Yanez v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The Court REVERSES the Commissioner's decision and REMANDS this matter to the Commissioner for further proceedings consistent with this opinion. Signed by Judge Jon E DeGuilio on 8/22/2018. (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
JERIMIAH RAUL YANEZ,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Case No. 3:17-CV-00541 JD
OPINION AND ORDER
Since age three, Plaintiff Jerimiah Yanez, has suffered from epilepsy involving grand mal
seizures that required his hospitalization. The condition has required regular treatment from his
family doctor and neurologist. Yanez also suffers from depression. In August 2013, he applied
for disability insurance benefits alleging disability as of the date of his application. After holding
a hearing, the administrative law judge (“ALJ”) disagreed and found that jobs existed which
Yanez was capable of performing. The Appeals Council denied the request for review. Yanez
then filed this action seeking judicial review of that decision, thereby invoking this Court’s
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons stated below, the Court
remands this matter to the Commissioner for further proceedings.
I. FACTUAL BACKGROUND
Medical & Educational Records
The record consists of Yanez’s medical records since late 2011, along with his
educational records from high school. Those records reveal that Yanez was born in 1981 and that
complications during his birth may be linked to his suffering from regular seizures—several
smaller seizures a week and up to four grand mal seizures per year. The seizures are typically set
into motion by everyday stress, and the residual effects, including fatigue, disorientation,
memory loss, and upper extremity numbness/tingling, can last up to a couple of weeks. Yanez’s
neurologist, Dr. Richard H. Strawsburg, has documented (in relevant part) Yanez’s suffering
from bilateral upper extremity numbness and tingling since 2012 (Tr. at 594-640, 690-99, 83356). Dr. Strawsburg has repeatedly recommended brain surgery, but Yanez testified that the
treatment was not guaranteed to be effective.
Dr. Kubley, Yanez’s family doctor, offered medical source opinions on February 6, 2014
and August 2, 2014 (Tr. 718-22, 735-39). On the February 2014 physical assessment form, Dr.
Kubley indicated that Yanez’s symptoms would “frequently” interfere with the type of attention
and concentration necessary to perform simple work-related tasks. He estimated that Yanez
could sit, stand, and walk only 20 minutes at a time and only 1 hour out of 8. He indicated that
Yanez would need an at-will sit/stand option and would need to take 3-4 unscheduled 15-minute
breaks per day. He opined that Yanez could occasionally lift/carry up to 10 pounds. He estimated
that Yanez could use his hands, fingers, and arms only 10% of the day, and that he would likely
be absent from work 3-4 times a month. On the mental capacity assessment form he completed,
Dr. Kubley assessed Yanez with moderate limitations in: understanding and memory; sustained
concentration and persistence; and, adaptation. He assessed Yanez with marked limitations in
social interaction.
In his August 2014 opinion, Dr. Kubley indicated that Yanez suffered from drowsiness
and fatigue from medications, and that symptoms would “constantly” interfere with the type of
attention and concentration necessary to perform simple work-related tasks (Tr. 735-39). Dr.
Kubley again assessed extreme limitations in Yanez’s ability to sit, stand, and walk, but this time
estimated that Yanez could sit for 60 minutes at a time and could stand/walk for 15 minutes at a
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time. He then determined that Yanez could sit for 6 hours out of 8, and could stand/walk for 1
hour out of 8. Dr. Kubley again checked the box indicating that Yanez needed a sit/stand option.
He indicated that Yanez would need to take 3-4 unscheduled 10-minute breaks per day. He
estimated that Yanez could occasionally lift/carry 20 pounds, and could use his hands, fingers,
and arms 50% of the workday on the right and 10% on the left. He estimated that Yanez would
be absent from work 3-4 times a month. On the mental capacity assessment form, Dr. Kubley
opined that Yanez had marked to extreme limitations in understanding and memory, mostly
extreme limitations in sustained concentration and persistence, moderate to marked limitations in
social interaction, and extreme limitations in adaptation.
