Benthin v. Saul

Filing 20

MEMORANDUM OPINION AND ORDER granting 15 Motion for Summary Judgment. Signed by U.S. District Judge Charles B. Kornmann on July 15, 2021. (DLC)

HLED
UNITED STATES DISTRICT COURT

JUL 1 5 2021

DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

TRACIE L BENTHIN,

I:20-CV-0I0I4-CBK

Plaintiff,

vs.

ANDREW SAUL,COMMISSIONER OF

MEMORANDUM OPINION AND
ORDER

THE SOCIAL SECURITY

ADMINISTRATION,
Defendant.

This matter is before the Court on plaintiff Tracie L. Benthin's motion for

summary judgment, Doc. 15, appealing the order of the Commissioner of Social Security.
BACKGROUND

This case is an appeal from the Commissioner's denial of plaintiffs application
for Social Security Disability Income benefits, filed on 7/20/17, alleging disability since
9/26/16. Plaintiff alleges disability due to fibromyalgia; osteoarthritis of the lumbar
spine, right hip, and hands; right hip dysplasia; osteopenia; hypoglycemia; anxiety; and
depression. Doc. 16 at 1-2. Plaintiffs claims were initially denied on January 31,2018,
and then again, upon reconsideration, on February 14, 2018. A video hearing before an
administrative law judge("ALJ") was held on June 10, 2019. The ALJ then issued a
written opinion, finding that plaintiff was not disabled and denying her disability benefits

claims. Admin. Rec. at 24. The Appeals Council denied review on September 23, 2019,
making the ALJ's decision final. Admin. Rec. at 1. Plaintiff then commenced this action
on July 21, 2020.
The ALJ used the familiar five-step sequential evaluation to determine
disability;

In step one, the ALJ decides whether the claimant is currently
engaging in substantial gainful activity; if the claimant is working,
he is not eligible for disability insurance benefits. In step two, the
ALJ determines whether the claimant is suffering from a severe

impairment. If the claimant is not suffering a severe impairment, he
is not eligible for disability insurance benefits. At the third step, the
ALJ evaluates whether the claimant's impairment meets or equals
one ofthe impairments listed in Appendix 1 ofthe regulations (the
"listings"). If the claimant's impairment meets or equals one of the
listed impairments, he is entitled to benefits; if not, the ALJ proceeds
to step four. At step four, the ALJ determines whether the claimant
retains the "residual functional capacity"(RFC)to perform his or her
past relevant work. If the claimant remains able to perform that past
relevant work, he is not entitled to disability insurance benefits. If
he is not capable of performing past relevant work, the ALJ proceeds
to step five and considers whether there exist work opportunities in
the national economy that the claimant can perform given his or her
medical impairments, age, education, past work experience, and
RFC. If the Commissioner demonstrates that such work exists, the

claimant is not entitled to disability insurance benefits.

McCov V. Astrue. 648 F.3d 605,611 (8th Cir. 2011)(internal C.F.R. citations omitted).
At step one, the ALJ found that plaintiff had not engaged in substantial gainful
activity since September 26, 2016, the alleged onset date of her disability. Admin. Rec.
at 13. While plaintiff worked after said date, that work did not rise to the level of
substantial gainful activity. Id

At step two, the ALJ found that plaintiffs "fibromyalgia; peripheral

polyneuropathy; degenerative joint disease, hips, mild on the right and minimal on the
left; schizophrenia, unspecified type; anxiety; and depression" were all severe

impairments under 20 C.F.R. 404.1520(c). Id. at 14. The ALJ determined that plaintiffs
severe impairments "significantly limit [her] ability to perform basic work activities.
Id. The ALJ also found that plaintiff had osteopenia, hypoglycemia, and adhesive

capsulitis, but that those conditions did not rise to the level of severe impairments. Id
At step three, the ALJ determined that plaintiff did not have "an impairment or
combination of impairments that meets or medically equals the severity of one of the

listed impairments in 20 CFR Part 404, Subpart P, Appendix I (20 CFR 404.1520(d),

404.1525 and 404.1526)." Id The ALJ proceeded to go through the listed impairments
most analogous to plaintiffs and explain why her impairments did not medically equal a
listed impairment.

