Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Alicia P.,1
Plaintiff,
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
Case No. 25-cv-3168 (LMP/DJF)
REPORT AND RECOMMENDATION
Pursuant to 42 U.S.C. § 405(g), Plaintiff Alicia P. (“Plaintiff”) seeks judicial review of the
Commissioner of Social Security’s (“Commissioner”) December 20, 2023 decision denying her
application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. This matter is
before the Court on the parties’ briefs. The undersigned considers the briefs pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 72.1. Plaintiff argues the decision was erroneous because the
Administrative Law Judge (“ALJ”) failed to comply with the Appeals Council’s directions on
remand and because it was based on flawed testimony from the vocational expert (“VE”) who
testified at Plaintiff’s hearing regarding representative occupations Plaintiff can perform. Because
the Court does not have jurisdiction to review whether the ALJ complied with the Appeals
Council’s remand order and substantial evidence otherwise supports the decision, the Court
recommends Plaintiff’s request for relief (ECF No. 13) be denied, Defendant’s request for relief
(ECF No. 17) be granted, and this matter be dismissed with prejudice.
1 This District has adopted a policy of using only the first name and last initial of any
nongovernmental parties in court filings in Social Security matters.
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BACKGROUND
I. Regulatory Background
An individual is considered disabled for purposes of Social Security disability benefits if
she is “unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §
1382c(a)(3)(A).2 In addition, an individual is disabled “only if [her] physical or mental impairment
or impairments are of such severity that [s]he is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). “[A]
physical or mental impairment is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 1382c(a)(3)(D).
The Commissioner has established a sequential, five-step evaluation process to determine
whether an individual is disabled. 20 C.F.R. § 416.920(a)(4). At step one, the claimant must
establish that she is not engaged in any “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i).
The claimant must establish at step two that she has a severe, medically determinable impairment
or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii). At step three, the Commissioner
must find the claimant is disabled if she has satisfied the first two steps and she has an impairment
that meets or is medically equal to one of the impairments listed in 20 C.F.R. Part 404, Subpart P,
2 The provisions of Title II (DIB) mirror the provisions of Title XVI (SSI) of the Social
Security Act. For simplicity, the Court cites only to the statutory provisions and regulations under
Title XVI.
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App’x 1 (“Listing of Impairments” or “Listing”). 20 C.F.R. § 416.920(a)(4)(iii).3 If the claimant’s
impairment does not meet or is not medically equal to one of the impairments in the Listing, the
evaluation proceeds to step four. The claimant then bears the burden of establishing her residual
functional capacity (“RFC”) and proving that she cannot perform any past relevant work. 20
C.F.R. § 416.920(a)(4)(iv); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000).
If the claimant proves she 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. Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). If the claimant can perform such work, the Commissioner will find that the claimant is
not disabled. 20 C.F.R. § 416.920(a)(4)(v).
II. Procedural History
A. The 2021 Decision
Plaintiff applied for DIB on March 8, 2019, with an alleged disability onset date of April
6, 2018. (Soc. Sec. Admin. R. (hereinafter “R.”) 173-174.)4 At that time, she was 26 years old
and had previously worked as a cashier, dietary aide, food preparer, and security worker. (R. 173,
196.) Plaintiff alleged she was disabled due to post-traumatic stress disorder (“PTSD”), mood
disorder, “authority figure conflict”, learning disability, depression, anxiety, severe fibromyalgia,
functional neurological disorder, and “allergic reaction to the immune system”. (R. 194.)
3 The Listing of Impairments is a catalog of presumptively disabling impairments
categorized by the relevant “body system” affected. See 20 C.F.R Part 404, Subpart P, App. 1.
4 The Social Security administrative record (R.) is filed at ECF No. 8. For convenience
and ease of use, the Court cites to the record’s pagination rather than the Court’s ECF page
numbers in citing to the Administrative Record. All other record citations refer to ECF docket and
page numbers.
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Plaintiff’s application was denied initially (R. 80-81), and on reconsideration (R. 96-97).
