Betty Brown v. Carolyn W. Colvin
Filing
Filed opinion of the court by Judge Williams. VACATED and the case is REMANDED for further proceedings consistent with this opinion. Joel M. Flaum, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6806500-1] [6806500] [16-1066]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 16-1066
____________________
BETTY L. BROWN,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14 CV 894 — Barbara B. Crabb, Judge.
____________________
ARGUED SEPTEMBER 21, 2016 — DECIDED DECEMBER 22, 2016
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Betty Brown applied for disability benefits on the ground that her bad back and obesity left
her in too much pain to work. The Social Security Administration denied Brown’s application, and after holding a
hearing, an administrative law judge (ALJ) upheld the deni-
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al, concluding that Brown could perform sedentary work
associated with six jobs identified by a vocational expert.
Brown challenges this denial of benefits on several
grounds. First, she argues that the ALJ insufficiently considered her obesity. We disagree. The ALJ repeatedly stated
that he had considered Brown’s obesity, discussed multiple
treatment records that identified the obesity, and rejected the
opinions of several government-related experts that insufficiently accounted for the obesity. Brown also contends that
the ALJ improperly relied on the vocational expert’s testimony from the administrative hearing, claiming that the expert failed to provide enough information to justify her departure from the Dictionary of Occupational Titles—which
provides occupational information about myriad jobs in the
U.S. economy—and failed to verify the source of the data on
which her jobs-related opinions were based. But Brown forfeited most of these arguments by failing to object to the expert’s testimony during the hearing, and the one error that
the ALJ did commit was harmless.
However, we agree with Brown that the ALJ violated the
Treating Physician Rule when he rejected certain opinions
proffered by Brown’s doctor regarding Brown’s ability to sit
and stand for prolonged periods of time. In substituting his
own opinions for the doctor’s, the ALJ focused on facts that
did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. So we vacate the ALJ’s denial of benefits
and remand the case for further proceedings.
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I. BACKGROUND
Betty Brown is five feet five inches tall and her weight
has exceeded 300 pounds for over ten years. Medical records
dating back to February 2004 indicate that Brown has long
suffered from chronic back pain, due at least in part to several mild spinal fractures that she suffered during a car accident in 2003. Brown’s back pain became more significant as
the result of a second car accident in July 2004, as well as incidents in June 2006 and January 2007 during which she
heard popping noises in her back. Throughout this period,
Brown regularly visited her treating physician, Dr. William
Shannon, who prescribed her several medications—most notably (and most often) oxycodone, with the daily dosage
steadily increasing from 30 mg in May 2004 to 240 mg in
September 2009.
In March 2007, Brown applied for disability insurance
benefits and supplemental security income under 42 U.S.C.
§§ 416(i) and 423. At the time, she weighed approximately
310 pounds, was not working (she claimed to have last
worked in October 2004), and complained that her back pain
prevented her from sitting or standing for more than 30
minutes at a time and required that she periodically lie
down. The Social Security Administration denied both benefits applications, and an ALJ, after holding a hearing, followed suit.
For reasons that we need not discuss, the ALJ was required to consider Brown’s benefits applications two additional times, most recently in August 2014. In that latter decision, the ALJ again denied Brown’s applications, and in
doing so followed the five-step sequential evaluation process
outlined in 20 C.F.R. § 404.1520(a)(4). The ALJ first conclud-
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ed Brown had not performed substantial gainful activity
since January 2007, and, second, found that Brown had three
“severe” impairments—back pain, obesity, and migraines.
Third, the ALJ determined that none of these impairments
individually or collectively met the listed impairments in
Appendix 1 to 20 C.F.R. § 404, Subpart P, and that Brown
had the residual functional capacity to perform sedentary
work with a sit/stand option so that she could avoid sitting
or standing for more than thirty minutes at a time. Fourth,
the ALJ found that Brown could not do her past work as a
cook based on this residual functional capacity. Finally, the
ALJ, relying on testimony from a vocational expert, found
that Brown could perform six other jobs that existed in significant numbers in the economy—assembler, order clerk,
office helper, video surveillance monitor, greeter/attendant,
and telephone solicitor.
Based on these findings, the ALJ determined that Brown
was not disabled. The district judge affirmed the ALJ’s determination, and this appeal followed.
II. ANALYSIS
On appeal, Brown raises the same three arguments that
the district judge considered and rejected—that the ALJ improperly evaluated her obesity, that the ALJ improperly applied the Treating Physician Rule, and that there was inadequate support for the vocational expert’s testimony about
jobs available to Brown in light of her physical limitations.