The ALJ went on to find that plaintiff had the following residual functional
capacity ("RFC"):
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform less than a full
range of light work as defined in 20 CFR 404.1567(h). The claimant can lift
and/or carry 20 pounds occasionally and 10 pounds fi-equently. She can sit
(with normal breaks) for more than a total of6 hours in an 8-hour workday.
She can stand and/or walk (with normal breaks) for a total of about 6 hours

in an 8-hour workday. She can occasionally climb ramps/stairs, balance,
stoop, kneel, crouch, and crawl. She can never climb ladders/scaffolds,
work at unprotected heights, or work with dangerous moving mechanical
parts. Mentally, the claimant retains the ability to understand, remember,
and carry out short, simple instructions, respond appropriately to changes in
a routine work setting, make judgments on simple work-related decisions,
and interact with supervisors and co-workers on an occasional basis. She

should have only brief and superficial interaction with the public with no
customer service interaction. The claimant is also able to work at a

consistent pace throughout the workday but not on a production rate pace
work where each task must be completed within a strict timeline.
Admin. Rec. at 17.

The ALJ agreed that plaintiffs medically determinable impairments could cause
her alleged symptoms, but found the alleged severity of said symptoms to be unsupported
by sufficient evidence in the record. Id. at 18.

The ALJ found that plaintiffs physical symptoms—from the period immediately
preceding the alleged disability onset date up until the time of the hearing before the
ALJ—were relatively mild and consistent with a capacity to perform light work. Shortly

before the alleged onset date of plaintiffs disability she complained of bilateral foot pain
and was instructed to acquire over-the-counter orthotic inserts. Id The ALJ noted that
physical exam findings in 2016 showed plaintiffs extremities to be normal, she had "full
muscle strength in all planes," and "mid-foot tenderness, but no specific point of
exquisite pain and no swelling or evidence of a stress fracture" with no instability. Id

The ALJ then found that "[m]edical records do not reflect there was a significant change
in the claimant's symptoms in 2017. In February 2017, her symptoms included lower
back and hip pain, but it was noted that she had been doing well and she denied having

any significant changes in her overall health." Id The ALJ also found that plaintiffs
general level of medical treatment did not change significantly in 2017. Id The ALJ
noted medical records from a December 2017 exam:

Musculoskeletal findings were minimal. There were no effusions. There
were multiple tender points across the chest and back, but she was nontender along the lateral epicondyle of the elbows. She did report some
tenderness along the medial aspect ofthe knees bilaterally. She could
bend to touch her toes. She had a good grip bilaterally, although weaker
on the left. Deep tender reflexes of the knees were hyper-responsive and
exaggerated. She could raise her legs while lying down to about 30
degrees bilaterally before stopping due to pain. She had a shuffling gait,
which she attributed to hip pain. She could get up and out of a chair
without any difficulty. Very notably, the examiner remarked the
claimant demonstrated a much more subjective degree of pain than
could be elicited objectively. The claimant could flex and extend her
fingers without any difficulty. They were stiffer with movement, but no
gross deformities were noted. There was no muscle atrophy noted of the
upper or lower extremities or hands. There were no other gross changes
noted on the exam. Neurologic signs were normal. She was alert and
oriented. Cognitive exam findings were normal. She was cooperative.
There was no tremor. Cranial nerves were grossly intact. Podiatric exam
findings were normal. Psychological signs were also normal. The
reported included imaging ofthe claimant's hips, which should [sic]
only mild right and minimal left hip degenerative joint disease.
Admin. Rec. at 19. Additionally, the ALJ found that throughout 2018 and 2019

plaintiffs physical exam results remained largely consistent with the capacity to
perform light work. Id In January 2019, plaintiff reported burning feet, but denied
numbness. Id. Other than a toe injury, which was treated mildly, her physical exam
findings from those years were found to be normal. Id,

As for plaintiffs mental impairments, the ALJ noted that from the period
shortly before plaintiffs alleged disability onset date in 2016 until 2019 plaintiff
struggled with anxiety and depression. Id at 20. The ALJ found that plaintiffs

symptoms "varied in 2017 due to situationai stressors." Id She was treated with
Xanax (which was noted to be helpful) and Prozac. Id "In early 2018,the claimant
reported she did not have many problems. She was learning to handle things better
and did not become as anxious as she had in the past. In September, she was doing
fairly well. She refilled Xanax, but noted she rarely needed it." Admin. Rec. at 20.
The ALJ also specifically noted a January 2018 psychological exam in which she
appeared largely normal and was administered the Wechsler Memory Scale-IV
exam, resulting in average to high-average scores. Id

