### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2978

K ELLY J. C HAVEZ

, Plaintiff

‐ Appellant

,

v.

N ANCY A. B ERRYHILL

, Acting Commissioner of Social Security,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:16

‐ cv

‐ 314

‐ WCL

— William C. Lee

, Judge

.

____________________

A RGUED J UNE 6, 2018

— D ECIDED J ULY 18, 2018

____________________

Before W OOD

, Chief Judge

, and K ANNE and S CUDDER

,

Circuit Judges

.

S CUDDER

, Circuit Judge

. When a person applies for disabil

‐ ity benefits, the Social Security Administration evaluates that

person’s capacity to work and, at the fifth and final step of the

analysis, assesses whether significant numbers of jobs exist

that someone with those abilities and limitations could per

‐

form. This determination is consequential: answering no2 No. 17

‐ 2978

means the claimant is disabled and entitled to supplemental

income, whereas a yes answer results in a denial of benefits.

At this final step, the agency bears the burden of showing that

suitable jobs exist in significant numbers. The vocational ex

‐

pert enlisted by the agency to estimate the number of jobs

suitable for Kelly Chavez offered two vastly different projec

‐ tions—testifying that for one particular job there were either

800 or 108,000 existing positions. The vocational expert pre

‐

ferred the larger estimate, and the administrative law judge

who presided over Chavez’s hearing agreed with that choice.

In the end, the ALJ denied Chavez’s claim for benefits, and the

district court affirmed.

We vacate the ALJ’s decision at step five. The decision was

not supported by substantial evidence because the ALJ failed

to ensure that the vocational expert’s job estimates were relia

‐

ble. To the contrary, the vocational expert offered no affirma

‐

tive explanation for why his estimates (or the method that

produced them) were reliable and instead reached that con

‐

clusion through a process of elimination—by determining

that the estimates yielded by an alternative method seemed

too low. By affording such broad deference to the vocational

expert’s chosen estimates, the ALJ relieved the agency of its

evidentiary burden at the final step of the disability analysis

and impermissibly shifted the burden to Chavez.

I

Kelly Chavez has severe impairments. In 2007, at the age

of 21, she was diagnosed with a brain tumor and underwent

five surgeries. Around this time, Chavez began feeling de

‐ pressed and anxious. She struggled to maintain enough con

‐

centration to complete simple household tasks like loading a

dishwasher. Chavez also suffered from migraine headaches,No. 17

‐ 2978 3

back pain (caused by degenerative disc disease), and numb

‐

ness in her feet and hands. Perhaps owing to becoming sick at

such a young age, Chavez has no prior work experience.

In 2010 Chavez applied for supplemental security income,

alleging that she had been disabled since 2007. Eventually she

received a hearing before an ALJ. At step one of the five

‐ step

disability analysis delineated in 20 C.F.R. § 416.905(a), the ALJ

found that Chavez had not worked since applying for bene

‐

fits. At steps two and three, the ALJ concluded that Chavez

had several severe impairments, but found that none matched

or equaled the impairments listed in 20 C.F.R. Part 404, Sub

‐

part P, Appendix 1, that presumptively establish that a claim

‐

ant is disabled. The ALJ then assessed Chavez’s residual func

‐

tional capacity or RFC—her ability to work on a sustained ba

‐

sis despite the limitations caused by her impairments, as re

‐ quired by 20 C.F.R. § 416.920(e)—and found that Chavez was

quite limited. She could perform only simple, routine tasks

with significant restrictions imposed on how much she could

lift and carry. The ALJ further specified that Chavez could

work only in an unchanging environment that neither pro

‐

ceeded at a fast pace nor required more than brief interactions

with colleagues or the public. At step four, therefore, the ALJ

determined that Chavez could perform a limited range of

light work. None of these findings is at issue in this appeal.

The ALJ then proceeded to step five. Because Chavez had

no past work experience, the question became whether she

was able to do any work in light of her RFC, age, and educa

‐

tion. See 20 C.F.R. § 416.960(c)(1). At this step, the agency bore

the burden of demonstrating the existence of significant num

‐

bers of jobs in the national economy that Chavez could per

‐

form. See id. § 416.960(c)(2); McKinnie v. Barnhart

, 368 F.3d 907,4 No. 17

‐ 2978

911 (7th Cir. 2004) (“It is the Commissioner’s burden at Step 5

to establish the existence of a significant number of jobs that

the claimant can perform.”).

Understanding how the agency generally approaches its

burden at step five provides essential context for this appeal.

