Born v. Kijakazi

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
DAWN BORN,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendants.
3:21-CV-3010-MAM
MEMORANDUM OPINION
AND ORDER
Dawn Born seeks to reverse the decision of the Acting Commissioner of Social
Security (Commissioner) denying her claim for social security disability insurance
(SSDI) 	benefits. 	She 	claims 	the 	administrative 	law 	judge 	(ALJ) 	erred 	in 	his
determination of her residual functional capacity (RFC) and in his Step Five analysis by
using national, rather than regional, job data and in dealing with conflicting vocational
evidence. The Court agrees in part with Born and reverses and remands for further
proceedings.
BACKGROUND
At the outset, the Court fully adopts the parties’ lengthy Joint Statement of
Material Facts (JSMF).1 To provide background and context for Born’s claims, the Court
1 Docket No. 16.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 1 of 18 PageID #: <pageID>

2
briefly recites some of the facts and case history.
Born 	applied 	for 	disability 	insurance 	benefits, 	alleging 	disability 	starting
September 19, 2017, because of back and neck injuries, diabetes, high blood pressure,
anxiety panic disorder, hypothyroidism, obesity, arthritis, “dyspnealabyrinthitis,” and
chronic pain. Born (who had been a certified nursing assistant) claimed that her back
injury stemmed from a work incident that occurred in June 2016, 15 months before her
stated disability onset date, when she injured herself while trying to save a patient from
falling.
Born lost at both the initial and reconsideration levels. An ALJ decided against
her, finding that, although unable to perform her past relevant work, other jobs existed
in the national economy that fit her assigned RFC. The Appeals Council then denied
review, allowing the ALJ’s decision to stand and be the final one of the Commissioner.
Born sought judicial review of the decision by timely filing a civil complaint.2 The
parties consented to this Court handling the case.3
STANDARD OF REVIEW
When reviewing a denial of benefits, a court must determine whether the ALJ’s
decision “is supported by substantial evidence on the record as a whole and whether
2 See 42 U.S.C. § 405(g); Docket No. 1.
3 Docket No. 9.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 2 of 18 PageID #: <pageID>

3
the ALJ made any legal errors.”4 “Substantial evidence is less than a preponderance, but
enough that a reasonable mind might accept as adequate to support a conclusion.”5 If,
after reviewing the record in a light most favorable to the ALJ’s decision,6 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.”7
DISCUSSION
The five-step sequential inquiry, prescribed in the Code of Federal Regulations,8
to determine disability eligibility is as follows:
1. Is the claimant currently performing substantial gainful activity (SGA)?
2. Does the claimant have a severe impairment?
3. Does the impairment meet or equal an impairment listed in Appendix
1?
4. Does the impairment prevent the claimant from performing past
relevant work?
5. Does the impairment prevent the claimant from doing any other work?9
At the first step, the ALJ found that Born was not engaged in substantial gainful
activity.10 The ALJ found, at the second step, that Born was severely impaired by
4 Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018).
5 Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013).
6 Chismarich, 888 F.3d at 980.
7 Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
8 See 20 C.F.R. § 404.1520(a)(4).
9 Twyford v. Comm'r. Soc. Sec. Admin., 929 F.3d 512, 515 n.2 (8th Cir. 2019).
10 Transcript (“Tr.”) 12; see also 20 C.F.R. § 404.1571 et. seq (substantial gainful
(continued. . .)
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 3 of 18 PageID #: <pageID>

4
degenerative disc disease of the lumbar and thoracic spine, arthritis, diabetes, and
obesity.11 The ALJ also found that Born had medically determinable impairments of
anxiety and depression but they were nonsevere impairments that only caused mild
limitation in her ability to understand, remember and apply information, to interact
with others, to maintain concentration, persistence, or pace, and to adapt or manage
herself.12 At Step Three, the ALJ determined that Born did not have an impairment that
met, or medically equaled, one of the listed impairments.13
The ALJ then found that Born had an RFC for a range of light work and she:
1. 	Could lift 20 pounds occasionally and 10 pounds less frequently;
2. 	Could sit for 6 hours and stand or walk for 4 hours in an 8-hour
workday;
3. 	Had no reaching or manipulation limits;
4. 	Could 	occasionally 	climb 	stairs 	but 	could 	never 	climb 	ladders,
scaffolds, or similar devices;
5. 	Could frequently balance, occasionally crouch, kneel, stoop, and crawl
but must avoid concentrated exposure to hazards such as unprotected
heights and dangerous moving machinery;
6. 	Was moderately limited, because of chronic back pain, in her ability to
carry out any detailed or complex instructions, to maintain extended
concentration for those tasks, and to adapt or adjust to major changes
in the work routine or setting; and
activity).
11 Tr. 13; see also 20 C.F.R. § 404.1520(c) (severe impairment).
12 Tr. 13-15.
13 Tr. 15; see also 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 (impairments that
meet or equal the impairment listing).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 4 of 18 PageID #: <pageID>

