Gossman v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
CHRISTOPHER G.,1
Plaintiff, 	No. 25-CV-1001-CJW-KEM
vs. 	REPORT AND
RECOMMENDATION
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
____________________
Plaintiff 	Christopher 	G. 	seeks 	judicial 	review 	of 	a 	final 	decision 	of 	the
Commissioner of Social Security denying his application for disability insurance (DI)
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff argues
that by limiting his residual functional capacity (RFC) to “simple routine tasks,” the
administrative law judge (ALJ) did not account for the persuasive medical opinions’
limitation to three- to four-step tasks. Plaintiff also argues the ALJ erred in finding work
as a marker exists in the national economy when the Dictionary of Occupational Titles
(DOT) description suggests such a job is obsolete. 	I recommend reversing the ALJ’s
decision and remanding for further proceedings.
I. 	BACKGROUND
Plaintiff filed for Social Security DI benefits in April 2022, alleging a disability
onset date of June 30, 2021. AR 60. 2 He alleged disability due to migraines, spinal cord
1 The Committee on Court Administration and Case Management of the Judicial Conference of
the United States has recommended that, due to significant privacy concerns in social security
cases, federal courts should refer to claimants only by their first names and last initials.
2 AR refers to the administrative record filed in this case (Doc. 8).
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surgeries in November 2021, Reynaud’s disease, cognitive issues, and anxiety. Id. The
Social Security Administration denied his application on initial review in January 2023
and reconsideration in March 2023. 	AR 70-87. 	As part of those reviews, state agency
psychological consultants Erin Pederson, PhD, and Tiffany Iskander, PhD, reviewed
Plaintiff’s treatment records and issued opinions on his mental limitations, concluding
that he “would be able to complete 3- to 4-step tasks on a sustained basis.” 	AR 65-67,
76-77.
Plaintiff requested further review. 	The ALJ held a hearing in October 2023, at
which Plaintiff and a vocational expert testified. 	AR 36-37. 	The ALJ issued a written
opinion on January 18, 2024, following the five-step process outlined in the regulations 3
to determine whether Plaintiff was disabled during the relevant time period. 	AR 14-30.
The ALJ found Plaintiff suffered from the severe impairments of migraines, major
depressive disorder, and anxiety disorder. 	AR 17. 	To aid in steps four and five, the
ALJ determined Plaintiff’s residual functional capacity (RFC), 4 finding Plaintiff could
perform medium work with “moderate noise” and “simple routine tasks.” AR 19. The
ALJ found Dr. Pederson’s and Dr. Iskander’s opinions persuasive, “well supported with
explanation,” and “consistent with the longitudinal record. 	AR 26-27. 	The ALJ found
Plaintiff could not return to his past work. AR 28. But the ALJ found other jobs existed
in significant numbers in the national economy that Plaintiff could perform, including
“representative occupations such as” marker, office helper, and patient transporter. AR
3 “During the five-step process, the ALJ considers (1) whether the claimant is gainfully
employed, (2) whether the claimant has a severe impairment, (3) whether the impairment meets
the criteria of any Social Security . . . listings, (4) whether the impairment prevents the claimant
from performing past relevant work, and (5) whether the impairment necessarily prevents the
claimant from doing any other work.” 	Grindley v. Kijakazi, 9 F.4th 622, 628 (8th Cir. 2021)
(quoting Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)); see also § 404.1520(a)(4). The
claimant bears the burden of persuasion to prove disability. Goff, 421 F.3d at 790.
4 RFC means “the most that a claimant can do despite her limitations.” Sloan v. Saul, 933 F.3d
946, 949 (8th Cir. 2019).
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29. The ALJ relied on VE testimony that 136,785 marker positions, 6,841 office helper
positions, and 7,211 transporter positions exist nationally. 	AR 29, 56. 	The ALJ found
Plaintiff not disabled from June 30, 2021, through January 18, 2024, the date of the
decision. AR 29-30.