The agency does not tally the number of job openings at a

given time, but rather approximates the number of positions

that exist, whether vacant or filled, and without regard to the

location of the work and a claimant’s likelihood of being

hired. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.966(a). In

the same vein, the regulations direct that other factors of clear

import to anyone pursuing employment, such as economic

conditions or an employer’s hiring practices, are not to affect

step

‐ five estimates of job numbers. See id. § 416.966(c). The de

‐ sign of these limitations is clear: they establish a framework

for approximating the availability of suitable alternative work

that the agency can apply across massive volumes of applica

‐

tions for disability benefits.

To obtain a job

‐ number estimate at Chavez’s hearing, the

ALJ followed the common path of seeking the assistance of a

vocational expert. See 20 C.F.R. § 416.966(e) (authorizing use

of a VE and other specialists to aid with step five

assessments). VEs tend to have master’s degrees in vocational

rehabilitation or psychology and often work in the field of job

placement. The agency expects VEs to testify objectively and

impartially about the exertional requirements of various jobs

and their frequency in the national economy. See S OC

. S EC

. A DMIN

., V OCATIONAL E XPERT H ANDBOOK

, 9–10 (Aug. 2017).

Doing so requires a VE to be familiar with and draw from

various sources of occupational information produced by the

Department of Labor, Social Security Administration, CensusNo. 17

‐ 2978 5

Bureau, and state employment studies. Amy E. Vercelli,

Consultation in Social Security Disability Law

, in F OUNDATIONS

OF F ORENSIC V OCATIONAL R EHABILITATION 311, 318–21 (Rick H.

Robinson ed., 2014). The VE selected to assist the ALJ at

Chavez’s hearing had three decades of experience as a

vocational consultant. The parties stipulated to the VE’s

qualifications as an expert, and those qualifications are not at

issue here.

The VE testified that someone with Chavez’s abilities, lim

‐

itations, and impairments could perform “unskilled work” at

a “light level,” including, for example, working as a “bench

assembler,” “domestic laundry worker,” or “hand packager.”

If these job titles sound obscure, that is a fair reaction, as they

come from a 1977 publication of the Department of Labor

known as the Dictionary of Occupational Titles

, regularly abbre

‐

viated as the DOT. The Social Security Administration’s regu

‐

lations authorize the agency to “take administrative notice of

reliable job information” from the DOT, among other publica

‐

tions. 20 C.F.R. § 416.966(d)(1). As a result, in cases like these,

the DOT is a source that VEs regularly canvass to identify job

titles suitable for a claimant.

The DOT divides jobs into groups and then lists and

describes particular job titles within each group. The title

“domestic laundry worker” (DOT 302.685

‐ 010), for example,

is situated in group 302 (“Private Family Launderers”), which

contains one other job title, “ironer” (DOT 302.687

‐ 010). U.S.

D EPARTMENT OF L ABOR

, I D ICTIONARY OF O CCUPATIONAL

T ITLES 302 (4th ed. 1991). Other DOT groups are much larger.

For instance, a “bench assembler” (DOT 706.684

‐ 022), another

job that the VE identified as suitable for Chavez, is listed as

one of 59 job titles in the group “Metal Unit Assemblers and6 No. 17

‐ 2978

Adjusters, Not Elsewhere Classified.” U.S. D EPARTMENT OF

L ABOR

, II D ICTIONARY OF O CCUPATIONAL T ITLES 706 (4th ed.

1991). The third job the VE identified, DOT 920.687

‐ 122, which

he called a “hand packager,” is actually entitled “machine

‐ pack assembler” and exists only in the artillery industry. Id. at

937. That job is one of 109 titles in group 920, “Packaging

Occupations.” Id. at 931–38.

The Department of Labor last revised the DOT in 1991.

Recognizing the outdated nature of many of the DOT’s job

descriptions and titles, the Social Security Administration has

been working (since 2008) on a new resource that better

reflects the jobs that exist in today’s economy. The agency has

announced that it anticipates replacing the DOT with the

Occupational Information System in 2020. S OC

. S EC

. A DMIN

., O CCUPATIONAL I NFORMATION S YSTEM P ROJECT

, www.ssa.gov/disabilityresearch/occupational_info_systems.

html (last visited July 18, 2018). Courts including our own

have invited this development. See, e.g., Dimmett v. Colvin

, 816

F.3d 486, 489 (7th Cir. 2016) (encouraging agency to complete

its efforts to replace DOT in light of its “obsolescence”);

Browning v. Colvin

, 766 F.3d 702, 709 (7th Cir. 2014) (“No doubt

many of the jobs [in the DOT] have changed and some have

disappeared. We have no idea how vocational experts and

administrative law judges deal with this problem.”); Purdy v.