Plaintiff requested a hearing with an ALJ, and the ALJ issued a decision on January 14, 2021
(“2021 Decision”) (R. 14-33) that denied Plaintiff’s claim and found her “not disabled” from her
alleged disability onset date through the date of the decision (R. 28).
The 2021 Decision turned, in relevant part, on the inclusion of a limitation in Plaintiff’s
RFC at step four of the sequential analysis to one-to-two step instructions (“one-to-two step
limitation”). (R. 23, “She is able to understand, remember and carry out one to two step
instructions on a sustained basis over a normal workday or workweek with adequate persistence
and pace.”) At step five, based on testimony from a VE, the ALJ found there are jobs in significant
numbers in the national economy that a person with Plaintiff’s RFC can perform, including
dishwasher, hand packager, and laundry worker. (R. 27.)
Plaintiff appealed the 2021 Decision to the Appeals Council on February 10 and March 12,
2021. (R. 165-172.) The Appeals Council denied further review on March 9, 2022, such that the
2021 Decision became the Commissioner’s final decision as of that date. (R. 1-5.)
B. District Court Remand
After the Commissioner denied Plaintiff’s DIB application, Plaintiff filed suit in the U.S.
District Court for the District of Minnesota. Alicia P. v. Kijakazi, No. 22-cv-1217 (PJS/DJF).
Before the Court could address Plaintiff’s claim on the merits, the parties filed a joint stipulation
to remand it to the Commissioner for further administrative action pursuant to sentence 4 of 42
U.S.C. § 405(g). Id. (ECF No. 20). The District Judge approved the stipulation and filed a remand
order on December 8, 2022. Id. (ECF No. 22).
C. Second Application
While awaiting the Court’s decision, Plaintiff filed a subsequent application for DIB and
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SSI on June 27, 2022, with an alleged disability onset date of January 21, 2021. (R. 1030.) In this
second application, Plaintiff alleged she was disabled due to fibromyalgia, functional neurological
disorder, intractable headaches, tendon injury, prescribed wheelchair, unspecified cognitive
disorder, anxiety, borderline personality disorder, PTSD, and major depressive disorder. (R.
1053.)
D. Appeals Council Remand and Consolidation
On March 6, 2023, following the District Court’s remand of Plaintiff’s initial DIB
application to the Commissioner, the Appeals Council issued an order vacating the 2021 Decision
and remanding the application to the ALJ for further administrative action. (R. 852-53.) The order
explained that an unaddressed conflict existed between the VE’s testimony and the Dictionary of
Occupational Titles (“DOT”) and instructed the ALJ on remand to, “[o]btain supplemental
evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant’s
occupational base”. (R. 853.) More specifically, the order explained that, “[i]t is unclear whether
an individual restricted to one-to-two step instructions is capable of performing the cited step 5
jobs, and the ALJ did not ask the vocational expert to provide additional testimony on this matter.”
(Id.)
The Appeals Council’s order directed the ALJ to resolve any conflicts between the VE’s
testimony and the DOT on remand. (Id.) The order also consolidated Plaintiff’s original DIB
application with her subsequent DIB and SSI application and directed the ALJ to issue “a new
decision on the consolidated claims.” (Id.)
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E. The 2023 Decision
1. Hearing Testimony
On July 13, 2023, the ALJ held a hearing on Plaintiff’s consolidated application. (R. 741-
781.) An attorney represented Plaintiff and presented argument, and Plaintiff testified. (Id.)
Plaintiff offered testimony regarding her current living situation, employment history, symptoms,
cognitive limitations, ADLs, medical treatment, and education. (Id.) The ALJ continued the
hearing to obtain VE testimony (R. 780) and conducted a second hearing on September 7, 2023
(R. 714-740). During the second hearing, the Plaintiff testified regarding her education and
employment history. (R. 718-21.)
The ALJ then solicited vocational testimony from the VE. The ALJ omitted any one-to-
two step limitation from the hypothetical she presented to the VE and instead stated that the
hypothetical individual is “able to understand, remember and carry out simple tasks”. (R. 722.)