Because we review the district judge’s decision de novo, we
review the ALJ’s decision directly and ask whether there is
“substantial evidence” that “a reasonable mind might accept
as adequate to support” the conclusions at issue. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (citation omitted). In
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doing so, we may not decide facts anew or make independent credibility determinations, and must affirm the ALJ’s decision even if reasonable minds could differ about the ultimate disability finding. Id. (citations omitted). “We limit our
review to the reasons articulated by the ALJ in the written
decision.” Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
A. ALJ Adequately Considered Brown’s Obesity
Although obesity has been removed as a standalone listing from Appendix 1’s list of disabling impairments, it must
still be considered when evaluating the severity of other impairments in the five-step sequential analysis. Castile v.
Astrue, 617 F.3d 923, 928 (7th Cir. 2010) (discussing SSR 021p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002)). Obesity cannot be
ignored because “[t]he combined effects of obesity with other impairments may be greater than might be expected
without obesity.” SSR 02-1p; see also Martinez v. Astrue, 630
F.3d 693, 698 (7th Cir. 2011) (“It is one thing to have a bad
knee; it is another thing to have a bad knee supporting a
body mass index in excess of 40.”). While an ALJ need not
painstakingly evaluate every piece of evidence when undertaking this analysis, the ALJ “must build a logical bridge
from evidence to conclusion.” Villano v. Astrue, 556 F.3d 558,
562 (7th Cir. 2009) (per curiam).
Brown maintains that although the ALJ acknowledged
her obesity, he “fail[ed] to make the bridge between that
condition and the numerous physical problems noted in the
record.” According to Brown, the ALJ linked her back injuries with her complaints of pain and use of prescription
medication, but failed to acknowledge that the severity of
her pain and the corresponding need for large amounts of
medication could only have resulted from injury and obesity.
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Although the issue is close, we find that the ALJ adequately considered Brown’s obesity alongside her severe
back pain. As Brown herself concedes, the ALJ repeatedly
asserted that he had considered her obesity. For example, he
stated that he “considered the fact that obesity may increase
the severity of [Brown]’s back pain symptoms and may increase her fatigue and ability to sustain work activity on a
regular and continuing basis”; that Brown’s “back disorder,
obesity, and migraine headaches, considered in combination,
warrant the restrictions set forth in the residual functional
capacity”; and that he “fully considered the impact of
[Brown]’s morbid obesity on her musculoskeletal impairment.” Brown claims that these statements are merely conclusory, but we disagree. On multiple occasions, the ALJ referenced portions of Dr. Shannon’s treatment notes that discussed Brown’s weight, his encouragement that she lose
weight, the increasing pain she endured as a result of her
weight-loss attempts, and her inability to walk more than
two blocks at a time or lift more than five pounds. More notable is the ALJ’s rejection of the opinions of several government-affiliated doctors on the ground that the “longitudinal record demonstrates that [Brown]’s back impairment
together with her morbid obesity would prevent her from working above the sedentary exertional level on a regular and
continuing basis.” (emphasis added).
To be sure, the ALJ could have more explicitly detailed
the effect that he believed Brown’s obesity, in conjunction
with her back pain, had on her ability to sit, stand, walk, and
otherwise move. Cf. Castile, 617 F.3d at 928–29 (concluding
that ALJ adequately considered obesity by discussing,
among other things, the claimant’s functioning with her obesity prior to her onset date, and the absence of advice from
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any treating physician that she restrict work-related activities, observe certain precautions, or not work at all). However, after reviewing the ALJ’s eighteen-page, single-spaced
opinion, we cannot say that he failed to “articulate at some
minimal level his analysis of the evidence,” Herron v. Shalala,
19 F.3d 329, 333 (7th Cir. 1994) (citation and internal quotation mark omitted), or that we simply “don’t know what he
thought,” Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir.
2004). So Brown has failed to demonstrate that the ALJ’s
consideration of her obesity was unacceptable.
B. Treating Physician Rule Improperly Applied
Under the Treating Physician Rule, a treating physician’s
opinion “regarding the nature and severity of a medical
condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other
substantial evidence in the record.” Clifford v. Apfel, 227 F.3d
863, 870 (7th Cir. 2000). When controlling weight is not given, an ALJ must offer “good reasons” for doing so, after having considered: (1) whether the physician examined the
claimant, (2) whether the physician treated the claimant, and
if so, the duration of overall treatment and the thoroughness
and frequency of examinations, (3) whether other medical
evidence supports the physician’s opinion, (4) whether the
physician’s opinion is consistent with the record, and (5)
whether the opinion relates to the physician’s specialty. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (citing 20
C.F.R. § 404.1527(d)(2)); 20 C.F.R. § 404.1527(c).