Berryhill

, 887 F.3d 7, 14 n.10 (1st Cir. 2018) (recognizing the

criticism leveled at the DOT and acknowledging that the

agency plans to implement a replacement in 2020).

Beyond being outdated, the DOT’s other significant

limitation is that it describes only job duties and

requirements, without also reporting an estimate of how

many of those positions exist in the national economy. ToNo. 17

‐ 2978 7

determine the number of jobs, a VE must consult another

resource. One commonly used is the Department of Labor’s

compilation of Occupational Employment Statistics. That

publication does not use the DOT job grouping system, but

instead relies upon another classification system, the

Standard Occupational Classification (SOC).

The use of one system to supply the job titles and another

to provide the number of jobs creates a matching problem: a

one

‐ to

‐ one correlation does not exist. When a VE identifies an

SOC code and the number of jobs in that code, that number

approximates (at best) the number of positions within a DOT

job group—not the specific DOT job title that the VE

identified as suitable for a particular claimant. Vocational

counselors have recognized that this crude data matching is

highly inaccurate and thus are advised not to perform this

analysis in other areas of their practice (when they are not

testifying in a disability hearing). See Mary Barros

‐ Bailey and

Sylvia Karman, Occupational and Labor Market Information

, in

F OUNDATIONS OF F ORENSIC V OCATIONAL R EHABILITATION 203,

221–25, 232–33 (Rick H. Robinson ed., 2014).

Here the VE testified that the three jobs he had identified

as suitable for Chavez existed in meaningful numbers. He es

‐

timated that across the country there were 108,000 bench as

‐

sembler jobs, 306,000 domestic laundry worker jobs, and

57,000 hand packager jobs. These estimates drew a quick and

repeated objection from Chavez’s counsel, who asked the VE

how he had arrived at the job figures. The VE stated that he

applied what is known as the equal distribution method.

This question before us centers on the reliability of the

equal distribution method. The method operates on the

illogical assumption that all job titles within a particular DOT8 No. 17

‐ 2978

job group exist in equal numbers in the national economy. A

few examples illustrate the point and expose the method’s

distorting effects. Consider a VE who determines that a

particular claimant is able to perform one of the 24 jobs listed

within the DOT under group 313, entitled “Chefs and Cooks,

Hotels and Restaurants.” U.S. D EPARTMENT OF L ABOR

, I

D ICTIONARY OF O CCUPATIONAL T ITLES 313 (4th ed. 1991).

Under the equal distribution method, the VE would assume

that each DOT job title encompassed by the corresponding

SOC code exists in equal numbers. But it does not take much

knowledge of job markets to know that, while certain jobs

may exist in large numbers (for example, a “pizza baker,”

DOT 313.381

‐ 014, who “prepares and bakes pizza pies”),

others clearly do not (such as a “chef de froid,” DOT 313.281

‐

010, who designs “artistic food arrangements for buffets in

formal restaurants” including “mold[ing] butter into artistic

forms”). Or, by way of a second example, take “Cashiers and

Tellers” (DOT group 211). Of the 28 positions included in that

group, six exist only in the racing industry, with five of those

six existing only at horse

‐ racing tracks. Id. at 182–84. It seems

unlikely that over 20% of all cashier and teller jobs in today’s

economy are at racetracks.

At the hearing, Chavez objected to the VE’s job

‐ number es

‐

timates. The ALJ then asked the VE to explain how he arrived

at his projections. The VE responded by stating that he ap

‐ plied the equal distribution method because he prefers it over

the occupational density method, which approximates job

numbers utilizing a software program known as JobBrowser

Pro. The VE then observed that the two methods can produce

substantially different estimates, and he used the bench as

‐

sembler position as an illustration. Under the occupationalNo. 17

‐ 2978 9

density method, the VE explained, the JobBrowser Pro soft

‐

ware estimated that 800 bench assembler positions existed in

the national economy, while the equal distribution method

put the number at 108,000. When asked by the ALJ why he

adopted the higher estimate, the VE answered only by offer

‐ ing that, “I find the information on occupation density infor

‐

mation produce[d] in JobBrowser Pro, a SkillTRAN product,

to the estimated numbers of jobs significant[ly] lower than I

believe would be the numbers in the national economy.” (A.R.

at 688.)