Based on that hypothetical, the VE testified there are jobs in significant numbers in the national
economy that a person with Plaintiff’s limitations can perform, including “copy examiner”,
“document preparer”, and “touch up inspector”. (R. 725.) Plaintiff’s attorney then asked the VE
to consider the impact that adding a one-to-two step limitation to the hypothetical would have on
his opinion. (R. 727.) The VE replied, “None of the jobs that I identified were one and two step.
Even though they were unskilled, they were more than one to two step jobs.” (Id.)
2. ALJ Decision
The ALJ issued her decision on the consolidated application on December 20, 2023 (“2023
Decision”). (R. 676-713.) The 2023 Decision took into account the additional testimony from
Plaintiff and the VE (R. 714-81), as well as new records, including medical records, which did not
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exist and could not have been considered when the ALJ issued the 2021 Decision. (See R. 704-
13; see also R. 681, stating the ALJ admitted evidence into the record that Plaintiff submitted
within five days before the hearing date.)
The 2023 Decision acknowledged the complicated procedural history preceding it. (R.
679-681.) The ALJ interpreted the Appeals Council’s order as directing her to, “obtain
supplemental evidence from a vocational expert to clarify the effect of the limitations assessed on
the pertinent occupational base, including posing hypothetical questions to the expert that reflect
the specific residual functional capacity established by the record as a whole”. (R. 680, emphasis
added.) The ALJ noted the Appeals Council’s concern that it was unclear whether the one-to-two
step RFC limitation assessed in the 2021 Decision was consistent with the occupations
recommended by the VE whose testimony supported that decision. (Id.) However, based on the
augmented record, the 2023 Decision assessed a revised RFC that did not contain a one-to-two
step limitation. (Id.) Instead, the revised RFC assessed the following cognitive and mental health
restrictions:
The claimant is able to understand, remember and carry out simple tasks. The
claimant is able to have occasional interaction with the public and coworkers. The
claimant can manage occasional changes in a routine work setting.
(R. 689.) The ALJ thus concluded that, “to the extent that the Appeals Council’s [remand] Order
pertain[ed] to the identified potential conflict between the previously identified limitation and the
DOT, the directions in the Order are moot.” (R. 680.) ALJ further explained that she followed
the Appeals Council’s general direction to obtain supplemental evidence from a VE to clarify the
effect of the revised RFC limitations on the relevant occupational base. (Id.)
Based on the VE’s testimony, and considering Plaintiff’s age, education, work experience,
and her revised RFC, the ALJ determined at step five of the sequential analysis that there are other
jobs in significant numbers in the national economy that Plaintiff can perform, including: “copy
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examiner” (DOT #979.687-026), an unskilled job that is generally performed at the sedentary
exertional level, with approximately 14,000 positions in the national economy; “document
preparer” (DOT #249.587-018), an unskilled job that is generally performed at the sedentary
exertional level, with approximately 21,000 positions in the national economy; and “touch up
inspector” (DOT #726.684-110), an unskilled job that is generally performed at the sedentary
exertional level, with approximately 21,000 positions in the national economy. (R. 702.) The ALJ
concluded on these grounds that Plaintiff is not disabled. (R. 702-03.)
3. Administrative and Judicial Appeals
Plaintiff appealed the 2023 Decision with a list of exceptions on January 18, 2024. (R.
1023.) The Appeals Council denied Plaintiff’s request for review of that decision on June 30,
2025. (R. 669-672.) In doing so, the Appeals Council explicitly considered and rejected Plaintiff’s
challenge to the 2023 Decision based on the ALJ’s omission of a one-to-two step limitation from
her RFC, explaining:
[Y]ou note that in the original decision dated January 20, 2021 the Administrative
Law Judge limited the claimant to simple 1-2 step instructions [R. 791]. You
correctly point out the current decision only limits the claimant to simple tasks.