5
7. 	Would thus be limited to work involving only simple, routine and
repetitive tasks of 2 or 3 steps on average.14
The ALJ also discussed why he found the state agency consultants’ 2018 opinions—but
not the 2019 opinions of Born’s treating provider (CNP Sue Hogue)—persuasive when
constructing the RFC.15 Based on the RFC, the ALJ found at Step Four that Born could
not perform her past relevant work.16 From there, the ALJ relied on the testimony of
vocational expert (VE) Richard Ostrander to find, at Step Five, that there existed jobs “in
the national labor market” that Born could perform.17 The ALJ concluded that Born was
not disabled under the Social Security Act.18
Born raises two primary issues in her appeal of the Commissioner’s decision. The
first is whether the ALJ’s determination of her RFC was supported by substantial
evidence.19 She says it was not, because the ALJ improperly relied on the state
consultants even though new information20 emerged in the year or so after the agency
14 Tr. 15-16.
15 Tr. 19-20.
16 Tr. 20; see also 20 C.F.R. § 404.1565 (past relevant work).
17 Tr. 21; see also 20 C.F.R. § 404.1566 (national economy work).
18 Id.
19 Docket No. 18 at 2.
20 See Docket No. 16, ¶¶ 50-63 (numerous visits to emergency room and clinic and
hospital 	admissions, 	two 	MRIs, 	progressive 	worsening 	of 	symptoms, 	and
opinions as to Born’s limitations from her treatment provider).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 5 of 18 PageID #: <pageID>

6
reviewed the files.21 She likewise quarrels with the ALJ rejecting Hogue’s opinion in
favor of the consultants and not explicitly considering the work limitations that Dr.
Thomas Ripperda, a rehabilitation physician, placed on her.22 Second, Born points to
problems with the ALJ’s Step Five analysis — the apparent failure to properly identify
jobs in the national economy and address conflicts in the vocational evidence.23 The
Court addresses each issue in turn.
A. 	RFC Support
While “a disability claimant has the burden to establish her RFC,”24 “the ALJ
bears a responsibility to develop the record fairly and fully, independent of the
claimant's burden to press [her] case.”25 “An ALJ determines a claimant's RFC based on
all the relevant evidence, including the medical records, observations of treating
physicians and others, and [the claimant’s] own description of [her] limitations.”26
Although an “ALJ does not have to seek additional clarifying statements from a treating
physician unless a crucial issue is undeveloped,” the ALJ “must not substitute his
21 Docket No. 18 at 2-15.
22 Id.
23 Id. at 15-21.
24 Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
25 Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017).
26 Id. (cleaned up).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 6 of 18 PageID #: <pageID>

7
opinions for those of the physician”27 and “some medical evidence must support the
determination of the claimant's RFC.”28 “[I]t is reversible error for an ALJ not to order a
consultative examination when such an evaluation is necessary for him to make an
informed decision.”29
In determining Born’s RFC, the ALJ faced a medical record running through
2019, 	the 	non-treating 	state 	agency 	consultants’ 	RFC 	opinions 	of 	August 	6 	and
November 2, 2018, Hogue’s opinions of Born’s limited capabilities from April 9 and
September 19, 2019, and Born’s own testimony.30 During the hearing, but before
Hogue’s assessment was filed and admitted, the ALJ himself noted the “record here …
is a little weak – medically” and that “if [he was] going to make a decision, [he would]
rather have a better handle on what [Born] can and cannot do. And it’s the kind of case
that cries out for a consultative exam, [a] physical consultative exam.”31 The ALJ stated
27 Id.
28 Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
29 Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000) (quoting Dozier v. Heckler, 754
F.2d 274, 276 (8th Cir. 1985)).
30 Tr. 16-20.
31 Tr. 64.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 7 of 18 PageID #: <pageID>