The ALJ found that plaintiffs mental impairments worsened in 2019, when
she was "hospitalized after hearing voices," but improved with medication. Id
At follow-up appointments in May,she reported avoiding people, but
the voice she reported were quiet with medication. Objective evidence
was consistent with a residual functional capacity to perform unskilled
work. She was fully oriented. Her mood,speech, dress, and motor
activity were normal. She was depressed, but thought process was
normal. Attention and focus were adequate. Her insight and judgment
were fair.
Admin. Rec. at 21.

At step four, the ALJ found that plaintiff could not perform her past relevant
work. Admin. Rec. at 22.

At step five, the ALJ determined that there was work which exists in
significant numbers in the national economy which plaintiff could perform. In

making this determination the ALJ referred to the Dictionary of Occupational Titles
("DOT")and the testimony of a vocational expert("VE"). The ALJ referred to the
VE's testimony at the hearing, where the ALJ asked the VE "whether jobs exist in
the national economy for an individual with the claimant's age, education, work
experience, and residual functional capacity. The vocational expert testified that
given all of these factors the individual would be able to perform the requirements of
three jobs. Admin. Rec. at 23. Based on that VE testimony, the ALJ determined that
plaintiff could work as a cleaner housekeeper(DOT Code 323.687-014), laundry
5

folder(DOT Code 369.687-018), and merchandise marker(DOT Code 209.587-

034). The ALJ then stated the number of each of these jobs that exists in the national
economy according to the DOT. Based on the VE's testimony and the DOT job
numbers the ALJ found that plaintiff was not disabled and denied her disability
benefits claim.
LEGAL STANDARD

An individual is considered to be disabled if, inter alia, she is 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). Accord, Bernard v. Colvin. 744 F.3d 482.486 (8th Cir. 2014). An
individual shall be determined to be disabled "only if[their] physical or mental
impairment or impairments are ofsuch severity that [they are] not only unable to do
[their] previous work but cannot, considering [their] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy." 42 U.S.C. § 423(d)(2)(A).

"To be eligible for disability insurance benefits, a claimant has the burden of
establishing the existence of a disability under the Act." Pearsall v. Massanari, 274 F.3d
1211, 1217(8th Cir. 2001). Judicial review of the Commissioner's decision that claimant
has failed to establish by a preponderance of the evidence that she is disabled within the
meaning of the Social Security Act is limited to determining whether the Commissioner's
decision is supported by substantial evidence in the record as a whole. Kamann v.
Colvin. 721 F.3d 945,950(8th Cir. 2013). "Substantial evidence is less than a

preponderance, but enough that a reasonable mind might find it adequate to support the
Commissioner's conclusions." Draper v. Colvin. 779 F.3d 556,(8th Cir. 2015)(intemal
quotations omitted)(auotine Travis v. Astrue. 477 F.3d 1037, 1040(8th Cir. 2007)).
"We consider both evidence that detracts from the ALJ's decision, as well as evidence

that supports it, but we will not reverse simply because some evidence supports a

6

conclusion other than that reached by the ALJ." McDade v. Astrue. 720 F.3d 994,998
(8th Cir. 2013)(internal citations omitted). "If, after reviewing the record, the court finds
it is possible to draw two inconsistent positions from the evidence and one ofthose
positions represents the [ALJ's] findings, the court must affirm the [ALJs] decision."
Pearsall v. Massanari. 274 F.3d 1211, 1217(8th Cir. 2001).
DISCUSSION
I.