Recognizing that the VE’s response did not answer the

question, the ALJ tried again, asking the VE to explain his de

‐

cision to adopt an estimate of 108,000 bench assembler jobs.

The VE then replied:

Oh, the example I gave for the unskilled, light produc

‐

tion worker was [for the position of] bench assembler.

I find that JobBrowser Pro’s estimate, and it is an esti

‐

mate, for that group of occupations [for] bench assem

‐

bler is [a] little less than 800 in the national economy. I

just think it’s almost logical that there are more bench

assemblers in the national economy than 800.

(A.R. at 689.)

The ALJ did not stop there, trying yet a third time to

understand the basis for the VE’s decision to choose the

estimate from the equal distribution method over that from

the JobBrowser Pro software:

Q: And you said that

‐‐ or that you assume that there

would be more than 800 of that particular kind of job

in the national economy, and other than just a guess is

there some other basis in addition to your expectation10 No. 17

‐ 2978

that informs that opinion? Have you done labor mar

‐

ket surveys or other things that would indicate that

that’s

‐‐ that those kind of numbers are too low or what

is it that’s telling you those

‐‐

A: I would have to say no that I have not done labor

market surveys in order to get number counts.

(A.R. at 689–90.) When asked the same question a fourth time,

the VE did not elaborate much:

I’m not sure that either one of the methods give a very

accurate count on numbers. Numbers are always

ranges and estimates no matter how they’re counted. I

consistently find that the numbers that I read in the Job

Browser Pro estimate at the DOT level are much lower

than what I normally find. And virtually when I look

at down to the local level in a very small region, a met

‐ ropolitan statistical area[,] I don’t have the confidence

with those [JobBrowser Pro] numbers are high enough

to be a more accurate reflection of the numbers of jobs

than that group of numbers that I have given [from the

equal distribution method].

(A.R. at 690–91.) The colloquy concluded with the VE stating

that his confidence in estimates generated from the equal dis

‐

tribution method was not rooted in surveys or job data, but

rather more generally “based on [his] experience as well as

consultation with other experts throughout the country.”

(A.R. at 691.)

The ALJ adopted the VE’s testimony over Chavez’s objec

‐

tion. In her written opinion, the ALJ explained that “[t]he vo

‐

cational expert’s opinion is accepted as it is not contradictedNo. 17

‐ 2978 11

and in light of [the VE’s] professional qualifications and famil

‐ iarity with the rules governing the vocational aspects of the

Social Security disability evaluation.” (A.R. 641.)

Chavez appealed to the district court, contending that the

ALJ erred in accepting the VE’s arbitrary and unreliable opin

‐

ion. The district court affirmed the ALJ’s decision, concluding

that although this court has criticized the equal distribution

method in prior opinions, we have not prohibited its use or

deemed its application reversible error. Chavez then sought

our review.

II

A

On appeal we ask whether substantial evidence supported

the ALJ’s conclusion that there are significant numbers of jobs

in the economy suitable for Kelly Chavez to perform. See 42

U.S.C. § 405(g) (requiring Commissioner’s findings to be

sustained if supported by substantial evidence); Johansen v.

Barnhart

, 314 F.3d 283, 287 (7th Cir. 2002). The Supreme Court

has explained that substantial evidence requires more than “a

mere scintilla” of proof and instead requires “such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971). Information “without a basis in evidence having

rational probative force” cannot satisfy this standard. Id. at

407 (internal citation omitted). When assessing the

administrative record, our role is not to reweigh the evidence

or substitute our judgment for that of the agency. Elder v.

Astrue

, 529 F.3d 408, 413 (7th Cir. 2008).

In the context of job

‐ number estimates, we have observed

that the substantial evidence standard requires the ALJ to12 No. 17

‐ 2978

ensure that the approximation is the product of a reliable

method. See Donahue v. Barnhart

, 279 F.3d 441, 446 (7th Cir.

2002); see also McKinnie

, 368 F.3d at 910 (relying upon

Donahue and emphasizing that “an ALJ may depend on

expert testimony only if the testimony is reliable”). To put the

point most succinctly, “[a] finding based on unreliable VE

testimony is equivalent to a finding that is not supported by

substantial evidence and must be vacated.” Britton v. Astrue

,

521 F.3d 799, 803 (7th Cir. 2008).

Our prior cases have not required us to explain the full

contours of what it means for a VE’s step five testimony to be

reliable. What we have said, though, goes most of the way to

resolving this appeal, if not resolving it entirely. In Donahue

,

we observed that the substantial evidence requirement brings

with it an obligation for experts to use reliable methods. 279

F.3d at 446. We further underscored—and reiterate here—that

the measuring stick for assessing the reliability of expert

testimony in this administrative setting is not Federal Rule of

Evidence 702. Id. (pointing to Richardson and underscoring

that “Rule 702 does not apply to disability adjudications, a

hybrid between the adversarial and inquisitorial models”).

