King v. O'Malley
U.S. District Court, District of Minnesota
King v. O'Malley
Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anna K., Case No. 23-cv-549 (TNL)
Plaintiff,
v. ORDER
Martin J. O’Malley,
Commissioner of Social Security
Administration, 1
Defendant.
Edward C. Olson, Reitan Law Office, 80 South Eighth Street, Suite 900, Minneapolis,
Minnesota 55318 (for Plaintiff); and
Ana H. Voss, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis, Minnesota 55415; and James Potter, James
D. Sides, and Shea Taulbee, Special Assistant United States Attorneys, Social Security
Administration, 6401 Security Boulevard, Baltimore, Maryland 21235 (for Defendant).
I. INTRODUCTION
Plaintiff Anna K. challenges Defendant Commissioner of Social Security’s denial
of her application for disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. § 401. The parties have consented to a final judgment from the undersigned United States Magistrate Judge in accordance with28 U.S.C. § 636
(c), Fed. R. Civ. P. 73,
and D. Minn. LR 72.1(c).
1 The Court has substituted Commissioner Martin J. O’Malley for Acting Commissioner
Kilolo Kijakazi. A public officer’s “successor is automatically substituted as a party” and
“[l]ater proceedings should be in the substituted party’s name.” Fed. R. Civ. P. 25(d).
Pursuant to the Federal Rules of Civil Procedure’s Supplemental Rules governing
actions seeking judicial review of the Commissioner’s decision, this action “is presented
for decision by the parties’ briefs.” Fed. R. Civ. P. Supp. SS Rule 5. Plaintiff filed a brief,
ECF No. 13, requesting the Court to reverse the Commissioner’s decision and remand for
further review. Defendant filed a brief in opposition, ECF No. 17.
For the reasons set forth below, the Court denies Plaintiff’s request for relief and
affirms the Commissioner’s decision.
II. BACKGROUND
In 2020, Plaintiff applied for child’s insurance benefits based on disability and for
supplemental security income. Tr. 99, 101. In her application, Plaintiff said she was
disabled because of generalized anxiety disorder, major depression, post-traumatic stress
disorder, bipolar, bilateral hip pain, diabetes, and social anxiety. Tr. 103. The Social
Security Administration2 denied Plaintiff’s initial applications. Tr. 99, 101. Plaintiff applied
for reconsideration of her applications, and the Social Security Administration again denied
her claim. Tr. 159, 161.
Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). Tr.
182. At the hearing, the ALJ heard testimony from Plaintiff and from a vocational expert.
Tr. 42, 57. The ALJ also considered voluminous medical records in preparing her decision.
2 A Minnesota state agency made the original disability determination on behalf of the
Social Security Administration. See 20 C.F.R. § 416.1026 (providing funding to state
agencies to make disability determinations on behalf of the Social Security
Administration).
Tr. 402–1404. These records included a Mental Impairment Questionnaire completed by
Dr. Vetter, who is a psychologist, and Ms. Augustin, an intern. Tr. 1398–1403.
After the hearing, the ALJ issued a decision denying Plaintiff’s claim. Tr. 13–27. In
her decision, the ALJ found that Plaintiff had the residual functional capacity
to perform a range of light work as defined in 20 CFR
404.1567(b) and 416.967(b), as follows. Specifically,
[Plaintiff] is able to lift up to 20 pounds occasionally and
lift/carry up to 10 pounds frequently. She is able to stand/walk
for about six hours and sit for up to six hours in an eight-hour
workday, with normal breaks. She is unable to climb
ladders/ropes/scaffolds, but is occasionally able to climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl. She is
unable to tolerate exposure to unprotected heights and use of
dangerous moving machinery. She is able to perform simple,
routine, and repetitive tasks in a work environment free of fast-
paced production requirements, involving only simple work-
related decisions and routine workplace changes. [Plaintiff] is
able to tolerate no direct interaction with the public and only
occasional interaction with coworkers.
Tr. 20. Based on this residual functional capacity, the ALJ found that “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can perform.” Tr. 26.
To make this finding, the ALJ relied on the testimony from the vocational expert that
Plaintiff could perform the requirements of an office helper, garment sorter, or non-postal
mail clerk. Tr. 26. As a result, the ALJ determined that Plaintiff was not disabled. Tr. 26–
27.
Plaintiff requested that the Appeals Council review the decision of the ALJ, and the
Appeals Council denied her request for review. Tr. 1.
Plaintiff now seeks review by this Court.
III. ANALYSIS
Plaintiff argues that the ALJ’s decision was not supported by substantial evidence.
Pl.’s Br. at 1, ECF No. 13. Plaintiff specifically contends that the ALJ did not give the
proper weight to the medical opinion of R.V. and C.A. and, as a result, made an improper
finding as to Plaintiff’s residual functional capacity. Id.Plaintiff also asserts that the ALJ relied on improper vocational expert testimony when the ALJ found that Plaintiff could perform work that exists in the national economy.Id.
A. Standard of Review
This Court reviews whether the ALJ’s decision is supported by substantial evidence
in the record as a whole. Biestek v. Berryhill, 587 U.S. 97, 102–03 (2019). “[T]he threshold for such evidentiary sufficiency is not high.”Id. at 103
. “It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Id.
(quotation omitted); see, also, Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir.
2018) (defining “substantial evidence as less than a preponderance but enough that a
reasonable mind would find it adequate to support the conclusion” (quotation omitted)).
This standard requires the Court to “consider both evidence that detracts from the
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue, 652 F.3d 860, 863(8th Cir. 2011). The ALJ’s decision “will not [be] reverse[d] simply because some evidence supports a conclusion other than that reached by the ALJ.”Id.
Rather, reviewing courts reverse an ALJ’s decision “only if it falls outside the available zone of choice.” Kraus v. Saul,988 F.3d 1019, 1024
(8th Cir. 2021) (quotation omitted).
B. Disability Insurance Benefits
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. § 423(a)(1); accord20 C.F.R. § 404.315
. An individual is considered to be disabled if they are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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); see also20 C.F.R. § 404.1505
(a). This standard is met when a severe physical or mental impairment renders the individual unable to do their previous work or “any other kind of substantial gainful work which exists in the national economy,” taking into account their age, education, and work experience.42 U.S.C. § 423
(d)(2)(A); see also20 C.F.R. § 404.1505
(a).
Disability is determined according to a five-step, sequential evaluation process. 20
C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) she was severely impaired; (3) her impairment was, or was
comparable to, a listed impairment; (4) she could perform past
relevant work; and if not, (5) whether she could perform any
other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929(8th Cir. 2010). In general, the burden of proving the existence of disability lies with the claimant.20 C.F.R. § 404.1512
(a).
C. Substantial Evidence Supports the ALJ’s Finding of Plaintiff’s Residual
Functional Capacity
Plaintiff argues that the ALJ did not properly assess her residual functional capacity,
contending that the ALJ (1) failed to give proper weight to the medical opinion of Dr.
Vetter and Ms. Augustin, (2) did not acknowledge that Plaintiff endorsed symptoms
consistent with severe depression on several occasions, and (3) did not give credit to
objective testing that shows that Plaintiff has deficits in memory and cognitive functioning.
Pl’s Br. at 11–12. The Court is not persuaded.