Plaintiff argues that the ALJ failed to properly account for her fibromyalgia and
alleged manipulative limitations in his RFC determination. A social security disability
claimant's RFC assessment is an indication of what the claimant can do on a "regular and

continuing basis" despite their impairments. 20 C.F.R. § 404.1545(b). When
determining a claimant's RFC,the ALJ must consider all the claimant's severe and nonsevere mental and physieal impairments alone and in combination with one

another. Lauer v. Apfel. 245 F.3d 700, 703 (8th Cir. 2001). "Ultimately, the RFC
determination is a 'medical question,' that 'must be supported by some medical evidence
of the claimant's ability to function in the workplace." Lawrence v. Saul. 970 F.3d 989,
995 (8th Cir. 2020)(internal citation and replacement omitted). The final RFC

determination is a combination of medical evidence, subjective complaints, as well as
other evidence "that may help shed light on the intensity, persistence, and limiting effects
of symptoms." Id

Plaintiff argues that the ALJ essentially relied on objective medical evidence in
determining the severity of her fibromyalgia symptoms and their associated limiting
effects. Fibromyalgia, plaintiff points out, is a disease with symptoms not easily
quantified or detected with traditional, physical medical tests and examinations. See

Forehand v. Bamhart. 364 F.3d 984,987(8th Cir. 2004)("[Fibromyalgia] is chronic, and
[djiagnosis is usually made after eliminating other conditions, as there are no confirming
diagnostic tests.")(internal quotations omitted).
While the Eighth Circuit recognizes the nature of fibromyalgia and its inherent
difficulty to diagnose, it is still an impairment subject to the same evidentiary analysis as
7

any other impairment that might make one eligible for social security disability. The ALJ
will still look for a history of complaints in a claimant's physicians' notes and treatment
records, as well as the intensity of treatment. Indeed, in Forehand the Eighth Circuit

made plain its reliance on "the medical reports and record in [that] case." Forehand. 364
F.3d at 987; Id at 988("The medical reports of many treating physicians amply support
her allegations of pain and limitation."). The Court also noted that Forehand's own

testimony as to her limitations was consistent with the medical records and reports in the
evidentiary record. Id

In the instant case, the ALJ did find plaintiffs fibromyalgia to be a serious

limitation at step two ofthe sequential analysis, but did not believe it to be so limiting

that she could not still perform less than the full range of light work. The ALJ found that
plaintiffs impairments could cause the symptoms she alleged, but that her "statements

concerning the intensity, persistence and limiting effects ofthese symptoms [were] not

entirely consistent with the medical evidence and other evidence in the record." Admin.
Rec. at 18. In short, the ALJ determined that plaintiffs medical records, treatment

history, and other evidence including her activities of daily living and some medical
opinion evidence did not support a finding that plaintiff was as impaired as she claimed.
The ALJ's RFC determination is supported by substantial evidence in the record.

The ALJ cited extensively to plaintiffs medical records. Shortly before the alleged
disability onset date, plaintiff complained of bilateral foot pain, she was treated
conservatively with over-the-counter shoe inserts and Tylenol Arthritis. There were no

noted serious complaints of pain or treatment in 2016. While plaintiff reported lower-

back and hip pain in 2017, her course oftreatment did not significantly change. She took
gabapentin, which reportedly provided relief. The ALJ noted that plaintiff was also
taking gabapentin in 2018 and 2019, and that it was helping with her pain.

As plaintiff states in her argument, the ALJ did extensively cite objective medical
evidence from physical examinations, which often misses fibromyalgia. That said, the
burden is not on the ALJ to prove that plaintiff does not have fibromyalgia; rather

plaintiff must present sufficient evidence to support her own claims ofimpairment.' The
ALJ notes that at the time ofthe hearing, plaintiff watches her grandchildren, ages 7,9,

and 11 for a "few days" several times during the summer. Admin. Rec. at 21. The ALJ
stated that plaintiff remains social with family and friends, plays cards with her spouse,

dresses herself and cares for her personal hygiene, cooks, wash clothes, vacuum, shop for
groceries, and garden with her spouse (though her spouse does most ofthe activity). This
sort ofinformation is useful in determining what a claimant can do despite limitations.

Performing activities of daily living "such as cooking, cleaning, and hobbies, does not
constitute substantial evidence ofthe ability to engage in substantial gainful activity,"
Bamhart. 366 F3d at 677, but it is certainly evidence relevant to an RFC determination.
See Medhaug v. Astrue. 578 F.3d 805,817(8th Cir. 2009)("[A]cts such as cooking,

vacuuming, washing dishes, doing laundry, shopping, driving, and walking, are
inconsistent with subjective complaints of disabling pain.").