We added that, at the very least, “[e]vidence is not

‘substantial’ if vital testimony has been conjured out of whole

cloth.” Id.

Establishing the reliability of a job

‐ number estimate does

not require meeting an overly exacting standard. Many vari

‐

ables combine to create uncertainty in a VE’s job

‐ number esti

‐

mate. Consider what is being estimated. It is not general em

‐ ployment levels. Nor is it the number of people working

within the same general job category in a particular industry.No. 17

‐ 2978 13

Rather, the agency is required to focus on what jobs a partic

‐

ular individual can perform (in light of the person’s age, edu

‐

cation, work experience, and residual functional capacity)

and then to estimate the number of those jobs that exist across

the nation (or, at a minimum, in a region). See 20 C.F.R. §

416.960(c)(1) (“Any other work (jobs) that you can adjust to

must exist in significant numbers in the national economy (ei

‐

ther in the region where you live or in several regions in the

country).”).

A VE’s estimate will be just that—an estimate. VEs are nei

‐

ther required nor expected to administer their own surveys of

employers to obtain a precise count of the number of positions

that exist at a moment in time for a specific job. Think of the

difficulty, if not impossibility, of acquiring the data necessary

to tally how many residential laundry worker jobs exist

throughout the United States or even in the Midwest. The VE

necessarily must approximate, and there is no way to avoid

uncertainty in doing so.

The law recognizes and respects these realities and limita

‐

tions. The agency’s regulations do not mandate a precise

count of job numbers. See 20 C.F.R. § 416.960(c)(2). And, while

Congress has required the agency to support its findings with

substantial evidence, see 42 U.S.C. § 405(g), this standard af

‐

fords the agency sufficient flexibility in approaching the ap

‐ proximation required at step five. But any method that the

agency uses to estimate job numbers must be supported with

evidence sufficient to provide some modicum of confidence

in its reliability.14 No. 17

‐ 2978

B

This is not our first encounter with the equal distribution

method. We have seen the method applied in other Social Se

‐ curity cases and—for the exact reason its application here

troubles us—have questioned its use in at least four opinions.

See, e.g., Alaura v. Colvin

, 797 F.3d 503, 507–08 (7th Cir. 2015);

Voigt v. Colvin

, 781 F.3d 871, 879 (7th Cir. 2015); Browning

, 766

F.3d at 709; Herrmann v. Colvin

, 772 F.3d 1110, 1112–14 (7th Cir.

2014). Other courts have sounded similar concern, if not spe

‐ cifically about the equal distribution method, then about the

many layers of uncertainty in the available data on job num

‐

bers. See, e.g., Brault v. Soc. Sec. Admin., Comm ʹ r

, 683 F.3d 443,

447 n.4 (2d Cir. 2012) (noting the “information loss” that re

‐

sults from the “many

‐ to

‐ one mapping,” between the DOT ti

‐

tles and SOC codes, which results in an estimate of existing

jobs that “may deviate significantly from the actual number

of existing positions”). What most concerns us is that the

method rests on an assumption about the relative distribution

of jobs within a broader grouping that lacks any empirical

footing. To return to a previous example, we seriously doubt

the reliability of a method that assumes that the totality of all

cashier and teller positions in today’s economy exist in equal

numbers at racetracks as they do in banks and retail stores.

All of this brings us to the evidentiary record before the

ALJ at Chavez’s hearing. And all the record shows is that the

VE preferred the job

‐ number estimates produced by the equal

distribution method over those from the occupational density

method. What is entirely lacking is any testimony from the VE

explaining why he had a reasonable degree of confidence in

his estimates. The VE, for example, could have drawn on his

past experience with the equal distribution method,No. 17

‐ 2978 15

knowledge of national or local job markets, or practical learn

‐ ing from assisting people with locating jobs throughout the

region, to offer an informed view on the reasonableness of his

estimates. The absence of any such testimony left the ALJ

without any reasoned and principled basis for accepting the

job

‐ number estimates.