You argue this change amounts to finding that the claimant’s mental abilities
improved in the time between the two decisions. This is without merit for two
reasons. First, while the two limitations appear slightly different, it is not clear that
this was intended to or does amount to a finding of medical improvement. Second,
the Administrative Law Judge adequately supported the finding limiting the
claimant to simple tasks and you have presented no evidence to contradict this
finding (see particularly [the 2023 Decision], page 9).
(R. 669.)
Because the Appeals Council denied Plaintiff’s request for review, the 2023 Decision is
the Commissioner’s final decision following remand. (See R. 670.) This matter is now before the
Court on Plaintiff’s request for judicial review of that decision.
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DISCUSSION
I. Standard of Review
The Court’s review is limited to determining whether the ALJ’s Decision is “supported by
substantial evidence on the record as a whole.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000). “Substantial evidence … is more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct.
1148, 1154 (2019) (quotation omitted). It is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). This “threshold … is not high.” Id. “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).
Remand is warranted, however, when the ALJ’s opinion contains insufficient factual
findings that, “considered in light of the record as a whole, are insufficient to permit [the] Court to
conclude that substantial evidence supports the Commissioner’s decision.” Scott v. Astrue, 529
F.3d 818, 822 (8th Cir. 2008); see also Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005)
(remanding because the ALJ’s factual findings were insufficient for meaningful appellate review).
At minimum, the ALJ must build a logical bridge between the evidence and the RFC she creates.
She does so by “includ[ing] a narrative discussion describing how the evidence supports each
conclusion.” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7. “[T]he [ALJ] must
also explain how any material inconsistencies or ambiguities in the evidence in the case record
were considered and resolved.” Id.; see also Lee R. v. Kijakazi, No. 20-cv-1989 (BRT), 2022 WL
673259, at *4 (D. Minn. Mar. 7, 2022) (finding the ALJ failed to create a “logical bridge” between
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the evidence and her conclusions); Weber v. Colvin, No. 16-cv-332 (JNE/TNL), 2017 WL 477099,
at *26 (D. Minn. Jan. 26, 2019) (same).
II. Analysis
A. Appeals Council Remand
Plaintiff argues the 2023 Decision was legally erroneous because the ALJ failed to comply
with the Appeals Council’s directive. (ECF No. 13 at 13.) She contends the Appeals Council’s
remand order required her to address how the one-to-two step RFC limitation established in the
2021 Decision affected whether she could perform the three representative occupations identified
in the 2023 Decision.
Though not raised by either party, the Court first must address whether it has jurisdiction
to review whether the ALJ complied with the Appeals Council’s remand order. See In re
McCormick, 812 F.3d 659, 661 (8th Cir. 2016) (“[W]e have an independent obligation to examine
our jurisdiction and must address any jurisdictional problems we perceive even if the issue has not
been raised by the parties.”) (quoting In re M&S Grading, Inc., 526 F.3d 363, 367 (8th Cir. 2008)).
42 U.S.C. § 405(g) authorizes judicial review of “any final decision of the Commissioner ... made
after a hearing.” Efinchuk v. Astrue, 480 F.3d 846, 848 (8th Cir. 2007) (quoting Mason v.
Barnhart, 406 F.3d 962, 964 (8th Cir.2005)). But the Eighth Circuit has not yet issued conclusive
guidance on whether compliance with an SSA Appeals Council remand order is subject to judicial
review.
A few courts have held that an ALJ’s alleged failure to comply with the Appeals Council’s
directions on remand is a reviewable issue. See Godbey v. Colvin, No. 1:13-cv-00167 (HBB),
2014 WL 4437647 (W.D. Ky. Sept. 9, 2014); Cabibi v. Colvin, 50 F. Supp. 3d 213, 229 (E.D.N.Y.
August 28, 2014); Salvati v. Astrue, No. 3:08-cv-494, 2010 WL 546490, at *7 (E.D. Tenn. Feb.
