Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Linda Ell, 	)
)
Plaintiff, 	) 	ORDER RE CROSS MOTIONS
) 	FOR SUMMARY JUDGMENT
vs. 	)
)
Kilolo Kijakazi, Acting Commissioner 	)
of Social Security Administration, 	) 	Case No. 1:21-cv-226
)
Defendant. 	)
Plaintiff Linda Ell seeks judicial review of the Social Security Commissioner's denial of her
application for Disability Insurance Benefits (“DIB”). This court reviews the Commissioner's final
decision pursuant to 42 U.S.C. § 405(g). Before the court are competing motions for summary
judgment filed by Ell and Kilolo Kijakazi, Acting Commissioner of the Social Security
Administration (“Commissioner”). (Doc. Nos. 10 and 12). For the reasons that follow, the court
denies Ell’s motion and grants the Commissioner’s motion.
I. 	BACKGROUND
A. 	Personal History
Ell was forty-two years old on the alleged onset date of disability. Doc. No. 8-2 at p. 45;
Doc. No. 8-3 at p 16. She lives with her husband and son. Doc No. 8-2 at p. 46. She has completed
two and a half years of college. 	Id. at p. 45. 	Her employment history includes work as a
convenience store manager, a night auditor at a hotel, and in retail as a department head and an
office manager. Doc. No. 8-7 at pp. 38-42. She has not engaged in substantive gainful activity since
the alleged onset date. 	Id.; Doc. No. 8-3 at p. 7.
Ell suffers from thoracic outlet syndrome, carpel tunnel syndrome, cubital tunnel syndrome,
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degenerative disc disease of the cervical spine, asthma, obesity, depression and general anxiety
disorder. Doc. No 8-2 at pp. 48-49; Doc. No. 8-3 at p. 7; Doc. No. 8-9 at pp 12-14, 26-27. Her
medical records also mention a history of arthritis, allergies, and headaches. Doc. No. 8-10 at p. 27.
She underwent carpal tunnel and cubital tunnel surgeries in May 2014 and first rib resection surgery
in February 2018. Doc. No. 8-2 at pp. 48-49; Doc. No. 8-9 at pp. 9-10, 12-25.
Ell continues to experience paresthesia in her hands and pain in her shoulders and upper
extremities, which she reports has limited her strength and made it difficult for her to grasp things.
Doc. No. 8-2 at pp. 47-47; Doc. No. 8-9 at p. 38; Doc. No. 8-10 at p. 18. She reports that the pain
starts in her fingertips, runs up her forearms, elbows, upper arms, and into her shoulders and that she
often experiences pain in her lower back, knees, and legs when engaging in physical activity. Doc.
No. 8-7 at pp. 19-22. On a scale of one to ten, with ten being worst, she rates her pain as a constant
three to four. Id. For relief, she has on occasion used a TENS unit. Id. at p. 22. She has also taken
over-the-counter analgesics as needed. Id. at pp. 32, 36; Doc. No. 8-10 at p. 11. She has in the past
been prescribed Lyrica and Tramadol, but reports that she no longer takes these medications as they
are ineffective and make her head “fuzzy.” Doc. No. 8-5 at p. 28; Doc. No. 8-7 at p. 19. She wears
wrist splints, which she reports provides only minimal relief. Doc. No. 8-7 at pp. 20, 31, 72. She
has been prescribed Albuterol for her asthma. Doc. No. 8-9 at p. 28; Doc. No. 8-10 at p. 11. To
manage her anxiety and depression, she is foregoing medications she had been prescribed in the past
(before 2009) and instead sees a counselor approximately every two weeks. Doc. No. 8-2 at pp. 54-
55.
Ell reports that she is able to drive and perform light housekeeping chores without
assistance. Id.; Doc. No. 8-7 at p. 21. However, she also reports that her pain is exacerbated when
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performing simple, everyday tasks, can only use her left hand/arm for 10 minutes and right hand/arm
for 5 minutes before she has to take a break, cannot engage in repetitive activities, cannot climb,
and is ostensibly unable to lift, push, or pull. Id. at pp. 19, 23, 25, 79. Finally, she reports that she
can no longer cross-stitch, crochet, or play ball, piano, or the flute and that she has curtailed her
social activities on account of her condition. Id. at pp. 26, 29.