Here, Dr. Shannon opined that Brown (i) could sit for no
more than thirty minutes at a time and no more than two
hours during a workday; (ii) could stand for no more than
fifteen minutes at a time and no more than two hours during
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a workday; (iii) would need frequent periods of walking and
lying down throughout the workday; (iv) could occasionally
lift up to ten pounds at a time; and (v) would likely be absent from work more than three times per month. The ALJ
decided not to give controlling weight to Dr. Shannon’s
opinions regarding sitting, walking/lying down, and work
absences, reasoning that they were not supported by his
treatment notes and were belied by Brown’s own reports of
her daily living activities. Instead, the ALJ determined that
Brown could perform a full day of sedentary work alternating between sitting and standing (though doing neither for
more than thirty minutes at a time).
That decision was erroneous. For one, Dr. Shannon’s
treatment records support his opinions. In over a dozen individualized assessments spread across five years, Dr. Shannon repeatedly referenced the chronic and severe back pain
that radiated to Brown’s upper back and hips; that this pain
was exacerbated by cold, damp weather and by physical activity such as exercise and sitting or standing for prolonged
periods; that this pain often prevented her from sleeping for
more than two hours at a time; and that Brown required ever-increasing dosages of oxycodone (from 30 mg initially to
240 mg) in order to manage her pain. Taken together, these
observations contradict the ALJ’s conclusion that Dr. Shannon’s “findings over time are quite benign and offer little
support for the degree of limitation that he assessed.”
In addition, the Commissioner supplies little insight into
what additional observations or tests Dr. Shannon could
have conducted to support his challenged opinions. Nor
does the Commissioner’s brief discuss any cases that shed
light on this issue. Perhaps the Commissioner would be sat-
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isfied only if Dr. Shannon had somehow replicated a full
work day to test the limits of Brown’s sitting and standing
endurance. Such an approach, however, would be both cruel
for patients and unrealistic for doctors, given the average
medical practitioner’s time and resource constraints.
And even assuming that some of Dr. Shannon’s opinions
were not fully corroborated by his treatment records, the
ALJ cited no evidence that contradicted the opinions. This distinction is an important one, since the mere absence of detailed treatment notes, without more, is “insufficient
grounds for disbelieving the evidence of a qualified professional.” Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir.
2014); accord Clifford, 227 F.3d at 870. The ALJ emphasized
the fact that Dr. Shannon frequently observed that Brown
had a stable gait, performed leg raises without incident, and
had normal reflexes and mild to moderate range-of-motion
limitations. But these observations do nothing to undermine
the sitting, resting, and work-absence opinions that the ALJ
rejected. Brown’s gait was observed as she walked, the leg
raises were likely performed while she was lying down, and
it is unclear how (if at all) the reflexes and range-of-motion
tests were relevant to Brown’s ability to sit or stand for extended periods. In effect, the ALJ substituted his judgment
for Dr. Shannon’s without explaining why Brown’s activities
were inconsistent with Dr. Shannon’s opinions.
The ALJ also found that Brown’s self-reported daily living activities undermined Dr. Shannon’s opinions. Although
there is not an absolute prohibition against this comparison,
see Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008), we have
repeatedly cautioned against equating daily living activities
with the ability to perform a full day of work, as the former
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are often subject to different restraints (e.g., longer periods
within which to complete and more frequent opportunities
to rest) and at times can be avoided only at great personal
cost. For example, we recently observed that
The critical differences between activities of
daily living and activities in a full-time job are
that a person has more flexibility in scheduling
the former than the latter, can get help from
other persons (in this case, [the claimant]’s
husband and other family members), and is
not held to a minimum standard of performance, as she would be by an employer.
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); see also,
e.g., Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005)
(“[Claimant] must take care of her children, or else abandon
them to foster care or perhaps her sister, and the choice may
impel her to heroic efforts.”).
In failing to heed these warnings, the ALJ misrepresented
many of Brown’s daily activities. Although Brown cared for
her young daughter throughout the day, she often sat or laid
down while doing so and at times received childcare assistance from her mother and a friend. Brown also testified that
she made meals for her family, but many meals were easily
assembled—for example, microwavable frozen dinners and
Hamburger Helper. Brown walked to a nearby park with her
daughter on a near-daily basis, but the park was a mere two
blocks away and had benches (or something else she could
sit on). And although Brown may have performed “light”
housework, she received significant help from her nephews—for example, transporting the laundry basket to and
from the laundry area and removing clean dishes from the
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dishwasher and putting them away. See Craft, 539 F.3d at 680
(holding that ALJ improperly considered claimant’s daily
living activities where claimant’s “so-called ‘daily walk’ was
merely to the mailbox at the end of the driveway, his vacuuming took only four minutes, and his grocery shopping
was done on a motorized cart at the store and he was able to
carry only one grocery bag in each hand into the house”);
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (claimant’s daily living activities “are fairly restricted (e.g., washing dishes, helping his children prepare for school, doing
laundry, and preparing dinner) and not of a sort that necessarily undermines or contradicts a claim of disabling pain”).
So the ALJ must conduct a reevaluation of Dr. Shannon’s
opinions to determine whether they are entitled to controlling weight.
