United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER 
I. SCHEKKIER, UNITED STATES MAGISTRATE JUDGE
Quinita Brown ("Claimant" or "Ms. Brown")
has filed a motion for summary judgment seeking reversal or
remand of the final decision of the Commissioner of Social
Security ("Commissioner") denying her claims for
both Supplemental Security Income benefits ("SSI")
and Disability Insurance benefits ("DIB") (doc.
# 23: PL's Mot. for Summ. J.). The Commissioner
has filed a motion seeking affirmance of the decision denying
benefits (doc. # 25: Def.'s Mot. for Summ. J.), and
Claimant has filed a reply (doc. # 30). For the following
reasons, we remand the case.
22, 2012, Ms. Brown filed an application for SSI and DIB,
alleging a disability beginning on September 1, 2009, with a
date last insured of December 31, 2010 (R. 264, 266, 290).
After her claim was initially denied on September 13, 2012
and on reconsideration on February 21, 2013 (R. 88, 108), Ms.
Brown requested a hearing by an Administrative Law Judge
("ALJ") (R. 140). In order to obtain additional
medical and school records and a second psychological
examination, the ALJ ultimately held four separate hearings,
on October 4, 2013, June 16, 2014, October 20, 2014, and
April 1, 2015 (R. 13). On June 12, 2015, the ALJ ruled that
Ms. Brown was not disabled, and Ms. Brown filed a request for
review (R. 7-9). On September 12, 2016, the Appeals Council
upheld the ALJ's determination, making the ALJ's
determination the final opinion of the Commissioner (R. 1-3).
See 20 C.F.R. § 404.981; Varga v.
Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
Brown's application for benefits contended she was unable
to work because of a learning disability and asthma (R. 90).
Because Ms, Brown does not dispute the ALJ's finding that
her "asthma" is actually acute rhinitis, which is
fully accounted for in Ms. Brown's residual functional
capacity ("RFC"), our decision today only concerns
her allegations regarding her intellectual disability.
remand on a narrow issue: the ALJ's failure to require
the vocational expert ("VE") to provide
substantiation of her hearing testimony about the number of
jobs available in the local economy that Ms. Brown could
perform, given her RFC. At the fourth and final hearing in
April 2015, the VE testified that Ms. Brown would be able to
work as a hand packer, Dictionary of Occupational Titles
("DOT") 920.687-066, with 38, 000 jobs locally;
assembler, DOT 739.687-186, with 20, 000 jobs in the local
economy; and sorter, DOT 929.687-022, with 17, 000 jobs in
the local economy (R. 71). Ms. Brown's attorney asked the
VE how she arrived at her jobs numbers, and the VE responded
that "they come from the United States Department of
Labor and the U.S. Census Bureau, and they can all be found
online, and then I also base my numbers off of my
professional experience and training of placing individuals
in new employment and doing job development for my clients
and actually talking to employers and doing labor market
surveys" (R. 78-79). Based on this testimony, Ms.
Brown's attorney made a request for any and all
documentation pertaining to the VE's methodology for
determining her jobs numbers, citing McKinnie v.
Bamhart, 368 F.3d 907 (7th Cir. 2004), as authorizing
the request (R. 79-80).
took the request under advisement and then denied it with a
detailed explanation in his opinion. He explained that the
Agency takes administrative notice of jobs data from various
governmental and other publications, including the Dictionary
of Occupational Titles, the Bureau of the Census County
Business Patterns, the SSA Occupational
Analyses, and the Occupational Outlook Handbook
published by the Bureau of Labor Statistics (R. 32). The ALJ
further noted that Ms. Brown's attorney had the
opportunity to cross-examine the VE at the hearing; indeed,
her counsel asked a number of detailed questions about the
specific requirements of each job and how they both conformed
to Ms. Brown's RFC and differed from previous jobs she
had held and was unable to perform (R. 70-79). In his
opinion, the ALJ discussed the colloquy between Ms.
Brown's attorney and the VE at length and described why
Ms, Brown was able to perform each job within the confines of
her physical and mental RFC (R. 32). The ALJ stated that the
VE is entitled to rely on the data from the above-listed
governmental sources (R. 32), and that he was concerned that
requiring the VE to turn over information about her clients
might compromise their privacy (Id.). Finally, the
ALJ stated that, because most of the information about the
jobs is available online, Claimant's counsel was able to
research the specific requirements for each job online
agree with the ALJ that the VE's testimony sufficiently
established that the jobs she listed were consistent with Ms.