Dr. Kubley documented that Yanez suffers not only from seizures and depression, but
from mild mental retardation. In fact, Yanez’s high school records indicate that his intelligence
quotient fell within the mildly mentally handicapped range, and that Yanez received full-time
special education courses because it was believed that he had a learning disability (Tr. 555-78).
State Agent Opinions
On October 8, 2012, Yanez underwent a psychological consultative examination with Dr.
Utz (Tr. 589-92). Yanez reported that he had attempted college coursework, but could not focus.
He was typically let go from jobs once they became aware of his seizures. On examination,
Yanez appeared depressed and was very frustrated by his medical conditions. Dr. Utz diagnosed
Yanez with depressive disorder, secondary to seizure disorder.
Alan Wax, Ph.D., conducted a psychological consultative examination on March 11,
2014 (Tr. 730-33). Yanez reported having no friends, not wanting to talk with others, and
disliking big crowds. Dr. Wax assessed Yanez with average to low-average cognitive functioning
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and diagnosed Yanez with severe major depressive disorder, recurrent. He assigned Yanez a
Global Assessment of Functioning score of 53, which describes moderate symptoms.
A state agency medical consultant opined on March 21, 2014, that Yanez could
occasionally lift and carry 50 pounds and could frequently lift and carry 25 pounds (Tr. 384-86).
Yanez could occasionally climb ramps and stairs, could never climb ladders, ropes, or scaffolds,
could frequently balance, had no limitations in the remaining postural areas, and needed to avoid
even moderate exposure to environmental hazards as a seizure precaution.
Also in late March 2014, a state agency psychological consultant found Yanez to be
moderately limited in a few areas, including social functioning and concentration, persistence,
and pace (Tr. 383-88). The state agent concluded that Yanez could perform simple, repetitive
tasks, but would probably need a position where he worked alone.
ALJ Determination
After reviewing the record, the ALJ concluded that Yanez had the residual functional
capacity (“RFC”) 1 to perform medium exertional work limited in relevant part to simple,
repetitive, and routine tasks involving only occasional use of the non-dominant left arm, frequent
interaction with the public and coworkers, and occasional interaction with supervisors. In making
this determination, the ALJ never mentioned Yanez’s documented low to average cognitive
functioning (or mild mental retardation), gave Dr. Kubley’s opinions “little evidentiary weight,”
and assigned the 2014 reviewing state agent opinions “some evidentiary weight.” In determining
the type of work Yanez could perform, the ALJ rested on the vocational expert’s (“VE”)
1
Residual Functional Capacity is defined as the most a person can do despite any
physical and mental limitations that may affect what can be done in a work setting. 20 C.F.R. §
404.1545.
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testimony that based on the (relevant) hypothetical posed to him, Yanez (who had no relevant
past work), could perform unskilled work as an usher, arcade attendant, and information clerk.
Accordingly, the ALJ found at step five that Yanez was not disabled.
II. STANDARD OF REVIEW
Because the Appeals Council denied review, the Court evaluates the ALJ’s decision as
the final word of the Commissioner of Social Security. Schomas v. Colvin, 732 F.3d 702, 707
(7th Cir. 2013). This Court will affirm the Commissioner’s findings of fact and denial of
disability benefits if they are supported by substantial evidence. Craft v. Astrue, 539 F.3d 668,
673 (7th Cir. 2008). Substantial evidence consists of “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971). This evidence must be “more than a scintilla but may be less than a preponderance.”
Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Thus, even if “reasonable minds could
differ” about the disability status of the claimant, the Court must affirm the Commissioner’s
decision as long as it is adequately supported. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
It is the duty of the ALJ to weigh the evidence, resolve material conflicts, make
independent findings of fact, and dispose of the case accordingly. Perales, 402 U.S. at 399–400.