Before the fourth step in the disability determination process, the ALJ assesses the
claimant’s residual functional capacity. Id. § 404.1545(a)(5)(i). The residual functional
capacity is the most work a claimant can do despite their limitations. Id. § 404.1545(a)(1).
The ALJ assesses a claimant’s residual functional capacity “based on all of the relevant
medical and other evidence.” Id. § 404.1545(a)(3). If a claimant has a severe impairment,
but the impairment is not a listed impairment, the ALJ must “consider the limiting effects
of all [the claimant’s] impairment(s), even those that are not severe, in determining . . .
residual functional capacity.” Id. § 404.1545(e). To make this determination on the total
limiting effects of the claimant’s impairments, the ALJ considers “all of the medical and
nonmedical evidence, including the information described in § 404.1529(c).” Id.
Section 404.1529(c) applies “[w]hen the medical signs or laboratory findings show
that [the claimant] has a medically determinable impairment(s) that could reasonably be
expected to produce [the claimant’s] symptoms.” If that is the case, the ALJ must consider
both “objective medical evidence” as well as “any other information [the claimant] may
submit about [the claimant’s] symptoms.” 20 C.F.R. § 404.1529(c). For other information
that the claimant submits,
[b]ecause symptoms . . . are subjective and difficult to quantify,
any symptom-related functional limitations and restrictions
that [the claimant’s] medical or nonmedical sources report,
which can reasonably be accepted as consistent with the
objective medical evidence and other evidence, will be taken
into account as explained in [20 C.F.R. § 404.1529](c)(4).20 C.F.R. § 404.1529
(c)(3). Paragraph (c)(4) provides that the ALJ must “consider” all of
the available evidence, including whether there are any inconsistencies in the evidence.
In addition, the Social Security Administration has promulgated rules on how the
ALJ considers medical opinions. The ALJ does “not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those from
[the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). Rather, the ALJ considers five factors in evaluating the medical opinions: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors.Id.
§ 404.1520c(c).
The most important factors are supportability and consistency. Id. § 404.1520c(b)(2). The
ALJ must explain how they considered the supportability and consistency factors but is not
required to explain how they considered the other three factors. Id.
For the supportability factor, “[t]he more relevant the objective medical evidence
and supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). And for
the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical sources
in the claim, the more persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.” Id. § 404.1520c(c)(2).
None of Plaintiff’s three arguments convince the Court that the ALJ’s finding was
unsupported by substantial evidence. First, contrary to Plaintiff’s assertion, the ALJ was
“not required . . . to explain how [she] considered” Dr. Vetter and Ms. Augustin’s examining
and treating relationship with Plaintiff because the regulations only require explanation of
the supportability and consistency factors and do not require explanation of the relationship
factor. 20 C.F.R. § 404.1520c(b)(2); contra Pl’s Br. at 11. Moreover, the ALJ properly
discredited the report of Dr. Vetter and Ms. Augustin following the requirements of the
regulations. For the supportability factor, the ALJ found that the report was “partially
unsupported as it acknowledges the information the claimant provided was either internally
inconsistent or insufficient to allow the providers to assess certain aspects of her
functioning and as these providers had seen the claimant on no more than a few occasions.”
Tr. 24–25. The record supports this finding. In their report, Dr. Vetter and Ms. Augustin
responded “no” to a question asking whether Plaintiff’s impairments were “reasonably
consistent with the symptoms and functional limitations described in this evaluation.” They
explained that Plaintiff’s “verbal reports and assessments were inconsistent (i.e. indicated
difficulties concentrating on intake but not on PHQ-9).” Tr. 1403. When asked to “describe
any additional reasons not covered above why [Plaintiff] would have difficulty working at
a regular job on a sustained basis,” Dr. Vetter and Ms. Augustin answered, “Have not met
with [Plaintiff] for long enough to determine this.” Tr. 1403. To the question, “Is your
patient a malingerer?” they wrote, “Not enough information provided.” Tr. 1403. For,
“[H]ow often do you anticipate that [Plaintiff’s] impairments or treatment would cause
[Plaintiff] to be absent from work?” Dr. Vetter and Ms. Augustin replied, “[Plaintiff] did
not provide enough information. However, [Plaintiff] has not been consistent with therapy
appointments.” Tr. 1403. And to “Does [Plaintiff’s] mental health preclude them from
working with the general public?” Dr. Vetter and Ms. Augustin responded, “Not enough
information provided.” Tr. 1403.
For the consistency factor, the ALJ found that the conclusions of the medical opinion
are inconsistent with the remaining evidence since, unlike at
the December 2021 psychological evaluation, the claimant’s
2021 treatment notes show she experienced such improvement
in her symptoms that she had been considering discontinuing
services; similarly, the mental status findings in the remaining
mental health records are somewhat inconsistent with the
limitations endorsed in this medical opinion report.
Tr. 25. This too is supported by the record. Treatment notes show that in 2019 Plaintiff had
symptoms of major depressive disorder and was “struggling to manage her mental health
symptoms.” Tr. 453, 460. In 2020, treatment notes state that Plaintiff was doing
progressively better: her medications were helping her manage her symptoms, her anxiety
was present but manageable, and she reported that she was doing “good.” Tr. 499–500,
1320–21, 1325–26. By 2021, treatment notes state that Plaintiff’s symptoms had greatly
reduced and that Plaintiff reported “that she [was] not sure that she needs ongoing case
management as she [was] feeling that she [was] doing well.” Tr. 1330, 1335. The record
supports the ALJ’s finding that the report of Dr. Vetter and Ms. Augustin lacked
supportability and consistency and was therefore not persuasive.
Second, the ALJ properly considered that “Plaintiff endorsed symptoms consistent
with severe depression at multiple examinations.” Pl.’s Br. at 12. Importantly, “an ALJ is
not required to discuss every piece of evidence submitted.” Wildman v. Astrue, 596 F.3d
959, 966(8th Cir. 2010) (quotation omitted). And “an ALJ’s failure to cite specific evidence does not indicate that such evidence was not considered.”Id.
(quotation omitted). The ALJ
stated that Plaintiff’s “medical records describe longstanding problems with . . .
depression.” Tr. 21. The record reflects this, showing that Plaintiff did report symptoms
consistent with moderate to severe depression. Tr. 543, 558, 569, 573, 966, 981, 1056,
1269, 1275. And as a result, the ALJ included significant limitations based on these
symptoms in Plaintiff’s residual functional capacity, explaining,
[Plaintiff’s] medical records, considered together with her
testimony, support moderate limitations in the “paragraph B”
criteria of understanding, remembering, or applying
information, interacting with others, and concentrating,
persisting, or maintaining pace. In all, these circumstances are
consistent with the above-specified limitations in terms of the
complexity and familiarity of tasks, pace and productivity
demands, decision-making responsibility, stability of the work
setting, and interpersonal contacts, especially with unfamiliar
members of the general public. They also suggest [Plaintiff’s]
mental impairments contribute to her environmental
tolerances, particularly her need to avoid work at unprotected
heights or using dangerous moving machinery.