The ALJ sensed the evidentiary void and rightly reacted

by charting the course we suggested in Donahue —by asking

the VE to explain why it was reasonable to believe that 108,000

bench assembler jobs was a better estimate than 800. See 279

F.3d at 446 (“If the basis of the vocational expert’s conclusions

is questioned at the hearing, however, then the ALJ should

make an inquiry (similar though not necessarily identical to

that of Rule 702) to find out whether the purported expert’s

conclusions are reliable.”) (emphasis omitted).

When pressed four times to explain why he chose the es

‐

timates produced by the equal distribution method over those

from the JobBrowser Pro software, the VE focused entirely on

the latter method’s shortcomings, testifying that “it’s almost

logical” that there exist more than 800 bench assembler jobs

in the national economy. Perhaps so. But concluding that one

approach is flawed does not demonstrate that another

method is reliable. Our confidence in the VE’s methodology is

further diminished by his later concession that he was “not

sure that either one of the methods give a very accurate count

on numbers.” An affirmative explanation for the estimates he

produced was required, for without one there was no eviden

‐ tiary foundation on which the ALJ could rest a finding of re

‐ liability. See McKinnie

, 368 F.3d at 911 (“Without first inquir

‐ ing into the reliability of [VE] Bose’s opinions, the ALJ should

not have so unquestioningly accepted her testimony that a16 No. 17

‐ 2978

significant number of jobs were available to McKinnie.”). The

transcript leaves us with the conviction that the VE mechani

‐ cally relied on outdated sources to estimate job numbers,

without bringing any aspect of his extensive experience to

bear on the reality of those numbers. We are left with the pos

‐ sibility that the job

‐ number estimates were “conjured out of

whole cloth.” Donahue

, 279 F.3d at 446.

The Commissioner argues that the ALJ fulfilled her duty

by asking questions about the VE’s method. But accepting that

argument renders meaningless the substantial evidence

standard. The ALJ needed to do more than just ask questions;

she needed to hold the VE to account for the reliability of his

job

‐ number estimates. See Richardson

, 402 U.S. at 407 (rein

‐ forcing the necessity of evidentiary reliability in administra

‐

tive proceedings). By accepting the VE’s estimates at step five

because they were “not contradicted,” the ALJ effectively and

impermissibly shifted the burden to Chavez.

Before accepting a VE’s job

‐ number estimate, the ALJ,

when confronted by a claimant’s challenge, must require the

VE to offer a reasoned and principled explanation. At or after

a hearing, the VE could support the approximation by, for ex

‐ ample, drawing on knowledge of labor market conditions and

occupational trends, gleaned from reviewing relevant data

sources or from placing workers in jobs. This is particularly

true where, as here, there is a world of difference between two

estimates offered by a VE—800 versus 108,000 bench assem

‐

bler jobs. This approach not only properly leaves the burden

on the agency at step five, it also aligns fully with the expec

‐

tations the agency itself has articulated for VEs. See S OC

. S EC

. A DMIN

., V OCATIONAL E XPERT H ANDBOOK

, 8, 38 (Aug. 2017)No. 17

‐ 2978 17

(“You should be prepared to explain why your sources are re

‐ liable.”).

With this opinion we intend no new obligations. Substan

‐

tial evidence remains the governing standard. We also recog

‐

nize and underscore that VEs cannot be expected to formulate

opinions with more confidence than imperfect data allows.

Nor is it our place to enjoin use of the equal distribution

method. What we do require, though, is more than what sup

‐ ported the ALJ’s decision here.

We recognize that the VE identified three suitable jobs for

Chavez and then estimated that, in total, nearly 500,000 of

those jobs existed in today’s economy. The observation leads

nowhere, however, as each of the VE’s job estimates was the

product of the equal distribution method, and nothing in the

administrative record allows us to conclude with any reliabil

‐ ity that the estimates reasonably approximate the number of

suitable jobs that exist for Chavez. The substantial evidence

standard does not permit the shortcut, and too much is at

stake for Chavez for us to take it. Her case must go back.

III

Whether Kelly Chavez is disabled and entitled to supple

‐

mental income remains for the Social Security Administration

to decide. At a new step

‐ five hearing, it may be that the evi

‐ dentiary gap is filled through expanded testimony from the

VE about his estimates or through some other showing that

there are a significant number of jobs in the economy Chavez

can perform given her limitations. Chavez will have the op

‐ portunity to challenge any such showing by the agency.

We VACATE and REMAND for further proceedings con

‐

sistent with this opinion.