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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Jennifer W.,1
Plaintiff,
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
Case No. 24-cv-4127 (DJF)
ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Jennifer W. (“Plaintiff”) seeks judicial review of
the Commissioner of Social Security’s (“Commissioner”) final decision denying her application
for disability insurance benefits (“DIB”) (“Decision”). 	Plaintiff asks the Court to reverse the
Decision and remand this matter to the Commissioner under sentence four of 42 U.S.C. § 405(g).
(ECF No. 1.) The Commissioner asks that the Decision be affirmed in its entirety. (ECF No. 17.)
This matter is before the Court on the parties’ briefs. 	The Court remands this matter to the
Commissioner on grounds that the Appeals Council improperly excluded new, material evidence
and the vocational expert testimony on which the ALJ relied was self-contradictory and lacked
credibility.
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. 	Plaintiff’s Claim
Plaintiff applied for DIB on November 15, 2021 (see Soc. Sec. Admin. R. (“R.”) 207).2 At
that time, she was 30 years old (id.), with a general educational development (“GED”) degree (R.
243) 	and 	previous 	work 	experience 	as 	a 	bartender/server, 	dispatcher, 	customer 	service
representative, long-term care giver, and security guard (R. 230, 267). Plaintiff alleged a disability
onset date of January 1, 2020 (R. 227), resulting from various conditions, including: “complex”
post-traumatic stress disorder (“PTSD”), depression, anxiety, “sleep condition”, “abnormal
heartbeat”, “heart palpitations”, “social anxiety”, “reclusive”, “hyper vigilant”, “lower back
condition”, and “slipped disc in low back” (R. 242).
II. 	Regulatory Background
An individual is considered disabled for purposes of DIB 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 12 months.” 	42 U.S.C. § 423(d)(1)(A). 	In addition, an
individual is disabled “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 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. § 423(d)(2)(A). “[A] ‘physical or mental impairment’ is an
impairment that results from anatomical, physiological, or psychological abnormalities which are
2 The Social Security administrative record (“R.”) is filed at ECF No. 9. For convenience
and ease of reference, the Court cites to the record’s pagination rather than the Court’s ECF and
page numbers.
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demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).
The Commissioner has established a sequential, five-step evaluation process to determine
whether an individual is disabled. 	20 C.F.R. § 404.1520(a)(4). 	At step one, the claimant must
establish 	that 	she 	is 	not 	engaged 	in 	any 	“substantial 	gainful 	activity.” 	20 	C.F.R. 	§
404.1520(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. § 404.1520(a)(4)(ii). At step
three, the Commissioner must find the claimant is disabled if the claimant has satisfied the first
two steps and the claimant’s impairment meets or is medically equal to one of the impairments
listed in 20 C.F.R. Part 404, Subpart P, App’x 1 (“Listing of Impairments” or “Listing”). 20 C.F.R.
§ 404.1520(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. § 404.1520(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. § 404.1520(a)(4)(v).
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.
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III. 	Procedural History
The Commissioner denied Plaintiff’s application for DIB initially (R. 107) and on
reconsideration (R. 117). On October 3, 2023, at Plaintiff’s request (R. 136), an Administrative
Law Judge (“ALJ”) held a hearing on Plaintiff’s application (R. 33-66). An attorney represented
Plaintiff during the hearing, and Plaintiff and a Vocational Expert (“VE”) testified. (Id.) The ALJ
issued his Decision on December 14, 2023. (R. 15-28.)
At step one of the sequential analysis the ALJ concluded that, although Plaintiff tried to
return to work as a dog-walker since her alleged disability onset date, this work did not qualify as
substantial gainful activity. (R. 20-21.) At step two, the ALJ found Plaintiff had the following
severe impairments: major depressive disorder; generalized anxiety disorder; and PTSD. (R. 21.)
The ALJ also found Plaintiff had the following non-severe impairments: asthma; stimulant use
disorder; supraventricular tachycardia; obesity; and low back pain. (Id.) At step three, the ALJ
concluded that none of Plaintiff’s impairments individually or collectively met or medically
equaled any impairment in the Listing. (R. 21-23.)