In this substantial-evidence determination, the Court considers the entire administrative record
but does not reweigh evidence, resolve conflicts, decide questions of credibility, or substitute the
Court’s own judgment for that of the Commissioner. Lopez ex rel. Lopez v. Barnhart, 336 F.3d
535, 539 (7th Cir. 2003). Nevertheless, the Court conducts a “critical review of the evidence”
before affirming the Commissioner’s decision. Id. An ALJ must evaluate both the evidence
favoring the claimant as well as the evidence favoring the claim’s rejection. Zurawski v. Halter,
245 F.3d 881, 887 (7th Cir. 2001). Consequently, an ALJ’s decision cannot stand if it lacks
evidentiary support or an adequate discussion of the issues. Lopez, 336 F.3d at 539. The ALJ
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must provide a “logical bridge” between the evidence and the conclusions. Terry v. Astrue, 580
F.3d 471, 475 (7th Cir. 2009).
III. DISCUSSION
Disability benefits are available only to those individuals who can establish disability
under the terms of the Social Security Act. Estok v. Apfel, 152 F.3d 636, 638 (7th Cir. 1998).
Specifically, the claimant must be unable “to engage in any substantial gainful activity by reason
of any 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). The Social Security regulations create a five-step sequential
evaluation process to be used in determining whether the claimant has established a disability.
20 C.F.R. § 404.1520(a)(4)(i)-(v). The steps are used in the following order:
1. Whether the claimant is currently engaged in substantial gainful activity;
2. Whether the claimant has a medically severe impairment;
3. Whether the claimant’s impairment meets or equals one listed in the regulations;
4. Whether the claimant can still perform past relevant work; and
5. Whether the claimant can perform other work in the community.
See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). At step three, if the ALJ
determines that the claimant’s impairment or combination of impairments meets or equals an
impairment listed in the regulations, disability is acknowledged by the Commissioner. See 20
C.F.R. § 404.1520(a)(4)(iii). However, if a listing is not met, in between steps three and four, the
ALJ must then assess the claimant’s RFC, which, in turn, is used to determine whether the
claimant can perform his past work under step four and whether the claimant can perform work
in society at step five. 20 C.F.R. § 404.1520(e). The claimant has the initial burden of proof in
steps one through four, while the burden shifts to the Commissioner in step five to show that
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there are a significant number of jobs in the national economy that the claimant is capable of
performing. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
This appeal primarily concerns the inadequate discussion of the medical evidence and
assessment of Yanez’s RFC. While Yanez also contends that the ALJ did not sufficiently explain
the reasons for discounting Yanez’s complained of limitations, the Court need not address this
issue since remand is otherwise required. The Court would note, however, that a remand will
allow the VE further opportunity to provide a sufficiently reliable foundation for his testimony
concerning the availability of jobs that fit Yanez’s RFC.
ALJ’s Discussion of the Medical Evidence & RFC Determination
In making a proper RFC determination, the ALJ must consider all of the relevant
evidence in the record, including evidence regarding limitations that are not severe. Murphy v.
Colvin, 759 F.3d 811, 817 (7th Cir. 2014) (citation omitted). More specifically, the ALJ is
obligated to consider and evaluate the medical opinions in the record 2 and consider the objective
medical evidence. 20 C.F.R. §§ 404.1527(b), (c), 404.1513(a). An ALJ must evaluate both the
evidence favoring the claimant as well as the evidence favoring the claim’s rejection and may
not ignore an entire line of evidence that is contrary to his findings. Golembiewski v. Barnhart,
322 F.3d 912, 917 (7th Cir. 2003); Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).
Nevertheless, an ALJ need not provide a written evaluation of every piece of testimony and
evidence. Golembiewski, 322 F.3d at 917. Instead, an ALJ need only minimally articulate his
2
This is true whether the medical opinion comes from a treating physician who regularly
provides care to the claimant, an examining physician who conducts a one-time physical exam of
the claimant, or a reviewing or non-examining physician who has never examined the claimant.
See 20 C.F.R. §§ 404.1527(b), (c), 404.1513(a).
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justification for accepting or rejecting specific evidence of disability. Berger v. Astrue, 516 F.3d
539, 545 (7th Cir. 2008); Rice v. Barnhart, 384 F.3d 363, 371 (7th Cir. 2004).
In this case, the Court agrees with Yanez that in assessing the RFC, the ALJ failed to
adequately explain the basis for not imposing a limitation with respect to both arms and for
assigning reduced weight to certain medical opinions. The ALJ also failed to address relevant
medical evidence that supported Yanez’s claim of disability.