The Appeals Council denied Plaintiff’s request for review on November 14, 2024
(AR 1-3), making the ALJ’s decision that Plaintiff was not disabled the final decision of
the Commissioner.5 Plaintiff filed a timely complaint in this court (Doc. 1). 6 The parties
briefed the issues (Docs. 10, 12, 13) and the Honorable C.J. Williams, Chief District
Judge for the Northern District of Iowa, referred this case to me for a report and
recommendation.
II. 	DISCUSSION
So long as substantial evidence in the record as a whole supports the ALJ’s
decision, 	a 	reviewing 	court 	must 	affirm. 7 “Substantial 	evidence 	is 	less 	than 	a
preponderance, but enough that a reasonable mind might accept it as adequate to support
a decision.” 8 The court “do[es] not reweigh the evidence or review the factual record de
novo.”9 If, after reviewing the evidence, “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 decision.”10
Plaintiff argues that the ALJ erred in failing to limit his RFC to work involving
only three- to four-step tasks, as supported by Drs. Pederson’s and Iskander’s persuasive
5 See 20 C.F.R. § 404.981.
6 See 20 C.F.R. § 422.210(c).
7 Grindley, 9 F.4th at 627; accord 42 U.S.C. § 405(g).
8 Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
9 Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994).
10 Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
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opinions. Plaintiff also argues the DOT description of the marker job shows it is obsolete.
A. Limitation to Three- to Four-Step Tasks
Plaintiff argues that the ALJ erred by finding the state agency psychological
consultants’ opinions persuasive but failing to include in the RFC their limitation to work
involving only three- to four-step tasks (and failing to explain this discrepancy). 	Under
the regulations, the ALJ must “articulate . . . how persuasive [the ALJ] find[s] all of the
medical opinions and . . . prior administrative medical findings.” 11 The ALJ must
consider certain factors and “explain how [the ALJ] considered the supportability” factor
(“the objective medical evidence and supporting explanations” underlying the opinion)
and the consistency factor (the consistency of the opinion “with evidence from other
medical sources and nonmedical sources”). 12 I have previously recognized that “[t]he
purpose of this regulation would be undermined if the ALJ could state a medical opinion
was persuasive, well-supported, and consistent with the record, without adopting the
limitations contained in that opinion or otherwise addressing them.” 13
As part of the state agency reviews, Drs. Pederson and Iskander reviewed
treatment records and opined that Plaintiff suffered moderate limitations in the following
areas:
 	understanding, remembering, and carrying out detailed instructions;
 	maintaining attention and concentration for extended periods; and
 	completing a normal workday and workweek without interruptions from
11 20 C.F.R. § 404.1520c(b).
12 20 C.F.R. § 404.1520c(b)(2), (c)(1)-(2).
13 Dowden v. Saul, No. 19-CV-2054, 2020 WL 6470180, at *7 (N.D. Iowa Nov. 3, 2020); see
also Gann v. Berryhill, 864 F.3d 947, 952-53 (8th Cir. 2017) (holding that the ALJ erred by
failing to include in the RFC “adaptive limitations described by [medical] sources to whom the
ALJ gave ‘significant weight’” under the old regulations for evaluating medical opinions).
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psychologically 	based 	symptoms 	and 	performing 	at 	a 	consistent 	pace
without an unreasonable number and length of rest periods.
AR 66, 76. Dr. Pederson explained treatment notes reflected episodes of confusion and
issues with memory, such as forgetting to pay bills or the reason for walking into a room,
as well as using fifteen different reminders on his phone for simple daily tasks. 	AR 66-
67, 76-77. 	Dr. Pederson also noted gaps in treatment records reflecting cognitive
complaints. 	Id. 	Overall, Dr. Pederson concluded:
“[E]vidence is consistent that claimant remains generally able to complete
basic daily tasks and various multi-step tasks (e.g., driving, shopping,
managing finances, caring for [9-year-old] son). 	He would at times have
difficulties with maintaining concentration/pace or remembering complex
tasks. . . . Regarding mental, the preponderance of evidence supports that
claimant would be able to complete 3- to 4-step tasks on a sustained basis.”
