Equal distribution method, lack of substantial evidence leads to remand of benefits case

July 19, 2018

A lack of substantial evidence led the 7th Circuit Court of Appeals to remand a social security case filed by a woman who was denied benefits despite being severely impaired by a brain tumor.

In 2007, Kelly Chavez was diagnosed with a brain tumor and underwent five surgeries at the age of 21. As a result, Chavez suffers from severe impairments that limit her abilities to performing only simple, routine tasks, with significant restrictions imposed on how much she can lift and carry. 

After applying for supplemental security income in 2010 and receiving a hearing with an administrative law judge, Chavez’s request for benefits was denied at the last step of the process.  Specifically, the vocational expert enlisted by the Social Security Administration to estimate the number of jobs suitable for Chavez offered two vastly different projections, testifying that for one specific job there were either 800 or 108,000 existing positions. The expert preferred the larger estimate, and the ALJ agreed with that choice.

However, the 7th Circuit Court vacated the district court’s decision, finding it was not supported by substantial evidence because the ALJ failed to ensure the vocational expert’s job estimates were reliable.

“To the contrary, the vocational expert offered no affirmative explanation for why his estimates (or the method that produced them) were reliable and instead reached that conclusion through a process of elimination,” Judge Michael Scudder wrote for the court Wednesday.

The 7th Circuit found that the ALJ relieved the agency of its evidentiary burden at the final step of the disability analysis and impermissibly shifted the burden to Chavez when it gave such broad deference to the vocational expert’s chosen estimates. For example, when asked if the equal distribution method he used was reliable, the expert said he wasn’t sure if the method would “give a very accurate count on numbers.”

The 7th Circuit noted specific concerns with the expert’s use of the equal distribution method to determine the number of available jobs Chavez could perform, pointing out that the case entirely lacked any testimony from the expert explaining why he had a reasonable degree of confidence in his estimates. Citing four other cases from the last four years where that method was questioned, the court said its biggest concerns centered on the fact that the method rests on “an assumption about the relative distribution of jobs within a broader grouping that lacks any empirical footing.”

“The transcript leaves us with the conviction that the VE mechanically relied on outdated sources to estimate job numbers, without bringing any aspect of his extensive experience to bear on the reality of those numbers,” Scudder concluded. “The substantial evidence standard does not permit the shortcut, and too much is at stake for Chavez for us to take it.”

Thus, the 7th Circuit vacated and remanded the case of Kelly Chavez v. Nancy Berryhill,17‐2978, for further proceedings.


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