The ALJ did not give particularly heavy weight to any ofthe medical opinions in
this case, though he thought the state agency consultants were persuasive in their physical
assessment. The ALJ properly placed some weight on the state agency physician's

opinion but discussed a great-deal more evidence throughout the RFC determination.
See Harris v. Bamhart. 356 F.3d 926, 931 (8th Cir. 2004)("It is well settled that an ALJ

may consider the opinion of an independent medical advisor as one factor in determining
the nature and severity of a claimant's impairment."). The ALJ also found that Dr. Dan
Reiffenberger's opinion (that plaintiff was limited by a need to change positions
frequently and would have difficulty with repetitive handling of objects) was not
supported by sufficient evidence to be persuasive. Plaintiff claims that the ALJ should
have discussed the limitation concerning handling objects that Dr. Reiffenberger found
and explain why she should not be limited to less than frequent handling. But the ALJ
cited to multiple physical exams throughout the RFC determination "including physical

' Plaintiff also points out that the ALJ does not mention the word fibromyalgia in his RFC assessment, which is
true but somewhat misleading. The ALJ references plaintiffs alleged "pain" throughout the RFC assessment
portion ofthe opinion—pain being the primary symptom offibromyalgia.
9

examinations during the same time period which showed normal muscle strength, range
of motion, and no pain or weakness in extremities." Fentress v. Berrvhill. 854 F.3d 1016,

1020(8th Cir. 2017), as corrected (Apr. 25, 2017). The records cited throughout the RFC
determination helie the notion that plaintiff has significant manipulative limitations, and
the ALJ's decision not to rely fully on the opinion of Dr. Reiffenberger on this issue is
well supported by the evidence in the entire record. Her December 2017 physical exam

specifically noted that she had good grip bilaterally. Admin. Rec. at 19. Beyond the
opinion of Dr. Reiffenberger and plaintiffs subjective complaints, nothing in the record
would support such a limitation.
As to mental-health medical opinion evidence, the ALJ stated;

The record also includes opinions from treating sources that were less
persuasive. In a June 2019 opinion, Jamie Block checked options indicating
the claimant's ability to understand, remember, and carry out instructions
were affected, but only mildly. She indicated marked limitation in public
interaction, but she indicated that she unable to assess more areas. In a June

2019 opinion, Carrie Dylla,PAC,checked options indicating moderate
limitations in understanding, remembering, and carrying out simple
instructions, but marked limitations with complex instructions. She
indicated marked to extreme limitations in getting along with others. The
opinions are very recent and after the recent decline in the claimant's
symptoms from her mental impairments. They are inconsistent with the
minimal symptoms and objective findings from much of the relevant
period.
Admin. Rec. at 22. These records are consistent with fibromyalgia symptoms, but the
ALJ explained in earlier portions of his opinion that plaintiffs psychological symptoms
and course of treatment were both relatively mild.

The ALJ found that plaintiffs symptoms "varied in 2017 due to situational
stressors." Id. at 20. She was treated with Xanax (which was noted to be helpful) and
Prozac. Id "In early 2018, the claimant reported she did not have many problems. She

was learning to handle things better and did not become as anxious as she had in the past.
In September, she was doing fairly well. She refilled Xanax, but noted she rarely needed
it." Id While her mental condition is noted to have seriously deteriorated in 2019, that
was well after the alleged disability onset date.
10

While fibromyalgia is not diagnosable with normal physical exams, the ALJ
properly included such exam results along with other evidence in the record. The ALJ
did not discredit plaintiffs complaints based on a lack of objective evidence alone, rather
the ALJ determined that based on all of the evidence in the record, pain at the level

plaintiff claims was not supported by substantial evidence. In making his decision, the
ALJ relied primarily on a lack of subjective complaints by plaintiff to her medical care
providers, and the conservative nature of the treatment prescribed over the course of
several years. The ALJ also relied on the fact that plaintiff seemed to be well-controlled
with medication for much of the period at issue. Some weight was then placed on the
opinion of the state agency consultant, as well as the plaintiffs own subjective
complaints. The ALJ incorporated plaintiffs complaints in the RFC, he limited her to
less than the full-range of light work based largely on those complaints.