The ALJ then determined Plaintiff’s RFC. He found that:
[Plaintiff] has the residual functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional limitations: [Plaintiff] can perform
simple, routine and repetitive tasks but not at a fast production rate pace, such as that found
in assembly-line work; [Plaintiff] can have occasional and superficial interactions with
supervisors and co-workers; no interactions with the public; and occasional changes in a
predictable work setting with end-of-day or hourly job expectations rather than minute-by-
minute production quotas.
(R. 23.)
In reaching this determination, the ALJ reviewed the record in detail, taking into
consideration the medical opinions and prior administrative medical findings in the record,
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Plaintiff’s medical testing, examination and treatment history, her testimony regarding her
symptoms, her employment history, and her activities of daily living. (R. 23-26.)
After determining Plaintiff’s RFC, the ALJ found at step four of the sequential analysis
that Plaintiff had past relevant work as a dispatcher (classified as sedentary, skilled, and SVP 54)
and a customer service rep (classified as sedentary, skilled, and SVP 5). (R. 26.) The ALJ then
determined that Plaintiff cannot perform her past relevant work. 	(Id.) 	Relying on the VE’s
testimony, the ALJ then found at step five that, considering Plaintiff’s age, education, work
experience, and RFC, there are other jobs that exist in significant numbers in the national economy
that Plaintiff can perform, including: hand packager (DOT 920.587-018, with around 90,000 jobs
in the national economy); inspector5 (DOT 589.686-038, with around 80,000 jobs in the national
economy); and warehouse worker (DOT 922.687-058, with around 120,000 jobs in the national
economy). 	(R. 26-27.) 	Based on these findings, the ALJ concluded Plaintiff was not disabled,
and issued his Decision denying DIB on December 14, 2023. (R. 27-28.)
Plaintiff asked the Appeals Council to review the ALJ’s Decision on December 28, 2023.
(R. 201-03; see also R. 6.) She provided additional evidence for the Council’s consideration in
connection with her request for review, including: (1.) “17 pages of records from Allina Health
Systems dated September 6, 2023, to September 25, 2023”; and (2.) a 10-page psychological report
and a 5-page mental functioning questionnaire (“Richardson Evidence”) completed by a licensed
psychologist, Thomas K. Richardson, M.A., L.P., L.S.P., after he evaluated Plaintiff on January
4 “SVP” refers to the “specific vocational preparation” for a given occupation. Unskilled
work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled
work corresponds to an SVP of 5-9 in the Dictionary of Occupational Titles (“DOT”). 	Social
Security Ruling (SSR) 00-4p.
5 Although the ALJ and VE describe this occupation as “inspector,” the DOT’s full title for
this occupation is “Rug-Inspector Helper.” 	Dictionary of Occupational Titles (4th ed. 1991)
(“DOT”), 1991 WL 684514.
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25, 2024. 	(R. 2; R. 67-81.) 	The Appeals Council declined to consider the additional evidence
Plaintiff provided, however. (R. 2; see also R. 5-6, Council’s exhibit list.) As to the Allina Health
Systems records, the Council decided the evidence did not “show a reasonable probability that it
would change the outcome of the decision.” (R. 2.) As to the Richardson Evidence, the Council
concluded that it did not affect the benefits decision because the evidence was dated after the ALJ’s
Decision and therefore did not “relate to the period at issue.” (Id.) Thus excluding the additional
evidence, the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision (R. 1).
Having exhausted the administrative appeals processes, Plaintiff filed this lawsuit. Plaintiff
challenges both the Appeal’s Council’s decision to exclude the Richardson Evidence and the ALJ’s
reliance on the VE’s testimony at step five of the sequential analysis. (See ECF No. 14.)