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10, 2010). However, courts in this District and others in the Eighth Circuit have concluded the
question of whether an ALJ complied with directives in the Appeals Council’s remand order is not
subject to judicial review. See Jason M.G. v. O’Malley, No. 23-cv-84 (JFD), 2024 WL 1095915,
at *5 (D. Minn. Mar. 13, 2024) (“Title 42 U.S.C. § 405(g) authorizes judicial review only to
determine whether substantial evidence supports the Commissioner’s factual findings and whether
the ALJ committed an error of law.”); Vanepps v. Comm’r of Soc. Sec., No. C18-5-LTS, 2019 WL
1239857, at *7 (N.D. Iowa Mar. 18, 2019) (“Because 42 U.S.C. § 405(g) authorizes judicial review
solely to determine whether substantial evidence supports the Commissioner’s decision and
whether that decision comports with relevant legal standards, the question of whether the ALJ
complied with the Appeals Council’s remand order is not subject to judicial review.”); King v.
Berryhill, No. 5:16-cv-00079 (SWW/JTR), 2017 WL 1095087, at *2 (E.D. Ark. Feb. 24, 2017)
(concluding that an ALJ’s failure to comply with the Appeals Council’s remand order was “an
internal agency issue that became moot when the Appeals Council later declined to review the
ALJ’s ... decision” (emphasis in original)), report and recommendation adopted, 2017 WL
1100432 (E.D. Ark. Mar. 22, 2017); see also Poyck v. Astrue, 414 Fed. Appx. 859, 860–61 (7th
Cir. 2011); Dishman v. Astrue, No. 4:08-cv-58, 2009 WL 2823653, at *11 (E.D. Tenn. Aug. 27,
2009).
The Court finds the argument against jurisdiction is more persuasive, particularly in cases
such as this one. Here, the Appeals Council explicitly considered whether the ALJ improperly
failed to carry out its directives and rejected Plaintiff’s argument. The Appeals Council is in the
best position to interpret its own order, and this Court should not attempt to second-guess it. See
Sanders v. Astrue, No. 4:11-cv-1735 RWS (TIA), 2013 WL 1282330, at *11 (E.D. Mo. Feb. 8,
2013) (“The issue [of] whether an ALJ complied with a remand order evaporates when the Appeals
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Council adopts the ALJ’s decision as the Commissioner’s final decision; with that action, the
Appeals Council implicitly acknowledges that the ALJ’s decision is compliant with the remand
order.”), report and recommendation adopted, 2013 WL 1281998 (E.D. Mo. Mar. 27, 2013). The
Court thus aligns with the other courts in this circuit and concludes that it lacks jurisdiction to
consider Plaintiff’s challenge to the ALJ’s compliance with the Appeals Council’s remand order.5
The Court therefore recommends that Plaintiff’s request for relief be denied.
B. Vocational Expert Testimony
Plaintiff argues the 2023 Decision was erroneous because she relied on flawed testimony
from the VE at step five to identify alternative jobs Plaintiff can perform. (ECF No. 13 at 15.)
Plaintiff specifically contends the jobs of “document preparer” and “copy examiner” are obsolete
and thus are not reliable examples of jobs in the national economy that Plaintiff can perform. (Id.
at 15-17.) Defendant contends the ALJ’s reliance on the document preparer and copy examiner
occupations was not erroneous because the VE’s testimony regarding those occupations was
sufficient, and Plaintiff’s attorney did not challenge the VE’s testimony on the ground that those
jobs are obsolete. (ECF No. 17 at 13.) Defendant further contends that even discounting the
document preparer and copy examiner jobs, the remaining 21,000 touch up inspector jobs meet
the threshold for a “significant number of jobs in the national economy.” (ECF No. 17 at 13-14.)
5 In any event, the 2023 Decision is consistent with the Court’s own interpretation of the
Appeal’s Council’s order. The Appeals Council directed the ALJ to obtain supplemental evidence
from a VE and propound hypothetical questions that “reflect the specific capacity/limitations
established by the record as a whole” to identify examples of any jobs consistent with those
limitations and the DOT. (R. 853, emphasis added.) That directive necessarily required the ALJ
to reopen the record and reassess Plaintiff’s RFC based on the entire record. Plaintiff appropriately
took advantage of the opportunity to proffer new evidence in her favor, but she cannot have it both
ways: She cannot, on the one hand, expect the ALJ to consider her new evidence, and on the other
hand expect the ALJ to assess the exact same RFC, which was based solely on the evidence in the
record of the 2021 Decision.