B. 	Procedural History
Ell protectively filed an application for DIB on June 26, 2016, alleging a disability onset date
of October 21, 2014. Doc. No. 8-3 at pp. 5. Her application was denied initially on September 14,
2016, and upon reconsideration on December 12, 2016. Id. Upon her request, an Administrative
Law Judge (“ALJ”) convened a hearing on March 7, 2019. Id. On June 5, 2019, the ALJ issued a
written decision, finding that she had not been under disability as defined in the Social Security Act
during the relevant period. Id. at pp. 5-18.
Ell protectively filed her current application for DIB on April 6, 2019, alleging a disability
onset date of October 20, 2014. Doc. No. 8-2 at p. 11; Doc. No. 8-6 at pp. 2-3. Her application was
denied initially on July 1, 2019, and upon reconsideration on November 18, 2019. Doc. No. 8-2 at
p. 11; Doc. No. 8-4 at pp. 2-6, 8-13.
On December 2, 2019, Ell requested a hearing before an Administrative Law Judge (“ALJ”).
Doc. No. 8-4 at pp. 15-16. The Social Security Administration (“SSA”) acknowledged the request
in a letter dated December 26, 2019. Id. at p 17.
On October 8, 2020, the ALJ convened an administrative hearing. Doc. No. 8-2 at pp. 39-60.
Ell appeared via telephone and, with the assistance of counsel, amended her alleged disability onset
date to October 2, 2018. Id. at pp. 44-45. A Vocational Expert (“VE”) also appeared by telephone.
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Id. at pp. 41-42, 55-59.
The ALJ posed two hypothetical questions to the VE. 	First, the ALJ asked whether an
individual of Ell’s age and with Ell’s education and work experience could perform Ell’s past work
if the individual: (1) had the capacity to lift and/or carry up to 10 pounds frequently and 20 pounds
occasionally; (2) could sit throughout an eight-hour day with normal breaks; (3) could stand and/or
walk for about six hours in an eight-hour day with normal breaks; (4) could never climb ladders,
ropes, or scaffolds but could occasionally climb stairs or ramps; (5) could push or pull up to five
pounds with each upper extremity, reach over head occasionally, balance, stoop, kneel, crouch or
crawl; (6) could frequently handle, finger, and feel with the upper extremities; (7) could tolerate only
occasional exposure to extreme cold, heat, vibrations, fumes, odors, dust, gasses, and hazards such
as moving 	machinery and unprotected heights; and (8) could carry out simple instructions and
maintain attention and concentration for routine work for two hour segments. Doc. No. 8-2, at pp.
56-57. The VE responded that the individual could not perform Ell’s past work but could perform
other work.
Q 	Could such an individual perform other work?
A 	One clarification, what was the reaching level that we’re looking at?
Q 	I only limited reaching overhead to occasionally.
A 	Okay, thank you. I would offer a few. The Dictionary of Occupational Titles
doesn’t differentiate between reaching overhead and reaching in other planes, and
so the jobs that I will identify for this hypothetical would all have reaching listed as
frequent. And while there is frequent reaching in other planes, my observation of
these types of jobs and working with employers and employees in an employment
setting really don’t s how that there’s more than
occasional, if that, overhead reaching.
So , the first I would offer would be a bench assembler position, 706.684-022,
an SPV of 2, and a light duty position, 109, 000 jobs nationwide. A sub assembler
position, 729.68 4-054, an SVP of 2, and a light duty position, 17, 000 jobs
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nationwide. And then a copy machine operator, 207.685- 014, and SVP of 2, and a
light duty position, 15,000 jobs nationwide.
Id.
Second, the ALJ asked the VE whether the other work that he had just listed could be
performed by the individual described in the first hypothetical but whose handling, fingering and
feeling was limited to “occasionally.” Id. at p. 58. The VE responded that individual would be
unable to perform the work just described but could perform other work.
Q 	Could that individual perform the jobs you identified in hypothetical number
l?
A 	No, I think all of those would require more than that.
Q 	And are there other jobs you could identify for hypothetical number 2?
A 	I would offer a few. Again, the numbers are not real large, but first would be
a counter clerk, 249.366-010 , an SVP of 2 , and a light duty position, 3,000
jobs nationwide. And then I think I would go down to some sedentary types
of jobs, if that’s okay.