DISCUSSION
I. 	The Appeals Council’s Decision
A. 	Standard of Review
The Appeals Council’s refusal to consider additional evidence and denial of review may
establish grounds for remand. See, e.g., Box v. Shalala, 52 F.3d 168, 171 (8th Cir. 1995) (holding
that failure to consider additional evidence “may be a basis for remand by a reviewing court”)
(citing Williams v. Sullivan, 905 F.2d 214, 216–17 (8th Cir. 1990)); Keeton v. Department of
Health and Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994) (“When the Appeals Council
refuses to consider new evidence submitted to it and denies review, that decision is also subject to
judicial review because it amounts to an error of law.”); see also Gelner v. Berryhill, No. 17-
cv4202 	(JNE/KMM), 	2018 	WL 	3946520, 	*3-4 	(D. 	Minn. 	July 	24, 	2018), 	report 	and
recommendation adopted, 2018 WL 3946476 (D. Min. Aug. 16, 2018) (reviewing Appeals
Council’s failure to consider new evidence and denial of review); Stimpson v. Berryhill, No. 17-
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cv-824 (HB), 2018 WL 1440336, at *4 (D. Minn. Mar. 22, 2018) (reviewing Appeals Council’s
denial of review); Laveau v. Astrue, No. 11-cv-505 (SRN/LIB), 2012 WL 983598, at *17-18 (D.
Minn. Feb. 14, 2012) (same); Fry v. Massanari, 209 F. Supp. 2d 1246, 1251–52 (N.D. Al. 2001)
(collecting cases). 	The Appeals Council must grant a request for review if: (1.) it receives
additional evidence that is new, material, and relates to the period on or before the date of the
hearing decision; (2.) there is a reasonable probability the evidence would change the outcome of
the decision; and (3.) the claimant showed good cause for not informing the Commissioner about
or submitting the evidence as described in 20 C.F.R. § 404.935. See 20 C.F.R. § 404.970(a)(5),
(b); see also Box, 52 F.3d at 171 (quoting Williams, 905 F.2d at 216–17).
District courts review de novo whether the evidence at issue is new, material, and related
to the relevant period. 	Box, 52 F.3d at 171. 	Evidence is new when it is “more than merely
cumulative of other evidence in the record.” Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir.
2000). 	And evidence is material when it is “relevant to [the] claimant’s condition for the time
period for which benefits were denied.” Id. The exact timing of the additional evidence “is not
dispositive of whether evidence is material.” 	Williams v. Sullivan, 905 F.2d 214, 216 (8th Cir.
1990).
When new evidence is submitted to the Appeals Council, it becomes part of the
administrative record. See Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992) (citing Williams
v. Sullivan, 905 F.2d 214, 217 (8th Cir. 1990)). “If the Appeals Council does not consider the new
evidence, a reviewing court may remand the case to the Appeals Council if the evidence is new
and material.” Nelson, 966 F.2d at 366 (citing Williams, 905 F.2d at 217). The court may also
remand the matter directly to the ALJ to properly consider the new evidence in light of the record
as a whole. 	Gartman v. Apfel, 220 F.3d 918, 922 (8th Cir. 2000). 	However, if “the Appeals
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Council considers the new evidence but declines to review the case, [the court will] review the
ALJ’s decision and determine whether there is substantial evidence in the administrative record,
which now includes the new evidence, to support the ALJ’s decision.” Nelson, 966 F.2d at 366
(citing Williams, 905 F.2d at 217).
B. 	Analysis
Upon reviewing the record, the Court concludes that the Appeals Council erred in failing
to consider the Richardson Evidence. When a claimant presents evidence to the Appeals Council
that is new, material, and relates to the period on or before the date of the ALJ’s Decision, the
Council must consider it. Williams, 905 F.2d at 216. The Richardson Evidence was new because
it did not exist prior to the ALJ’s Decision. Defendant concedes the evidence is new insofar as it
was not generated until after the ALJ’s Decision, but he argues it is cumulative of evidence that
already existed in the record, such as evidence of Plaintiff’s past diagnoses, treatment history,
activities of daily living, and a 2-page medical opinion largely consisting of checkbox responses.
(ECF No. 17 at 9-11.) The Court disagrees. The Richardson Evidence is by far the most detailed
medical opinion concerning Plaintiff’s mental health in the record before the Court. 	The
Richardson Evidence includes a description of Mr. Richardson’s meeting with Plaintiff, a
summation of Plaintiff’s reported history, a description of a battery of mental functioning tests Mr.
Richardson conducted on Plaintiff, the results of those tests, an interpretation of the test results,
and Mr. Richardson’s conclusions, diagnoses and treatment recommendations. (R. 71-81.) Mr.