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When there is a conflict between a VE’s testimony and the DOT, the ALJ has an affirmative
duty to: (1.) resolve the conflict before relying on the VE evidence; and (2.) “explain the resolution
of the conflict irrespective of how the conflict was identified.” SSR 00-4P, 2000 WL 1898704, at
*2-4 (Dec. 4, 2000); Moore v. Colvin, 769 F.3d 987, 989-90 (8th Cir. 2014).6 “The ALJ is not
absolved of this duty merely because the VE responds ‘yes’ when asked if [his] testimony is
consistent with the DOT.” Moore, 769 F.3d at 990.
1. Document Preparer
Plaintiff argues that the job of “document preparer” as listed in the DOT (DOT# 249.587-
018) is now obsolete. Plaintiff points to a June 24, 2024 Press Release from the Social Security
Administration to support her argument. (ECF No. 13 at 15, citing Social Security Administration,
Social Security Updates Occupations List Used in Disability Evaluation Process (June 24, 2024),
https://www.ssa.gov/news/en/press/releases/2024-06-24.html (“Press Release”)). In part, the
Press Release states that, “[t]he agency … identified 13 DOT occupations where federal courts
have questioned supporting evidence of a ‘not disabled’ finding. The agency is implementing
additional evidence requirements for these occupations.” Document preparer is one of the 13 DOT
occupations referenced in the Press Release. Guidance referenced in the Press Release, initially
released on June 22, 2024 and updated on January 6, 2025, establishes heightened evidentiary and
articulation requirements for certain occupations because the descriptions of the occupations in the
DOT “may refer to job materials or processes that have been replaced by more modern materials
6 The Social Security Administration rescinded SSR 00-4p on December 6, 2024,
explaining that though the Administration will continue to rely on the DOT as a valid and reliable
source of information, ALJs are no longer required to identify and resolve conflicts between
occupational information provided by VEs and information in the DOT. SSR 24-3P, 2024 WL
5256890, at *2 (Dec. 6, 2024). However, SSR 00-4p still applies in this case because it was not
rescinded until after the ALJ issued the Decision on December 20, 2023 (R. 679-703). See SSR
24-3P, 2024 WL at *2 n.1.
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or processes.” See EM-24027 REV, Social Security Administration, Guidance Regarding the
Citation of Certain Occupations at Step Five of the Sequential Evaluation Process (Jan. 6, 2025)
(“Guidance”). Under this Guidance, an ALJ may not cite the job of “document preparer” to
support a determination that a claimant is not disabled without additional evidence from a VE
showing that, as the occupation is currently performed: (1.) “its requirements are consistent with
the individual’s RFC”; and (2.) “it exists in the national economy in numbers that alone, or in
combination with work in other cited occupations, are significant.” Id.
During Plaintiff’s hearing, the ALJ asked the VE if the representative jobs he identified
were consistent with the descriptions of those jobs in the DOT and the “SCO” (Selected
Characteristics of Occupations Defined in the Revised DOT). (R. 726.) In response, the VE stated
that he relied on his own experience with respect to absenteeism, off-task time, use of a cane,
climbing, social interaction and occasional change. (R. 726-27.) The VE did not state that he
relied on his own experience with respect to the potential obsolescence of any representative jobs
he identified, nor did the Plaintiff’s attorney question him on that topic.
However, Plaintiff’s argument that the ALJ was required to follow the Press Release and
(presumably) the Guidance by eliciting testimony from the VE regarding the obsolescence of the
document preparer occupation overlooks the relevant timeline. Neither the Press Release nor the
Guidance was published at the time of the evidentiary hearings on July 13, 2023 and September 7,
2023, or by the date of the Decision on December 20, 2023. (R. 741, 714, and 703.) The ALJ
cannot have erred by failing to follow a Press Release or Guidance that did not yet exist.