8
that he was “going to order a consultative exam,”32 before later walking the statement
back and saying he wanted to review the record.33
Ultimately, no exam was ordered, nor was the lack of one explained in the ALJ’s
October 30, 2019 decision, when he opted to credit the non-treating consultants rather
than Hogue.34 Put another way, before even receiving Hogue’s opinions on Born’s
restrictions, the ALJ was uncomfortable, because of a “weak” record, about making a
decision on Born’s RFC.35 That same shaky record was then used to refute Hogue’s
assessment of Born’s capabilities and to form a less restrictive RFC.36
32 Tr. 66.
33 Tr. 79.
34 See Tr. 19 (“[Hogue’s] opinions are unpersuasive as they are inconsistent with
the record.”); Tr. 20 (“The state agency medical consultants opined that the
claimant could lift … twenty pounds occasionally and ten pounds frequently.…
stand … for four hours in an eight-hour workday and can sit for six hours in an
eight-hour workday…. The undersigned finds that these opinions are persuasive
as they are consistent with the record.”).
35 See Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012) (“Failing to develop the
record is reversible error when it does not contain enough evidence to determine
the impact of a claimant's impairment on [her] ability to work.”); Tr. 64 (ALJ: “[I]f
I’m going to make a decision, I’d rather have a better handle on what she can and
cannot do.”); Tr. 79 (ALJ: “It certainly would have helped if one of her treating
doctors had offered an opinion. On the other hand, she does have one provider
… who does offer an opinion we’ll need to give some weight to.”).
36 See Tr. 19 (“[Hogue’s] opinions are unpersuasive as they are inconsistent with
the record.”).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 8 of 18 PageID #: <pageID>

9
The Court agrees with the ALJ’s initial sentiments. The ALJ had before him an
uncertain record with a distinct divergence between the opinions of the consultants37
(who did not consider any medical records beyond October 2018) and Hogue’s 2019
opinions38 (that, while restrictive, were more in line with Born’s testimony39 and came
from a treatment provider). Given the admittedly tenuous record and the lack of any
contemporary opinions contrary to Hogue’s, the ALJ should have ordered a physical
consultative examination to provide him with the guidance necessary to make an
“informed” RFC decision without having to medically evaluate—himself—the import
of the new (after October 2018) evidence.40
The failure to order such an exam requires remand, and an order to conduct
one.41 And since the exam will permit a learned determination (one way or the other) of
37 See Tr. 91 (“Occasionally … lift … 20 pounds”); Tr. 107 (reaffirming the prior
decision).
38 See Tr. 931 (“Occasionally lift … less than 10 pounds”).
39 See Tr. 66 (ALJ: “Assuming your testimony’s correct, you’re probably down to
sedentary work at best.”).
40 See Combs, 878 F.3d at 647 (finding ALJ failed to fully develop the record when
he relied on his own interpretations of terms in treatment records to formulate
RFC); Pate-Fires v. Astrue, 564 F.3d 935, 947 (8th Cir. 2009) (stating that ALJs may
not “play doctor”); Strongson v. Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004)
(“[The ALJ] may not simply draw his own inferences about plaintiff's functional
ability from medical reports.”); Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)
(“The opinions of doctors who have not examined the claimant ordinarily do not
constitute substantial evidence on the record as a whole.”).
41 See McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (“The ALJ is required to
(continued. . .)
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 9 of 18 PageID #: <pageID>