Tr. 22. In short, the ALJ clearly considered the Plaintiff’s depression symptoms in making
her finding of Plaintiff’s residual functional capacity and, moreover, was not required to
discuss those specific symptoms to show that she considered that evidence. See Wildman,
596 F.3d at 966.
Third, the ALJ properly considered objective medical evidence that Plaintiff has
deficits in memory and cognitive functioning. The ALJ found that “[w]hile [Plaintiff] has
been diagnosed with an intellectual developmental disorder since the alleged onset date,
reports of earlier academic testing are more suggestive of borderline or low-average
abilities.” Tr. 23. The ALJ added, “Mental status findings, moreover, suggest [Plaintiff’s]
reported difficulties with attention, concentration, comprehension, and social functioning,
are not so severe as to preclude her performance of work within the above residual
functional capacity, with abnormal findings mostly constrained to mood- and affect-related
observations and ‘fair’ insight and judgment.” Tr. 23. This finding is supported by the
record.
A report from middle school stated that “[Plaintiff’s] academic skills and fluency
with academic tasks are both within the average range. Her academic knowledge and
ability to apply academic skills are both within the low average range.” Tr. 913. The report
also stated, “[Plaintiff’s] performance is average in basic reading skills, reading
comprehension, written language and written expression; and low average in math
calculation skills and math reasoning.” Tr. 913. A diagnostic assessment in 2019 reported
that her intelligence was “[h]igh,” her immediate memory and remote memory were
“[i]ntact,” and in general, her mental functioning was “accurate.” Tr. 453. The same report
stated that her thought process was “[l]ogical & organized.” Tr. 453. A 2020 diagnostic
assessment stated that her attention, concentration, and “fund of knowledge” were
“sufficient.” Tr. 459. And, at a 2021 medication management visit, the provider reported
that Plaintiff’s thought process was “[l]inear, coherent, but concrete.” Tr. 1335.
The record amply supports the ALJ’s finding on Plaintiff’s mental abilities for
Plaintiff’s residual functional capacity. The Court notes that “the ALJ is not required to
explicitly reconcile every conflicting shred of medical evidence.” Austin v. Kijakazi, 52
F.4th 723, 729(8th Cir. 2022) (quotation omitted). More importantly, the fact that a different conclusion as to Plaintiff’s residual functional capacity could be drawn from the evidence does not merit reversal. Goff v. Barnhart,421 F.3d 785, 789
(8th Cir. 2005) (“If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s findings, the court must
affirm the ALJ’s decision.”).
Overall, substantial evidence supports the ALJ’s finding of Plaintiff’s residual
functional capacity. Reversal is not warranted based on the ALJ’s finding of Plaintiff’s
residual functional capacity because it falls in the “zone of choice” created from the record.
Kraus, 988 F.3d at 1024.
D. Substantial Evidence Supports the ALJ’s Finding That Work Exists That
Plaintiff Can Perform
Plaintiff next argues that substantial evidence does not support the ALJ’s findings
on Plaintiff’s vocational abilities. She specifically asserts that the ALJ (1) posed a deficient
hypothetical question, (2) did not reconcile a conflict between the Dictionary of
Occupational Titles and the vocational expert’s testimony, and (3) incorrectly found that a
significant number of jobs that Plaintiff can perform exist in the national economy. The
Court is not convinced.
At the fourth and fifth steps, ALJs commonly use vocational experts to provide
evidence about the claimant’s ability to do their past work or to do other work that exists
in the national economy. 20 C.F.R. § 404.1560. “‘[W]ork 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). At the
hearing on a claimant’s application for benefits,
a vocational expert . . . may offer expert opinion testimony in
response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the
claimant’s medical impairment(s) can meet the demands of the
claimant’s previous work . . . as generally performed in the
national economy.
20 C.F.R. § 404.1560(b)(2). Vocational experts often rely on specialized resources, such as the Dictionary of Occupational Titles, published by the U.S. Department of Labor, to determine what work a claimant may be able to perform, given the claimant’s limitations. Seeid.
“A vocational expert’s testimony based on a properly phrased hypothetical question constitutes substantial evidence,” but “if . . . the vocational expert’s testimony appears to conflict with the job requirements set forth in the relevant DOT listings and the ALJ did not resolve the conflict, the vocational expert’s testimony is not substantial evidence to support a denial of benefits.” Galloway v. Kijakazi,46 F.4th 686, 689
(8th Cir. 2022).
Plaintiff’s first argument as to the ALJ’s vocational findings is that ALJ’s
hypothetical question was deficient. Tr. 14. Plaintiff’s contention here relies on her
argument above that substantial evidence did not support the ALJ’s finding of her residual
functional capacity. The ALJ based her hypothetical question on her formulation of
Plaintiff’s residual functional capacity. Tr. 59–60. Because the residual functional capacity
was not properly articulated, Plaintiff asserts, the ALJ’s hypothetical question was
deficient. Tr. 14.
But, as this Court determined above, substantial evidence does support the ALJ’s
finding on Plaintiff’s residual functional capacity. Therefore, the vocational expert’s
testimony was substantial evidence on which the ALJ could properly rely in making her
finding on Plaintiff’s vocational abilities. See Gann v. Berryhill, 864 F.3d 947, 952 (8th Cir.
2017) (stating that “testimony from a vocational expert constitutes substantial evidence”
when it is “based on a properly phrased hypothetical question” (quotation omitted)).
Plaintiff’s second argument is that substantial evidence did not support the ALJ’s
findings of potential jobs that Plaintiff could perform. According to Plaintiff, the
descriptions in the Dictionary of Occupational Titles of the jobs identified by the vocational
expert conflicted with certain limitations in the ALJ’s hypothetical question. Pl.’s Br. at 17.
The ALJ has “an affirmative responsibility to ask about any possible conflict between VE
evidence and the DOT, and to obtain an explanation for any such conflict, before relying
on VE evidence to support a determination the claimant is not disabled.” Welsh v. Colvin,
765 F.3d 926, 929(8th Cir. 2014) (quotation omitted); see also Social Security Ruling, SSR 00-4p.,65 Fed. Reg. 75759
, 75759–61 (Dec. 4, 2000).
Among other limitations, the ALJ’s hypothetical question stated that the individual
could perform “simple routine and repetitive tasks in a work environment free of fast paced
production requirements involving only simple work-related decisions and routine
workplace changes.” Tr. 60. In response, the vocational expert identified the occupations
of office helper, garment sorter, and non-postal mail clerk. Tr. 60.
According to the Dictionary of Occupational Titles, office helper and garment sorter
require “Level 2” reasoning, defined as the ability to “[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions. Deal with problems
involving a few concrete variables in or from standardized situations.” Officer Helper,
DICOT 239.567-010, 1991 WL 672232; Garment Sorter, DICOT 222.687-014,1991 WL 672131
. And according to the Dictionary of Occupational Titles, non-postal mail clerk requires “Level 3” reasoning, defined as the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” Mail Clerk, DICOT 209.687-026,1991 WL 671813
.
There is no conflict between the limits in the hypothetical question and the reasoning
required for the jobs identified by the vocational expert. Both level two and level three
reasoning require only “commonsense understanding” to carry out “instructions.” For level
two reasoning, the instructions must be “uninvolved.” These correspond to the hypothetical
question’s limitation of “simple routine and repetitive tasks.” Tr. 60. And both level two
and level three reasoning require an individual to deal with problems involving “concrete
variables in or from standardized situations.” This corresponds to the hypothetical
question’s limitation of “simple work-related decisions.” Tr. 60. Moreover, the reasoning
levels provided in the Dictionary of Occupational Titles “are simply generic job
descriptions that offer the approximate maximum requirements for each position, rather
than their range.” Moore v. Astrue, 623 F.3d 599, 604(8th Cir. 2010) (quotation omitted). In addition, precedent from the Eighth Circuit establishes that “[t]he failure to address any potential inconsistency between the [residual function capacity’s] limitation to simple, routine, repetitive work and the [Dictionary of Occupational Title’s] requirement of level three reasoning does not require a remand.” Welsh,765 F.3d at 930
. Because there is no
conflict between the limitations in the hypothetical question and the requirements of level
two and three reasoning, the ALJ relied on proper testimony from the vocational expert in
making her findings.
