Opinion
22-cv-647-jdp
2024-01-08
Tina M. FINK, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
Dana W. Duncan, Duncan Disability Law, SC, Nekoosa, WI, for Plaintiff. Ssaogcomms, SSA-Office of the General Counsel c/o Office of Legal Operations/Blake Pryor, Woodlawn, MD, Albert Bianchi, Jr., U.S. Department of Justice, Madison, WI, Lu Han, Social Security Administration, Baltimore, MD, for Defendant.
Dana W. Duncan, Duncan Disability Law, SC, Nekoosa, WI, for Plaintiff.
Ssaogcomms, SSA-Office of the General Counsel c/o Office of Legal Operations/Blake Pryor, Woodlawn, MD, Albert Bianchi, Jr., U.S. Department of Justice, Madison, WI, Lu Han, Social Security Administration, Baltimore, MD, for Defendant.
OPINION and ORDER
JAMES D. PETERSON, District Judge.
Plaintiff Tina M. Fink seeks judicial review of a final decision of defendant Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, finding that Fink was not disabled within the meaning of the Social Security Act. The sole issue in this case is whether the vocational expert (VE) provided sufficient evidence about her methodology to support administrative law judge (ALJ) David Bruce's finding that there were a significant number of jobs in the national economy that Fink could perform in spite of her limitations. The VE used a program called Job Browser Pro to produce her job number estimates. Fink contends that that the VE's testimony is insufficient to support the ALJ's decision because the VE did not have an opinion about whether Job Browser Pro's method to estimate job numbers is reliable.
The court concludes that Fink forfeited her challenge to the VE's methodology by failing to raise it with the ALJ and that, even if she hadn't forfeited the challenge, the ALJ's decision is supported by substantial evidence because the VE testified that she relied on her experience to adjust job number estimates from Job Browser Pro.
BACKGROUND
Fink applied for disability insurance benefits and supplemental security income in September 2020, alleging that she had been disabled since June 4, 2020. R. 109.
Record cites are to the administrative transcript located at Dkt. 8.
This was Fink's third application for benefits and social security income, after her applications in 2013 and 2019 were denied. Fink's 2020 claim was denied initially and on reconsideration. The ALJ held a telephonic hearing in February 2022 at which he heard testimony from Fink, who was represented by counsel, and from Monika Dabrowiecka, an impartial VE. R. 109. Fink did not object to Dabrowiecka's qualifications, but in a pre-hearing letter, she objected to any VE testimony regarding job numbers. R. 533, 540. Fink's attorney questioned Dabrowiecka at the hearing but did not object to her job number testimony. R. 157-60.
The ALJ found that Fink met the disability insurance status requirements of the Social Security Act through June 30, 2020, and that she had not engaged in substantial gainful activity since June 4, 2020. R. 111. The ALJ found that Fink suffered from the following severe impairments: diabetes, obesity, depression, post-traumatic stress disorder (PTSD), and anxiety. R. 112. The ALJ decided that none of Fink's severe impairments met or medically equaled a listed impairment. The ALJ ascribed to Fink the residual functional capacity (RFC) to perform light work with numerous exertional limitations, including restrictions on balancing on certain types of surfaces, climbing and working at heights or around moving mechanical parts, and the frequency with which Fink could climb stairs, stoop, crouch, crawl, and kneel. R. 114. The ALJ also added nonexertional limitations, restricting her to simple, routine tasks and only occasional interactions with others. Id.
Based on Dabrowiecka's testimony, the ALJ concluded that Fink was not disabled prior to January 21, 2022, because she could perform jobs that are available in significant numbers in the national economy, such as routing clerk, marker, and electric accessories assembler. R. 121. On January 21, 2022, Fink's age category changed. Id. The ALJ determined that on that date Fink became disabled. R. 120-21.
Fink now appeals the adverse portions of the ALJ's decision to this court. This court's role is to review the ALJ's decision for legal errors and to determine whether the decision is supported by substantial evidence. See Martin v. Saul, 950 F.3d 369, 373 (7th Cir. 2020). Substantial evidence is "more than a mere scintilla" and means only "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, 587 U.S. 97, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (citation omitted). In cases like Fink's involving a challenge to an ALJ's reliance on a VE's job number estimates at step five, the substantial evidence standard requires that a VE's testimony "be sufficient to instill some confidence that the estimate was not 'conjured out of whole cloth.'" Ruenger v. Kijakazi, 23 F.4th 760, 763 (7th Cir. 2022) (quoting Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002)).
