Kong Sok v. Kilolo Kijakazi, No. 21-3039 (7th Cir. 2022)

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued November 18, 2022 Decided December 5, 2022 Before MICHAEL B. BRENNAN, Circuit Judge THOMAS L. KIRSCH II, Circuit Judge JOHN Z. LEE, Circuit Judge No. 21-3039 KONG SOK, Plaintiff-Appellant, Appeal from the United States District Court for the Western District of Wisconsin. v. No. 20-cv-489-wmc KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. William M. Conley, Judge. ORDER Kong Sok, who suffers from physical and mental impairments, raises a narrow issue in his appeal of the denial of his application for Social Security disability benefits. He argues that the administrative law judge failed—at the fifth and final step of the disability analysis under 20 C.F.R. § 416.920(a)(4)—to assess the reliability of the vocational expert’s testimony regarding estimates of the numbers of jobs suitable for him in the national economy. But because the expert’s explanation on this point was sufficient, we affirm. No. 21-3039 Page 2 In 2016, Sok, then 48, applied for disability benefits, alleging several impairments stemming from a recent car accident, including head trauma, depression, anxiety, chronic headache, and back pain. Before the accident, Sok worked as a machine operator. After the Social Security Administration denied Sok’s application initially and on reconsideration, he appeared at a hearing before an ALJ in July 2019. Sok testified that because of the accident, he had trouble walking, suffered from muscle cramping, and had “headaches all the time.” The ALJ denied Sok’s application, concluding that he was not disabled within the meaning of the Social Security Act. At step one of the five-step disability analysis described in 20 C.F.R. § 416.920(a)(4), the ALJ determined that Sok had not worked since he applied for benefits. At steps two and three, the ALJ determined that Sok had several severe impairments, but none presumptively established that he was disabled. At step four, the ALJ determined that Sok could not do any prior relevant work, but he had the capacity to perform light work with certain physical limitations. The ALJ then proceeded to step five, the only inquiry at issue in this appeal. At this step, the agency bears the burden of demonstrating the existence of significant numbers of jobs in the national economy that someone with the claimant’s abilities and limitations can perform. See 20 C.F.R. § 416.960(c)(2); Ruenger v. Kijakazi, 23 F.4th 760, 761 (7th Cir. 2022). The agency must approximate the number of job openings at a given time, whether vacant or filled, and without regard to the location of the work, the claimant’s likelihood of being hired, economic conditions, or an employer’s hiring practices. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.966(a), (c). To determine the number of jobs available for a claimant, the ALJ typically relies on the testimony of a vocational expert, a person who is experienced in job placement and, normally, holds an advanced degree in vocational rehabilitation or psychology. VEs consult various resources to determine job-number estimates. See Chavez v. Berryhill, 895 F.3d 962, 964–66 (7th Cir. 2018) (describing the resources used by VEs). One of the most common starting points is the Dictionary of Occupational Titles (DOT), which describes the duties and requirements of specific occupations. The DOT does not, however, estimate how many jobs exist in the national economy for each occupation. For job-number estimates, VEs tend to rely on the Department of Labor’s Standard Occupational Classification (SOC) system. The SOC has job-number estimates for broad categories of jobs, each of which encompasses several DOT occupations. Thus, the VE’s No. 21-3039 Page 3 task is to estimate the portion of jobs in an SOC category that corresponds to the particular DOT occupation the claimant can perform. At the hearing before the ALJ, the VE in this case, Thomas Gusloff, testified about the number of jobs available to someone like Sok: 200,000 “cleaner, housekeeping” jobs, 100,000 “[c]afeteria attendant” jobs, and 30,000 “[l]inen grader or sorter” jobs. When examined by Sok’s attorney, Gusloff explained that he began with the SOC estimate for each category encompassing a DOT occupation that Sok could perform, and then estimated the number of jobs available to Sok based on his “knowledge of the labor market [from] over 30 years of job placement.” Gusloff also noted that the jobs he selected were “well reflected in the national economy.” Sok’s counsel objected to the reliability of these estimates. At step five of his decision denying benefits, the ALJ credited Gusloff’s testimony and overruled counsel’s objection. As relevant for this appeal, the ALJ determined that Gusloff’s experience and expertise made his job-number estimates reliable: The vocational expert has professional knowledge and experience in job placement and … the undersigned has determined that the vocational expert’s testimony is consistent with the information contained in the Dictionary of Occupational Titles (DOT). To the extent the testimony of the vocational expert addressed limitations that were not contemplated by the DOT, he clarified that his testimony on these topics was based on his substantial experience in job placement and does not conflict with testimony contained in the DOT. Moreover, the job numbers he provided are supported by his knowledge of the labor markets, over thirty years of job placement and the jobs he cited are readily available in the national economy. After the ALJ denied Sok’s application, the Appeals Council denied Sok’s request for review. The district court, noting the “straightforward job classifications” at issue here, upheld the Commissioner’s determination that the job-estimate numbers were sufficiently reliable. The court, like the ALJ, emphasized that Gusloff drew on his strong credentials and extensive knowledge of the labor market, and he took care to select jobs that are well-represented in the national economy. Acknowledging that Gusloff could No. 21-3039 Page 4 have explained his methodology more clearly, the court concluded that his testimony met the deferential substantial-evidence standard. On appeal we ask whether substantial evidence supports the ALJ’s conclusion that there are significant numbers of jobs in the national economy that Sok could perform. See 42 U.S.C. § 405(g) (requiring Commissioner’s findings to be sustained if supported by substantial evidence). The “threshold for … evidentiary sufficiency is not high,” and requires only that “a reasonable mind might accept [the evidence] as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). This is not an “overly exacting standard” given “the difficulty, if not impossibility, of acquiring the data necessary” to produce a precise job-number count. Chavez, 895 F.3d at 968. We have suggested that a VE could support his approximation by “drawing on knowledge of labor market conditions and occupational trends, gleaned from reviewing relevant data sources or from placing workers in jobs.” Id. at 970. Sok argues on appeal that Gusloff’s testimony was vague and that his methodology was unreliable. Although we agree with the district court that Gusloff could have more clearly articulated his method, his explanation of his process—first, referencing information found in the DOT and SOC, and second, drawing on his knowledge of the labor market—was sufficient for the agency to meet its modest evidentiary burden. As for the reliability of Gusloff’s estimates, Sok cannot credibly argue that jobs such as cafeteria attendant or housekeeper do not “exist in significant numbers in the national economy.” See 20 C.F.R. § 416.960(c)(2). Sok cites recent cases in which we remanded because of unreliable VE methodology, see Ruenger v. Kijakazi, 23 F.4th 760 (7th Cir. 2022); Brace v. Saul, 970 F.3d 818 (7th Cir. 2020), but we analyze reliability on a case-by-case basis. Biestek, 139 S. Ct. at 1157. And because the jobs at issue here are commonly found in the national economy, the ALJ reasonably concluded that Gusloff could rely on his significant relevant experience to produce reliable estimates. AFFIRMED

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