Plaintiff’s third and final argument as to the vocational testimony is that substantial
evidence did not support the ALJ’s finding that a significant number of jobs exist in the
national economy that Plaintiff could perform. Pl.’s Br. at 17. The vocational expert opined
that there existed nationally 35,000 office helper positions, 53,000 garment sorter positions,
and 60,000 non-postal mail clerk positions, Tr. 60, a total of 148,000 positions. Plaintiff
argues that the record contains no evidence of how many of those jobs exist in Minnesota.
Pl.’s Br. at 17.
In the disability context, “‘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). It is not limited to work in the immediate area where a claimant lives. See42 U.S.C. § 423
(d)(2)(A) (“regardless of whether such work exists in the immediate area in which he lives”). Additionally, the regulations provide that “isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the claimant] live[s] are not considered ‘work which exists in the national economy.’”20 C.F.R. § 404.1566
(b). Accordingly, a claimant will not be denied benefits on the existence of such isolated jobs.Id.
The Eighth Circuit “ultimately leave[s] to the trial judge’s common sense the
application of the significant numbers requirement to a particular claimant’s factual
situation.” Hall v. Chater, 109 F.3d 1255, 1259(8th Cir. 1997). As several courts have observed, there is a split among the district courts “within the Eighth Circuit on how to take this ‘common sense’ approach.” Shari B. v. Kijakazi, No. 22-cv-1539,2023 WL 6130679
, at *8 (D. Minn. Sept. 19, 2023); see, e.g., Alice T. v. Kijakazi, No. 8:21CV14,2021 WL 5302141
, at *16-17 (D. Neb. Nov. 15, 2021) (discussing split); Hayden v. Saul, No. 4:19-CV187-SPM,2020 WL 888002
, at *10-11 (E.D. Mo. Feb. 24, 2020) (same); see also, e.g., Karen E. v. Kijakazi, No. 21-cv-3015,2022 WL 17548642
, at *5-6 (N.D. Ia. Sept. 15, 2022); Evert v. Kijakazi, No. 3:21-cv-6,2022 WL 1749611
, at *6-7 (D. N.D. Feb.
17, 2022).
Consistent with the approach urged by Plaintiff, courts in the District of South
Dakota “ha[ve] repeatedly held that [vocational expert] testimony solely concerning
national numbers for DOT occupations is insufficient to carry the Commissioner’s burden
at step five of the sequential analysis; there must be direct evidence of a significant number
of jobs either in the claimant’s ‘region’ or in ‘several regions.’” Alice T., 2021 WL
5302141, at *16.
Other courts, including those in the Eastern District of Missouri, the Northern
District of Iowa and the District of North Dakota have “taken a more pragmatic approach
and held that ‘evidence of jobs existing nationally does constitute evidence of work existing
in several regions of the country, at least where there is nothing in the number of jobs or
the nature of the jobs identified to indicate that those jobs would exist only in limited
numbers in isolated regions of the country.’” Alice T., 2021 WL 5302141, at *17 (quoting Hayden,2020 WL 888002
, at *10-12); see, e.g., Evert,2022 WL 1749611
, at *7; see also Karen E.,2022 WL 17548642
, at *5-7. As noted in Shari B., “[a]t least one court in the District of Minnesota has held that 20,500 jobs in the national economy constitutes a significant number.”2023 WL 6130679
, at *8 (citing Nicolas C. J. v. Kijakazi, No. 20-cv- 1340 (WMW/ECW),2022 WL 1109810
, at *25 (D. Minn. Jan. 20, 2022), report and recommendation adopted,2022 WL 807605
(D. Minn. Mar. 17, 2022)). Shari B. went on to point out that, “[b]ased on [its] survey of case law from across the country, many courts appear to draw the line between a ‘significant’ and an insignificant number of jobs in the national economy—without evidence of the number of jobs available locally—at around 20,000 jobs.”Id.
Again, the Eighth Circuit has emphasized a commonsense approach with respect to
the significant-numbers requirement. See, e.g., Hall, 109 F.3d at 1259. In total, the vocational expert testified that there were 148,000 jobs available to Plaintiff. This number far exceeds national numbers of jobs held by other circuit appellate courts to be sufficient to meet the Commissioner’s burden at step five. See, e.g., McCall v. Saul,844 F. App’x 680
, 681-82 (4th Cir. 2021) (81,000 jobs nationally); Moats v. Commissioner of Social Security,42 F.4th 558, 563
(6th Cir. 2022) (32,000 jobs nationally); Milhem v. Kijakazi,52 F.4th 688, 696-97
(7th Cir. 2022) (89,000 jobs nationally); cf. Jones ex rel. Morris v. Barnhart,315 F.3d 974, 979
(8th Cir. 2003) (75,000 jobs nationally); see also Gutierrez v. Comm’r of Soc. Security,740 F.3d 519, 529
(9th Cir. 2014) (“A finding of 25,000 jobs
likely does not fall into the category of ‘isolated jobs’ existing in ‘very limited numbers.’”).
And importantly, nothing in the nature of the jobs of office helper, garment sorter, and non-
postal mail clerk suggests that those jobs exist only in isolated regions of the country.
Like other courts, this Court agrees “it would have been preferable for the ALJ to
elicit testimony from the [vocational expert] regarding regional numbers.” Alice T., 2021
WL 5302141, at *17; see also, e.g., Evert,2022 WL 1749611
, at *7; Hayden,2020 WL 888002
, at *12. Nevertheless, considering the Eighth Circuit’s approach to the significant- numbers requirement and the fact that substantial evidence is “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion,” Biestek,139 S. Ct. at 1154
(quotation omitted), the Court concludes the vocational expert’s testimony that there
are 148,000 jobs nationwide in response to the ALJ’s hypothetical constitutes substantial
evidence to support the conclusion that there are a significant number of jobs in the national
economy which Plaintiff can perform.
In sum, substantial evidence supports the ALJ’s overall determination that Plaintiff
was not disabled because the ALJ made a proper finding of Plaintiff’s residual functional
capacity and because the ALJ relied on adequate testimony from the vocational expert.
IV. CONCLUSION
Based upon the foregoing and all the files, records, and proceedings in the above-
captioned matter, IT IS HEREBY ORDERED THAT:
1. Plaintiff’s request for relief, ECF No. 13, is DENIED; and
2. The ALJ’s decision is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: September 25, 2024 /s/ Tony N. Leung__________
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Anna K. v. O’Malley
Case No. 23-cv-549 (TNL) Trial Court Opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Anna K., Case No. 23-cv-549 (TNL)
Plaintiff,
v. ORDER
Martin J. O’Malley,
Commissioner of Social Security
Administration, 1
Defendant.