"Substantial evidence is less than a preponderance, but enough that a reasonable
mind would find it adequate to support a conclusion." Lawrence v. Saul. 970 F.3d 989,
995 (8th Cir. 2020)(citation omitted). While it is unsurprising that plaintiff can point to
some evidence that contradicts the ALJ's decision, the RFC determination as a whole is

supported by substantial evidence on the record. Indeed, if the record contained
substantial evidence that could support a more severe limitation based on plaintiffs
fibromyalgia but also substantial evidence on the record supporting the ALJ's RFC
determination, then the ALJ's determination must prevail. "[The Court] may not reverse

[the ALJ's] decision simply because [it] would have reached a different conclusion than
[the ALJ] or because substantial evidence supports a contrary conclusion." Fentress. 854
F.3dat 1021.
II.

Plaintiffs last argument is that the Commissioner failed to carry his burden at step

five to identify jobs in the national economy that plaintiff could perform. "[W]ork which
exists in the national economy' is defined to mean 'work which exists in significant
numbers either in the region where such individual lives or in several regions of the
country." Bamhart v. Thomas. 540 U.S. 20, 23-24(2003). Plaintiff argues that the ALJ
11

was required to also find that the jobs that she was said to be qualified for and physically
able to perform exist in significant numbers either in the region ofthe country in which
she lived or, in the alternative, state in which regions of the Country such jobs exist in

significant numbers. In short, plaintiff argues that VE testimony solely concerning
national job numbers based solely on the DOT is insufficient to carry the Commissioner's
burden at step five of the sequential analysis.

Defendant asserts that the Eighth Circuit's opinion in Weiler v. Apfel stands for
the proposition that national job numbers are all that are required to carry the

Commissioner's burden at step five. In Weiler. the SSA claimant argued on appeal that
"the ALJ erroneously concluded that there are a significant number ofjobs in the
economy that Weiler could perform" considering his RPC. Weiler v. Apfel. 179 F.3d
1107, 1110(8th Cir. 1999). As indicated, Weiler's argument concerned the ALJ's
determination that the jobs the ALJ identified were actually compatible with his RFC.
Weiler never argued, and the Eighth Circuit never addressed, the question of whether
national job numbers alone satisfy the Commissioner's burden at step five to identify jobs
that the claimant could perform. The statement upon which defendant appears to rely is
this: "The vocational expert's testimony in response to the ALJ's hypothetical is
substantial evidence supporting the ALJ's conclusion that there are a significant number
ofjobs in the economy which Weiler can perform." Id. at 1111.

While the Weiler court clearly approved of a step five analysis that was supported
by only VE testimony based on the DOT and identifying national job numbers, the

question of whether such testimony was sufficient was not squarely presented to the
panel. Weiler was arguing that he was not actually capable of performing the jobs

identified by the VE in his case. The Eighth Circuit was not called to answer the question
of whether the ALJ must identify the regions of the country in which the identified jobs
exist.

The remainder of defendant's argument misunderstands the issue. There is no
question that jobs may exist anywhere in the United States, and there is no requirement

that identified jobs must exist in the region in which a claimant lives. The question is
12

simply whether to carry its burden at step five the Commissioner must show that at least
one ofthe identified jobs exists in significant numbers in either the region in which the
claimant lives or, if not there, then in which region or regions ofthe country that job does
exist in significant numbers.

The phrase "national economy" is intuitively confusing in this context. While the

word "national" implies that national numbers are the ones with which the SSA should be
concerned, the statute's definition ofthe phrase "work which exists in the national

economy" explains that the requirement goes further than raw national numbers. The

statute says:"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

ofthe country." 42 U.S.C. § 423(d)(2)(A)(emphasis added). Thus,"work which exists
in the national economy' is a term of art in Social Security law. Flatequal v. Saul, No.
4:19-CV-04045-VLD, 2019 WL 4857584, at *26(D.S.D. Oct. 2, 2019).

The purpose of so defining the phrase ["work which exists in the national
economy" to mean "work which exists in significant numbers either in the
region where such individual lives or in several regions ofthe country] is to
preclude from the disability determination consideration of a type or types
ofjobs that exist only in very limited number or in relatively few
geographic locations in order to assure that an individual is not denied
benefits on the basis ofthe presence in the economy of isolated jobs he
could do.