Richardson’s report includes, among other conclusions, a statement that Plaintiff “currently …
likely would be viewed as not suitable for competitive employment.” (R. 81.) The Richardson
Evidence also includes a “Mental Functioning Questionnaire” that Mr. Richardson completed
based on his assessment of Plaintiff and his 25 years of experience working as an evaluator for the
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Minnesota Department of Employment and Economic Development’s Division of Vocational
Rehabilitation. 	(R. 80-81.) 	Nothing else in the record compares with the level of detail and
analysis provided in the Richardson Evidence. The Court therefore concludes this evidence is new
and not cumulative. See Williams, 905 F.2d at 216 (concluding that psychiatrist’s report was new
because it was not merely cumulative but instead presented more specific findings and
conclusions); see also Bergmann, 207 F.3d at 1069 (citing Williams, 905 F.2d at 216).
The Richardson Evidence is also material and related to the period on or before the date of
the ALJ’s decision. 	It includes a detailed analysis of Plaintiff’s cognitive abilities and mental
health as established through a variety of objective testing measures. Since Plaintiff’s only severe
impairments relate to her mental disabilities, this evidence is highly relevant to her disability claim.
The Appeals Council and Defendant assert that this evidence is not material because it is based on
an assessment conducted after the ALJ’s Decision. (R. 3; ECF No. 17 at 7-8.) But this fact alone
is not dispositive. See Williams, 905 F.2d at 216. Rather, the Court must consider whether the
Richardson Evidence relates to Plaintiff’s condition prior to the ALJ’s Decision. The Court finds
that it does. 	Though the Richardson Evidence is based on Mr. Richardson’s examination of
Plaintiff in January 2024, there is nothing in the record to suggest that Plaintiff’s condition
significantly deteriorated between the date of the ALJ’s Decision in December 2023 and the date
of the examination approximately one-and-a-half months later. To the contrary, Mr. Richardson’s
opinion relies substantially on Plaintiff’s reported symptoms and mental health history predating
the ALJ’s Decision, including her substance addiction and multiple instances of self-harm dating
back to her years in middle school. (R. 72-74.) Mr. Richardson’s report further notes Plaintiff’s
experiences with childhood trauma, domestic abuse, and “long-standing history of substantial
depression issues resulting in multiple hospitalizations.” (Id.) 	Given Plaintiff’s long history of
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mental health symptoms and the absence of any evidence of recent trauma or other aggravating
factors, the suggestion that Plaintiff’s condition suddenly arose or worsened during the brief period
between the ALJ’s Decision and Mr. Richardson’s examination is highly improbable. The Court
is persuaded that the Richardson Evidence reflects Plaintiff’s mental health during the relevant
period and is not capturing an after-acquired condition or a condition that significantly
deteriorated.
Defendant argues that because the Richardson Evidence includes a new diagnosis of
“unspecified neurocognitive disorder”, that it captures “after-acquired conditions.” (ECF No. 17.)
Defendant’s argument appears to be premised on the meritless notion that a medical condition
cannot exist unless it is diagnosed. 	Based on the record evidence, the Court is compelled to
conclude that any new diagnosis identified a condition that existed during the relevant period but
simply had not yet been diagnosed.
Defendant also argues that even if the Richardson Evidence is considered, the ALJ’s
Decision is supported by substantial evidence. (ECF No. 17 at 11.) But it is not the Court’s role
to speculate how the Richardson Evidence might affect the overall outcome of this case. Because
the Appeals Council did not consider it, the Court’s analysis is limited to whether the Council
should have done so. 	See Nelson, 966 F.2d at 366 (citing Williams, 905 F.2d at 217) (when
addressing newly submitted evidence, the Court determines whether substantial evidence supports
the Decision as a whole only if the Appeals Council actually considered the newly submitted
evidence). The Court cannot accept Defendant’s invitation to weigh how the new evidence might
have affected the determination.
The Court further finds good cause supports the delay in producing the Richardson
Evidence. The parties do not appear to dispute this issue. The Richardson Evidence is the result
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of Mr. Richardson’s examination of Plaintiff on January 25, 2024. Plaintiff was initially referred
for neuropsychological testing on June 8, 2023 (R. 952)—approximately four months before the
ALJ hearing and six months before the ALJ’s Decision. 	Plaintiff’s delay in producing this
evidence thus appears to have been the product of systemic scheduling delays. Moreover, nothing
in the record suggests Plaintiff failed to produce the evidence prior to the ALJ hearing due to a
lack of proper diligence. See 20 C.F.R. § 404.970(b)(3)(iv) (stating good cause exists if a claimant
“actively and diligently sought evidence from a source and the evidence was not received”).