Edward C. Olson, Reitan Law Office, 80 South Eighth Street, Suite 900, Minneapolis,
Minnesota 55318 (for Plaintiff); and
Ana H. Voss, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis, Minnesota 55415; and James Potter, James
D. Sides, and Shea Taulbee, Special Assistant United States Attorneys, Social Security
Administration, 6401 Security Boulevard, Baltimore, Maryland 21235 (for Defendant).
I. INTRODUCTION
Plaintiff Anna K. challenges Defendant Commissioner of Social Security’s denial
of her application for disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. § 401. The parties have consented to a final judgment from the undersigned United States Magistrate Judge in accordance with28 U.S.C. § 636
(c), Fed. R. Civ. P. 73,
and D. Minn. LR 72.1(c).
1 The Court has substituted Commissioner Martin J. O’Malley for Acting Commissioner
Kilolo Kijakazi. A public officer’s “successor is automatically substituted as a party” and
“[l]ater proceedings should be in the substituted party’s name.” Fed. R. Civ. P. 25(d).
Pursuant to the Federal Rules of Civil Procedure’s Supplemental Rules governing
actions seeking judicial review of the Commissioner’s decision, this action “is presented
for decision by the parties’ briefs.” Fed. R. Civ. P. Supp. SS Rule 5. Plaintiff filed a brief,
ECF No. 13, requesting the Court to reverse the Commissioner’s decision and remand for
further review. Defendant filed a brief in opposition, ECF No. 17.
For the reasons set forth below, the Court denies Plaintiff’s request for relief and
affirms the Commissioner’s decision.
II. BACKGROUND
In 2020, Plaintiff applied for child’s insurance benefits based on disability and for
supplemental security income. Tr. 99, 101. In her application, Plaintiff said she was
disabled because of generalized anxiety disorder, major depression, post-traumatic stress
disorder, bipolar, bilateral hip pain, diabetes, and social anxiety. Tr. 103. The Social
Security Administration2 denied Plaintiff’s initial applications. Tr. 99, 101. Plaintiff applied
for reconsideration of her applications, and the Social Security Administration again denied
her claim. Tr. 159, 161.
Plaintiff then requested a hearing before an Administrative Law Judge (ALJ). Tr.
182. At the hearing, the ALJ heard testimony from Plaintiff and from a vocational expert.
Tr. 42, 57. The ALJ also considered voluminous medical records in preparing her decision.
2 A Minnesota state agency made the original disability determination on behalf of the
Social Security Administration. See 20 C.F.R. § 416.1026 (providing funding to state
agencies to make disability determinations on behalf of the Social Security
Administration).
Tr. 402–1404. These records included a Mental Impairment Questionnaire completed by
Dr. Vetter, who is a psychologist, and Ms. Augustin, an intern. Tr. 1398–1403.
After the hearing, the ALJ issued a decision denying Plaintiff’s claim. Tr. 13–27. In
her decision, the ALJ found that Plaintiff had the residual functional capacity
to perform a range of light work as defined in 20 CFR
404.1567(b) and 416.967(b), as follows. Specifically,
[Plaintiff] is able to lift up to 20 pounds occasionally and
lift/carry up to 10 pounds frequently. She is able to stand/walk
for about six hours and sit for up to six hours in an eight-hour
workday, with normal breaks. She is unable to climb
ladders/ropes/scaffolds, but is occasionally able to climb
ramps/stairs, balance, stoop, kneel, crouch, and crawl. She is
unable to tolerate exposure to unprotected heights and use of
dangerous moving machinery. She is able to perform simple,
routine, and repetitive tasks in a work environment free of fast-
paced production requirements, involving only simple work-
related decisions and routine workplace changes. [Plaintiff] is
able to tolerate no direct interaction with the public and only
occasional interaction with coworkers.
Tr. 20. Based on this residual functional capacity, the ALJ found that “there are jobs that
exist in significant numbers in the national economy that [Plaintiff] can perform.” Tr. 26.
To make this finding, the ALJ relied on the testimony from the vocational expert that
Plaintiff could perform the requirements of an office helper, garment sorter, or non-postal
mail clerk. Tr. 26. As a result, the ALJ determined that Plaintiff was not disabled. Tr. 26–
27.
Plaintiff requested that the Appeals Council review the decision of the ALJ, and the
Appeals Council denied her request for review. Tr. 1.
Plaintiff now seeks review by this Court.
III. ANALYSIS
Plaintiff argues that the ALJ’s decision was not supported by substantial evidence.
Pl.’s Br. at 1, ECF No. 13. Plaintiff specifically contends that the ALJ did not give the
proper weight to the medical opinion of R.V. and C.A. and, as a result, made an improper
finding as to Plaintiff’s residual functional capacity. Id.Plaintiff also asserts that the ALJ relied on improper vocational expert testimony when the ALJ found that Plaintiff could perform work that exists in the national economy.Id.
A. Standard of Review
This Court reviews whether the ALJ’s decision is supported by substantial evidence
in the record as a whole. Biestek v. Berryhill, 587 U.S. 97, 102–03 (2019). “[T]he threshold for such evidentiary sufficiency is not high.”Id. at 103
. “It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”Id.
(quotation omitted); see, also, Chismarich v. Berryhill,888 F.3d 978, 979
(8th Cir.
2018) (defining “substantial evidence as less than a preponderance but enough that a
reasonable mind would find it adequate to support the conclusion” (quotation omitted)).
This standard requires the Court to “consider both evidence that detracts from the
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue, 652 F.3d 860, 863(8th Cir. 2011). The ALJ’s decision “will not [be] reverse[d] simply because some evidence supports a conclusion other than that reached by the ALJ.”Id.
Rather, reviewing courts reverse an ALJ’s decision “only if it falls outside the available zone of choice.” Kraus v. Saul,988 F.3d 1019, 1024
(8th Cir. 2021) (quotation omitted).
B. Disability Insurance Benefits
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. § 423(a)(1); accord20 C.F.R. § 404.315
. An individual is considered to be disabled if they are unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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); see also20 C.F.R. § 404.1505
(a). This standard is met when a severe physical or mental impairment renders the individual unable to do their previous work or “any other kind of substantial gainful work which exists in the national economy,” taking into account their age, education, and work experience.42 U.S.C. § 423
(d)(2)(A); see also20 C.F.R. § 404.1505
(a).
Disability is determined according to a five-step, sequential evaluation process. 20
C.F.R. § 404.1520(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) she was severely impaired; (3) her impairment was, or was
comparable to, a listed impairment; (4) she could perform past
relevant work; and if not, (5) whether she could perform any
other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929(8th Cir. 2010). In general, the burden of proving the existence of disability lies with the claimant.20 C.F.R. § 404.1512
(a).
C. Substantial Evidence Supports the ALJ’s Finding of Plaintiff’s Residual
Functional Capacity
Plaintiff argues that the ALJ did not properly assess her residual functional capacity,
contending that the ALJ (1) failed to give proper weight to the medical opinion of Dr.
Vetter and Ms. Augustin, (2) did not acknowledge that Plaintiff endorsed symptoms
consistent with severe depression on several occasions, and (3) did not give credit to
objective testing that shows that Plaintiff has deficits in memory and cognitive functioning.
Pl’s Br. at 11–12. The Court is not persuaded.
Before the fourth step in the disability determination process, the ALJ assesses the
claimant’s residual functional capacity. Id. § 404.1545(a)(5)(i). The residual functional
capacity is the most work a claimant can do despite their limitations. Id. § 404.1545(a)(1).
