Michele Hermann v. Carolyn Colvin
Filing
Filed opinion of the court by Judge Posner. REVERSED and REMANDED. William J. Bauer, Circuit Judge; Richard A. Posner, Circuit Judge and John Daniel Tinder, Circuit Judge. [6625629-1] [6625629] [13-3624]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3624
MICHELE A. HERRMANN,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:12-cv-00229-JEM— John E. Martin, Magistrate Judge.
____________________
ARGUED OCTOBER 28, 2014 — DECIDED DECEMBER 4, 2014
____________________
Before BAUER, POSNER, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff (we’ll call her the applicant) applied for Supplemental Security Income, which is
a benefit for which low-income people who are aged, blind,
or disabled are eligible. She was turned down by an administrative law judge of the Social Security Administration for
the benefit she sought for years before she turned 55. But because of the less demanding showing of disability required
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of applicants that age and older, she was deemed to have
become disabled when she reached 55. She appealed the partial denial unsuccessfully, first to the appeals council of the
Social Security Administration and then to the district court,
and she now appeals to us.
The applicant’s treating physicians, together with three
consultative physicians selected by the Social Security Administration who examined the applicant and studied her
medical records, advised the administrative law judge that
she suffers from fibromyalgia, spinal disk disease, “photophobia” (abnormal sensitivity to light), and other ailments
unnecessary to discuss, and that as a result she walks haltingly, has difficulty gripping objects, experiences difficulty
in rising from a sitting position, has trouble concentrating in
a bright room or when looking at a computer screen, and as
a result of this assemblage of impairments cannot do even
light work on a full-time basis. If this is right she was disabled before she turned 55 and is therefore entitled to a back
payment of Supplemental Security Income.
“Light work” is defined by the Social Security Administration as work that “involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a
good deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or
leg controls. To be considered capable of performing a full or
wide range of light work, you must have the ability to do
substantially all of these activities. If someone can do light
work, we determine that he or she can also do sedentary
work, unless there are additional limiting factors such as loss
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of fine dexterity or inability to sit for long periods of time.”
20 C.F.R. § 404.1567. This is a pretty precise description of
the type of work that, according to the findings by the doctors regarding the applicant’s physical limitations, she can’t
perform.
But the administrative law judge brushed aside the physicians’ findings. Typical was his statement that the opinion
of Dr. Dauscher, one of the applicant’s treating physicians,
would be “given no significant weight, because the functional limitations are not supported by Dr. Dauscher’s sparse
treatment statement notes or by examination findings made
by other physicians.” The administrative law judge seems to
have thought that a physician’s evidence can be disregarded
unless he has detailed notes to back it up and other physicians provide identical evidence even if they don’t contradict
him—in other words no credibility without corroboration.
These are insufficient grounds for disbelieving the evidence
of a qualified professional.
The administrative law judge discussed at greatest length
the evidence of Dr. Michael Holton, one of the consultative
physicians, saying that Holton had
diagnosed fibromyalgia and lumbar degenerative disk disease. No sensory deficits were noted, and manipulative
abilities were normal. Dr. Holton … opined that the claimant can lift and carry up to 20 pounds occasionally but
would be “unlikely” to be able to work eight hours a day.
He also indicated that the claimant would be able to do only occasional reaching, handling, and fingering. This opinion is [to be] given little weight, except as to the lifting limitations, because Dr. Holton’s examination findings of 5/5
muscle strength, normal sensation and normal manipulative abilities are not consistent with his assessment that the
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claimant cannot sustain sitting, standing and walking for
eight hours and has limitations regarding reaching, handling and fingering. … [Another consultative physician, a
Dr. Sands] commented that the opinion of consultative examiner Dr. Holton was not [that is, should not be] given
weight because the deficits Dr. Holton noted upon examination were not consistent with fibromyalgia. Furthermore, [Dr. Holton] failed to recognize the likelihood of
symptom magnification and interpreted subjective findings as objective manifestations of disease [citations to exhibits omitted].