With respect to Yanez’s upper extremity problems, the ALJ repeatedly acknowledged the
treating source’s various medical records which documented that Yanez suffered from bilateral
arm tingling, numbness, and decreased sensation since 2012 (Tr. 99-100) (citing exhibits 5F, 7F,
19F). Despite seemingly crediting this evidence, the ALJ only imposed an occasional use
limitation with respect to Yanez’s left arm, while saying nothing about the need for a right arm
use limitation (or explaining why such a limitation was not necessary). The importance of this
shortcoming is demonstrated by the VE’s hearing testimony indicating that if a person could not
use both arms frequently, then all production jobs and all jobs requiring a medium exertional
level would be eliminated, while some light exertional jobs would still exist (a point which the
Court addresses below). In other words, use limitations with respect to the upper extremities
affect the type of work that a person can perform, especially if use restrictions exist with respect
to both upper extremities. Because the ALJ referenced the medical records documenting Yanez’s
decreased sensation in both arms, without providing any reason for disbelieving this objective
evidence, it was imperative for the ALJ to at least minimally articulate his justification for not
including a bilateral arm limitation in the RFC. See Berger, 516 F.3d at 545; Rice, 384 F.3d at
371.
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With respect to medical opinions, the ALJ assigned little weight to the opinions of Dr.
Kubley (Tr. 100-01). Dr. Kubley essentially opined that Yanez was so restricted that he was not
able to work. In discounting Dr. Kubley’s opinions as to Yanez’s physical abilities, the ALJ
stated that Yanez had “not required frequent emergency room treatment as a result of his
seizures,” he had “often denied any seizure activity,” he had “demonstrated full strength in his
upper” extremities, and Dr. Kubley’s February 2014 and August 2014 opinions were
contradictory (Tr. 101). However, the ALJ’s rationale provides an insufficient basis for
discounting this treating doctor’s opinions.
As to Yanez’s seizure activity, the medical records document at least seven emergency
room visits from January 2012 to June 2015 relating to seizures. Moreover, Dr. Strawsburg
repeatedly documented that Yanez had suffered from seizure activity before many of Yanez’s
follow-up visits. Yanez was regularly taking Keppra for his seizures, and on May 1, 2015, it was
documented that when his dose of Keppra was lowered (because his blood tests revealed high
levels), he started having “more seizures” (Tr. 745). Thus, the objective evidence refutes the
ALJ’s (faulty) observation that Yanez’s seizure activity and treatment was infrequent. 3
Moreover, in discounting Dr. Kubley’s opinions, the ALJ was too quick to “cherry-pick” records
demonstrating that Yanez presented with full upper extremity strength on some occasions, given
that other records demonstrated a decreased sensation in both arms (as previously discussed).
And while the ALJ characterized Dr. Kubley’s February and August 2014 assessments as being
“contradictory,” this is difficult to make sense of (without further explanation) since the
evaluations were separated by a period of six months. Furthermore, in focusing only on the
And to the extent that the ALJ faulted Yanez for not seeking more aggressive treatment options
(Tr. 99), he was required to first consider Yanez’s testimony relative to his belief that undergoing
brain surgery was not guaranteed to be successful. See Craft, 539 F.3d at 679.
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differences between the assessments, the ALJ failed to acknowledge Dr. Kubley’s consistent
statements that Yanez was significantly limited in his ability to use both of his upper extremities,
and that Yanez would need unscheduled breaks and would miss work several times a month. Not
only did the ALJ fail to acknowledge the consistency within Dr. Kubley’s opinions and with the
record as a whole, but the ALJ did not refer to the length of Yanez’s treatment relationship with
Dr. Kubley, the frequency of his examinations, or the nature and extent of the treatment
relationship. See Scrogham v. Colvin, 765 F.3d 685, 697 (7th Cir. 2014) (citing 20 C.F.R. §
404.1527(c)(1)-(5)). Accordingly, it cannot be said that the ALJ in this case offered “good
reasons” for discounting this treating physician’s opinion. 4 Scott v. Astrue, 647 F.3d 734, 739
(7th Cir. 2011).