To the extent Plaintiff argues the ALJ should have found the “document preparer” job was
obsolete even without the Press Release or the Guidance, that argument is similarly unconvincing.
The job of “document preparer” is not fundamentally obsolete, such that an ALJ can never find it
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exists in significant numbers. The Press Release and the Guidance merely pose additional
evidentiary requirements when an ALJ relies on the “document preparer” job. Though the Press
Release advises that approximately 114 occupations are wholly obsolete and cannot support a
denial of benefits, document preparer is not one of those jobs. See EM-24026 REV, Social
Security Administration, Guidance Isolated Occupations We Will Not Use to Support a “Not
Disabled” Finding at Step Five of the Sequential Evaluation Process (June 22, 2024)
https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM. Instead, the Press Release
includes “document preparer” on a smaller list of 13 occupations requiring additional evidence.
See Press Release. And as the Guidance makes clear, such evidence may be support reliance on
these jobs by addressing “materials or processes that have been replaced by more modern materials
or processes.” See Guidance. Thus, neither the Press Release nor the Guidance constitutes a
determination that the “document preparer” job is obsolete.
The undersigned Magistrate Judge and other judges have held reliance on the document
preparer occupation as a non-obsolete job to be reasonable based on the records presented in other
cases. Elizabeth M. v. Bisignano, No. 25-cv-2550 (DJF), 2026 WL 686783, at *4 (D. Minn. Mar.
11, 2026) (finding ALJ’s reliance on the document preparer job reasonable on the basis of VE
testimony that document preparer job utilizes more current technology in the current labor market
than described in the original DOT); Ford v. Berryhill, No. 4:17-cv-00328 (JLH), 2018 WL
2024620, at *1 (E.D. Ark. May 1, 2018) (finding VE’s unchallenged testimony that claimant could
perform document preparer role and that 102,000 document preparer jobs existed in the national
economy, without specific testimony as to the document preparer role’s obsolescence, to be
substantial evidence that ALJ could rely upon); see also Jolene J.-D. v. O’Malley, No. 23-cv-2297
(JMB/DLM), 2024 WL 3488001, at *2 n.3 (D. Minn. July 1, 2024), report and recommendation
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adopted, 2024 WL 3470786 (D. Minn. July 19, 2024) (noting the VE’s testimony that “the
occupation of a document preparation clerk has changed since the DOT's last update in 1991,
shrinking to far fewer available positions because documents are now more easily moved to
electronic databases rather than painstakingly entered into microfiche programs”, but finding those
more limited positions to still contribute to be a “sufficient [number of] jobs available in the
national economy”).
Though Plaintiff cites several decisions to support her claim that the document preparer
position is obsolete (see ECF No. 13 at 16), the Court must review the 2023 Decision based on the
record before it in this case. Here, the VE testified that there are approximately 21,000 document
preparer jobs available in the national economy. (R. 725.) Plaintiff raised no objection to the VE’s
testimony during the hearing or at any point with either the ALJ or the Appeals Council. Because
she proffered no contradictory evidence from any source, the record is devoid of facts from which
the Court might infer the VE’s estimate is inaccurate. And because the Guidance requiring ALJs
to elicit additional evidence related to this job had not yet been issued, the ALJ’s reliance on the
VE’s testimony without such evidence was neither inconsistent with the DOT nor otherwise
erroneous under applicable law. For these reasons, the Court concludes the ALJ did not err in
finding that there are approximately 21,000 document preparer jobs existing in the national
economy.
2. Copy Examiner
Plaintiff argues the role of “copy examiner” is also obsolete. In support of this proposition,
Plaintiff cites to a Wikipedia article, which states that phototypesetting, which copy examiners
review, “has been made obsolete by the popularity of the personal computer and desktop
publishing which gave rise to digital typesetting.” (ECF No. 13 at 16-17, citing
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https://en.wikipedia.org/wiki/Phototypesetting.) But Plaintiff cites to no guidance or other
publication showing the SSA considers the copy examiner occupation obsolete, nor did she enter
any evidence into the administrative record supporting such a conclusion. During the hearing, the
VE testified that he relied on the DOT and his own “work experience” to determine that the
recommended jobs, including copy examiner, were available to Plaintiff. (R. 726.) The SSA
continues to “recognize the DOT as a valid and reliable source of occupational information” to
make a disability determination. SSR 24-3p. The DOT also appears on the list of publications
ALJs can use to take administrative notice of reliable job information, while Wikipedia does not.
