Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Daniel W.,
Plaintiff/Petitioner,
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant/Respondent.
Case No. 25-cv-00904-KMM-EMB
REPORT AND
RECOMMENDATION
Plaintiff seeks judicial review of the final administrative decision of the
Commissioner of Social Security (“Commissioner”) pursuant to 42 U.S.C. § 405(g).
This matter was referred to the undersigned Magistrate Judge for a Report and
Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 72.1(c).
The Court considers the matter on the parties’ briefs (Dkt. Nos. 9, 15, and 16).
See Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g), R. 5. For
the reasons discussed below, it is recommended that Plaintiff’s request for relief be
DENIED, and the Complaint be DISMISSED with prejudice.
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I. BACKGROUND
On December 2, 2021, Plaintiff Daniel W.1 filed an application for
supplemental security income, alleging disability beginning on July 1, 2018. (Admin. R.
(Dkt. No. 7) at 108.)2 In his application, Plaintiff alleged that he became disabled
because of bilateral leg pain, narcolepsy, PTSD, and ADHD. (Id.)
An individual is considered disabled for purposes of Social Security disability
benefits if he 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 twelve months.” 42 U.S.C. § 423(d)(1)(A). In addition, an individual is
disabled “only if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy.” Id. § 423(d)(2)(A). “[A] physical or
mental impairment is an impairment that results from anatomical, physiological, or
1 This District has adopted the policy of using only the first name and last initial of
any nongovernmental parties in orders in Social Security matters.
2 All page numbers to record citations refer to the ECF-created numbers at the top of
each page.
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psychological abnormalities which are demonstrable by medically acceptable clinical
and laboratory diagnostic techniques.” Id. § 423(d)(3).
The Commissioner has established a sequential, five-step evaluation process to
determine whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4). At step
one, the claimant must establish that he is not engaged in any “substantial gainful
activity.” Id. § 404.1520(a)(4)(i). If he is not, the claimant must then establish that he
has a severe medically determinable impairment or combination of impairments at
step two. Id. § 404.1520(a)(4)(ii). At step three, the Commissioner must find that the
claimant is disabled if the claimant satisfies the first two steps and the claimant’s
impairment meets or is medically equal to one of the listings in 20 C.F.R. Pt. 404,
Subpart P, App’x 1. Id. § 404.1520(a)(4)(iii). If the claimant’s impairment does not
meet or is not medically equal to one of the listings, the evaluation proceeds to step
four. At that juncture, the claimant bears the burden of establishing his residual
functional capacity (“RFC”) and proving that he cannot perform any past relevant
work. Id. § 404.1520(a)(4)(iv); see also Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). If the claimant proves he is unable to perform any past relevant work, the
burden shifts to the Commissioner to establish at step five that the claimant can
perform other work existing in a significant number of jobs in the national economy.
20 C.F.R. § 404.1520(a)(4)(v); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If
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the claimant can perform such work, the Commissioner will find that the claimant is
not disabled. 20 C.F.R. § 404.1520(a)(4)(v).
Plaintiff’s application for benefits was denied initially and on reconsideration.
(Admin. R. at 108–17, 119–28.) In October 2023, at Plaintiff’s request, an
Administrative Law Judge (“ALJ”) held a telephone hearing on Plaintiff’s application.
(Id. at 15.) Plaintiff testified and was represented by an attorney at this hearing. (Id. at
15 and 71–99.) Thereafter, the ALJ issued her written decision. (Id. at 15–36.)
The ALJ determined that Plaintiff had several severe impairments: obesity,
obstructive sleep apnea, depression, anxiety, and substance-use disorders (alcohol and
amphetamine). (Id. at 18.) Further, the ALJ determined that Plaintiff has the RFC to
perform a range of work at a medium level of exertion with various limitations. (Id. at
25.)
After considering testimony from a vocational expert (“VE”), Eric Pruitt, the
ALJ determined that there were jobs that Plaintiff could perform available in
sufficient numbers in the national economy and therefore found that Plaintiff was not
disabled. (Id. at 35.) The Appeals Council denied Plaintiff’s request for review of the
ALJ’s decision, and this lawsuit followed. See 42 U.S.C. § 405(g) (providing for judicial
review of final decisions of the Commissioner of the Social Security Administration).
