Jennifer W. v. Bisignano

Background

Plaintiff Jennifer W. applied for Social Security disability insurance benefits (DIB) on November 15, 2021, alleging a disability onset date of January 1, 2020. She was 30 years old at the time, held a GED, and had prior work as a bartender/server, dispatcher, customer service representative, long-term caregiver, and security guard. She alleged disability based on complex post-traumatic stress disorder (PTSD), major depressive disorder, generalized anxiety disorder, sleep and cardiac conditions, lower back problems, and obesity.

Administrative Proceedings

After initial and reconsideration denials, an Administrative Law Judge (ALJ) held a hearing on October 3, 2023. Plaintiff was represented by counsel. A vocational expert (VE) also testified.

The ALJ applied the Social Security Administration's standard five-step sequential evaluation: - Step 1: Plaintiff's dog-walking activity did not constitute substantial gainful activity. - Step 2: Plaintiff had three severe impairments — major depressive disorder, generalized anxiety disorder, and PTSD — along with several non-severe impairments. - Step 3: No impairment met or equaled a listed presumptively disabling condition. - Residual Functional Capacity (RFC): The ALJ determined Plaintiff could perform a full range of work at all physical exertion levels but with nonexertional (non-physical) limitations: simple, routine, repetitive tasks not at a fast production-rate pace; only occasional and superficial interactions with supervisors and co-workers; no public interaction; and only occasional, predictable workplace changes. - Step 4: Plaintiff could not return to her past relevant work as a dispatcher or customer service representative (both classified as sedentary, skilled jobs). - Step 5: Relying on VE testimony, the ALJ found Plaintiff could perform three occupations existing in significant numbers nationally — hand packager (~90,000 jobs), inspector (~80,000 jobs), and warehouse worker (~120,000 jobs) — and therefore was not disabled.

The ALJ issued his decision on December 14, 2023.

Appeals Council Proceedings

Plaintiff sought review and submitted two categories of new evidence: (1) Allina Health Systems records from September 2023; and (2) a 10-page psychological evaluation and 5-page mental functioning questionnaire (collectively, the "Richardson Evidence") completed by licensed psychologist Thomas K. Richardson, M.A., L.P., L.S.P., following his examination of Plaintiff on January 25, 2024.

The Appeals Council declined to consider either submission. It found the Allina records would not reasonably change the outcome, and rejected the Richardson Evidence entirely on the ground that it was dated after the ALJ's decision and did not relate to the period at issue.

Issues Before the Court

Plaintiff raised two challenges: (1) the Appeals Council improperly excluded the Richardson Evidence; and (2) the ALJ's step-five analysis was flawed because the VE's testimony was internally contradictory and his job-number methodology was unreliable.

Analysis: The Richardson Evidence

Legal Standard

The Appeals Council must grant review when it receives evidence that is (1) new, (2) material, (3) relates to the period on or before the ALJ's decision, (4) creates a reasonable probability of changing the outcome, and (5) was submitted with good cause for any delay. 20 C.F.R. § 404.970(a)(5), (b). Courts review de novo (independently, without deference) whether evidence satisfies the new, material, and period-related criteria. Evidence is "new" if it is not merely cumulative of existing evidence; it is "material" if it is relevant to the claimant's condition during the period for which benefits were denied. The exact timing of evidence is not dispositive of materiality.

Ruling on Richardson Evidence

The court found the Appeals Council erred in excluding the Richardson Evidence on all three criteria.

The court declined the Commissioner's invitation to independently weigh whether the Richardson Evidence would have changed the outcome — under controlling precedent, that analysis is appropriate only when the Appeals Council actually considered the evidence; here it did not.

Analysis: VE Testimony at Step Five

Internal Inconsistency

The court identified a direct internal contradiction in the VE's testimony. The Dictionary of Occupational Titles (DOT) — the standard reference for job classifications — defines both the hand packager and warehouse worker occupations as requiring Level 2 reasoning, meaning the ability to "carry out detailed but uninvolved written or oral instructions." The VE testified both that (1) Plaintiff could perform those occupations, and (2) Plaintiff's limitation to "simple, routine, and repetitive tasks precludes the ability to carry out detailed, written and oral instructions."

The Commissioner argued this inconsistency was foreclosed by case law holding that a limitation to simple tasks is not generally inconsistent with Level 2 reasoning. The court rejected that argument because Plaintiff was not arguing that simple tasks conflict with Level 2 reasoning as an abstract matter — she was arguing the VE's own testimony was self-contradictory. The court agreed and directed the ALJ on remand to resolve this internal inconsistency. The court also found no inconsistency between the hand packager job and the RFC's prohibition on fast-paced work, because the DOT description does not impose any specific pace requirement for that occupation.

Reliability of Job-Number Estimates

At the hearing, Plaintiff's counsel asked the VE how he derived his job-number estimates. The VE responded that he uses his own "homemade way" involving a vague "count" of unspecified items on the Bureau of Labor Statistics website and the Occupational Outlook Handbook, relying on his experience as a vocational expert since 1992 and a background in statistics. He could not further explain his methodology.

Plaintiff submitted written objections within a week of the hearing, including data from Job Browser Pro — a database the court recognized as well-accepted in the field — showing dramatically different numbers: 72,297 hand packager jobs (versus the VE's ~90,000), 4,109 warehouse worker jobs (versus ~120,000), and only 15 inspector jobs (versus ~80,000).

The ALJ overruled the objection solely on the basis of the VE's years of experience. The court rejected this reasoning. Citing Biestek v. Berryhill, 587 U.S. 97 (2019), the court noted that experience alone is not sufficient when a claimant specifically challenges job-number estimates — the VE must offer a reasoned and principled explanation of the methodology used. The VE's description of a "homemade" process without any identifiable methodology was found to be neither cogent nor thorough. Combined with the significant discrepancies revealed by Plaintiff's alternative source, the court found it lacked even a "modicum of confidence" in the reliability of the VE's estimates, and concluded the ALJ's step-five determination was not supported by substantial evidence (the legal standard requiring evidence a reasonable mind would accept as adequate).

Disposition

The court granted Plaintiff's request for relief in part and denied it in part, denied the Commissioner's request for affirmance, and vacated the ALJ's decision. The case was remanded to the ALJ — not merely to the Appeals Council — for further administrative proceedings consistent with the order, pursuant to sentence four of 42 U.S.C. § 405(g). On remand, the ALJ must: (1) consider the Richardson Evidence in light of the full record; (2) resolve the VE's internal contradiction regarding the reasoning requirements of the identified jobs; and (3) recall a vocational expert to provide job-number estimates based on reliable sources and a well-accepted methodology.