FANCHER v. COLVIN

Filing 19

ENTRY ON JUDICIAL REVIEW. The decision of the Commissioner is AFFIRMED. SEE ENTRY. Signed by Judge William T. Lawrence on 7/28/2015. (BGT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
KAYLA R. FANCHER,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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) Cause No. 1:14-cv-1336-WTL-DML
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ENTRY ON JUDICIAL REVIEW
The Social Security Act provides:
An individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate
area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. For purposes of the preceding
sentence (with respect to any individual), “work which exists in the national
economy” means work which exists in significant numbers either in the region
where such individual lives or in several regions of the country.
42 U.S.C. 423 § (d)(2)(A) (emphasis added). In this case, the ALJ found that Plaintiff Kayla
Fancher was not disabled because she maintained the residual functional capacity to perform
“unskilled representative occupations in the national economy” which included, according to a
vocational expert’s testimony, 163,159 housekeeping cleaner jobs nationwide, 195,385 package
line worker jobs nationwide, 449,240 assembler jobs nationwide, 73,189 stocker jobs
nationwide, and 107,707 inspector jobs nationwide. The ALJ further noted:
The vocational expert testified that the above occupations exist in several regions
of the United States. The regulations indicate that the Social Security

Administration is responsible for providing evidence that other work exists in
significant numbers in the national economy (either in the region [where] the
claimant lives or in several regions of the country) (20 CFR 404.1560(c) and
416.960(c)). Therefore, the vocational expert’s testimony as to the availability of
work in the national economy is sufficient.
R. at 33. To the extent that the ALJ equated existing in several regions with existing in
significant numbers in several regions, that was error. The ALJ should have asked the vocational
expert how many of the relevant jobs existed in Indiana—the region in which Fancher lives. If
those numbers were not significant, then the vocational expert should have been asked to provide
numbers for several other regions in the country in which significant numbers of the relevant
jobs existed. The Court is at a loss to understand why the ALJ did not do so, and even more at a
loss to understand why the ALJ instructed the vocational expert not to answer when counsel
attempted to ask the relevant questions.
That said, in this case the error was harmless. Given the very large numbers of the
relevant jobs that exist nationwide and the ubiquitous nature of the jobs in question, the ALJ
reasonably could have inferred that the jobs existed in significant numbers in several regions.
“The principal significance of the ‘other regions’ language in the statute is to prevent the Social
Security Administration from denying benefits on the basis of ‘isolated jobs that exist only in
very limited numbers in relatively few locations outside of the region where [the applicant]
live[s].’” Barrett v. Barnhart, 368 F.3d 691, 692 (7th Cir. 2004) (see 20 C.F.R. § 404.1566(b)).
The types of jobs cited by the vocational expert in this case are by no means isolated to a few
regions of the country; housekeeping jobs, for example, exist virtually everywhere. It is
reasonable to infer that if there are 163,159 housekeeping cleaner jobs nationwide, there are at
least several regions in the country in which there are 1,000 such jobs, which is a significant
number. See, e.g., Liskowitz v. Astrue, 559 F.3d 736, 743 (7th Cir. 2009) (“[I]t appears to be

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well-established that 1,000 jobs is a significant number.”).
An ALJ’s error can be harmless, and
we will not remand a case to the ALJ for further specification where we are
convinced that the ALJ will reach the same result. That would be a waste of time
and resources for both the Commissioner and the claimant. Thus, we look at the
evidence in the record to see if we can predict with great confidence what the
result on remand will be.
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (citation omitted). In this case, the Court
has great confidence that if it were to remand to the ALJ to conduct the proper inquiry—whether
the relevant jobs exist in significant numbers in Indiana or in several regions of the country—the
ALJ would infer based upon the evidence of record that the answer is yes. Accordingly,
although again the Court is at a loss to understand the ALJ’s refusal to elicit the relevant
testimony from the vocational expert—the Court declines to put the claimant, the Commissioner,
and the ALJ through an exercise of futility. Accordingly, the decision of the Commissioner is
AFFIRMED.
SO ORDERED: 7/28/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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