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II. DISCUSSION
Judicial review of the Commissioner’s decision is limited to determining
whether that decision is “supported by substantial evidence on the record as a whole,”
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000), or whether the ALJ’s decision
resulted from a legal error, Nash v. Comm’r, Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th
Cir. 2018). “Substantial evidence . . . is more than a mere scintilla.” Biestek v. Berryhill,
587 U.S. 97, 103 (2019) (quotation omitted). It is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This “threshold . . . is not
high.” Biestek, 587 U.S. at 103. “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.”
Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (quotation omitted).
Plaintiff challenges the ALJ’s analysis only as to step five. (Dkt. 9, at 6–11.)
Namely, he argues that the ALJ’s hypothetical questioning of the VE was inadequate
because the ALJ did not ask together in a single hypothetical question whether the
jobs identified by the VE could be performed with only occasional interaction with
supervisors and co-workers and no interaction with the public. (Dkt. 16, at 3–4.)
At step five, the ALJ must determine whether the claimant is able to do any
work considering his RFC, age, education, and work experience. 20 C.F.R.
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§ 404.1520(a)(4)(v). An ALJ can rely on testimony of a VE to establish substantial
evidence that suitable jobs exist for the claimant. See Swedberg v. Saul, 991 F.3d 902,
906 (8th Cir. 2021). The VE’s testimony can include the use of hypothetical questions.
See Kraus v. Saul, 988 F.3d 1019, 1023 (8th Cir. 2021). “While it is clear that questions
posed to vocational experts . . . should precisely set out the claimant’s particular
physical and mental impairments, a proper hypothetical question is sufficient if it sets
forth the impairments which are accepted as true by the ALJ.” House v. Shalala, 34
F.3d 691, 694 (8th Cir. 1994) (internal quotations and citations omitted).
Here, the ALJ included in Plaintiff’s RFC description that he “can have
occasional interactions with supervisors and coworkers, but no interaction with the
public.” (Admin. R. at 25.) The ALJ went on to step five and relied on a VE to reach
the conclusion that Plaintiff was not disabled because he could make “a successful
adjustment to other work that exists in significant numbers in the national economy.”
(Id. at 35.)
a. The ALJ Questioned the Vocational Expert.
The ALJ performed a thorough examination of the VE, beginning by
establishing that he had reviewed the records in the Plaintiff’s file and was present for
the testimony of the Plaintiff. (Admin. R. at 100.) After having the VE classify
Plaintiff’s prior jobs, the ALJ asked him four hypothetical questions. The ALJ asked
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the VE to assume for all hypotheticals “an individual with the same age, education,
and work experience as the claimant.” (Id. at 103.)
The first hypothetical asked the VE to identify work in the national economy
for a person that, among other things, “can have frequent interactions with
supervisors, coworkers, and the public.” (Admin. R. at 103.) The VE opined there
would be work for such an individual and identified representative occupations of
hospital cleaner, machine packager, and automobile detailer. (Id. at 104.) The VE
estimated a total of 149,000 existing positions for these three jobs. (Id.)
The ALJ then built on the hypothetical, asking the VE to assume the same
limitations “as stated above,” but to add several additional limitations, including “that
this individual should have no more than occasional interaction with supervisors,
coworkers, and the public.” (Admin. R. at 104.) The VE testified that the previously-
identified jobs would still be available to a person with these additional limitations.
(Id.)
The ALJ proffered a third hypothetical, asking: “For hypothetical three, I
would like you to keep the same hypothetical, but I would like to add no interaction
with the public. Would those jobs still remain?” (Admin. R. at 105.) The VE
responded “[y]es, they would.” (Id.)
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The ALJ concluded with a fourth hypothetical. The ALJ instructed the VE to
“keep the same and please add that this individual could not perform work requiring a
specific production rate pace, such as assembly line work or work that requires hourly
quotas.” (Admin. R. at 105.) The VE responded that he didn’t think “that additional
limitation would eliminate the representative examples that I cited. (Id.)
