Chavez v. Berryhill
895 F.3d 962
7th Cir.2018Background
- Kelly Chavez, diagnosed with a brain tumor in 2007, has severe physical and mental impairments and no past work history; she applied for SSI in 2010.
- ALJ found Chavez had significant limitations and an RFC restricting her to simple, routine, unskilled light work in an unchanging, slow-paced environment; steps 1–4 findings are not challenged on appeal.
- At step five the ALJ relied on a vocational expert (VE) who identified three DOT job titles suitable for Chavez and estimated large national job numbers using the "equal distribution" method (e.g., 108,000 bench assembler jobs vs. 800 by an alternative method).
- Chavez objected and challenged the VE at the hearing; the VE admitted he had not done labor-market surveys and justified his choice only by preferring the equal distribution method and his general experience.
- The ALJ accepted the VE’s higher estimates as uncontested; the district court affirmed. The Seventh Circuit vacated and remanded, finding the VE’s estimates lacked an adequate evidentiary foundation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VE job-number estimates satisfy substantial-evidence standard at step five | Chavez: VE used unreliable "equal distribution" method and offered no empirical or experience-based foundation for large estimates | Commissioner: ALJ adequately questioned VE; nothing prohibits use of the method and estimates were uncontradicted | Court: VE’s testimony was not shown to be reliable; ALJ erred by accepting estimates without a reasoned, affirmative foundation and shifting burden to claimant |
| Whether ALJ met duty to probe reliability when VE’s method is challenged | Chavez: ALJ must require a reasoned/principled explanation when claimant objects | Commissioner: Asking questions sufficed; no further showing required | Court: ALJ’s cursory questioning was insufficient; ALJ must obtain a principled explanation or supporting evidence from VE when estimates are contested |
| Whether equal distribution method is per se prohibited | Chavez: method is unreliable in practice | Commissioner: Method has been used and not always reversible error | Court: Not categorically barred, but its use must be supported by reliable evidentiary foundation; here it was not |
| Remedy when VE testimony is unreliable at step five | Chavez: Remand for further proceedings | Commissioner: Affirmance | Court: Vacated and remanded for further proceedings to develop reliable job-number evidence |
Key Cases Cited
- Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002) (ALJ must inquire into reliability of VE testimony when challenged)
- McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) (Commissioner bears burden at step five; ALJ may rely on expert only if testimony is reliable)
- Britton v. Astrue, 521 F.3d 799 (7th Cir. 2008) (finding based on unreliable VE testimony fails substantial-evidence review)
- Richardson v. Perales, 402 U.S. 389 (U.S. 1971) (administrative findings require evidentiary basis with rational probative force)
- Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002) (standard for reviewing Commissioner’s findings)
- Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014) (noting obsolescence of DOT and issues matching DOT to modern job data)
- Herrmann v. Colvin, 772 F.3d 1110 (7th Cir. 2014) (criticizing equal distribution method)
- Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015) (expressing concern about equal distribution method)