With respect to the late March 2014 state agent opinions, the ALJ only assigned them
some weight (Tr. 100). In relevant part, the ALJ rejected the state agent’s opinion that Yanez
needed to work alone. The ALJ did so because the state agent didn’t personally examine Yanez
or have the benefit of reviewing subsequent medical records, and because Yanez routinely
appeared calm, friendly, and cooperative (Tr. 100). Yet, these reasons are insufficient.
First, if an ALJ could discount reviewing state agent opinions solely because they did not
personally examine the claimant, then the use of reviewing state agents in the social security
context would be rendered a nullity. Second, the ALJ never bothered to identify which
4
The Court recognizes that the treating physician rule has been abrogated as to claims filed on or
after March 27, 2017. See 20 C.F.R. § 404.1520c; see also Revisions to Rules Regarding the
Evaluation of Medical Evidence, 81 FR 62560 at 62573-62574 (Sept. 9, 2016) (“we would no
longer give a specific weight to medical opinions . . . this includes giving controlling weight to
medical opinions from treating sources . . . [and] [w]e would not defer or give any specific
evidentiary weight, including controlling weight, to any . . . medical opinion, including from an
individual’s own healthcare providers.”). As Yanez’s application was filed before March 27,
2017, the treating physician rule applies. See id. § 404.1527.
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subsequent records contradicted the state agent’s opinion that Yanez needed to work alone, so
that this Court could conduct an adequate review. Third, the ALJ impermissibly plucked
references from the record regarding Yanez’s calm and friendly demeanor, while ignoring other
references (even in the same records) that Yanez reported anger problems, did not like talking to
others, and isolated himself. Thus, it was impermissible for the ALJ to “cherry-pick” these
passing references to Yanez’s demeanor for purposes of discrediting the state agent’s opinion,
without also acknowledging the countervailing evidence concerning Yanez’s social limitations.
See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
Finally, the Court notes that the ALJ never once discussed Yanez’s documented low to
average cognition and history of mild mental retardation. The records supporting this mental
impairment were generated as early as Yanez’s high school days and again appeared in Drs. Wax
and Kubley’s files. It was error for the ALJ to ignore this entire line of evidence supporting
Yanez’s claimed disability. Zurawski, 245 F.3d at 887. Moreover, the ALJ was not at liberty to
assign Yanez an RFC that was limited to simple, repetitive, and routine tasks, without explaining
how Yanez’s limited mental capacities (including his documented difficulties with maintaining
concentration, persistence, and pace—as credited by the ALJ) were factored in to the ability to
continuously perform work. See Varga v. Colvin, 794 F.3d 809, 814–15 (7th Cir. 2015); see also
Yurt v. Colvin, 758 F.3d 850, 857 (7th Cir. 2014) (failure of ALJ to include in hypothetical
moderate difficulties in concentration, persistence, and pace attributed to applicant was
reversible error).
Ultimately, these various shortcomings call into question the soundness of the ALJ’s
RFC finding, because in assessing the RFC the ALJ must provide a sound explanation for
rejecting medical opinions and objective medical evidence supporting Yanez’s claimed
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limitations. Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); see 20 C.F.R. § 404.1527.
Accordingly, remand is required.
Steps Four & Five
The insufficiently supported RFC finding led the ALJ to ask hypotheticals of the VE
which omitted claimed (and potentially credible) limitations caused by Yanez’s well-documented
problems with seizures and depression. For this reason, the VE’s testimony cannot be relied upon
as an accurate indicator for the type of work that Yanez is capable of performing. 5 See Young v.
Barnhart, 362 F.3d 995, 1003-05 (7th Cir. 2004) (the ALJ must determine the claimant’s RFC
before performing steps four and five because a flawed RFC typically skews questions posed to
the VE); SSR 96-8p. Thus, until the hypotheticals presented to the VE include the functional
limits that the ALJ accepts as credible, and the ALJ adequately explains the claimant’s actual
limitations and resulting RFC based on the relevant medical evidence, 20 C.F.R. §§ 404.1545,
404.1546(c), step five cannot be affirmed in this appeal. See Young, 362 F.3d at 1003-05.