C. No Reversible Error in Relying on Vocational Expert’s Testimony
The ALJ determined that Brown could perform substantial gainful activity based primarily on testimony from a vocational expert regarding six particular jobs. Brown attacks
the ALJ’s reliance on this testimony on several grounds. For
example, Brown claims that the ALJ erred in accepting the
vocational expert’s testimony that all six jobs could be performed sitting or standing and that the worker could be off
task up to 10% of the time while doing so. However, Brown
concedes that this testimony merely supplemented (and did
not conflict with) the Dictionary of Occupational Titles
(DOT), which means that she forfeited these arguments by
failing to object to the testimony during the administrative
hearing. Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009)
(claimant forfeited argument regarding reliability of data
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underlying vocational experts’ job-numbers opinions by failing to object during hearing); Barrett v. Barnhart, 355 F.3d
1065, 1067 (7th Cir. 2004) (same). Brown also forfeited her
argument regarding the vocational expert’s testimony about
the number of positions for each of the six jobs by failing to
object during the hearing. Id. 1 And to the extent Brown alleges error in the ALJ’s acceptance of the vocational expert’s
testimony relating to the telephone solicitor/call center position, Brown waived the issue by failing to raise it in her
opening appellate brief. Bonnstetter v. City of Chi., 811 F.3d
969, 973 (7th Cir. 2016).
That leaves us with Brown’s argument concerning the
vocational expert’s testimony on greeters/attendants. We
have repeatedly noted that if a vocational expert’s testimony
appears to conflict with the DOT, the ALJ “must obtain ‘a
reasonable explanation for the apparent conflict,’” and that a
claimant’s failure to object during a hearing cannot excuse
an ALJ’s failure to do so. Overman v. Astrue, 546 F.3d 456,
462–63 (7th Cir. 2008) (per curiam) (quoting SSR 00-4p, 2000
WL 1898704 (Dec. 4, 2000)). An ALJ can accept conflicting
testimony if the vocational expert’s “experience and
knowledge in a given situation exceeds that of the DOT’s authors, or when the [vocational expert]’s contrary testimony is
based on information in other reliable publications.” Id. at
464 (citation and internal quotation marks omitted).
1 Due
to this forfeiture, we need not reach the applicability of Voigt v.
Colvin, 781 F.3d 871, 879 (7th Cir. 2015) (criticizing but not holding to be
improper the ALJ’s acceptance of the vocational expert’s job-numbers
testimony based on the unknown underlying data source). Of course, if
another administrative hearing occurs, Brown may be able to test the
vocational expert’s reliance on her sources at that time.
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At the administrative hearing here, the vocational expert
opined that a person with Brown’s residual functional capacity could perform work as a greeter/attendant. In doing so,
she acknowledged that the DOT instructs that greeters/attendants perform “light” work, but opined that the
“sedentary” label was more appropriate. The vocational expert defended this deviation by noting that greeters in theaters and in building lobbies typically have the option of sitting or standing, and that she had “place[d] a lot of people in
those jobs, who use chairs, and are seated.” The ALJ believed
this was enough, but Brown claims that the vocational expert’s departure from the DOT needed more support.
Although the issue is close, we agree with Brown. While
the vocational expert’s opinion does not appear conclusory—after all, she referenced her personal experience with
placing individuals in sedentary greeter positions—the record does not indicate that her knowledge on the topic exceeds that of the DOT authors, or that her opinion is informed by another reliable publication. And because the ALJ
declined to pose any follow-up questions on the subject, we
are left without any additional information about the approximate percentage of the greeter positions that can be
performed in a sedentary manner. Perhaps it is 95%; or perhaps it is closer to 9%, which would be an insufficient
ground for trumping the DOT. In addition, the DOT listing
that the vocational expert cited at the hearing (DOT 342.667014, Attendant–Arcade) is unhelpful, since it lists job responsibilities that likely are not sedentary—in particular,
“Perform[ing] minor repairs on game machines”; “Remov[ing] coin accepter mechanism of machines, using key,
and observ[ing] mechanism to detect causes of malfunctions,
such as bent coins, slugs, or foreign material”; and “Re-
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mov[ing] obstructions, reposition[ing] mechanism, insert[ing] coins, and observ[ing] machine operation to determine whether malfunctions are still present.”
Nevertheless, this error is harmless, since the other five
non-greeter positions totaled 5303 jobs in Wisconsin alone.
Cf. Liskowitz, 559 F.3d at 743 (“[I]t appears to be wellestablished that 1000 jobs is a significant number.”). So
Brown has failed to demonstrate that the ALJ committed reversible error in relying on the vocational expert’s testimony.
III. CONCLUSION
The judgment of the district court is VACATED, and the
case is REMANDED for further proceedings consistent with
this opinion. We encourage the Commissioner to assign a
new ALJ to oversee any additional proceedings. See Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005).
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