Q 	Go ahead.
A 	First would be a surveillance system monitor, 379.367-010, an SVP of 2, and
a sedentary position, 2,900 jobs nationwide. And then a callout operator,
237.367-014, and SVP of 2, and a sedentary position, 2 ,800 jobs nationwide.
Id.
Ell’s counsel did not challenge the job numbers offered by the VE at the administrative
hearing, did not question the VE regarding the methodology underlying the job numbers, and did
not challenge the job numbers in any post-hearing submissions or submissions to the Appeals
Council.
On November 3, 2020, the ALJ issued a written decision, finding that Ell was not disabled
as defined in the Social Security Act during the relevant period. Doc. No. 8-2 at pp. 11-23. At steps
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one and two of her analysis, the ALJ determined that Ell met the insured status requirements of the
Social Security Act, had not engaged in substantial gainful activity since the alleged disability onset
date, and suffered from a number of severe impairments, i.e., thoracic outlet syndrome, cubital
tunnel syndrome, carpel tunnel syndrome, denegerative disc disease of the cervical spine, asthma,
obesity, depression, and general anxiety disorder. 	Id. at pp. 13-14. 	At step three, the ALJ
determined that Ell’s impairments alone or in combination were not presumptively disabling. Id.
at pp. 14-16. 	The ALJ further determined that 	Ell retained the Residual Functional Capacity
(“RFC”) to perform light work with certain limitations. Id. at pp. 16-21. At step four, the ALJ
determined that Ell could not perform any of her past relevant work. Id. at pp. 21-22. At step five,
the ALJ determined that there were jobs existing in significant numbers in the national economy that
Ell could perform, opining:
Through the date last insured, if the claimant had the residual functional capacity to
perform the full range of light work, a finding of “not disabled” would be directed
by Medical-Vocational Rule 202.21. However, the claimant’s ability to perform all
or substantially all of the requirements of this level of work was impeded by
additional limitations. To determine the extent to which these limitations erode the
unskilled light occupational base, through the date last insured, the Administrative
Law Judge asked the vocational expert whether jobs existed in the national economy
for an individual with the claimant’s age, education, work experience, and residual
functional capacity. The vocational expert testified that given all of these factors the
individual would have been able to perform the requirements of representative
occupations such as counter clerk, Dictionary of Occupational Titles (DOT)
#249.366-010 (specific vocational preparation (SVP) 2, light), of which there are
approximately 3,000 in the national economy; surveillance system monitor, DOT
#379.367-010 (SVP 2, sedentary), of which there are approximately 2,900 in the
national economy; and call-out operator, DOT #237.367-014 (SVP 2, sedentary), of
which there are approximately 2,800 in the national economy.
Pursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of
Occupational Titles, though the vocational expert clarified that he also relied on his
experience in the vocational rehabilitation field with regard to some of his testimony
(e.g., reaching overhead versus reaching generally) (See Ex. B13E).
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Based on the testimony of the vocational expert, the undersigned concludes that,
through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant was capable of making a
successful adjustment to other work that existed in significant numbers in the
national economy. A finding of “not disabled” is therefore appropriate under the
framework of the above-cited rule.
Id. at pp. 22-23.
The Appeals Council denied Ell’s request to reconsider the ALJ’s decision, making the
ALJ’s decision the final decision of the Commissioner. Doc. No. 8-2 at pp. 2-6.
Ell initiated the above-captioned action by Complaint on December 29, 2021. Doc. No. 1.
On June 27, 2022, she filed a Motion for Summary Judgment, asserting that reversal or, in the
alternative, remand is appropriate because the jobs identified by the ALJ at step five of the
sequential analysis do not exist in significant numbers and because the ALJ did not adequately
consider her Functional Capacity Assessment. Doc. Nos. 10 and 11.
On July 25, 2022, the Commissioner filed a combined Motion for Summary Judgment and
response to Ell’s motion. Doc. Nos. 12 through 14.
II. 	APPLICABLE LAW
A. 	Law governing eligibility for adult benefits
Disability benefits are available to individuals who are determined to be under a disability.