AR 67. Dr. Iskander concurred with this assessment. AR 77.
The ALJ “[wa]s persuaded by” Dr. Pederson’s and Dr. Iskander’s opinions. AR
26. 	The ALJ recognized Drs. Pederson and Iskander found Plaintiff “would be able to
complete 3- to 4-step tasks on a sustained basis.” 	Id. 	The ALJ found Dr. Pederson’s
and Dr. Iskander’s opinions “well supported with explanation[] and . . . consistent with
the longitudinal record.” 	Id. 	The ALJ reasoned that although Plaintiff “has endorsed
cognitive issues to his providers,” he remains able to perform activities of daily living,
and providers largely observed normal findings on objective examination. 	AR 27. 	The
ALJ concluded that limiting Plaintiff “to simple routine tasks” would “accommodate the
effects of pain and his medications.” 	Id.
Plaintiff argues that the ALJ should have included Drs. Pederson and Iskander’s
limitation to “3- to 4-step tasks.” The Commissioner responds that their opinions do not
support that they limited Plaintiff to only “3- to 4-step tasks.” The Commissioner argues
that they recognized Plaintiff could perform multi-step tasks and concluded at a minimum,
he could “complete 3- to 4-step tasks.” 	I disagree with this reading of their opinions,
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especially given their familiarity with the Social Security regulations and the definition
of RFC as the most a claimant can do (not the minimum).
The Commissioner mainly argues that the ALJ’s RFC limitation to “simple routine
tasks” was more limited than the state agency consultants’ limitation to “3- to 4-step
tasks.” 	The Commissioner argues that the ALJ’s assessment of “simple routine tasks
relate to one- and two-step tasks.” 	Doc. 12. 	The Commissioner does not elaborate
further on this argument and cites no caselaw in support.
Neither the VE hypothetical nor the written RFC in the opinion limited Plaintiff
to performing a certain number of tasks; instead, the ALJ stated Plaintiff could perform
“simple routine tasks.” The DOT describes jobs by both specific vocational preparation
(SVP) level and reasoning development level. 	SVP means the amount of time for a
“worker to learn the techniques, acquire the information, and develop the facility needed”
to perform the job, which can include education or on-the-job training. 14 Jobs with an
SVP level of 1 require a “short demonstration only” and jobs with an SVP level of 2
require up to a month to learn. 15 SVP level 1 and 2 jobs constitute “unskilled work,” 16
which is often described as work involving “simple, routine tasks.” 17
The reasoning development level, on the other hand, is part of the “general
educational development” required for a job (along with math and language skills),
usually 	“obtained 	in 	elementary 	school, 	high 	school, 	or 	college.”18 Reasoning
development level 1 jobs involve “simple one- or two-step instructions” and “deal[ing]
with 	standardized 	situations 	with 	occasional 	or 	no 	variables,” 	while 	reasoning
14 DOT, App. C.
15 Id.
16 Fines v. Apfel, 149 F.3d 893, 895 (8th Cir. 1998); see also 20 C.F.R. § 404.1568(a).
17 Samantha C. v. Kijakazi, No. 21-CV-4008, 2022 WL 4636161, at *5 n.24 (N.D. Iowa Sept.
30, 2022) (collecting cases).
18 DOT, App. C.
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development level 2 jobs require “carry[ing] out detailed but uninvolved written or oral
instructions” and “deal[ing] with problems involving a few concrete variables in or from
standardized situations.” 19 The Eighth Circuit has held that both reasoning level 1 and 2
jobs may involve simple instructions (noting “uninvolved” is consistent with “simple”);
the main difference is in the 	number 	of those instructions.20 As another circuit
expounded:
“[D]etail and length are highly correlated. 	Generally, the longer the
instructions, the more detail they can include. . . . 	[D]etailed instructions
are . . . less correlated with complexity than with length. Instructions often
include many steps, each of which is straightforward. 	Driving directions
are a good example: 	they may prescribe many turns, but the turns are
generally easy to make, and the route rarely changes, making the directions
simple, routine, and repetitive.21
Thus, by limiting Plaintiff to “simple routine tasks,” the ALJ did not limit Plaintiff to
one- to two-step tasks (as the Commissioner argues). 	Indeed, the ALJ found Plaintiff
could perform jobs with a reasoning level of 2, 22 which necessarily requires more than
one- to two-step instructions (which is reasoning level 1 work).23
Some courts have reasoned that because reasoning level 1 work involves only one-
to two-step instructions, work involving three- to four-step instructions must be reasoning