10
Born’s RFC, the Court need not delve into the ALJ’s ultimate decisions to weigh the
consultants’ early findings over those of Hogue and not include Dr. Ripperda’s 2-days-
on-1-day-off limitation for Born in the RFC calculus.
B. 	Step Five
Because it will remain an issue on remand, the Court next addresses the
contested matter of what evidence is necessary to decide “work which exists in the
national economy.”42 As a preface, at Step Five, the burden shifts to the Commissioner
to provide evidence about work in the national economy that the claimant can do given
her RFC.43 During the evidentiary hearing, Ostrander informed the ALJ that, while Born
would be unable able to perform her past work, based on the hypothetical RFC, she
could do other jobs such as office helper, cashier II, and mail clerk.44 Ostrander testified
that there were 60,000, 50,000, and 35,000, respectively, of each position available “in the
national labor market.”45
order medical examinations and tests only if the medical records presented to
him do not give sufficient medical evidence to determine whether the claimant is
disabled.”); Dozier, 754 F.2d at 276.
42 Docket No. 18 at 19-21.
43 See 20 C.F.R. § 404.1560(c); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
44 Tr. 75-77.
45 Tr. 77.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 10 of 18 PageID #: <pageID>

11
Born argues that Ostrander should have provided numbers for the jobs from a
regional 	or 	multi-regional 	area, 	not 	a 	purely 	national 	one.46 The 	Commissioner
maintains the national numbers suffice and lays out a pragmatic approach to Step Five47
that strays from the text of the governing statute.48 But the text of the statute controls
and trumps other considerations.49
When interpreting a statute, a court must begin with the plain language of the
statute.50 The relevant statute here defines “disability” as the:
Inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months[.]51
Under this definition:
An individual shall be determined to be under a disability only if
[her] physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous work but
46 Docket No. 18 at 20.
47 Docket No. 20 at 20-28.
48 See 42 U.S.C. § 423(d)(2)(A) (stating what “work which exists in the national
economy” means).
49 See United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (pointing out that the role
of a court is not to rewrite statutes to achieve results that the court deems more
desirable); Nygaard v. Taylor, 3:19-CV-03016-RAL, 2022 WL 1487455, at *15
(D.S.D. May 11, 2022) (“this Court is bound to interpret and apply the [statute] as
it is written, not as how it might or arguably should have been written”).
50 United States v. Raiburn, 20 F.4th 416, 422 (8th Cir. 2021).
51 42 U.S.C. § 423(d)(1)(A).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 11 of 18 PageID #: <pageID>

12
cannot, considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the
immediate area in which [she] lives, or whether a specific job
vacancy exists for [her], or whether [she] would be hired if [she]
applied for work. For purposes of the preceding sentence (with
respect to any individual), “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.52
While there may be some ambiguity as to what exactly constitutes a “region,”53 the
statute defines the term of art, “work which exists in the national economy.”54 And that
term does not encompass broad national numbers without any local or regional
breakdown of them.
To satisfy the Commissioner’s burden, work available must be expressed as jobs
that exist in significant numbers either in (1) the region where the claimant lives; or (2)
several (but not all) regions of the country (i.e., several subdivisions of the country as a
whole).55 Courts in this district have repeatedly held as much, although there is contrary
52 42 U.S.C. § 423(d)(2)(A) (emphasis added); see also 20 C.F.R. § 404.1566
(discussing “work which exists in the national economy”); 20 C.F.R. § 416.966
(same).
53 See Svendsen v. Kijakazi, 1:21-CV-1029-CBK, 2022 WL 2753163, at **17-18 (D.S.D.
July 14, 2022) (discussing the meaning of “region”).
54 42 U.S.C. § 423(d)(2)(A).
55 Id.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 12 of 18 PageID #: <pageID>