42 U.S.C. §§ 423(a)(1), 1381a; see also 20 C.F.R. §§ 404.315, 416.901. An individual is considered
to be disabled if they are unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which 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.” 42
U.S.C. § 423(d)(1)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). This standard is met when
a severe physical or mental impairment, or impairments, renders the individual unable to do their
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previous work or “any other kind of substantial gainful work which exists in the national economy”
when taking into account their age, education, and work experience. 42 U.S.C. § 423(d)(2)(A); see
also 20 C.F.R. §§ 404.1505(a), 416.905(a).
The burden of proving the existence of disability generally lies with the claimant. 42 U.S.C.
§ 423(a)(1)(D); 20 C.F.R. §§ 404.1512(a), 416.912(a). “To be eligible for disability insurance
benefits, a claimant has the burden of establishing the existence of a disability under the Social
Security Act (“Act”). 42 U.S.C. § 423(a)(1)(D). To meet this burden, the claimant must show: (1)
a medically determinable physical or mental impairment that has lasted, or can be expected to last,
for not less than twelve months; (2) an inability to engage in any substantial gainful activity; and (3)
that this inability results from the impairment. 42 U.S.C. § 423(d)(1)(A).” Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2001).
“Substantial gainful activity” under the Act includes any substantial gainful work that exists
in the national economy, regardless of (1) whether such work exists in the immediate area in which
the claimant lives, (2) whether a specific job vacancy exists for the claimant, or (3) whether the
claimant would be hired if they applied for work. 42 U.S.C. § 423(d)(2)(A). Work available in the
national economy with respect to a particular person means “work which exists in significant
numbers either in the region where such individual lives or in several regions of the country.” Id.
When considering whether a claimant is disabled within the meaning of the Act, the ALJ
follows a five-step process and considers:
(1) 	whether the claimant is presently engaged in a substantial gainful activity,
(2) 	whether the claimant has a severe impairment that significantly limits the
claimant's physical or mental ability to perform basic work activities,
(3) 	whether the claimant has an impairment that meets or equals a presumptively
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disabling impairment listed in the regulations,
(4) 	whether the claimant has the residual functional capacity to perform his or
her past relevant work, and
(5) 	if the claimant cannot perform the past work, the burden then shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.
20 C.F.R. § 404.1520; Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010).
If the ALJ reaches the fourth step, the ALJ must determine a claimant’s RFC, which is what
the claimant can do despite their limitations. 20 C.F.R. § 404.1545; see McCoy v. Astrue, 648 F.3d
605, 614 (8th Cir. 2011) (“A claimant's [residual functional capacity] represents the most he can do
despite the combined effects of all of his credible limitations and must be based on all credible
evidence.”). “Because a claimant's [residual functional capacity] is a medical question, an ALJ's
assessment of it must be supported by some medical evidence of the claimant's ability to function
in the workplace.” Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012) (quotation omitted).
At the same time, the residual-functional-capacity determination “is a decision reserved to
the agency such that it is neither delegated to medical professionals nor determined exclusively
based on the contents of medical records.” Norper v. Saul, 964 F.3d 738, 744 (8th Cir. 2020); see
Perks, 687 F.3d at 1092; see also 20 C.F.R. §§ 404.1546(c), 416.946(c). “An ALJ determines a
claimant's [residual functional capacity] based on all the relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description of [his]
limitations.” Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017). Thus, there is no requirement
that a residual-functional-capacity determination “be supported by a specific medical opinion.”
Schmitt v. Kijakazi, 27 F. 4th 1353, 1360 (quotation omitted). 	Nor is an ALJ “limited to
considering medical evidence exclusively.” Id. (quotation omitted). 	Accordingly, “[e]ven though
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the [residual-functional-capacity] assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.” Perks, 687 F.3d at 1092
(quotation omitted); accord Schmitt, 27 F. 4th at 1360; see 20 C.F.R. §§ 404.1546(c), 416.946(c).
At step five, the ALJ considers the claimant's RFC, age, education, and work experience to
see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R. §§
416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be found
to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the burden
remains with the claimant to prove he is disabled. Brantley v. Colvin, No. 4:10CV2184 HEA, 2013
WL 4007441, at *3 (E.D. Mo. Aug. 2, 2013) (citation omitted). At step five, the burden shifts to the
Commissioner to establish the claimant maintains the RFC to perform a significant number of jobs
within the national economy. Id. “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Meyerpeter v. Astrue, 902 F. Supp. 2d 1219, 1229 (E.D. Mo. 2012)
(citations omitted).