19 Id.
20 See Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (holding that “uninvolved”
instructions required for reasoning level two work means “not complicated or intricate,” despite
being “potentially detailed,” and therefore reasoning level two work did not conflict with
claimant’s RFC limitation to handling “simple job instructions” and “simple, routine, and
repetitive work activity”); Stanton v. Comm’r, Soc. Sec. Admin., 899 F.3d 555, 558-59 (8th
Cir. 2018) (holding that claimant’s RFC of understanding, retaining, and carrying out “simple
one- to two-step instructions” limited him to reasoning level one jobs unless VE testimony
resolved the conflict with the DOT).
21 Lawrence v. Saul, 941 F.3d 140, 143 (4th Cir. 2019) (relying on Moore).
22 AR 29; DOT §§ 209.587-034, 239.567-010, 355.677-014.
23 See Stanton, 899 F.3d at 559.
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level 2 work. 24 I do not disagree. 	Where the logic falls apart is these courts then
extrapolating that all reasoning level 2 work must be limited to only three- to four-step
instructions, 25 instead of recognizing that work involving three- to four-step instructions
might be a smaller subset of reasoning level 2 work. 26 All apples are fruits; that does not
mean all fruits are apples. 27
24 See Kaitlyn B. v. Comm’r of Soc. Sec., No. C20-5963, 2021 WL 2432324, at *5 (W.D.
Wash. June 15, 2021).
25 Id. at *4-5 (holding that ALJ “reasonably translated” the state agency opinions when they
limited claimant to “1-3 step tasks” and ALJ’s RFC limited claimant to “simple routine tasks”);
see also Maureen P. v. Kijakazi, No. 20-cv-03240, 2022 WL 1843988, at *10 (E.D. Wash.
Feb. 23, 2022) (holding that the ALJ accounted for medical opinions’ limitation “to one to three-
step tasks” by limiting RFC to “simple, routine tasks of no more than reasoning level two”);
Barca v. Comm’r of Soc. Sec., No. 16-cv-187, 2017 WL 3396416, at *5 (D. Vt. Aug. 8, 2017)
(“[T]he ALJ adequately accounted for [three-step-task] limitation by restricting [claimant] to
performing only ‘simple, unskilled work.’”); Pimentel v. Comm’r of Soc. Sec. Admin., No.
14CV112, 2014 WL 7370079, at *13 n.15 (N.D. Ohio Dec. 29, 2014) (rejecting in footnote
argument that “a limitation to simple, routine and repetitive tasks does not account for a
restriction to one-to-four step tasks and no multi-tasking”); Morris v. Astrue, No. CV 11-10311,
2012 WL 3150609, at *2 (C.D. Cal. July 31, 2012) (holding that ALJ’s RFC limitation “of
performing simple, routine, repetitive tasks” was “consistent with, and encompasses,” the
medical opinion limiting claimant “to three-step tasks”).
26 I find more persuasive courts that have reasoned:
The Commissioner contends a person who can perform two-step tasks can
perform reasoning level one jobs and, therefore, a person who can perform three-
step tasks must be able to “perform jobs at the next higher reasoning level (level
two).” 	Such a person may be able to perform some reasoning level two jobs.
However, there is no evidence that every reasoning level two job requires no more
than three-step tasks. And there is no evidence in the record that the jobs the ALJ
relied on required only three-step tasks.