13
authority elsewhere.56 Having failed to obtain the discrete regional numbers required
by statute, the Commissioner has not met her Step Five burden and, on remand, should
gather numbers in accord with the statutory text.
C. 	Commissioner’s Rejoinder
The Commissioner asserts that any error was harmless.57 Although Born bears
the burden of showing prejudicial error,58 the Commissioner had the burden of proving
56 See Svendsen, 2022 WL 2753163, at **15-19; Melvin W. v. Kijakazi, 5:20-CV-5050-
JLV, 2022 WL 540274, at *3-10 (D.S.D. Feb. 23, 2022); Heather R. v. Saul, 4:20-CV-
04082-VLD, 2021 WL 3080331, at *23-26 (D.S.D. July 21, 2021); Benthin v. Saul,
1:20-CV-01014-CBK, 2021 WL 2982719, at *7-9 (D.S.D. July 15, 2021); Springer v.
Saul, 4:19-CV-04030-VLD, 2019 WL 4855186, at *33-39, (D.S.D. Oct. 1, 2019); see
also 	Barrett 	v. 	Barnhart, 	368 	F.3d 	691, 	692 	(7th 	Cir. 	2004) 	(“the 	principal
significance of the ‘other regions’ language in the statute is to prevent the
[Commissioner] from denying benefits on the basis of ‘isolated jobs that exist
only in very limited numbers in relatively few locations outside the region where
[the applicant] live[s]’”); Price v. Comm’r of Soc. Sec., 1:16-CV-43-DAS, 2016 WL
7443793, at *2 & n.2 (N.D. Miss. Dec. 22, 2016) (remanding where VE testified
there were, nationally, significant jobs in certain industries, but admitted that
these industries were not prevalent in Mississippi and provided no estimates of
job numbers within the state or region); but see Gutierrez v. Comm’r of Soc. Sec., 740
F.3d 519, 528-29 (9th Cir. 2014) (evidence of 25,000 jobs nationwide satisfied the
requirement of showing “work which exists in significant numbers … in several
regions of the country” where there was nothing in the number or nature of the
jobs to indicate they existed only in limited numbers in isolated regions of the
country); Alice T. v. Kijakazi, 8:21CV14, 2021 WL 5302141, at **16-18 (D. Neb. Nov.
15, 2021) (collecting cases and deciding that national numbers are sometimes
enough to satisfy the statute); Hayden v. Saul, 4:19-CV-187-SPM, 2020 WL 888002,
at **10-12 (E.D. Mo. Feb. 24, 2020) (total of 200,000 jobs nationally was significant
and enough to carry the Commissioner’s burden).
57 Docket No. 20 at 27.
58 See Shineseki v. Sanders, 556 U.S. 396, 409 (2009).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 13 of 18 PageID #: <pageID>

14
that Born had gainful work available to her in the region where she lived or in other
regions.59 Relying exclusively on national numbers to deny Born’s disability claim was
reversible error. And so was the ALJ’s RFC determination, made without a consultative
exam. Born is thus entitled to relief—but not to benefits, right now.60
The 	Commissioner 	asserts 	next 	that 	Born 	waived 	the 	national 	number
identification argument by not objecting during the ALJ hearing.61 But because social
security hearings are not adversarial, not every argument needs to be raised to be
preserved for review.62 Certainly, if Born had not presented the argument in court and
then raised it for the first time in an appeal later on, things might be different.63
59 See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 1560(c)(2); Stormo, 377 F.3d at 806.
60 See Docket No. 21 at 11 (“the ALJ denied Born’s claim based on improper
evidence, evidence that did not meet the Commissioner’s burden or comply with
the statute”).
61 Docket No. 20 at 27-28.
62 See Carr v. Saul, 141 S. Ct. 1352, 1362 (2021) (finding circumstances where
matters not raised before ALJ were not waived); Sims v. Apfel, 530 U.S. 103, 111-
12 (2000) (noting that Appeals Council proceedings are non-adversarial and
issue-exhaustion is inappropriate for claimants who exhaust administrative
remedies); Roberts v. Apfel, 222 F.3d 466, 470 (8th Cir. 2000) (observing that
claimant “need not raise every argument to the Appeals Council to preserve his
claims for judicial review”); Harwood v. Apfel, 186 F.3d 1039, 1042-43 (8th Cir.
1999) (refusing to adopt waiver rule).
63 See Roberts, 222 F.3d at 470 (holding that, absent manifest injustice, a claimant
must present arguments to the magistrate judge, or the first adversarial forum, to
preserve them for review).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 14 of 18 PageID #: <pageID>