B. 	Standard of Review
Judicial review of the Commissioner's denial of disability benefits is limited to determining
whether substantial evidence on the record as a whole supports the decision, 42 U.S.C. § 405(g), or
if the ALJ's decision resulted from an error of law. Nash v. Comm'r, Soc. Sec. Administration, 907
F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g)); Chismarich v. Berryhill, 888 F.3d 978,
979 (8th Cir. 2018). 	The court reviews whether the ALJ's decision is supported by substantial
evidence in the record as a whole. 	Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). 	“[T]he
threshold for such evidentiary sufficiency is not high.” Id. “It means—and means only—such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
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(internal quotation marks omitted)); see, e.g., Chismarich, 888 F.3d 978, 979 (8th Cir. 2018)
(defining “substantial evidence as less than a preponderance but enough that a reasonable mind
would find it adequate to support the conclusion” (internal quotation marks omitted)); Nelson v.
Sullivan, 966 F.2d 363, 366 n.6 (8th Cir. 1992) (stating that substantial evidence is less than a
preponderance, but more than a scintilla of evidence).
This standard requires the court to “consider both evidence that detracts from the [ALJ's]
decision and evidence that supports it.” Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); see
Grindley v. Kijakazi, 9 F.4th 622, 627 (8th Cir. 2021). The ALJ's decision “will not [be] reverse[d]
simply because some evidence supports a conclusion other than that reached by the ALJ.”
Boettcher, 652 F.3d at 863. 	“The court must affirm the [ALJ's] decision if it is supported by
substantial evidence on the record as a whole.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016)
(quotation omitted). Thus, “[i]f, 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, 687 F.3d at 1091 (internal quotation marks
omitted); see also Kraus v. Saul, 988 F.3d 1019, 1024 (8th Cir. 2021) (stating that the 	ALJ's
decision is to be disturbed only if the decision lies “outside the available zone of choice”).
III. 	DISCUSSION
A. 	Jobs Identified by ALJ
As noted above, the VE identified three representative occupations that a hypothetical
individual of Ell’s age and with Ell’s experience, education, and limitations could perform: (1)
counter clerk, of which there are approximately 3,000 in the national economy; (2) surveillance
system monitor, DOT, of which there are approximately 2,900 in the national economy; and (3)
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call-out operator, of which there are approximately 2,800 in the national economy. Doc. No. 8-2
at pp. 22-23. Relying on the VE’s testimony, the ALJ determined at step five of the analysis that
there were a significant number of jobs in the national economy that Ell could perform. The
Commissioner in turn adopted the ALJ’s determination.
Ell asserts that the Commissioner did not meet her burden at step five because the jobs
identified by the VE do not exist in significant numbers. She emphasizes that, to her knowledge,
200 jobs in a claimant’s region is the smallest number found to be significant by the Eighth Circuit.
See Johnson v. Chater, 108 F.3d 178-180-81 (8th Cir. 1997); see also Mueller v. Berryhill, No.
3:17-CV-78, 2018 WL 2296596, at *6 (D.N.D. Feb. 26, 2018). Operating under the assumption that
the jobs identified by the VE are equally distributed throughout the country, she then points out that,
by her calculation, the average number jobs in each occupation identified by the VE are 60, 58, and
56 per state.
In response, the Commissioner asserts that Ell did not make the number of jobs an issue at
the administrative hearing and is therefore foreclosed from raising this issue now. 	Alternatively,
the Commissioner asserts that the VE identified a representative sample of jobs Ell could perform,
not an exhaustive list, that Ell’s counsel did not attempt to develop at the administrative hearing an
exhaustive list of jobs that Ell could perform, and that the total of 8,700 representative occupations
nationally, which averages out to approximately 175 per state, constitutes a significant number in
the present context. For support, she relies on cases where courts have adopted a relatively low
threshold number when considering whether the number of available jobs is significant.
As noted above, the Commissioner has the burden to show “there are jobs that exist in
significant numbers in the national economy that the claimant can perform.” Id. The phrase “work
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which exists in the national economy” is a term of art that means something more specific than the
ordinary understanding of that term. See Benthin v. Saul, No. 1:20-cv-01014-CBK, 2021 WL
2982719, at *7 (D.S.D. July 15, 2021). While the “ word ‘national’ implies that national numbers
are the ones with which the SSA should be concerned,” the statutory definition of the entire phrase
“explains that the requirement goes further than raw national numbers” and encompasses “work
which exists in significant numbers either in the region where such individual lives or in several
regions of the country.” 42 U.S.C. § 423(d)(2)(A)); see also 20 C.F.R. §§ 404.1566(a) and (b).