This is garbled. Consider first the criticisms by Dr. Sands.
Sands could not have been talking about Dr. Holton, because
Sands’s report preceded Holton’s. The government’s lawyer
admitted this at the oral argument but speculated that it was
a “scrivener’s error”—that the administrative law judge had
meant Dr. Ksionski when he said Dr. Holton. This is possible, but we can’t assume it to be true on the basis of the lawyer’s speculation.
Consider next the statement attributed by the administrative law judge to Holton that “manipulative abilities were
normal.” In fact Holton noted “grip strength” measurements
of 31 pounds for the applicant’s right hand and 11 pounds
for her left, which are well below the normal range for women of the applicant’s age. See, e.g., Virgil Mathiowetz et al.,
“Grip and Pinch Strength: Normative Data for Adults,” 66
Archives of Physical Medicine and Rehabilitation 69, 71 (1985),
www.fcesoftware.com/images/5_Grip_and_Pinch_Norms.p
df (visited Dec. 4, 2014). The applicant in our case may have
areas of strength and be able to feel things (“normal sensation”) without having the grip strength that she’d need at
work. The administrative law judge failed to compare X-ray
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and MRI evidence presented by Holton that revealed spinal
disease of sufficient gravity to engender the limitations on
gait, gripping (an important manipulative ability), and rising
(for example, getting up from a chair one is sitting in or
straightening up after lifting something) that he found she
had.
It’s true that Holton reported that the applicant’s “fine
finger manipulative abilities appear normal.” “’Fingering’
involves picking, pinching, or otherwise working primarily
with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled
jobs at all levels of exertion.” Social Security Ruling 85-15:2.
But Holton had also opined that the applicant would have
trouble “handling,” a finding that is consistent with reduced
grip strength (indeed, gripping is a form of handling) and is
an essential manipulative activity in a great many jobs. The
Social Security ruling that we’ve just been quoting from explains that “handling (seizing, holding, grasping, turning or
otherwise working primarily with the whole hand or hands)
are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a
large number of occupations a person could otherwise do.”
The district court’s statement that “the ALJ’s evaluation
of Dr. Holton’s opinion may not be perfect” is a considerable
understatement. Coupled with the administrative law
judge’s unreasoned brush off of the evidence offered by the
other consulting physicians, his confused rejection of Dr.
Holton’s evidence should have persuaded the district judge
to reverse the denial of relief to the applicant and remand
the matter to the Social Security Administration.
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There is more that is wrong with the administrative law
judge’s opinion. The more involves an issue we discussed in
Browning v. Colvin, 766 F.3d 702, 708–12 (7th Cir. 2014), concerning testimony by vocational experts regarding the number of jobs in the local, state, and national economy that an
applicant for social security disability benefits is capable of
performing. The Social Security Administration does not try
to determine whether an applicant would have any real
chance of landing a job, even if physically and mentally capable of performing the work required by it, but it does require a determination of whether work that the applicant is
capable of doing “exists in significant numbers” in the economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 416.966(a). If the
only jobs that the applicant is physically and mentally capable of doing no longer exist in the American economy (such
as pin setter, phrenologist, leech collector, milkman, pony
express rider, and daguerreotypist), the applicant is disabled
from working, and likewise, as a realistic matter, if there is
an insignificant number of such jobs.
Asked at oral argument, the government lawyers in both
social security disability cases argued before us on October
28 confessed ignorance of the source and accuracy of such
statistics, about which we had expressed profound doubt in
the Browning case. We are not alone in harboring such
doubts. See Brault v. Social Security Administration, 683 F.3d
443, 446–47 (2d Cir. 2012) (per curiam); Guiton v. Colvin, 546
F. App’x 137, 143–45 (4th Cir. 2013) (concurring opinion); Jon
C. Dubin, “Overcoming Gridlock: Campbell After a QuarterCentury and Bureaucratically Rational Gap-Filling in Mass
Justice Adjudication in the Social Security Administration’s
Disability Programs,” 62 Administrative L. Rev. 937, 964–71
(2010); Peter J. Lemoine, “Crisis of Confidence: The Inade-
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quacies of Vocational Evidence Presented at Social Security
Disability Hearings, Part II,” Social Security Forum, Sept.