Because the Richardson Evidence was new and material and there was good cause for its
late production, remand is appropriate. The Court concludes the new evidence should be evaluated
in light of the record as a whole. The Court therefore vacates the Decision and remands this matter
directly to the ALJ, pursuant to sentence four of 42 U.S.C. § 405(g), for further administrative
proceedings consistent with this Order. 42 U.S.C § 405(g) (“The court shall have power to enter,
upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.”); see Gartman, 220 F.3d at 922 (remanding case with improperly overlooked new,
material, timely information directly to ALJ). 	On remand, the ALJ shall consider whether the
Richardson Evidence alters the five-step analysis and recall a vocational expert for testimony if
necessary to address a new hypothetical based on any modified RFC.
II. 	The VE’s Testimony
Plaintiff also argues the ALJ’s step five analysis in his Decision was flawed in two ways:
(1.) he failed to reconcile inconsistencies in the VE’s testimony concerning occupations Plaintiff
could perform; and (2.) he relied on VE testimony regarding the number of jobs available in the
national economy that lacked adequate indicia of reliability. (See ECF No. 14 at 4-5.)
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A. 	Standard of Review
The Court’s review of the ALJ’s Decision is limited to determining whether the 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,
587 U.S. 97, 103 (2019) (citation modified). 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 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 ex rel. 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 he creates.
He 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 ALJ failed to create
a “logical bridge” between the evidence and his conclusions); Weber v. Colvin, No. 16-cv-332
(JNE/TNL), 2017 WL 477099, at *26 (D. Minn. Jan. 26, 2019) (same). As relevant to this matter,
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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). 	“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.
B. 	Analysis
1. 	Inconsistencies in the VE’s Testimony
The VE testified that Plaintiff could perform the occupations of hand packager, inspector,
and warehouse worker. (R. 60.) When the ALJ asked the VE if his testimony was consistent with
DOT, the VE responded, “Yes.” (R. 61.) Plaintiff argues there are two significant inconsistences
in this testimony that the ALJ erroneously failed to resolve in accepting this bald statement, though
Plaintiff raised these issues in writing less than a week after the hearing (R. 327).
First, Plaintiff notes that the DOT defines the hand packager job as including a
responsibility to start, stop, and regulate the speed of a conveyor. 	Dictionary of Occupational
Titles (4th ed. 1991) (“DOT”), 1991 WL 687916 (hand packager). 	Plaintiff argues this job
responsibility is inconsistent with Plaintiff’s RFC, which limits her to “simple, routine and
repetitive tasks that are not performed at a fast production-rate paced [sic], such as that found in
assembly line work.” (ECF No. 14 at 24.) A plain reading of the RFC and the DOT undermines
Plaintiff’s argument. 	Plaintiff’s RFC precludes her from performing fast-paced work. 	A hand
packager’s duty to regulate the speed of a conveyor does not indicate any specific pace, and
nothing in the DOT’s description of the hand packager occupation involves any rate or pace
requirement. See DOT, 1991 WL 687916 (hand packager); Westfield v. O’Malley, No. 1:23-cv-
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584 (HBK), 2024 WL 2834827, at *7 (E.D. Cal. June 4, 2024); Bryant v. Colvin, No. 13-CV-857
(AJW), 2014 WL 181016, at *3-4 (C.D. Cal. May 7, 2014); James W.K. v. Kijakazi, No. 21-cv-
440 (JFJ), 2023 WL 1861214, at *6 (N.D. Okla. Feb. 9, 2023). Because there was no inconsistency
between the DOT’s definition of the hand packager job and Plaintiff’s RFC, the ALJ did not err in
that respect.
