23 F.4th 760
7th Cir.2022Background
- Randall Ruenger applied for SSI in 2015 claiming left-arm and mental impairments; an ALJ denied benefits at step five based on vocational expert (VE) testimony that suitable jobs exist in significant numbers.
- The VE identified three occupations (cafeteria attendant, office helper, packager) and gave national job totals, citing Department of Labor sources: DOT, the Occupational Employment Survey (OES), and the Occupational Employment Quarterly (OEQ).
- The VE described her method as adding up "names of jobs" across industries from OES and checking her totals against OEQ; she said she used OEQ’s figures (which rely on the equal-distribution method) to corroborate results within 100 jobs.
- Ruenger objected that the VE’s methodology was opaque and that the equal-distribution method was unjustified; the ALJ nevertheless credited the testimony. The district court affirmed.
- The Seventh Circuit held the VE failed to explain her methodology sufficiently and did not justify reliance on the equal-distribution method; the ALJ failed to probe further after cross-examination raised doubts, so substantial evidence was lacking and the case was vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VE’s job-number estimates were based on a reliable, explainable methodology | Ruenger: VE’s testimony was unclear about data sources and aggregation method; estimates may be fabricated | Commissioner: VE is qualified; described a method and cross-checked against OEQ and DOT, so ALJ reasonably relied on it | Held: VE failed to provide a cogent, reviewable explanation of methodology; ALJ erred in crediting testimony without further inquiry |
| Whether use of the equal-distribution method was justified | Ruenger: VE offered no reason why equal distribution yields accurate DOT-level counts | Commissioner: OEQ uses equal-distribution only as a corroborating source; VE used it to confirm her own estimates | Held: Use of equal-distribution must be justified; VE did not explain why it was appropriate here, so reliance on it was unsupported |
| Whether the ALJ satisfied the duty to probe a challenged VE’s methodology | Ruenger: ALJ should have pressed VE to clarify inconsistencies and data origins | Commissioner: ALJ asked about methodology and the VE explained her process, satisfying review | Held: ALJ did not hold VE accountable after inconsistencies arose; more probing was required to meet substantial-evidence standard |
| Remedy (whether remand required) | Ruenger: Remand for a new step-five hearing with clearer VE testimony | Commissioner: Affirmance was appropriate because VE testimony was adequate | Held: Vacated and remanded for further proceedings; VE may clarify or provide additional support and claimant may challenge it |
Key Cases Cited
- Biestek v. Berryhill, 139 S. Ct. 1148 (2019) (VE testimony must cogently and thoroughly describe a well-accepted methodology to qualify as substantial evidence)
- Chavez v. Berryhill, 895 F.3d 962 (7th Cir. 2018) (when VE’s estimates are challenged, ALJ must obtain a reasoned and principled explanation of methodology)
- Brace v. Saul, 970 F.3d 818 (7th Cir. 2020) (expert must show method is well-accepted or explain why it is reliable)
- Donahue v. Barnhart, 279 F.3d 441 (7th Cir. 2002) (vocational testimony must not be "conjured out of whole cloth")
- Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014) (DOT is outdated; caution in relying on DOT job descriptions)
- Alaura v. Colvin, 797 F.3d 503 (7th Cir. 2015) (questioning equal-distribution method’s accuracy)
- Voigt v. Colvin, 781 F.3d 871 (7th Cir. 2015) (criticizing assumptions underlying equal-distribution method)