But there’s one more reason for why the VE’s testimony cannot be relied upon in this
case. The VE said that Yanez, even with a left arm use limitation, could perform the jobs of an
5
Admittedly, the Seventh Circuit has occasionally concluded that a VE has familiarity
with the claimant’s limitations, despite any gaps in the hypothetical, when the record shows that
the VE independently reviewed the medical record or heard testimony directly addressing those
limitations and the VE considered that evidence when indicating the type of work the claimant is
capable of performing. O'Connor-Spinner v. Astrue, 627 F.3d 614, n. 5 (7th Cir. 2010) (citing
Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009); Young, 362 F.3d at 1003; Steele v. Barnhart,
290 F.3d 936, 942 (7th Cir. 2002); Ragsdale v. Shalala, 53 F.3d 816, 819-21 (7th Cir. 1995);
Ehrhart v. Sec'y of Health & Human Servs., 969 F.2d 534, 540 (7th Cir. 1992)). While the VE
indicated having reviewed Yanez’s record and listened to the testimony, he did not indicate in his
responses to having relied on those records or the hearing testimony. Rather, the VE’s attention
was on the limitations of the hypothetical person posed by the ALJ, and not on the record itself
or the limitations of the claimant himself. Id. (citing Simila, 573 F.3d at 521; Young, 362 F.3d at
1003).
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usher, arcade attendant, and information clerk. But the VE acknowledged that the Dictionary of
Occupational Titles (“DOT”) (itself, deemed “obsolete,” see Spicher v. Berryhill, No. 17-3399,
2018 WL 3677566, at *4 (7th Cir. Aug. 3, 2018)), was at odds with his testimony. The VE
testified that the DOT indicated that an arcade attendant must be able to frequently use his hands
and fingers. However, it was the VE’s belief that arcade attendants “basically watch[]
individuals,” and so the job would only require occasional use of the hands (Tr. 364). Similarly,
the VE testified that the DOT indicates that an information clerk must be able to frequently reach
and handle, as well as occasionally use one’s fingers. But in the VE’s mind, the upper extremity
requirements of an information clerk were actually limited to occasional use, since the job
mainly required providing basic information to the public (Tr. 365).
However, the VE never explained the basis for his opinions which varied from the DOT.
While the ALJ supplemented the VE’s testimony by indicating that it was based on the VE’s
“experience with these jobs,” (Tr. 102), the VE did not say as much. See Overman v. Astrue, 546
F.3d 456, 464–65 (7th Cir. 2008) (requiring that ALJ explain VE’s deviation from DOT);
Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006) (same). Thus, the ALJ erred in
unquestioningly relying on the VE’s bottom line, a bottom line admitted to be in conflict with the
DOT. See id. Moreover, the VE never identified the nature of his past experience with respect to
the particular jobs that he identified, such that the reasonableness of his estimates could be
assessed. See, e.g., Chavez v. Berryhill, 895 F.3d 962, 969 (7th Cir. 2018) (“The VE, for
example, could have drawn on his past experience with . . . knowledge of national or local job
markets, or practical learning from assisting people with locating jobs throughout the region, to
offer an informed view on the reasonableness of his estimates.”). The absence of any such
testimony left the ALJ without a sufficiently reasoned and principled basis for accepting the fact
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that Yanez could actually perform the jobs identified by the VE, or for accepting the job-number
estimates as being reasonably accurate. Id.
Accordingly, on remand the VE will have an opportunity to better explain the basis for
any testimony which varies from the DOT, and sufficiently support the estimates that he
produced with respect to the number of jobs that Yanez could perform (as premised on an
adequately supported RFC).
The remedy for the shortcomings noted herein is further consideration, not an award of
benefits as requested by Yanez’s counsel.
IV. CONCLUSION
For the reasons stated above, the Court REVERSES the Commissioner’s decision and
REMANDS this matter to the Commissioner for further proceedings consistent with this opinion.
SO ORDERED.
ENTERED: August 22, 2018
/s/ JON E. DEGUILIO
Judge
United States District Court
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