Work which exists in the national economy is not synonymous with work in the region where the
claimant lives. Id.
Courts in the Eighth Circuit have differed on whether a finding that “work which exists in
the national economy” satisfies the ALJ's burden to show that work exists in significant numbers
in several other regions of the country. See Alice T. v. Kijakazi, No. 8:21CV14, 2021 WL 5302141,
at *17 (D. Neb. Nov. 15, 2021) (collecting cases). For example, courts in the District of South
Dakota have held that the Commissioner must demonstrate that jobs exist in the claimant's region
or in several regions of the country, reasoning that “[a] citation to national numbers alone does not
suffice to meet [the] burden [to show work which exists in the national economy]; both national and
regional numbers must be cited.” Benthin, 2021 WL 2982719, at *8; see also Springer v. Saul, No.
4:19-cv-04030-VLD, 2019 WL 4855186 at *35 (D.S.D. Oct. 1, 2019).
Conversely, courts in the Eastern District of Missouri and the District of Nebraska and “have
taken a more pragmatic approach and held that evidence of jobs existing nationally does constitute
evidence of work existing in several regions of the country, at least where there is nothing in the
number of jobs or the nature of the jobs identified to indicate that those jobs would exist only in
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limited numbers in isolated regions of the country.” Alice T. v. Kijakazi, No. 8:21CV14, 2021 WL
5302141, at *17 (D. Neb. Nov. 15, 2021) (citing Hayden v. Saul, No. 4:19-CV-187-SPM, 2020 WL
888002, at *10-12 (E.D. Mo. Feb. 24, 2020)). In so doing they have emphasized that the Eighth
Circuit “ultimately leave[s] to the trial judge's common sense the application of the significant
numbers requirement to a particular claimant's factual situation.” Id. at *15 (quoting Hall v. Chater,
109 F.3d 1255, 1259 (8th Cir. 1997)).
This court has adopted the latter approach. 	“The purpose of § 423’s national economy
requirement is to prevent the Social Security Administration from denying benefits on the basis of
isolated jobs existing only in very limited numbers in relatively few locations outside the claimant's
region.” Evert v. Kijakazi, 2022 WL 1749611 at *7 (D.N.D. Feb. 17, 2022) (internal quotation
marks omitted). “Allowing nationwide jobs numbers to satisfy the Commissioner's step five burden
in certain circumstances vindicates this purpose without requiring the VE and ALJ to recite ‘magic
words’ on pain of remand.” Id. (citing Phillips v. Astrue, No. 5:10-cv-2651, 2011 WL 5526079, at
*11 (N.D. Ohio Nov. 14, 2011). 	“Thus, evidence of jobs existing in the national economy
constitutes evidence of work existing in several regions of the country, so long as there is nothing
in the number or nature of the jobs identified that indicate they exist only in isolated regions of the
country.” Id. “In adopting that interpretation, however, this court joins other courts in reiterating
‘it would certainly be a better practice for the Commissioner to obtain specific evidence regarding
the regional availability of jobs.’” Id. (quoting Hussey v. Berryhill, No. 4:17-cv-2507-SPM, 2019
WL 1275047, at *9 (E.D. Mo. Mar. 20, 2019).
Here, the VE identified a total of approximately 8,700 representative jobs available in the
national economy that Ell could perform. Doc. No. 8-2 at pp. 22-23. Other courts have concluded
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that numbers in this range suffice. See e.g, Taskila v. Comm'r of Soc. Sec., 819 F.3d 902, 905 (6th
Cir. 2016) (“Six thousand jobs in the United States fits comfortably within what this court and others
have deemed ‘significant.’”); Nejat v. Comm'r of Soc. Sec., No. 09-5193, 2009 WL 4981686, at *5
(6th Cir. 2009) (2,000 jobs in the national economy is a significant number); Liskowitz v. Astrue,
559 F.3d 736, 743 (7th Cir. 2009) (collecting cases to conclude "it appears to be well-established
that 1,000 jobs is a significant number"); Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474,
1478–79 (9th Cir.1989) (1,266 positions is within the parameters of significant numbers); Craigie
v. Bowen, 835 F.2d 56, 58 (3d Cir. 1987) (finding that 200 positions was a significant number);
Allen v. Bowen, 816 F.2d 600, 602 (11th Cir. 1987) (stating that 174 jobs in the local area
constituted a significant number); Dumas v. Schweiker, 712 F.2d 1545, 1549, 1553–1554 (2d Cir.