Brown's RFC and did not conflict with the DOT. But that
finding does not address Ms. Brown's specific assignment
of error: that the ALJ denied her request for substantiation
of the VE's methodology for determining the
number of available jobs. Moreover, we find that the
ALJ's reasons for denying Claimant's motion for the
VE's underlying documents and methodology are not valid.
seminal Seventh Circuit case on the issue of a VE's
responsibility is, as Claimant notes, McKinnie v.
Barnhart. In McKinnie, the VE testified that
she derived her jobs numbers from "market studies,
Department of Labor Statistics, and Census Bureaus ... in
combination, to include my personal labor market
surveys." McKinnie, 368 F.3d at 909. The VE did
not have a written report or reference materials to support
her conclusions and the ALJ held that if the Claimant wished
to see such materials, or other substantiation of the data,
he would have to pay the VE for her time (Id.). The
Seventh Circuit ruled that, while a VE is entitled to give a
"bottom line" regarding jobs numbers, the data and
reasoning for that determination must be "available on
demand" if the claimant challenges the foundation for
the VE's opinion. McKinnie, 368 F.3d at 910.
Without such data, if requested, the ALJ's Step 5
determination that sufficient jobs exist in the economy is
not supported by substantial evidence. Id.; see also
Liskowitz v. Astrue, 559 F.3d 736, 740 (7th Cir, 2009)
(government bears the burden at Step 5 to establish that
claimant has the RFC to perform work that exists in
significant numbers in the economy).
case, Ms. Brown requested information concerning the
methodology the VE used to arrive at the numbers.
Specifically, Ms. Brown seeks the VE's underlying
methodology and data to determine "how the expert
reached her conclusion about how many jobs match the
Administrative Law Judge's residual functional capacity
assessment. (PL Mem. in Support of Summ. J. at 19-20). She
also argues that, "because Brown's 'counsel had
no opportunity to cross-examine the [expert] on the
underlying data' and methodology, the expert's
testimony cannot support the Administrative Law Judge's
Step Five conclusion" (Id. at 21, citing
McKinnie, 368 F.3d at 910). Because Ms. Brown is
challenging the methods the VE used to arrive at her jobs
numbers, we remand the case so that the ALJ can order the VE
to produce substantiation of her testimony. While we
recognize that the ALJ gave a number of reasons for denying
Claimant's request for the VE's underlying data, we
conclude that none of those reasons warranted the denial of
Ms. Brown's request.
the fact that the Agency may take administrative notice of
jobs numbers posted in various government publications has no
bearing on a claimant's independent right to obtain the
underlying methodology showing how a VE determined those
numbers using the sources cited. Had the VE produced, for
example, pages from these sources showing the jobs data she
cited, it may have been appropriate for the ALJ to take
administrative notice of those documents. But
McKinnie requires more than a VE's mere listing
of government publications as the general source of jobs
numbers; in this case, there was no specific document or page
of which the ALJ could take administrative notice.
Second, while the Claimant's attorney had the
opportunity to cross-examine the VE, the scope of the
questioning concerned only how each job did or did not
conform to Ms. Brown's RFC. Her attorney was unable to
ask the VE about the basis for her jobs numbers because she
did not produce the information that would have disclosed her
underlying methodology. Third, any privacy concerns
regarding the VE's private clients and their identifying
information can be easily addressed through means short of
outright denial of the information (such as, for example,
careful redactions). Fourth, the ALJ's assertion
that the jobs numbers were available online was not an
adequate substitute for Ms. Brown's right to obtain from
the VE the specific information that she actually relied on,
without having to perform an internet search and to guess
what information the VE specifically used and how she used
it. To the contrary, telling a plaintiff to search for the
information does not comply with the McKinnie
court's directive that "[t]he data and reasoning
underlying a vocational expert's opinions" be
"available on demand." 368 F.3d at 911.
remanding, we are not holding that the VE's jobs numbers
are in fact unreliable, only that Ms. Brown has the right to
see how they were derived so that she can determine whether
they are subject to legitimate challenge. See, Weatherbee
v. Astrue, 649, F.3d 565, 572 (7th Cir. 2011 (In the
context of a Step 5 analysis, 1, 000 of a particular job
constitutes a significant number). Whether the numbers are
reliable is not for us to say here today. We remand this case