Plaintiff alleges that the third hypothetical is ambiguous. He argues that, based
on the ALJ’s request that the VE “keep the same hypothetical,” it is impossible to
know whether the VE answered based on keeping the limitations from the first or
second hypothetical. (See Dkt. 16 at 3.) Plaintiff envisions a scenario where the VE
would reach a different conclusion as to the availability of jobs if the limitations were
(1) frequent interaction with a supervisor and coworkers and no interaction with the
public versus (2) occasional interaction with a supervisor and coworkers and no
interaction with the public. (Id.) Plaintiff asserts that because the ALJ’s question could
have been interpreted two ways by the VE, his response cannot be a basis for denying
benefits. (Id. at 4.)
Plaintiff’s view of the VE testimony is unconvincing for three reasons. First, no
party present at the hearing identified the questioning as ambiguous, cutting off the
ability to argue that now. Second, it is unambiguous that the ALJ was asking the VE
to build on the immediately preceding hypothetical when she formulated the third
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scenario. Third, the VE’s responses to the hypotheticals viewed together are adequate
to support the ALJ’s conclusion.
b. No Party Identified an Ambiguity in the Questioning at the
Administrative Hearing.
The Court will not create an ambiguity on an after-the-fact reading of the
transcript when no person at the hearing identified such an ambiguity. In Riggins v.
Apfel, 177 F.3d 689, 693 (8th Cir. 1999), the Eighth Circuit noted that: “At the
administrative hearing, Riggins’s attorney was present and had the opportunity to
request that the ALJ restate the hypothetical more specifically. Such a failure to raise
the argument at the agency level ‘ordinarily prevent[s] [a party] from raising it in
judicial proceedings.’” (Quoting Weikert v. Sullivan, 977 F.2d 1249, 1254 (8th Cir.
1992)). See also, Thomas v. Comm’r of Soc. Sec., 2020 WL 5810219, at *4 (M.D. Fla. Sept.
30, 2020) (observing that courts in the Eleventh Circuit “routinely reject the argument
that [a] limitation is vague where . . . there is no indication that either the ALJ or the
VE misunderstood its plain meaning”) (collecting cases); Meanel v. Apfel, 172 F.3d
1111, 1115 (9th Cir. 1999) (“We now hold that, at least when claimants are
represented by counsel, they must raise all issues and evidence at their administrative
hearings in order to preserve them on appeal.”); McClanahan v. Comm’r of Soc. Sec., 474
F.3d 830, 837 (6th Cir. 2006) (“[C]ounsel may not now complain because he failed to
cross-examine [the medical expert] when he had the opportunity to do so[.]”).
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Plaintiff did not raise the alleged ambiguity to the ALJ at the time of the hearing or to
the Appeals Council. (See Admin R. at 5–10, 62–107, 342–43.)
The ALJ, VE, and Plaintiff’s counsel all appeared to understand the line of
questioning at the hearing. Indeed, had the third hypothetical truly been ambiguous,
Plaintiff’s attorney could have clarified when the ALJ asked him: “Counsel, do you
have any questions for the vocational expert?” (Admin. R. at 106.) Instead, counsel
responded: “No, thank you, Judge. You covered what I wanted to.” (Id.) This is a
strong indication that everyone present understood the ALJ was using hypotheticals in
the standard way, with hypothetical three building on hypothetical two.
Moreover, Mr. Pruitt, the VE, was experienced with hypothetical questioning.
(See generally Admin. R. at 340-341 (Pruitt’s resume showing he has worked in the field
of vocational evaluation since 1988)); Dillman v. Comm’r of Soc. Sec., 990 F. Supp. 2d
787, 794 (S.D. Ohio 2013) (identifying Eric Pruitt as the testifying vocational expert in
another social security disability case that used hypothetical questioning); Moore v.