1983) (150 positions regionally constituted significant numbers). As Ell has acknowledged, the
Eighth Circuit has not established a specific threshold or number of jobs that must exist in order to
constitute a significant number.
While a close call, the court finds that the number of jobs identified by the VE is sufficient
to meet the Commissioner’s burden. In reaching this conclusion, the court notes there is nothing in
the record to indicate that the jobs identified by the VE exist only in limited numbers in isolated
regions or that the ALJ or VE were unaware of what is to be considered a “significant number” of
jobs under 20 C.F.R. § 404.1566.
B. 	Functional Capacity Evaluation
The record contains a copy of a Functional Capacity Evaluation (“FCE”) report dated
October 2, 2018. It appears that Ell was referred for an FCE by North Dakota Workforce Safety
Insurance. Doc. No. 8-9 at pp. 45-48. The FCE was conducted on October 1 and 2, 2018, by a
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physical therapist Jeanne DeKrey (“DeKrey”), DPT. Id. at p. 45. At the conclusion of the report,
which has a box for the evaluator’s signature that is blank, DeKrey recommended:
Department of Labor/Dictionary, of Occupational Titles work level is: LIGHT
Linda Ell is able to work up to 3 hours per day, 5 days per week (part time).
This limited hours recommendation is based on consistent loss of ability with
repetition/duration for Grip & Pinch strength, material handling (mostly due to grip
strength loss), and hand coordination. Secondary to this, I recommend part time
hours with use of Right hands/arms in up to 5 minute increments/10 minutes for Left
with rest break or othe[r] activity of 10 minutes allowing for rest of arms/hands.
This was also a concern during her FCA in 2016 and will include this clarification:
The 5-10 minutes of hand/arm use is intended for normal work activities and could
include, but is not limited to, gross motor activity such as handling objects and fine
motor activity as data entry. The ‘rest break/other activity’ is intended to be a total
work break but rather an interval of less intensive upper extremity activity and could
include, but not limited to, more cognitive/visual/verbal activity such as phone work
with a headset, potential adaptive software for computer (such as voice activation)
with low repetition and force for the arms and hands.
Id. at p. 47 (emphasis in original).
When addressing Ell’s RFC at step four of her analysis, the ALJ discounted the FCE and
with it the physical therapist’s recommendations, opining:
As for other opinion evidence, the functional capacity assessment completed over
two days in October 2018 by physical therapist Jeanne DeKrey, DPT, found the
claimant capable of work at the “light” level with the ability to work up to three
hours per day, five days per week (so on a part-time basis). Dr. DeKrey indicated
that the limited hours recommendation is based on consistent loss of ability with
repetition/duration for grip & pinch strength, material handling (mostly due to grip
strength loss), and hand coordination. Secondary to this, part time hours are
recommended with use of right hand/arm in 5 minute increments and 10 minutes for
the left with rest break or other activity of 10 minutes allowing for rest of arms/hands
(so not a an actual break but performance of other activities not involving constant
upper extremity use/less intensive upper extremity activity) (Ex. B1F at 44 - 46.
The undersigned is not fully persuaded by the functional capacity assessment, in
particular the claimant’s restriction to three hours of work per day. While the specific
limitations as they pertain to light lifting/carrying restrictions do seem appropriate
based on the evidence and are consistent with the functional capacity assessment
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findings, the residual functional capacity given herein accounts for the “rest breaks
or other activity” needed for the claimant’s upper extremities with restriction to only
occasional upper extremity use. Rather, there is no objective medical evidence in the
current record associated with the relevant period from June 6, 2018 to December 31,
2019, that supports such extreme restrictions (able to work just three hours per day).