ANALYSIS
On appeal, Fink challenges only the ALJ's finding that she was not disabled between her alleged disability onset on June 4, 2020, and her change in age category on January 21, 2022. Fink contends the Acting Commissioner did not meet her burden of showing that Fink can perform substantial gainful work that exists in the national economy. See 42 U.S.C. § 1382c(a)(3)(B); Brace v. Saul, 970 F.3d 818, 820 (7th Cir. 2020). More specifically, she contends that the ALJ erred by accepting Dabrowiecka's job number estimates without considering whether they were reliable. The parties dispute (1) whether Fink forfeited her challenge to Dabrowiecka's methodology by failing to object to it before the ALJ, and (2) whether
the ALJ's step five determination met the substantial evidence standard. The court will address each of these in turn.
A. Forfeiture
The Seventh Circuit has held that to preserve objections to the VE's testimony for appeal, the claimant must object at the hearing or in a post-hearing brief; general objections raised in a prehearing brief are insufficient. See Fetting v. Kijakazi, 62 F.4th 332, 337-38 (7th Cir. 2023). Simply put, "a claimant may not start objecting to unquestioned and uncontradicted VE testimony in federal court after the closure of the administrative record." Leisgang v. Kijakazi, 72 F.4th 216, 220 (7th Cir. 2023).
Here, both the ALJ and Fink's counsel questioned Dabrowiecka about her job number estimates. Dabrowiecka testified that for someone with Fink's RFC, nationwide work includes 50,000 routing clerk jobs, 130,000 marker jobs, and 8,000 electrical accessory assembler jobs. Dabrowiecka explained that she reduced the total number of routing clerk jobs by 50 percent because, in her experience, some routing clerk jobs require more lifting than Fink's RFC would allow. R. 155-56. When the ALJ asked if Dabrowiecka's testimony was "consistent with the DOT and its companion publications," Dabrowiecka answered, "yes." R. 156.
Fink's counsel asked Dabrowiecka to explain how she estimated the job numbers she provided. She testified that she used SkillTRAN, Job Brower Pro's latest software version, which "estimates numbers at the DOT level using equal distribution method." R. 158-59. When asked if the equal distribution method was "a reasonable assumption," Dabrowiecka replied as follows:
In brief, the equal distribution method is used to derive job number estimates from the Department of Labor's Occupational Employment Statistics (OES), which has estimates of the number of positions that exist in the national economy. Chavez v. Berryhill, 895 F.3d 962, 965-66 (7th Cir. 2018). OES uses a different classification system for job titles than the DOT, which vocational experts use to identify job titles a claimant could perform, and the equal distribution method allows matching between the two classification systems by assuming that all job titles within a DOT group are present in equal numbers as other job titles within the DOT group. Id. Although it's not part of the record here, Job Browser Pro reports that it uses a hybrid method that avoids the problem with the equal distribution method. See https://skilltran.com/index.php/support-area/documentation/216-job-numbers (last visited January 5, 2024).
I just use the estimation method that was provided by the Job Browser Pro. I am not — I really don't have an opinion as far as — that method is actually reliable. I can only support my testimony based on my experience with as those jobs exist in national economy and how those jobs are being performed.
R. 159. In response to a follow-up question from Fink's counsel, Dabrowiecka agreed that she used the Job Browser Pro numbers, but she emphasized, "part of my testimony was my experience finding whether those jobs exists and how those jobs are being performed if there is any deviation." R. 159-60. Fink's counsel concluded the questioning by confirming that Dabrowiecka would adjust job number estimates if there were relevant limitations in the Occupational Requirements Survey and that Job Browser Pro adjusts for full-time versus part-time work. Fink's counsel did not object to Dabrowiecka's methodology either at the hearing or in a post-hearing brief.
Fink forfeited any challenge to Dabrowiecka's methodology by failing to object to her testimony or otherwise contest the issue before the ALJ. When a claimant
does not challenge the VE's foundation or reasoning, an ALJ is entitled to accept the VE's conclusions. Fetting, 62 F.4th at 337 (quoting Donahue, 279 F.3d at 446); see also Coyier v. Saul, 860 F. App'x 426, 428 (7th Cir. 2021) ("Because counsel failed to develop an argument or question the VE any further about his methodology, the ALJ was entitled to rely on the job-number estimates.").
