t tell which of the
ALJ’s considerations are contested, so the court finds no error.
Neither do Ms. Matthews’s arguments about the proper standards for
evaluating fibromyalgia show that the ALJ’s decision is unsupported. Ms.
Matthews relies on S.S.R. 12-2p, which guides ALJs assessing fibromyalgia. Ms.
Matthews argues the ALJ didn’t properly apply the S.S.R. 12-2p’s standards, so
the court should remand with instructions to properly apply agency standards.
The portions of the agency policy Ms. Matthews cites focus on the things
an ALJ should consider when considering whether fibromyalgia is a medically
determinable impairment at Step 3. The ALJ concluded that fibromyalgia was a
medically determinable impairment at Step 3, and Ms. Matthews arguments past
Step 3 seem to repeat her earlier unspecific complaints. The rest of Ms.
Matthews’s fibromyalgia arguments either present discrepancies between
briefing and the record, 6 or otherwise seem to be repeating what other courts
have said. 7 None show reversible error.
Ms. Matthews’s argument about the subjective symptoms of fibromyalgia appear to be
copied from Paula K. v. Saul, No. 1:20cv318, 2021 WL 2802575, at *9 (N.D. Ind. July 6,
2021). [Doc. No. 20 at 7]. This section of Ms. Matthews’s brief makes minimal changes
to account for Ms. Matthews’s record, inhibiting the court’s ability to assess her
For example, Ms. Matthews says, “Moreover, no medical expert found that Claimant’s
cranial nerves had any relation to fibromyalgia.” [Doc. No. 20 at 17]. Although the record
is vast and there might be references to Ms. Matthews’ cranial nerves, this is the only
reference the court found to cranial nerves in any of the briefing. The likeliest
explanation is that this was a leftover citation from Molly K. v. Saul, No. 18 C 3415,
2019 WL 3857885, at *8 (N.D. Ill. Aug. 16, 2019), which appears to have been copied in
large part to form Ms. Matthews’s arguments about fibromyalgia.
Most of the fibromyalgia section, both rule statements and analysis/argumentation,
seems to have been the product of Molly K. v. Saul as well as Lisa E. v. Comm’r of Soc.
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Ms. Matthews’s final set of arguments concerns Step 5 and the vocational
expert’s testimony. The ALJ has a limited burden at Step 5 of showing that
sufficient jobs exist in the national economy for the claimant. 20 C.F.R. §§
404.1512(b)(3), 404.1560(c)(2). Ms. Matthews argues there are conflicts in the
vocational expert’s testimony and no evidence about the methodology the
vocational expert used to estimate job numbers, so the decision is unsupported.
Ms. Matthews first argues there are conflicts between her residual
functional capacity and two of the three jobs the vocational expert said were
available—mail clerk and cleaner. As the Commissioner points out, even if this
is true, the vocational expert testified that a third job (marker) would be available.
Any conflict in the testimony about mail clerk and cleaner positions would be
harmless, so remand isn’t warranted on that basis. Shinseki v. Sanders, 556
U.S. 396, 409–410 (2009).
Ms. Matthews next argues that the ALJ didn’t do enough to ensure that
the vocational expert’s testimony was reliable. At Step 5, “substantial evidence
Sec., 20-CV-0037MWP, 2021 WL 4472469, at *6 (W.D.N.Y. Sept. 30, 2021), and Paula
K. v. Saul, No. 1:20cv318, 2021 WL 2802575, at *5–6, 8–9 (N.D. Ind. July 6, 2021).
The court cautions Ms. Matthews’s counsel against copying argument without proper
attribution for reasons other courts have thoroughly addressed. See United States v.
Lavanture, 74 F. App’x 221, 223 n.2 (3d Cir. 2003) (“[B]y simply reprinting the Sixth
Circuit’s work out of its original context, certain statements in [Defendant’s] brief are
inaccurate.”); Ayala v. Lockheed Martin Corp., 67 V.I. 290, 310–315 (Super. Ct. 2017)
(“In this instance, however, what is more troubling, beyond simply copying and pasting
someone else’s research, is that counsel also copied and pasted someone else’s
reasoning. . . . [I]f counsel did reach the same conclusion as [a judge] . . . then counsel
should have conveyed that sentiment in his own words.”); Venesevich v. Leonard, No.
1:07-CV-2118, 2008 WL 5340162, at *2 n.2 (M.D. Pa. Dec. 19, 2008).
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requires the ALJ to ensure that the vocational expert’s estimate is the product of
a reliable methodology.” Ruenger v. Kijakazi, 23 F.4th 760, 763 (7th Cir. 2022)
(citing Brace v. Saul, 970 F.3d 818, 821–822 (7th Cir. 2020)). After opining that
a person with Ms. Matthews’s residual functional capacity could perform the jobs
of cleaner, mail clerk, and marker, the vocational expert testified that her
testimony was consistent with the Dictionary of Occupational Titles. [R. 133].