The ALJ assesses a claimant’s residual functional capacity “based on all of the relevant
medical and other evidence.” Id. § 404.1545(a)(3). If a claimant has a severe impairment,
but the impairment is not a listed impairment, the ALJ must “consider the limiting effects
of all [the claimant’s] impairment(s), even those that are not severe, in determining . . .
residual functional capacity.” Id. § 404.1545(e). To make this determination on the total
limiting effects of the claimant’s impairments, the ALJ considers “all of the medical and
nonmedical evidence, including the information described in § 404.1529(c).” Id.
Section 404.1529(c) applies “[w]hen the medical signs or laboratory findings show
that [the claimant] has a medically determinable impairment(s) that could reasonably be
expected to produce [the claimant’s] symptoms.” If that is the case, the ALJ must consider
both “objective medical evidence” as well as “any other information [the claimant] may
submit about [the claimant’s] symptoms.” 20 C.F.R. § 404.1529(c). For other information
that the claimant submits,
[b]ecause symptoms . . . are subjective and difficult to quantify,
any symptom-related functional limitations and restrictions
that [the claimant’s] medical or nonmedical sources report,
which can reasonably be accepted as consistent with the
objective medical evidence and other evidence, will be taken
into account as explained in [20 C.F.R. § 404.1529](c)(4).20 C.F.R. § 404.1529
(c)(3). Paragraph (c)(4) provides that the ALJ must “consider” all of
the available evidence, including whether there are any inconsistencies in the evidence.
In addition, the Social Security Administration has promulgated rules on how the
ALJ considers medical opinions. The ALJ does “not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) . . . including those from
[the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a). Rather, the ALJ considers five factors in evaluating the medical opinions: (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors.Id.
§ 404.1520c(c).
The most important factors are supportability and consistency. Id. § 404.1520c(b)(2). The
ALJ must explain how they considered the supportability and consistency factors but is not
required to explain how they considered the other three factors. Id.
For the supportability factor, “[t]he more relevant the objective medical evidence
and supporting explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the medical
opinions or prior administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). And for
the consistency factor, “[t]he more consistent a medical opinion(s) or prior administrative
medical finding(s) is with the evidence from other medical sources and nonmedical sources
in the claim, the more persuasive the medical opinion(s) or prior administrative medical
finding(s) will be.” Id. § 404.1520c(c)(2).
None of Plaintiff’s three arguments convince the Court that the ALJ’s finding was
unsupported by substantial evidence. First, contrary to Plaintiff’s assertion, the ALJ was
“not required . . . to explain how [she] considered” Dr. Vetter and Ms. Augustin’s examining
and treating relationship with Plaintiff because the regulations only require explanation of
the supportability and consistency factors and do not require explanation of the relationship
factor. 20 C.F.R. § 404.1520c(b)(2); contra Pl’s Br. at 11. Moreover, the ALJ properly
discredited the report of Dr. Vetter and Ms. Augustin following the requirements of the
regulations. For the supportability factor, the ALJ found that the report was “partially
unsupported as it acknowledges the information the claimant provided was either internally
inconsistent or insufficient to allow the providers to assess certain aspects of her
functioning and as these providers had seen the claimant on no more than a few occasions.”
Tr. 24–25. The record supports this finding. In their report, Dr. Vetter and Ms. Augustin
responded “no” to a question asking whether Plaintiff’s impairments were “reasonably
consistent with the symptoms and functional limitations described in this evaluation.” They
explained that Plaintiff’s “verbal reports and assessments were inconsistent (i.e. indicated
difficulties concentrating on intake but not on PHQ-9).” Tr. 1403. When asked to “describe
any additional reasons not covered above why [Plaintiff] would have difficulty working at
a regular job on a sustained basis,” Dr. Vetter and Ms. Augustin answered, “Have not met
with [Plaintiff] for long enough to determine this.” Tr. 1403. To the question, “Is your
patient a malingerer?” they wrote, “Not enough information provided.” Tr. 1403. For,
“[H]ow often do you anticipate that [Plaintiff’s] impairments or treatment would cause
[Plaintiff] to be absent from work?” Dr. Vetter and Ms. Augustin replied, “[Plaintiff] did
not provide enough information. However, [Plaintiff] has not been consistent with therapy
appointments.” Tr. 1403. And to “Does [Plaintiff’s] mental health preclude them from
working with the general public?” Dr. Vetter and Ms. Augustin responded, “Not enough
information provided.” Tr. 1403.
For the consistency factor, the ALJ found that the conclusions of the medical opinion
are inconsistent with the remaining evidence since, unlike at
the December 2021 psychological evaluation, the claimant’s
2021 treatment notes show she experienced such improvement
in her symptoms that she had been considering discontinuing
services; similarly, the mental status findings in the remaining
mental health records are somewhat inconsistent with the
limitations endorsed in this medical opinion report.
Tr. 25. This too is supported by the record. Treatment notes show that in 2019 Plaintiff had
symptoms of major depressive disorder and was “struggling to manage her mental health
symptoms.” Tr. 453, 460. In 2020, treatment notes state that Plaintiff was doing
progressively better: her medications were helping her manage her symptoms, her anxiety
was present but manageable, and she reported that she was doing “good.” Tr. 499–500,
1320–21, 1325–26. By 2021, treatment notes state that Plaintiff’s symptoms had greatly
reduced and that Plaintiff reported “that she [was] not sure that she needs ongoing case
management as she [was] feeling that she [was] doing well.” Tr. 1330, 1335. The record
supports the ALJ’s finding that the report of Dr. Vetter and Ms. Augustin lacked
supportability and consistency and was therefore not persuasive.
Second, the ALJ properly considered that “Plaintiff endorsed symptoms consistent
with severe depression at multiple examinations.” Pl.’s Br. at 12. Importantly, “an ALJ is
not required to discuss every piece of evidence submitted.” Wildman v. Astrue, 596 F.3d
959, 966(8th Cir. 2010) (quotation omitted). And “an ALJ’s failure to cite specific evidence does not indicate that such evidence was not considered.”Id.
(quotation omitted). The ALJ
stated that Plaintiff’s “medical records describe longstanding problems with . . .
depression.” Tr. 21. The record reflects this, showing that Plaintiff did report symptoms
consistent with moderate to severe depression. Tr. 543, 558, 569, 573, 966, 981, 1056,
1269, 1275. And as a result, the ALJ included significant limitations based on these
symptoms in Plaintiff’s residual functional capacity, explaining,
[Plaintiff’s] medical records, considered together with her
testimony, support moderate limitations in the “paragraph B”
criteria of understanding, remembering, or applying
information, interacting with others, and concentrating,
persisting, or maintaining pace. In all, these circumstances are
consistent with the above-specified limitations in terms of the
complexity and familiarity of tasks, pace and productivity
demands, decision-making responsibility, stability of the work
setting, and interpersonal contacts, especially with unfamiliar
members of the general public. They also suggest [Plaintiff’s]
mental impairments contribute to her environmental
tolerances, particularly her need to avoid work at unprotected
heights or using dangerous moving machinery.