Doc. 18 at 24(quoting Conference Committee Rpt. 1030, 90th Cong.(Dec. 11, 1967), p.
52, https://www.ssa.gov/history/pdf/dibreport.pdf at p. 11 (last viewed Jan. 22, 2020)).
Defendant argues that "when a vocational expert identifies a significant number of
jobs nationwide, he or she is identifying jobs existing in 'several regions ofthe country'
as required by 42 U.S.C. § 423(d)(2)(A)." Doc. 18 at 25. If that is true, then there is
little harm in asking the VE to elaborate just enough to ensure that the claimant knows in
which regions of the country the identified jobs exist.

Indeed, this is a relatively common requirement that is imposed on VEs in other
parts of the country. Defendant cites Gutierrez v. Commissioner of Social Securitv. 740
F.3d 519(9th Cir. 2014), for the proposition that national numbers alone are sufficient.

13

But the ALJ in that case relied on both national and regional numbers for the step five

analysis. See id at 521 ("Thus, because Gutierrez could perform 2,500jobs in California
and 25,000 jobs in the nation, the ALJ concluded that Gutierrez did not suffer from a
disability under the Social Security Act.")- In Barrett v. Bamhart. the Seventh Circuit,
responding to a government request to change a sentence in an opinion which implied
that 'work which exists in the national economy' means jobs that exist "in reasonable
proximity to where[the claimant] lives," 368 F.3d 691,692(7th Cir. 2004)(emphasis
original), stated:

Yet in our experience, and, it seems, in that of the other circuits as well, the
vocational experts who testify in social security disability cases concerning
the availability ofjobs that the applicant has the physical ability to perform
almost always confine their testimony to indicating the number of such jobs
that exist in the applicant's state, or an even smaller area. See, e.g., Fastner
V. Barnhart, 324 F.3d 981,985 (8th Cir.2003); Johansen v. Barnhart, 314
F.3d 283, 287(7th Cir.2002); Donahue v. Barnhart, 279 F.3d 441,444(7th
Cir.2002); Howard v. Commissioner ofSocial Security, 276 F.3d 235, 23839(6th Cir.2002); Dixon v. Massanari, 270 F.3d 1171, 1179(7th
Cir.2001); Clifford v. Apfel, 221 F.3d 863, 869(7th Cir.2000); Shramekv.
Apfel, 226 F.3d 809, 815 (7th Cir.2000); Powers v. Apfel, 207 F.3d 431,
436(7th Cir.2000); Lee v. Sullivan, 988 F.2d 789,792(7th
Cir.1993); Ehrhart v. Sec'y ofHealth & Human Services, 969 F.2d 534, 540
(7th Cir.1992). We have found only a few cases in which national numbers
alone were cited as a basis for denying benefits.
Barrett v. Barnhart. 368 F.3d 691,692(7th Cir. 2004). "The Commissioner's regulation

likewise does not define 'region,' but only says that 'region' is not equal to "immediate
area." Flateaual. 2019 WL 4857584, at *21 (citing 20 C.F.R. § 404.1566(a)(1)).

This Court will not go so far as the Seventh Circuit appears to but will confine its
order to the language ofthe statute. It is the responsibility of the Commissioner at step

five to identify jobs which the plaintiff can perform despite her disability and which exist
in substantial number either in the region in which she lives or in several regions of the
country. A citation to national numbers alone does not suffice to meet that burden; both
national and regional numbers must be cited. That said, there is nothing in the statute

suggesting that the identified jobs must exist in the region in which the claimant lives. It
seems obvious that jobs local to the claimant would be preferable, if they exist. If they do
14

not, however, that is not a barrier to finding a claimant not disabled. The word "or" is
used in the statute and the Commissioner may meet the burden by establishing that
substantial numbers ofjobs exist in several regions of the country.

In the instant case, the ALJ discussed nothing in the opinion beyond national
numbers and did not even ask the VE aboutjobs existing in plaintiffs region or in several
regions of the country. For that reason, the ALJ did not meet the Commissioner's burden
at step five of the sequential analysis to identify jobs that plaintiff could perform despite
her disability.
ORDER

Based upon the foregoing, IT IS HEREBY ORDERED:

1. Plaintiffs motion. Doc. 15, for reversal of the Commissioner's decision is
GRANTED.

2. The final decision of the Commissioner is REVERSED.
3. The decision of the Commissioner is reversed and remanded for a limited

rehearing pursuant^ sentence four of42 U.S.C. § 405(g).

DATED this /^SvofJuly, 2021.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge

15