Comm’r of Soc. Sec., No. 3:12-cv-226, 2013 WL 4518657, at *1 (S.D. Ohio Aug. 26,
2013) (identifying Eric Pruitt as the testifying vocational expert). And Mr. Pruitt had
witnessed Plaintiff’s testimony. See Swedberg, 991 F.3d at 905 (“We have held a
vocational expert’s opinion is valid when based on listening to a claimant’s earlier
testimony.”). If Mr. Pruitt thought the identified jobs were not available to Plaintiff,
he could have refined his responses or asked clarifying questions. The absence of any
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clarification on the social-interaction limitations is further indication that the VE
understood the questions and felt that the jobs identified were available to Plaintiff.
As the record contains no evidence of a misunderstanding at the time of the
hearing, that argument is not appropriately before this Court.
c. The Questioning Was Unambiguous.
Even if Plaintiff can raise a hindsight argument that the ALJ’s hypothetical was
ambiguous, that argument fails. Hypothetical questioning of a VE is standard practice
in ALJ hearings related to social security benefits. Normally, the ALJ asks a series of
hypotheticals, each one building on the previous scenario. See Kraus v. Saul, 988 F.3d
1019, 1023 (8th Cir. 2021) (describing the use of a second hypothetical that “added to
the first”); Sanders v. Astrue, 879 F. Supp. 2d 930, 934 (N.D. Ill. 2012) (describing the
process of an ALJ asking a series of building hypotheticals).
The reasonable way to interpret the ALJ’s questioning in this case is that each
successive hypothetical adds limitations. Hypothetical one contemplated frequent
interaction with supervisors, coworkers, and the public. Hypothetical two asked about
occasional interaction with supervisors, coworkers, and the public. Hypothetical three
further restricted hypothetical two to no interaction with the public. And the fourth
hypothetical took those limits and added another related to no mandated production
rate.
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The ALJ asked the VE to assume the same limitations “as stated above,” when
transitioning between hypotheticals one and two. She told the VE to “keep the same
hypothetical” when transitioning from hypothetical two to hypothetical three. And the
VE was to “keep the same” when moving from hypothetical three to hypothetical
four. These transitional phrases are logically read as references to the immediately
preceding hypothetical.
The third hypothetical was not ambiguous, and the ALJ was reasonable in
relying on the VE’s testimony to conclude the identified jobs could be performed by
someone like Daniel W.
d. The ALJ’s Conclusion has Adequate Support.
Even if it was possible to draw two inconsistent conclusions from the VE’s
response to hypothetical three—that it applied to frequent contact with a supervisor
and coworkers or to occasional interaction with a supervisor and coworkers—the
Court must accept the ALJ’s findings. See Perks, 687 F.3d at 1091. The Court looks at
the ALJ’s conclusion considering all the evidence, McKinney, 228 F.3d at 863, to
determine whether the ALJ’s conclusion is based on “relevant evidence as a
reasonable mind might accept as adequate to support [that] conclusion.” Biestek, 587
U.S. at 103 (internal quotation omitted).
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Here, the ALJ reasonably understood after hypothetical two that the
representative jobs identified by the VE could be performed with only occasional
interaction with supervisors and coworkers. The ALJ further understood after
hypothetical three that the representative jobs would not require interaction with the
public. Considering these two hypotheticals together, it is reasonable for the ALJ to
find this testimony adequately supports the conclusion that Plaintiff could perform
these jobs with his limitations.
III. CONCLUSION
For the reasons discussed above, the Court concludes that Plaintiff cannot raise
an ambiguity in the VE’s testimony that was not addressed at the administrative
hearing or by the Appeals Council. Even if he could, the VE’s testimony that there are
other jobs in sufficient numbers available to someone with Plaintiff’s impairments
constitutes substantial evidence to support the ALJ’s determination that Daniel W. is
not disabled within the meaning of the Social Security Act.
Thus, it is RECOMMENDED that:
1. Plaintiff’s requested relief (Dkt. 9) be DENIED; and
2. this Complaint (Dkt. 1) be DISMISSED with prejudice.
Date: December 29, 2025 s/Elsa M. Bullard
ELSA M. BULLARD
United States Magistrate Judge
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