Diane Kay W. v. Saul, No. C20-5641, 2020 WL 7241428, at *2 (W.D. Wash. Dec. 9, 2020)
(citations omitted).
27 I note that in Loeckle v. Saul, the plaintiff argued that the state agency consultants’ opinion
that plaintiff would at times have “difficulties following detailed instructions” and could “follow
3-4 step commands” supported a limitation to reasoning level 1 work. 	No. 19-CV-3031, 2020
WL 6821077, at *9-10 (N.D. Iowa Aug. 11, 2020), report and recommendation adopted in
relevant part, 2020 WL 5518620 (Sept. 14, 2020), vacated on other grounds, No. 20-3373,
2021 WL 5365233 (8th Cir. June 4, 2021). I rejected this argument, but I did find the opinions
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I find more persuasive those courts that have held a limitation to simple, routine
work does not encompass a limitation to three- to four- step tasks.28
The 	adjectives 	“simple, 	routine, 	and 	repetitive[]” 	. 	. 	. 	concern 	the
complexity of tasks that [c]laimant can perform. 	By contrast, a restriction
to “one to three step work like activities,” relates to the number of steps. 29
As the example about driving instructions above illustrates, “simple . . . directions may
require many steps.”30 Accordingly, I recommend holding that the ALJ erred by
assigning persuasive weight to the state agency consultants’ opinions, but failing to
supported a limitation to reasoning level 2 work. 	Id. at *11. 	Because the ALJ had found
claimant could perform a reasoning level 2 job, I reasoned any error was harmless. Id. at *12.
The parties’ arguments in Loeckle were focused on the ALJ’s failure to include a reasoning-level
limitation, and the court did not have the opportunity to fully analyze and address the overlap
between three-to-four-step work and reasoning-level-two work.
28 See Amanda R. v. O’Malley, No. 23-cv-00781, 2024 WL 4761444, at *5, *7-8 (S.D.W. Va.
Oct. 22, 2024) (holding that ALJ’s RFC to “simple, routine, repetitive tasks” did not encompass
state agency consultants’ limitation to “repetitive one and three-step work like activities” and
that ALJ therefore erred by indicating he found clamant more limited than state agency
consultants without explaining failure to adopt three-step limitation), report and recommendation
adopted, 2024 WL 4757814 (Nov. 12, 2024) (clear error review); Casandra P. L. v. Comm’r
of Soc. Sec., No. 20-CV-5957, 2021 WL 12176440, at *6-7 (W.D. Wash. June 14, 2021)
(holding that ALJ erred by finding medical opinions persuasive but failing to explain how ALJ’s
RFC limitation to “‘simple, routine tasks’ . . . encompasses the doctors’ opinion regarding
[p]laintiff’s ability to follow one- to three-step instructions”); Mindi W. v. Comm’r of Soc. Sec.,
No. 20-cv-05675, 2021 WL 12177952, at *4 (W.D. Wash. Sept. 16, 2021) (“There is a
meaningful 	distinction 	between 	a 	restriction 	to 	understanding 	and 	carrying 	out 	simple
instructions—as opposed to a restriction to understanding and remembering simple, one-to-three-
step instructions.”); Diane Kay W., 2020 WL 7241428, at *2 (holding that ALJ’s RFC
“limit[ing] plaintiff to ‘simple, routine tasks not exceeding [an SVP] level of 2’” did not
encompass limitation to three-step tasks found in persuasive medical opinions (cleaned up));
Ragsdale v. Saul, No. 18-CV-946, 2019 WL 2991945, at *3 (E.D. Wis. July 8, 2019) (rejecting
argument that limitation to “unskilled work” encompassed limitation to “one, two or three step
instructions” when the latter limitation was included in the written RFC but not the hypothetical
to the VE).
29 Amanda R., 2024 WL 4761444, at *8 (cleaned up).
30 Id.
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adopt—or explain the failure to adopt—those opinions’ limitation to three- to four-step
tasks.