According to Ms. Matthews, this isn’t substantial evidence because the
Dictionary of Occupational Titles only lists job titles and requirements but gives
no job numbers. Ruenger v. Kijakazi, 23 F.4th at 762. So, the vocational expert
hasn’t provided a single source for her estimates of the number of jobs available—
she’s only provided a source of the job requirements.
According to the Commissioner, the ALJ was entitled to rely on the
testimony despite the vocational expert not explaining any source for job
numbers because Ms. Matthews didn’t object at the administrative hearing but
could have. See Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009). The
Commissioner contends that the ALJ only needs to elicit further explanation
from a vocational expert once the claimant challenges the vocational expert’s
methodology. See Ruenger v. Kijakazi, 23 F.4th at 763 (“And when, as here, the
claimant challenges the job-number estimate, the ALJ must compel the
vocational expert to offer a ‘reasoned and principled explanation’ of the
methodology she used to produce the estimate.”) (internal citation omitted).
Although Ms. Matthews’s proceedings would have been more efficient had
she or her counsel objected at the hearing, she didn’t need to object at the
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hearing to preserve any error and the ALJ’s burden at Step 5 required a bit more
probing about the vocational expert’s methodology. The Commissioner interprets
Ruenger v. Kijakazi as only requiring the ALJ to probe if the claimant objects,
but that interpretation doesn’t take into account all of what the Ruenger court
said. The court explained that even before the claimant objects, substantial
evidence requires assurances that the vocational expert has used a reliable
methodology, which means it’s based on well-accepted sources and includes a
cogent and thorough explanation of the methodology. Ruenger v. Kijakazi, 23
F.4th at 763. The court suggested that if the claimant objects, then the ALJ
should probe more, “compel[ling] the vocational expert to offer a ‘reasoned and
principled explanation’ of the methodology she used to produce the estimate.”
Id. (citing Chavez v. Berryhill, 895 F.3d 962, 970 (7th Cir. 2018)). The Ruenger
court went on to explain that it couldn’t “review her methodology, let alone
confirm that it was reliable,” since the vocational expert didn’t explain how she
compiled job numbers. Id.
Greater examination of Liskowitz v. Astrue, 559 F.3d 736 (7th Cir 2009)
leads to the same conclusion. In Liskowitz v. Astrue, the court explained that the
vocational expert could’ve offered a more detailed explanation of her methodology
had the claimant objected at the hearing. Id. at 744. But unlike the vocational
expert’s testimony in Ms. Matthews’s case, any objection came after the
vocational expert had provided sources: “In additional to testifying that her
sources were widely recognized as acceptable, the VE actually identified her
sources. Two of these sources were published by the United States Department
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of Labor and the Wisconsin Department of Workplace Development.” Id. at 743–
744. So even if Ruenger v. Kijakazi leaves an ALJ some leeway when a claimant
doesn’t object to a vocational expert’s testimony, Liskowitz v. Astrue still requires
that the ALJ ensure the methodology for estimating job numbers is reliable. Ms.
Matthews’s record has a source for job titles and requirements, but no evidence
of a methodology to estimate job numbers, so the ALJ didn’t meet the Step 5
Ms. Matthews adds that the vocational expert likely used the equal
distribution method, which is generally disfavored, so the decision is
unsupported. See Chavez v. Berryhill, 895 F.3d 962, 969 (7th Cir. 2018). The
Commissioner seems to concede that there’s no record evidence of where the
vocational expert got job number estimates, as the Commissioner agrees that the
Dictionary of Occupational Titles doesn’t include information about the number
of jobs available. Because there’s no evidence of the methodology used to
estimate job numbers, the court can’t tell whether the vocational expert used the
equal distribution method and if so, whether that prejudiced Ms. Matthews.
When the ALJ’s decision is unsupported at Step 5, the proper remedy is a
new Step 5 hearing where the vocational expert “may be able to expand on her
testimony of make some other showing that significant jobs exist for [the
claimant],” and where Ms. Matthews “will have the opportunity to challenge such
a showing.” Ruenger v. Kijakazi, 23 F.4th at 764. Having found error only at Step
5, the court reverses and remands for the limited purpose of a new Step 5
USDC IN/ND case 2:21-cv-00193-RLM-JPK document 29 filed 08/01/22 page 18 of 18
Based on the foregoing analysis, the court concludes that the ALJ’s
decision wasn’t supported by substantial evidence at Step 5 and REVERSES the
decision of the Commissioner and REMANDS for proceedings consistent with
this opinion. The court DENIES Ms. Matthews’s motion to supplement [Doc. No.
27] as unnecessary.
ENTERED: August 1, 2022
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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