Fink contends that she adequately preserved her challenge to Dabrowiecka's testimony by raising the reliability of her methodology in her brief to the Appeals Council. Dkt. 14, at 15. This contention is incorrect. The rule set out in Fetting requires a claimant to "object to the VE's testimony or otherwise indicate that the testimony is unreliable during the administrative hearing (or after, in a posthearing brief) to preserve [the] objection." Leisgang, 72 F.4th at 219-20 (citing Fetting, 62 F.4th at 337). The reason for this rule is that "the ALJ is better suited ... to unpack and untangle objections and concerns regarding the VE's methodology in the first instance. And the ALJ is best positioned to do so when the claimant identifies those objections and concerns expressly, allowing the proper development of the evidentiary record in real time." Leisgang, 72 F.4th at 220. Fink's arguments to the Appeals Council did not preserve her objection because the opportunity for developing the evidentiary record had passed—unless Fink could show good cause for her failure to provide the evidence sooner. See 20 C.F.R. §§ 404.935, 404.970. Fink hasn't suggested that anything prevented her counsel from objecting to the VE's methodology before the ALJ, who could have developed the record on the issue.
The court concludes that Fink forfeited her challenge to the VE's methodology.
B. Substantial Evidence
Fink contends that the court should remand this case regardless, because a claimant cannot waive the substantial evidence standard. Fink contends that it was obvious from Dabrowiecka's testimony that her job number estimates were not the result of a reliable method. Specifically, Fink argues that Dabrowiecka's testimony expressly called into question the reliability of her methodology and that nothing Dabrowiecka said explained why the estimates were reliable in this case.
Fink is correct that a claimant cannot waive the substantial evidence standard. Leisgang, 72 F.4th at 220 (citing Biestek, 139 S. Ct. at 1155). "With respect to a vocational expert's testimony about job prevalence, 'the substantial evidence standard requires the ALJ to ensure that the approximation is the product of a reliable method.'" Case v. Kijakazi, No. 22-2379, 2023 WL 4882880, at *3 (7th Cir. Aug. 1, 2023) (quoting Chavez v. Berryhill, 895 F.3d 962, 968 (7th Cir. 2018)). An ALJ "cannot accept testimony from a VE that is facially implausible or incoherent." Leisgang, 72 F.4th at 220. If a VE's testimony on cross-examination creates obvious reasons to question her methodology, an ALJ needs to inquire into the VE's methodology before uncritically accepting the VE's job number estimates. Ruenger, 23 F.4th at 764.
But here, Dabrowiecka's testimony was not facially implausible or incoherent. As discussed above, Dabrowiecka testified that she arrived at her job number estimates by starting with estimates from Job Browser Pro and applying her experience finding whether those jobs exists and how those jobs are performed to give estimates particular to the claimant's RFC. She relied on her experience and a publication from the Bureau of Labor Statistics to reduce the total estimate for
routing clerk jobs by 50 percent because some routing clerk jobs require lifting weight above Fink's capacity. R. 155-56. Numerous courts, including this one, have found the substantial evidence standard satisfied when a VE considers job number estimates from Job Browser Pro and then applies her experience to arrive at her final estimates. Wegerer v. Kijakazi, No. 22-CV-123-JDP, 2023 WL 6307407, at *4 (W.D. Wis. Sept. 28, 2023); Kenealy v. Saul, No. 19-CV-40-JDP, 2019 WL 6463840, at *6 (W.D. Wis. Dec. 2, 2019); Lucas v. Kijakazi, No. 20-C-799, 2021 WL 4476537, at *10 (E.D. Wis. Sept. 30, 2021).
Dabrowiecka's testimony about her experience and the sources she used was sufficient to instill a "modicum of confidence" in her job number estimates. Leisgang, 72 F.4th at 220. The record would have been stronger if the ALJ had asked follow-up questions to inquire further into Dabrowiecka's methodology after her cross-examination. In particular, Dabrowiecka's testimony that she didn't "have an opinion as far as — that method is actually reliable" is ambiguous and could have been clarified. It's not clear from her response whether Dabrowiecka was referring to the method used by Job Brower Pro to arrive at the estimates in this case or the equal distribution method more generally. But the Seventh Circuit has not expressly found that Job Browser Pro uses a reliable method as a matter of law (nor has it determined that it is unreliable). And it has questioned the accuracy of the equal distribution method, so Dabrowiecka's reservations on the issue are consistent with the Seventh Circuit's stance on job estimation methods generally. And Dabrowiecka testified that she relied on her experience evaluating the jobs to adjust the estimates as necessary once she had them from the software. In the absence of a specific objection from Fink, Dabrowiecka's testimony provided sufficient evidence to satisfy the low substantial evidence standard.
ORDER
IT IS ORDERED that the decision of the Acting Commissioner of Social Security denying in part Tina M. Fink's application for disability benefits is AFFIRMED.