Second, Plaintiff argues the VE’s testimony concerning the hand packager and warehouse
worker occupations is inconsistent with the VE’s own testimony and the limitations in Plaintiff’s
RFC with respect to her ability to carry out instructions. The DOT states that those occupations
require level 2 reasoning, which means the worker must be able to “carry out detailed but
uninvolved written or oral instructions.” 	DOT, 1991 WL 687916 (hand packager) (emphasis
added); DOT, 1991 WL 688132 (warehouse worker). The VE testified that: (1.) Plaintiff could
perform the hand packager and warehouse jobs (which pursuant to the DOT would require Plaintiff
to carry out “detailed” written or oral instructions); and (2.) Plaintiff’s limitation to “simple,
routine, repetitive tasks precludes the ability to carry out detailed, written and oral instructions.”
(R. 63.) Plaintiff argues this testimony is self-contradictory. (ECF No. 22 at 10-11.)
Defendant argues Plaintiff’s contention is foreclosed under applicable case precedents.
(See ECF No. 17 at 14, citing Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010), and Anna K. v.
O’Malley, No. 23-cv-549 (RNL), 2024 WL 4285429, at *7 (D. Minn. Sept. 25, 2024).) Defendant
specifically asserts that, pursuant to these cases, a limitation to simple tasks is not inconsistent with
level 2 reasoning as defined in the DOT.
But whether level 2 reasoning as defined in the DOT is generally foreclosed by a limitation
to simple tasks is not the issue, because here the VE explicitly testified that Plaintiff’s limitation
to “simple, routine and repetitive tasks” “precludes the ability to carry out detailed, written and
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oral instructions.” (R. 63.) 	Defendant thus misconstrues Plaintiff’s contention. 	Plaintiff is not
arguing that the VE’s testimony was inconsistent with the DOT; rather, Plaintiff is arguing the
VE’s testimony is inconsistent with itself. 	(See ECF No. 22 at 10-11.) 	The Court agrees with
Plaintiff and directs the ALJ on remand to resolve this internal inconsistency. See Saimalo T. v.
O’Malley, No. 2:24-cv-1241 (MDC), 2025 WL 2073970, at *6 (D. Nev. July 22, 2025) (“Where
a VE’s testimony appears to be self-contradictory, remand is appropriate.”); Diane B. v. Kijakazi,
No. 21-cv-794 (TSH), 2022 WL 94915, at *16 (N.D. Cal. Jan. 10, 2022) (citing Hamilton v.
Comm’r of Soc. Sec. Admin., 464 F. App’x 681, 682 (9th Cir. 2012)).
2. 	Reliability of VE Job Numbers Testimony
Plaintiff’s final argument is that the ALJ’s step five analysis was erroneous because it relied
on VE testimony that lacked indicia of reliability. (ECF No. 14 at 5.) Plaintiff specifically argues
the VE’s methodology for estimating jobs numbers was not reasonably reliable. (Id.)
Relying solely on the VE’s testimony, the ALJ concluded that Plaintiff could perform jobs
existing in significant numbers in the national economy. 	(R. 26-27.) 	The VE testified that
approximately 90,000 hand packager jobs, 80,000 inspector jobs, and 120,000 warehouse worker
jobs were available, and that these jobs were consistent with Plaintiff’s RFC. (R. 60.) On cross-
examination, Plaintiff’s counsel asked the VE how he derived these numbers, given that the
Department of Labor does not collect job numbers data based on the DOT’s occupational
classifications. (R. 64.) The VE responded vaguely:
When I did PhD work, I majored in statistics. I have lots of background in trying
to come as close as I can with numbers. The rest of it I can’t tell you anything else
… [I]t’s just my own homemade way to go at it. I’ve been a contractor with Social
Security since 1992, when the DOT was written. So I’ve been at this for 30 years.
And by now, I kind of know what I’m doing … I get into the website of the Bureau
of Labor Statistics and Occupational Outlook handbook and look at what jobs are
there. And I count and that’s updated quarterly. And I can’t tell you must more
from there – than that.
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(R. 64-65.)
Less than a week after the hearing, Plaintiff submitted written objections to the VE’s
testimony. 	(R. 327-28.) 	One of Plaintiff’s objections was that the VE’s job number estimates
were unreliable because: (1.) the VE failed to articulate an intelligible methodology; and (2.) based
on a reliable employment database, the VE’s job estimates appeared to be significantly inflated.6
(R. 328.) In his Decision, the ALJ overruled Plaintiff’s objection on the sole basis that the VE has
significant experience as a vocational expert.