15
The two cases the Commissioner cites are inapposite.64 One of them involved a
claimant who contended the ALJ erred by not considering the claimant’s morbid
obesity as an impairment even though the ALJ’s decision noted the obesity.65 But the
claimant never alleged any functional limitation as a result of his obesity in his benefits
application or during the hearing.66 Not the same situation as here, where Born raised a
Step Five failure to satisfy the controlling statute.67
The other case, a Ninth Circuit one, dealt with when a claimant must challenge
the evidentiary basis of a VE’s job numbers to preserve the issue for judicial review.68
There, the appeals court explicitly observed that “our holding encompasses challenges
based on an alleged conflict with alternative job numbers gleaned from the [County
Business Patterns] or the [Occupational Outlook Handbook].”69 Born makes no such
evidentiary challenge in her case. Rather, she claims that the Commissioner did not
meet the burden of production, applicable at Step Five,70 and comply with the statute71
64 Docket No. 20 at 27-28.
65 Anderson v. Barnhart, 344 F.3d 809, 814 (8th 2003).
66 See id. (finding claim waived on appeal and “noting that the ALJ is under no
obligation to investigate a claim not presented at the time of the application for
benefits and not offered at the hearing as a basis for disability”).
67 See Docket No. 21 at 11.
68 Shaibi v. Berryhill, 883 F.3d 1102, 1109-10 (9th Cir. 2017).
69 Id. at 1109.
70 20 C.F.R. § 404.1560(c)(2); see also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th
(continued. . .)
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 15 of 18 PageID #: <pageID>

16
by putting forth more than just raw national numbers (jobs that existed in the country
as a whole).72
Finally, the Commissioner takes issue with Born’s claim that the ALJ erroneously
accepted vocational evidence that conflicted with the Dictionary of Occupational Titles
(“DOT”)73 without a reasonable explanation.74 But because it is remanding the case, the
Court need not address the merits of this claim. The ALJ, on remand, should resolve
any apparent conflict and provide an appropriate explanation before relying on such
evidence to support a disability determination.75
REMAND
The statute76 that governs judicial review of the Commissioner’s final decisions
authorizes only two kinds of remand orders: those made under sentences four and six.
A sentence four remand is “proper whenever the [] court makes a substantive ruling
regarding the correctness of a decision of the Commissioner and remands the case in
Cir. 2004) (burden of production shifts to Commissioner at Step Five).
71 42 U.S.C. § 423(d)(2)(A).
72 Docket No. 21 at 11.
73 DEP ’ T OF LABOR , Dictionary of Occupational Titles (Rev. 4th ed. 1991).
74 Docket No. 20 at 16-18.
75 See SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000).
76 42 U.S.C. § 405(g).
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 16 of 18 PageID #: <pageID>

17
accordance with such a ruling.”77 A sentence six remand, by contrast, is allowed “in
only two limited situations: (1) where the Commissioner requests a remand before
answering the complaint of a claimant seeking reversal of an administrative ruling, or
(2) where new and material evidence is adduced that was for good cause not presented
during the administrative proceedings.”78
Neither of the sentence six conditions is present here. But sentence four applies.79
Even so, only when “the record overwhelmingly supports” a disability finding is it
proper to remand under sentence four and award benefits, as Born requests.80 Given the
lack of determinative evidence, an award—now—of benefits is not warranted. That
said, a sentence four remand is still called for to develop the record further and to
properly evaluate the evidence.81
CONCLUSION
The ALJ should have ordered a consultative examination before determining
Born’s RFC. Ostrander should have provided data covering jobs in (1) the region where
Born lives or (2) several regions of the country. On remand, the ALJ should order the
77 Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (citing Melkonyan v. Sullivan,
501 U.S. 89, 98 (1992)).
78 Id.
79 See id. at 1010-11.
80 Id. at 1011.
81 Id.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 17 of 18 PageID #: <pageID>

18
exam and, if Step Five is again reached, consider job numbers, consistent with the
meaning of the statute. And the ALJ should determine whether the vocational evidence
conflicts with the DOT and, if so, explain how he reconciled the conflict.
Accordingly, it is
ORDERED that the Commissioner’s decision is REVERSED and REMANDED for
reconsideration under sentence four of the statute.82
Born’s motion to reverse,83 is GRANTED to the extent it seeks a sentence four
remand without an award of benefits. It is further
ORDERED that the Commissioner’s motion to affirm84 is DENIED.
Dated this 5th day of August, 2022, at Pierre, South Dakota.
BY THE COURT:
MARK A. MORENO
UNITED STATES MAGISTRATE JUDGE
82 42 U.S.C. § 405(g).
83 Docket No. 17.
84 Docket No. 19.
Case 3:21-cv-03010-MAM Document 22 Filed 08/05/22 Page 18 of 18 PageID #: <pageID>