Tr. 22. In short, the ALJ clearly considered the Plaintiff’s depression symptoms in making
her finding of Plaintiff’s residual functional capacity and, moreover, was not required to
discuss those specific symptoms to show that she considered that evidence. See Wildman,
596 F.3d at 966.
Third, the ALJ properly considered objective medical evidence that Plaintiff has
deficits in memory and cognitive functioning. The ALJ found that “[w]hile [Plaintiff] has
been diagnosed with an intellectual developmental disorder since the alleged onset date,
reports of earlier academic testing are more suggestive of borderline or low-average
abilities.” Tr. 23. The ALJ added, “Mental status findings, moreover, suggest [Plaintiff’s]
reported difficulties with attention, concentration, comprehension, and social functioning,
are not so severe as to preclude her performance of work within the above residual
functional capacity, with abnormal findings mostly constrained to mood- and affect-related
observations and ‘fair’ insight and judgment.” Tr. 23. This finding is supported by the
record.
A report from middle school stated that “[Plaintiff’s] academic skills and fluency
with academic tasks are both within the average range. Her academic knowledge and
ability to apply academic skills are both within the low average range.” Tr. 913. The report
also stated, “[Plaintiff’s] performance is average in basic reading skills, reading
comprehension, written language and written expression; and low average in math
calculation skills and math reasoning.” Tr. 913. A diagnostic assessment in 2019 reported
that her intelligence was “[h]igh,” her immediate memory and remote memory were
“[i]ntact,” and in general, her mental functioning was “accurate.” Tr. 453. The same report
stated that her thought process was “[l]ogical & organized.” Tr. 453. A 2020 diagnostic
assessment stated that her attention, concentration, and “fund of knowledge” were
“sufficient.” Tr. 459. And, at a 2021 medication management visit, the provider reported
that Plaintiff’s thought process was “[l]inear, coherent, but concrete.” Tr. 1335.
The record amply supports the ALJ’s finding on Plaintiff’s mental abilities for
Plaintiff’s residual functional capacity. The Court notes that “the ALJ is not required to
explicitly reconcile every conflicting shred of medical evidence.” Austin v. Kijakazi, 52
F.4th 723, 729(8th Cir. 2022) (quotation omitted). More importantly, the fact that a different conclusion as to Plaintiff’s residual functional capacity could be drawn from the evidence does not merit reversal. Goff v. Barnhart,421 F.3d 785, 789
(8th Cir. 2005) (“If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s findings, the court must
affirm the ALJ’s decision.”).
Overall, substantial evidence supports the ALJ’s finding of Plaintiff’s residual
functional capacity. Reversal is not warranted based on the ALJ’s finding of Plaintiff’s
residual functional capacity because it falls in the “zone of choice” created from the record.
Kraus, 988 F.3d at 1024.
D. Substantial Evidence Supports the ALJ’s Finding That Work Exists That
Plaintiff Can Perform
Plaintiff next argues that substantial evidence does not support the ALJ’s findings
on Plaintiff’s vocational abilities. She specifically asserts that the ALJ (1) posed a deficient
hypothetical question, (2) did not reconcile a conflict between the Dictionary of
Occupational Titles and the vocational expert’s testimony, and (3) incorrectly found that a
significant number of jobs that Plaintiff can perform exist in the national economy. The
Court is not convinced.
At the fourth and fifth steps, ALJs commonly use vocational experts to provide
evidence about the claimant’s ability to do their past work or to do other work that exists
in the national economy. 20 C.F.R. § 404.1560. “‘[W]ork 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). At the
hearing on a claimant’s application for benefits,
a vocational expert . . . may offer expert opinion testimony in
response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the
claimant’s medical impairment(s) can meet the demands of the
claimant’s previous work . . . as generally performed in the
national economy.
20 C.F.R. § 404.1560(b)(2). Vocational experts often rely on specialized resources, such as the Dictionary of Occupational Titles, published by the U.S. Department of Labor, to determine what work a claimant may be able to perform, given the claimant’s limitations. Seeid.
“A vocational expert’s testimony based on a properly phrased hypothetical question constitutes substantial evidence,” but “if . . . the vocational expert’s testimony appears to conflict with the job requirements set forth in the relevant DOT listings and the ALJ did not resolve the conflict, the vocational expert’s testimony is not substantial evidence to support a denial of benefits.” Galloway v. Kijakazi,46 F.4th 686, 689
(8th Cir. 2022).
Plaintiff’s first argument as to the ALJ’s vocational findings is that ALJ’s
hypothetical question was deficient. Tr. 14. Plaintiff’s contention here relies on her
argument above that substantial evidence did not support the ALJ’s finding of her residual
functional capacity. The ALJ based her hypothetical question on her formulation of
Plaintiff’s residual functional capacity. Tr. 59–60. Because the residual functional capacity
was not properly articulated, Plaintiff asserts, the ALJ’s hypothetical question was
deficient. Tr. 14.
But, as this Court determined above, substantial evidence does support the ALJ’s
finding on Plaintiff’s residual functional capacity. Therefore, the vocational expert’s
testimony was substantial evidence on which the ALJ could properly rely in making her
finding on Plaintiff’s vocational abilities. See Gann v. Berryhill, 864 F.3d 947, 952 (8th Cir.
2017) (stating that “testimony from a vocational expert constitutes substantial evidence”
when it is “based on a properly phrased hypothetical question” (quotation omitted)).
Plaintiff’s second argument is that substantial evidence did not support the ALJ’s
findings of potential jobs that Plaintiff could perform. According to Plaintiff, the
descriptions in the Dictionary of Occupational Titles of the jobs identified by the vocational
expert conflicted with certain limitations in the ALJ’s hypothetical question. Pl.’s Br. at 17.
The ALJ has “an affirmative responsibility to ask about any possible conflict between VE
evidence and the DOT, and to obtain an explanation for any such conflict, before relying
on VE evidence to support a determination the claimant is not disabled.” Welsh v. Colvin,
765 F.3d 926, 929(8th Cir. 2014) (quotation omitted); see also Social Security Ruling, SSR 00-4p.,65 Fed. Reg. 75759
, 75759–61 (Dec. 4, 2000).
Among other limitations, the ALJ’s hypothetical question stated that the individual
could perform “simple routine and repetitive tasks in a work environment free of fast paced
production requirements involving only simple work-related decisions and routine
workplace changes.” Tr. 60. In response, the vocational expert identified the occupations
of office helper, garment sorter, and non-postal mail clerk. Tr. 60.
According to the Dictionary of Occupational Titles, office helper and garment sorter
require “Level 2” reasoning, defined as the ability to “[a]pply commonsense understanding
to carry out detailed but uninvolved written or oral instructions. Deal with problems
involving a few concrete variables in or from standardized situations.” Officer Helper,
DICOT 239.567-010, 1991 WL 672232; Garment Sorter, DICOT 222.687-014,1991 WL 672131
. And according to the Dictionary of Occupational Titles, non-postal mail clerk requires “Level 3” reasoning, defined as the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from standardized situations.” Mail Clerk, DICOT 209.687-026,1991 WL 671813
.