The Court rejects the notion that the VE’s years of experience were alone enough to enable
him to divine accurate job numbers data. 	In Biestek v. Berryhill, 587 U.S. at 105, the Supreme
Court described a hypothetical vocational expert whose testimony would be adequate to support
an ALJ’s conclusion that a claimant could perform jobs existing in sufficient numbers in the
national economy. This hypothetical expert has “top-of-the-line credentials, … [and] a history of
giving sound testimony about job availability in similar cases.” 	Id. 	Such credentials and
experience are not alone sufficient, however. See Brace v. Saul, 970 F.3d 818, 822 (7th Cir. 2020)
(“[W]here, as here, the claimant challenges the job-number estimate, the ALJ must require the VE
to offer a reasoned and principled explanation of the method he used to produce it.”). 	The
hypothetical expert also “explains that she arrived at her figures by surveying a range of
representative employers; amassing specific information about their labor needs and employment
of people with disabilities; and extrapolating those findings to the national economy by means of
6 Plaintiff’s source was Job Browser Pro (R. 328), a database that is “well-accepted” in the
field. Chavez v. O’Malley, 96 F.4th 1016, 1023 (7th Cir. 2024). This database showed that: (1.)
instead of approximately 90,000 hand packager (DOT 920.587-018) jobs in the national economy,
there were 72,297; (2.) instead of approximately 80,000 inspector (DOT 589.686-038) jobs in the
national economy, there were 15; and (3.) instead of approximately 120,000 warehouse worker
(DOT 922.687-058) jobs in the national economy, there were 4,109. (R. 328.)
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a well-accepted methodology. She answers cogently and thoroughly all questions put to her by the
ALJ and the applicant’s lawyer.” Id. (emphasis added).
The Biestek Court did not intend for its hypothetical to set the standard for determining
expert reliability, and the Court does not intend to imply such a standard here. Id. at 108 (rejecting
categorical rule for evaluating vocational expert testimony). But the VE in this case was not even
in the ballpark. The VE merely stated that he uses “his own homemade way of doing it,” which
he described as involving a vague “count” of unidentified information on the Bureau of Labor
Statistics’ website and the Occupational Outlook handbook. 	This explanation does not identify
any methodology, much less a “well-accepted” one, and is “neither cogent nor thorough.” Brace,
970 F.3d at 822. 	The VE’s inability to articulate his methodology in intelligible terms “runs
contrary to the Supreme Court’s admonition that the [disability benefits] process be understandable
to the layman claimant.” Brace, 970 F.3d at 823.
The VE’s credibility is further suspect in light of Plaintiff’s evidence from a reliable source
suggesting the VE’s estimates are seriously flawed. 	The VE’s testimony fails to “instill [any]
confidence that the estimate was not conjured out of whole cloth.” Fetting v. Kijakazi, 96 F.4th
332, 339 (7th Cir. 2023). 	Based on the totality of the evidence, the Court does not have a
“modicum of confidence in [the] reliability” of the VE’s job estimates. Hohman v. Kijakazi, 72
F.4th 248, 254 (7th Cir. 2023) (citation modified).
Since the VE’s testimony was the sole basis for the ALJ’s conclusion at step five of the
sequential analysis, the Court finds that the Decision was not supported by substantial evidence.
Cf. Fetting, 970 F.3d at 823 (“All the substantial evidence standard requires is that a vocational
expert gave enough detail for the Court to understand the sources of his data and the general
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process he adopted.”). The Court therefore orders the ALJ, on remand, to recall a VE to provide
job numbers estimates based on reliable sources and a well-accepted methodology.
ORDER
Based on the foregoing, and on all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1. 	Plaintiff’s Request for Relief (ECF No. 13) is GRANTED IN PART and DENIED
IN PART;
2. 	The Commissioner’s Request for Relief (ECF No. 17) is DENIED; and
3. 	The Decision is VACATED AND REMANDED for further administrative action
consistent with this Order pursuant to sentence 4 of 42 U.S.C. § 405(g).
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 14, 2025 	s/ Dulce J. Foster
Dulce J. Foster
United States Magistrate Judge
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