The September 20, 2020 opinion evidence (over nine months after the date last
insured), which is associated specifically with the claimant’s 2009 work injury and
which contains an unreadable signature without identifying the medical professional
completing the form, references the October 2018 functional capacity assessment
(discussed above) yet still limits the claimant to even greater restriction (only two
hours of work per day). Notwithstanding the limitations that would preclude
competitive full-time work (two hours per day, unscheduled breaks, excessive
absences), it was opined the claimant is able to lift and/or carry up to 20 pounds
occasionally and 10 pounds frequently with up to occasional postural activities, and
seemingly up to occasional manipulative abilities (See Ex. B7F).
Like the functional capacity evaluation and despite not knowing the medical
professional who completed the form, the undersigned is unpersuaded by the opinion
that the claimant cannot work more than part-time work (in this case, two hours). As
stated above, the functional capacity assessment indicated that as long as the
claimant is not subjected to constant upper extremity use, so there are alternative
work duties consistent with the residual functional capacity limitations given herein
(e.g., only occasionally push/pull up to five pounds with each upper extremity, reach
overhead, and handle, finger and feel with the upper extremities), coupled with the
other residual functional capacity limitations, the claimant is not precluded from
full-time competitive work consistent with the vocational expert testimony
(discussed below).
Doc. No. 8-2 at pp. 20-21.
Ell takes issue with the weight or lack therefore afforded by the ALJ to the FCE.
Specifically, she asserts:
The ALJ committed reversible error in determining there “is no objective
medical evidence in the current record associated with the relevant period from June
6, 2018 to December 31, 2019, that supports such extreme restrictions (able to work
just three hours per day).” Doc. 8-2 at 20. 	The Eighth Circuit has repeatedly
recognized that an FCE is “objective clinical evidence regarding how a benefits
claimant's medical conditions affect his or her ability to work.” Green v. Union Sec.
Ins. Co., 646 F.3d 1042, 1051 (8th Cir. 2011) (emphasis added). “An FCE need not
establish conclusively that a benefits claimant will be capable of working day after
day, week after week, year after year. Rather its value is in objectively evaluating a
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person's work capabilities.” Id.
Here, the FCE was performed over two days, October 1 and 2, 2018. Doc.
8-9 at 45-47. The FCE is also clear that Plaintiff gave “Full Effort on all tests[.]” Id.
at 46. Like the FCE, the ALJ also discredited, without articulating any references to
the record, a September 20, 2020 opinion statement that references the FCE because
it "contains an unreadable signature without identifying the medical professional
completing the form[.]" Doc. 8-2 at 20. However, the ALJ asked Plaintiff's prior
counsel at the administrative hearing if it was “Dr. Shearer” who completed the
"form submitted [ ] from September 20th of 2020" and he replied, "That is Dr.
Shearer, Your Honor."
Thus, on this record it is clear that the FCE is objective evidence and was not
properly considered. Rather, it was dismissed out of hand. Further, the ALJ had
evidence to support Dr. Shearer was the author of the September 20, 2020 opinion.
Like the FCE, Dr. Shearer's opinion was improperly rejected without any articulation
of its supportability or consistency with the rest of the evidence of record.
Doc. No. 11 at pp. 6.
In response, the Commissioner maintains that the ALJ did not simply dismiss the FCE
because it was unsigned but rather deemed it a form completed by a medical professional and
evaluated it accordingly.
It does not appear from the record that the ALJ ignored the FCE because it was unsigned or
rejected the form/opinion from September 20, 2020, because its author was not immediately
apparent. Rather, the record reflects that, when determinating Ell’s RFC, the ALJ did consider the
FCE and the form but ultimately discounted them due to what she deemed to be a dearth of
supporting objective medical evidence. Doc. No. 8-2 at pp. 20-21.
IV. 	CONCLUSION
In this case, the ALJ correctly applied governing law, regulations, and policy guidance, and
there is substantial evidence supporting the Commissioner’s decision. As long as there is substantial
evidence supporting the decision, this court may not reverse it simply because there is substantial
evidence supporting a contrary outcome or because the court would have decided the case
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differently. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001); see also Schmitt v. Kijakazi,
27 F.4th 1353, 1361 (8th Cir. 2022).
Accordingly, the Commissioner’s Motion for Summary Judgment (Doc. No. 12) is
GRANTED, Ell’s Motion for Summary Judgment (Doc. No. 10) is DENIED, and the
Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
Dated this 3rd day of April, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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