B. The DOT Marker Position
At step five, the burden shifts to the Commissioner “to establish that [claimant]
maintains the [RFC] to perform a significant number of jobs within the national
economy.”31 “The [ALJ] may rely on a vocational expert’s” testimony “to show that
jobs that a person with the claimant’s RFC can perform exist in significant numbers.” 32
Here, the ALJ relied on testimony from vocational expert (VE) Jeff Johnson, who
testified that Plaintiff could work as a marker, office helper, or transporter, and provided
the number of those positions available nationally. 	AR 56. 	Plaintiff’s attorney had the
opportunity to question the VE during the hearing and did not challenge this testimony
nor ask the VE what data he relied upon. 	AR 56-57. 	VE Johnson’s resume shows that
he has a Master’s degree in personnel and counseling; that he has worked in vocational
services or adjacent areas (e.g., sales of vocational services) his entire career beginning
in 	1977; 	and 	that 	he 	has 	served 	as 	a 	vocational 	expert 	for 	the 	Social 	Security
Administration for more than thirty years. AR 297-98.
Plaintiff argues that the DOT description of the marker position shows it is
obsolete. The DOT has not been updated since 1991.33 Nevertheless, the Social Security
Administration continues to recognize the DOT as a reliable source of job data34 and to
require VEs to testify consistently with the DOT.35 The DOT describes the marker
31 Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001).
32 Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005).
33 Medved v. Kijakazi, 855 F. App’x 311, 311 (8th Cir. 2021) (per curiam) (citing Purdy v.
Berryhill, 887 F.3d 7, 14 n.10 (1st Cir. 2018)).
34 Id.
35 Moore v. Colvin, 769 F.3d 987, 989 -90 (8th Cir. 2014).
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position as follows:
Marks and attaches price tickets to articles of merchandise to record price
and 	identifying 	information: 	Marks 	selling 	price 	by 	hand 	on 	boxes
containing merchandise, or on price tickets. 	Ties, glues, sews, or staples
price ticket to each article. 	Presses lever or plunger of mechanism that
pins, pastes, ties, or staples ticket to article. May record number and types
of articles marked and pack them in boxes. 	May compare printed price
tickets 	with 	entries 	on 	purchase 	order 	to 	verify 	accuracy 	and 	notify
supervisor of discrepancies. May print information on tickets, using ticket-
printing machine . . . .36
Plaintiff relies on district court cases reasoning that “[g]iven the prevalence of bar codes,
PLU (price look-up codes) and the like, it seems unlikely that significant numbers of
price markers continue to wield pricing guns, or do similar work, in the nation’s retail
outfits” today. 37 But as the Commissioner notes, in most of Plaintiff’s cited cases (from
out-of-circuit district courts), the court did not remand on this basis. 38 The one case cited
by Plaintiff in which the court did remand based on finding the marker position obsolete
did not address the Supreme Court’s recent decision in Biestek.39
In Biestek, the Supreme Court rejected the Seventh Circuit’s categorical rule that
VE testimony did not constitute substantial evidence “if the expert had declined [the
36 DOT § 209.587-034.
37 See, e.g., Henderson v. O’Malley, No. 21-CV-3304, 2024 WL 127843, at *5 (E.D.N.Y. Jan.
11, 2024).
38 Id. at *6 (noting issue with marker position but declining to address sua sponte because it was
not raised); Daniel L. v. Kijakazi, No. 22 C 6976, 2023 WL 5830807, at *9, *11 (N.D. Ill.
Sept. 8, 2023) (because the court was remanding for other reasons, “point[ing] out” issue with
marker position); Applefeld v. Comm’r, Soc. Sec. Admin., No. CV SAG-17-517, 2018 WL
1136571, at *5 n.1 (D. Md. Mar. 1, 2018) (that marker job was obsolete was “not a basis for
remand”).
39 Hawthorne v. Comm’r of Soc. Sec., No. 20-CV-02247, 2021 WL 4356009, at *2 (E.D.N.Y.
Sept. 24, 2021) (holding that VE testimony “simply stating that jobs exist is not substantial
evidence, especially when the jobs are ‘plainly obsolete,’” relying on a Seventh Circuit case
from 2014).
