Schwickerath v. Commissioner of Social Security

Filing 20

ORDER affirming and adopting 18 Report and Recommendations, reverses the decision of the Commissioner, and remands this case to the Social Security Administration for further proceedings. Signed by Chief Judge CJ Williams on 11/26/2024. (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JENNIFER S.,1

No. 24-CV-10-CJW-KEM

Plaintiff,
vs.

ORDER

MARTIN O’MALLEY,
Commissioner of Social Security,
Defendant.
___________________________
This matter is before the Court on claimant’s objection (Doc. 19) to a Report and
Recommendation (R&R) (Doc. 18) by the Honorable Kelly K.E. Mahoney, Chief United
States Magistrate Judge, recommending the Court remand this case for further
proceedings. Claimant argues the Court should find the record did not support the
Administrative Law Judge’s (ALJ) decision and remand only for a calculation of benefits.
(Doc. 19, at 3-4). The dispute turns on whether the vocational expert provided the ALJ
with an exhaustive list of jobs claimant could work. The Commissioner argues that the
vocational expert provided the ALJ with only a representative list of three jobs, whereas
claimant argues that the three jobs the vocational expert listed was exhaustive. For the
reasons that follow, the Court overrules claimant’s objections and adopts Judge
Mahoney’s R&R, and will remand this case for further proceedings.
As Judge Mahoney detailed (Doc. 18, at 1-3), the ALJ presented a number of
hypotheticals to the vocational expert, asking the expert to assume certain physical and/or

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The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in Social Security
cases, federal courts should refer to claimants only by their first names and last initials.

mental residual functional capacities (RFC). In response, the expert advised that either
no jobs exist under certain hypotheticals, or that there were three jobs claimant could
perform, depending on which RFCs the expert was asked to assume. Everyone agrees
that in responding to the second hypothetical question, the expert erred when listing one
of the three jobs she said claimant could perform. Claimant asserts that the three jobs
the expert listed were all the jobs claimant could possibly work and if she could not work
any of these, then she is disabled. The Commissioner asserts that the three jobs the
expert listed were mere examples of available jobs, “representative occupations,” and
that if the expert erred in listing one of the jobs, the matter should be remanded to allow
the expert to consider whether other jobs are available that claimant could perform.
The Court sides with Judge Mahoney and the Commissioner here. Any fair
reading of the expert’s testimony reflects that the expert was merely listing examples of
jobs claimant could perform. The expert was not purporting to suggest that the three
jobs listed were the only ones claimant could ever possibly perform. Nothing in the
testimony supports that conclusion. If, indeed, that is the situation, then the expert can
say so on remand and claimant will prevail. But the Court will not assume that to be the
case on what it considers a tortured and biased reading of the expert’s testimony by
claimant.
As Judge Mahoney explained:
When VE testimony in the record establishes that no jobs exist for a
person with claimant’s limitations, courts remand for an award of benefits.
But here, I disagree with Plaintiff’s view of the merits of her first argument.
Instead, it seems remand is required based on Plaintiff’s arguments about
the evaluation of Physical Therapist Steffen’s opinion and the VE’s
identification of (at least some) jobs for Plaintiff that conflict with the
Dictionary of Occupational Titles. On remand, the ALJ may explain the
lack of supportability and consistency of Physical Therapist Steffen’s
statement questioning whether Plaintiff had the stamina to sustain work
activity for eight hours straight. The VE may also identify additional jobs

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that someone with Plaintiff’s RFC could perform (since the three jobs
identified were merely representative of a larger sample). Therefore, if the
case is remanded for further proceedings, a finding of disability may not be
a foregone conclusion.
(Doc. 18, at 4 (footnote omitted)). On remand, the ALJ will need to provide additional
reasons for the persuasiveness of a medical opinion (that if fully adopted, would result in
a finding of disability) and obtain additional expert testimony to determine whether jobs
exist for claimant given her RFC.
Thus, the Court overrules claimant’s objection to Judge Mahoney’s R&R.
Instead, the Court affirms and adopts Judge Mahoney’s R&R (Doc. 18), reverses the
decision of the Commissioner, and remands this case to the Social Security
Administration for further proceedings. On remand, the ALJ is ordered to: (1) explain
the supportability and consistency (or lack thereof) of Physical Therapist Steffen’s
opinion that it is questionable whether Plaintiff could sustain work activity for eight hours
straight; (2) obtain expert testimony on whether additional jobs exist that claimant could
perform and explain any potential inconsistency between using a cane and work requiring
frequent handling and fingering or using a computer; and (3) identify and thoroughly
explain why any RFC limitations included in the prior ALJ opinion were not included in
the RFC on remand.
IT IS SO ORDERED this 26th day of November, 2024.

__________________________
C.J. Williams, Chief Judge
United States District Court
Northern District of Iowa

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