2012, p. 4.
The administrative law judge found that the applicant
was capable of performing “a restricted range of light
work.” On the basis of that finding a vocational expert testified that the applicant “would be able to perform the requirements of representative unskilled light occupations
such as: cashier, with 1,000 such jobs existing in the Fort
Wayne region [where the applicant lives] and 10,000 such
jobs existing in Indiana; shipping and receiving weigher,
with 200 jobs in the region and 2,000 jobs in Indiana; and
production inspector, with 500 jobs in the region and 5,000
jobs in Indiana” (citations omitted). For unexplained reasons
he didn’t estimate the number of jobs in these categories in
the nation as a whole.
The only public source that the vocational expert cited
for the numbers we’ve just quoted was the Dictionary of Occupational Titles (4th ed. 1991) (the “DOT” as it is called). He
did testify that he had also relied on his “knowledge of the
industry”—“my past experience, knowledge of these positions, employers that do accommodate for individuals with
varying degrees of limitations or impairments, hence personal experience and labor market surveys [] account for a
portion of my testimony.” But he didn’t explain how impressions from unspecified past experience and
“knowledge” could enable him to determine numbers of
particular jobs. Nor did he reveal what surveys he had relied
upon and what they had shown.
As for his reference to the DOT, not only is that an obsolete catalog of jobs (most of the entries in it date back to
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1977) but it contains no statistics regarding the number of
jobs in a given job category that exist in the local, state, or
national economy. For the numbers, vocational experts normally rely on a journal called the Occupational Employment
Quarterly, published by a company called U.S. Publishing,
although the vocational expert in this case did not mention
the journal. The source of the journal’s statistics is census data, and the Census Bureau reports not the number of jobs in
each job category in the DOT but instead the number of jobs
in a broader job category that includes some of the DOT’s
narrower categories. The vocational expert divides the number of jobs in the broad category by the number of finer categories within the broad category, and the result is his estimate of the number of jobs in the finer category, that is, the
number of jobs the administrative law judge believes the applicant for benefits is capable of performing.
So if the broad category contains 10,000 jobs, and there
are 20 finer categories within it, one of which consists of the
jobs the applicant can perform, the vocational expert would
estimate, and the administrative law judge accept, that there
were 500 jobs in that category. That would be an arbitrary
estimate, since there would be no basis for thinking that all
the finer categories include the same number of jobs—
namely, in our example, 10,000 divided by 500. (For this understanding of how the vocational experts arrive at their
conclusions, see, besides the sources cited earlier, David F.
Traver, “Cross-Examination of Vocational Expert on U.S.
Publishing Data,” Attorney Education Center, www.jamesedu
cationcenter.com/articles/cross-examination-public-data/
(visited Dec. 4, 2014), reporting an admission by a vocational
expert that this is indeed how vocational experts arrive at
their numbers.)
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We do not know how the vocational expert in this case
calculated the numbers to which he testified. Nothing in the
record enables us to verify those numbers, which the administrative law judge accepted.
While we’re trying to solve or at least identify puzzles,
we’ll take a crack at one more—why it is that the vocational
expert is required to estimate the number of jobs in the applicant’s locality and region, as well as in the nation as a
whole, that the applicant for benefits can perform. For if
there is a substantial number of such jobs in the nation, the
applicant’s claim fails, no matter how few there are in his
locality or region. We are guessing that the reason for requiring estimates of local and regional job availability as well as
national is that the number of jobs of a particular type in the
nation as a whole might be very small, yet if they were concentrated in the applicant’s area he might have a significant
opportunity for obtaining work that he was capable of performing even though people living elsewhere would not
have that opportunity.
REVERSED AND REMANDED.
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