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claimant’s] request to provide supporting data.” 40 The Court reasoned:
Assuming 	no 	demand, 	a 	vocational 	expert’s 	testimony 	may 	count 	as
substantial evidence even when unaccompanied by supporting data. 	Take
an example. 	Suppose an expert has top-of-the-line credentials, including
professional qualifications and many years’ experience; suppose, too, she
has a history of giving sound testimony about job availability in similar
cases (perhaps before the same ALJ). 	Now say that she testifies about the
approximate number of various sedentary jobs an applicant for benefits
could perform. She 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 a well-
accepted methodology. She answers cogently and thoroughly all questions
put to her by the ALJ and the applicant’s lawyer. 	And nothing in the rest
of the record conflicts with anything she says. But she never produces her
[underlying] data. 	Still, her testimony would be the kind of evidence—far
“more than a mere scintilla”—that “a reasonable mind might accept as
adequate to support” a finding about job availability. . . . 	But if that is
true, why should one additional fact—a refusal to a request for [underlying]
data—make a vocational expert’s testimony categorically inadequate? . . .
[I]f 	our 	expert’s 	opinion 	was 	sufficient—i.e., 	qualified 	as 	substantial
evidence—before the refusal, it is hard to see why the opinion has to be
insufficient afterward. 41
The Court noted that a “less qualified” VE “might offer testimony that is so feeble, or
contradicted, that it would fail to clear the substantial-evidence bar.” 42 Thus, whether a
VE’s testimony constitutes substantial evidence must be determined on a “case-by-case”
basis.43
Here, the VE had more than thirty years of vocational experience. As the Eleventh
Circuit has noted, the DOT does “not provide statistical information about the number of
40 Biestek v. Berryhill, 587 U.S. 97, 102 (2019).
41 Id. at 105 (quoting Consolidated Edison Co. v. NLRB, 30 U.S. 197, 229 (1938)).
42 Id.
43 Id. at 108.
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jobs available in the national economy.” 44 Thus, VEs must rely on other (presumably
more recently updated) sources to testify about the number of jobs available in the national
economy.45 Plaintiff did not ask the VE about the data underlying his opinion. The ALJ
had no reason to discredit the VE’s testimony and “was under no duty ‘to conduct an
independent investigation’ into the vocational expert’s testimony.” 46
I do not find that the description of the marker position necessarily shows that it
is obsolete.
The Dictionary of Occupational Title definitions “are simply generic job
descriptions that offer the approximate maximum requirements for each
position, rather than their range.” 	“Not all of the jobs in every category
have 	requirements 	identical 	to 	or 	as 	rigorous 	as 	those 	listed 	in 	the
44 Goode v. Comm’r of Soc. Sec., 966 F.3d 1277, 1281 (11th Cir. 2020).
45 For example, the Department of Labor publishes updated labor statistics in a database called
the Occupational Information Network (O*NET). 	Cunningham v. Astrue, 360 F. App’x 606,
616 (6th Cir. 2010). 	The O*NET groups jobs differently than the DOT but provides the DOT
codes that correspond to each O*NET job. 	Goode, 966 F.3d at 1281. 	“A single [O*NET]
group may contain multiple DOT occupations,” so the VE must use other evidence to apportion
the number of jobs attributable to a single DOT occupation. Id. The O*NET groups the DOT
“marker” position along with 37 other DOT codes as a “stocker and order filler,” of which
2,764,800 positions exist nationwide. Stockers and Order Fillers Crosswalk, O*NET OnLine,
https://www.onetonline.org/link/result/53-7065.00?c=cw&n_cw=0&s_cw=DOT 	(site
updated Aug. 26, 2025) [https://perma.cc/QD2P-RWVF]; Stockers and Order Fillers Details,
O*NET OnLine, https://www.onetonline.org/link/details/53-7065.00 (site updated Aug. 26,
2025) [https://perma.cc/P6WM-L2UQ].