There is no conflict between the limits in the hypothetical question and the reasoning
required for the jobs identified by the vocational expert. Both level two and level three
reasoning require only “commonsense understanding” to carry out “instructions.” For level
two reasoning, the instructions must be “uninvolved.” These correspond to the hypothetical
question’s limitation of “simple routine and repetitive tasks.” Tr. 60. And both level two
and level three reasoning require an individual to deal with problems involving “concrete
variables in or from standardized situations.” This corresponds to the hypothetical
question’s limitation of “simple work-related decisions.” Tr. 60. Moreover, the reasoning
levels provided in the Dictionary of Occupational Titles “are simply generic job
descriptions that offer the approximate maximum requirements for each position, rather
than their range.” Moore v. Astrue, 623 F.3d 599, 604(8th Cir. 2010) (quotation omitted). In addition, precedent from the Eighth Circuit establishes that “[t]he failure to address any potential inconsistency between the [residual function capacity’s] limitation to simple, routine, repetitive work and the [Dictionary of Occupational Title’s] requirement of level three reasoning does not require a remand.” Welsh,765 F.3d at 930
. Because there is no
conflict between the limitations in the hypothetical question and the requirements of level
two and three reasoning, the ALJ relied on proper testimony from the vocational expert in
making her findings.
Plaintiff’s third and final argument as to the vocational testimony is that substantial
evidence did not support the ALJ’s finding that a significant number of jobs exist in the
national economy that Plaintiff could perform. Pl.’s Br. at 17. The vocational expert opined
that there existed nationally 35,000 office helper positions, 53,000 garment sorter positions,
and 60,000 non-postal mail clerk positions, Tr. 60, a total of 148,000 positions. Plaintiff
argues that the record contains no evidence of how many of those jobs exist in Minnesota.
Pl.’s Br. at 17.
In the disability context, “‘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). It is not limited to work in the immediate area where a claimant lives. See42 U.S.C. § 423
(d)(2)(A) (“regardless of whether such work exists in the immediate area in which he lives”). Additionally, the regulations provide that “isolated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the claimant] live[s] are not considered ‘work which exists in the national economy.’”20 C.F.R. § 404.1566
(b). Accordingly, a claimant will not be denied benefits on the existence of such isolated jobs.Id.
The Eighth Circuit “ultimately leave[s] to the trial judge’s common sense the
application of the significant numbers requirement to a particular claimant’s factual
situation.” Hall v. Chater, 109 F.3d 1255, 1259(8th Cir. 1997). As several courts have observed, there is a split among the district courts “within the Eighth Circuit on how to take this ‘common sense’ approach.” Shari B. v. Kijakazi, No. 22-cv-1539,2023 WL 6130679
, at *8 (D. Minn. Sept. 19, 2023); see, e.g., Alice T. v. Kijakazi, No. 8:21CV14,2021 WL 5302141
, at *16-17 (D. Neb. Nov. 15, 2021) (discussing split); Hayden v. Saul, No. 4:19-CV187-SPM,2020 WL 888002
, at *10-11 (E.D. Mo. Feb. 24, 2020) (same); see also, e.g., Karen E. v. Kijakazi, No. 21-cv-3015,2022 WL 17548642
, at *5-6 (N.D. Ia. Sept. 15, 2022); Evert v. Kijakazi, No. 3:21-cv-6,2022 WL 1749611
, at *6-7 (D. N.D. Feb.
17, 2022).
Consistent with the approach urged by Plaintiff, courts in the District of South
Dakota “ha[ve] repeatedly held that [vocational expert] testimony solely concerning
national numbers for DOT occupations is insufficient to carry the Commissioner’s burden
at step five of the sequential analysis; there must be direct evidence of a significant number
of jobs either in the claimant’s ‘region’ or in ‘several regions.’” Alice T., 2021 WL
5302141, at *16.
Other courts, including those in the Eastern District of Missouri, the Northern
District of Iowa and the District of North Dakota have “taken a more pragmatic approach
and held that ‘evidence of jobs existing nationally does constitute evidence of work existing
in several regions of the country, at least where there is nothing in the number of jobs or
the nature of the jobs identified to indicate that those jobs would exist only in limited
numbers in isolated regions of the country.’” Alice T., 2021 WL 5302141, at *17 (quoting Hayden,2020 WL 888002
, at *10-12); see, e.g., Evert,2022 WL 1749611
, at *7; see also Karen E.,2022 WL 17548642
, at *5-7. As noted in Shari B., “[a]t least one court in the District of Minnesota has held that 20,500 jobs in the national economy constitutes a significant number.”2023 WL 6130679
, at *8 (citing Nicolas C. J. v. Kijakazi, No. 20-cv- 1340 (WMW/ECW),2022 WL 1109810
, at *25 (D. Minn. Jan. 20, 2022), report and recommendation adopted,2022 WL 807605
(D. Minn. Mar. 17, 2022)). Shari B. went on to point out that, “[b]ased on [its] survey of case law from across the country, many courts appear to draw the line between a ‘significant’ and an insignificant number of jobs in the national economy—without evidence of the number of jobs available locally—at around 20,000 jobs.”Id.
Again, the Eighth Circuit has emphasized a commonsense approach with respect to
the significant-numbers requirement. See, e.g., Hall, 109 F.3d at 1259. In total, the vocational expert testified that there were 148,000 jobs available to Plaintiff. This number far exceeds national numbers of jobs held by other circuit appellate courts to be sufficient to meet the Commissioner’s burden at step five. See, e.g., McCall v. Saul,844 F. App’x 680
, 681-82 (4th Cir. 2021) (81,000 jobs nationally); Moats v. Commissioner of Social Security,42 F.4th 558, 563
(6th Cir. 2022) (32,000 jobs nationally); Milhem v. Kijakazi,52 F.4th 688, 696-97
(7th Cir. 2022) (89,000 jobs nationally); cf. Jones ex rel. Morris v. Barnhart,315 F.3d 974, 979
(8th Cir. 2003) (75,000 jobs nationally); see also Gutierrez v. Comm’r of Soc. Security,740 F.3d 519, 529
(9th Cir. 2014) (“A finding of 25,000 jobs
likely does not fall into the category of ‘isolated jobs’ existing in ‘very limited numbers.’”).
And importantly, nothing in the nature of the jobs of office helper, garment sorter, and non-
postal mail clerk suggests that those jobs exist only in isolated regions of the country.
Like other courts, this Court agrees “it would have been preferable for the ALJ to
elicit testimony from the [vocational expert] regarding regional numbers.” Alice T., 2021
WL 5302141, at *17; see also, e.g., Evert,2022 WL 1749611
, at *7; Hayden,2020 WL 888002
, at *12. Nevertheless, considering the Eighth Circuit’s approach to the significant- numbers requirement and the fact that substantial evidence is “relevant evidence . . . a reasonable mind might accept as adequate to support a conclusion,” Biestek,139 S. Ct. at 1154
(quotation omitted), the Court concludes the vocational expert’s testimony that there
are 148,000 jobs nationwide in response to the ALJ’s hypothetical constitutes substantial
evidence to support the conclusion that there are a significant number of jobs in the national
economy which Plaintiff can perform.
In sum, substantial evidence supports the ALJ’s overall determination that Plaintiff
was not disabled because the ALJ made a proper finding of Plaintiff’s residual functional
capacity and because the ALJ relied on adequate testimony from the vocational expert.
IV. CONCLUSION
Based upon the foregoing and all the files, records, and proceedings in the above-
captioned matter, IT IS HEREBY ORDERED THAT:
1. Plaintiff’s request for relief, ECF No. 13, is DENIED; and
2. The ALJ’s decision is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Date: September 25, 2024 /s/ Tony N. Leung__________
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Anna K. v. O’Malley
Case No. 23-cv-549 (TNL) Reference
- Status
- Unknown