See C.F.R. § 404.1566(d)(1)-(5). Further, “VEs may provide evidence based on their professional
experience” in offering estimates of the number of jobs in the national economy. SSR 24-3p. It
would be inappropriate for the Court to overturn the ALJ’s decision, which relied on the DOT and
the VE’s expertise, on the basis of an out-of-record Wikipedia article. See Baker v. Barnhart, 457
F.3d 882, 891 (8th Cir. 2006) (“In the context of judicial review of a decision of the Commissioner
regarding SSI disability benefits, evidence outside the administrative record generally is precluded
from consideration by the court.”) For these reasons, the Court finds the ALJ did not err in relying
on VE testimony that the copy examiner occupation exists in significant numbers in the national
economy.
3. Number of Jobs in the National Economy
For the foregoing reasons, the Court affirms the ALJ’s findings with respect to all three
recommended jobs. However, for the sake of completeness, the Court will also address Plaintiff’s
argument that, assuming the document preparer and copy examiner occupations are obsolete, the
remaining occupation of “touch up inspector” does not represent a sufficient number of jobs in the
national economy that Plaintiff can perform. The VE estimated that there are 21,000 “touch up
inspector” jobs in the national economy. (R. 702.) The Court finds no reasonable basis to question
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his estimate with respect to this position. Therefore, excluding the document preparer and copy
examiner jobs, the record reflects a total of 21,000 representative jobs in the national economy that
Plaintiff can perform. Though there is no bright line rule, this total is consistent with the number
of jobs the Court has previously found sufficient to establish a significant number jobs in the
national economy at step five of the sequential analysis. See, e.g., Shari B. v. Kijakazi, Case No.
22-cv-1539 (DJF), 2023 WL 6130679, *7-9 (D. Minn. Sept. 19, 2023) (surveying cases and
concluding that many courts draw the line between “significant” and “insignificant” at around
20,000 jobs in the national economy); see also Tanya S. v. O’Malley, No. 23-cv-1416 (ECW),
2024 WL 3858155, at *12 (D. Minn. Aug. 19, 2024) (quoting Shari B., 2023 WL at *8, and finding
22,000 jobs significant); Nicolas C. J. v. Kijakazi, 20-cv-1340 (WMW/ECW), 2022 WL 1109810,
at *25 (D. Minn. Jan. 20, 2022) (finding 20,500 jobs nationally to be significant), report and
recommendation adopted, 2022 WL 807605 (D. Minn. Mar. 17, 2022).
The Court thus finds there is a significant number of representative jobs in the national
economy that Plaintiff is able to perform, even discounting the document preparer and copy
examiner occupations. Based on that finding, and for all the foregoing reasons, the Court
concludes the ALJ did not err in finding Plaintiff is not disabled and that the ALJ’s determination
is supported by substantial evidence in the record as a whole. The Court recommends Plaintiff’s
claim be denied on these grounds.
RECOMMENDATION
Based on all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that:
1. Plaintiff’s Request for Relief (ECF No. 13) be DENIED;
2. Defendant’s Request for Relief (ECF No. 17) be GRANTED; and
3. This action be DISMISSED WITH PREJUDICE.
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Dated: May 8, 2026 s/ Dulce J. Foster
DULCE J. FOSTER
United States Magistrate Judge
NOTICE
This Report and Recommendation is not an order or judgment of the District Court and is therefore
not appealable directly to the Eighth Circuit Court of Appeals. Under Local Rule 72.2(b)(1), “a
party may file and serve specific written objections to a magistrate judge’s proposed finding and
recommendations within 14 days after being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the objections.
LR 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in
LR 72.2(c).
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