46 O’Neal v. Comm’r of Soc. Sec., 799 F. App’x 313, 318 (6th Cir. 2020) (rejecting claimant’s
argument that surveillance-system monitor job was obsolete because claimant “did not cross-
examine the [VE] when he had the opportunity,” and VE’s “testimony constitutes substantial
evidence to support the ALJ’s finding”); Gallo v. Comm’r of Soc. Sec. Admin., 449 F. App’x
648, 650 (9th Cir. 2011) (“Although the description in the [DOT] of the ‘Addresser’ job contains
a seemingly antiquated reference to typewriters, the ALJ was nonetheless entitled to rely on the
VE’s testimony that the Addresser job exists in significant numbers in the national economy.”);
Bavaro v. Astrue, 413 F. App’x 382, 384 (2d Cir. 2011) (“We decline [claimant’s] invitation to
take judicial notice of the decline of the photofinishing industry and deem the position infeasible
for her. 	A vocational expert testified to the existence of such jobs at the national and regional
level. The ALJ was entitled to credit that testimony . . . .”).
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Dictionary of Occupational Titles.” 47
As the Commissioner notes, there are still instances in which price tags need to be
attached to merchandise beyond bar codes—for example, in retail clothing stores. 	The
Commissioner also argues the DOT description of marker includes wholesale positions.
Thus, just because there is no longer a need for an employee to glue price tags to
merchandise does not mean that all marker positions are obsolete. 	In addition, as the
Commissioner notes, the Social Security Administration has recognized certain DOT jobs
as obsolete48 or only existing in certain regions, 49 and the marker position is not one of
them. 	Other district courts have rejected the argument that the ALJ errs as a matter of
law by relying on the marker position at step five.50
The ALJ could rely on the VE’s experience and credit the VE’s testimony about
the number of marker positions that exist nationwide, especially when the claimant did
not question the VE at the hearing about the underlying data supporting his opinion. 	I
recommend finding that substantial evidence supports the ALJ’s determination that a
significant number of marker positions exist in the national economy.
47 Hillier v. Soc. Sec. Admin., 486 F.3d 359, 366-67 (8th Cir. 2007) (cleaned up) (quoting
Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000)).
48 EM-24027 REV, Social Security Administration (Jan. 6, 2025),
https://secure.ssa.gov/apps10/reference.nsf/links/01062025092030AM
[https://perma.cc/72FJ-FAJN].
49 EM-24026, Social Security Administration (June 22, 2024),
https://secure.ssa.gov/apps10/reference.nsf/links/06212024021759PM
[https://perma.cc/M2ZG-YZWY].
50 See, e.g., Roper v. Dudek, No. 25-CV-0226, 2025 WL 3036536, at *2 (M.D. Fla. Oct. 1,
2025), report and recommendation adopted, 2025 WL 3034788 (Oct. 30, 2025) (clear error
review); Dean W. T. v. Bisignano, No. 24-cv-04113, 2025 WL 2793303, at *9-10 (C.D. Ill.
Sept. 15, 2025), report and recommendation adopted, 2025 WL 2783550 (Sept. 30, 2025) (clear
error review); Weeder v. Dudek, No. 24-CV-546, 2025 WL 848456, at *11 (M.D. Pa. Mar.
18, 2025).
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III. 	CONCLUSION
I recommend reversing the Commissioner’s decision and entering judgment in
favor of the Plaintiff.
Objections to this Report and Recommendation must be filed within fourteen days
of service in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure
72(b). 	Objections must specify the parts of the Report and Recommendation to which
objections are made, as well as the parts of the record forming the basis for the
objections.51 Failure to object to the Report and Recommendation waives the right to de
novo review by the district court of any portion of the Report and Recommendation, as
well as the right to appeal from the findings of fact contained therein. 52
DATED January 9, 2026.
y 	y
Chief Magistrate Judge
Northern District of Iowa
51 Fed. R. Civ. P. 72.
52 See United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009).
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