Darley v. Berryhill
Filing
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MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is denied, and the Commissioner's motion is granted. The decision of the ALJ is affirmed. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 10/31/2018:(yxp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
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LISA A. DARLEY,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
No. 17 C 50199
Magistrate Judge
Iain D. Johnston
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision of the
Commissioner of Social Security denying Lisa A. Darley (“Plaintiff”) claim for Disability
Insurance Benefits (“DIB”). The parties have consented to the jurisdiction of the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Plaintiff’s
memorandum, which this Court will construe as a motion for summary judgment, (Dkt. 12), is
denied and the Commissioner’s memorandum, which this Court will construe as a cross-motion
for summary judgment, (Dkt. 27) is granted.
I. BACKGROUND
A. Procedural History
Plaintiff filed her application on July 15, 2013, alleging disability beginning on June 1,
2012, due to pain and numbness in the hands and wrists, arthritis and/or carpal tunnel,
emphysema, and thyroid disease. R. 150–51, 172–79. Plaintiff’s application was denied initially
and on reconsideration. R.70, 83. On February 19, 2016, Plaintiff, represented by an attorney,
testified, via video, at a hearing before an Administrative Law Judge (“ALJ”). R. 27-63. The
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ALJ also heard testimony from Dr. Ashok Jilhewar, a medical expert (“ME”), and Craig
Johnston, a vocational expert (“VE”). Id.
Plaintiff was 57 years old at the time of the hearing. Her testimony focused on her
chronic obstructive pulmonary disease (“COPD”), carpal tunnel syndrome, and knee pain. R. 3637, 39-40. She testified that she stopped working in February 2012, after a thyroid surgery 1. R.
34. Following the surgery, she started experiencing knee pain, which prevented her from going
back to work. R. 35. Plaintiff testified that knee pain 2 prevents her from standing more than
thirty minutes. R. 36. Likewise, she cannot walk more than two blocks because of her COPD.
R. 36-37.
With respect to her hands 3, Plaintiff stated that she has trouble with gripping. R. 37.
She explained that she cannot stir, or open pop bottles, R. 36, carry groceries, R. 37-38, and has
troubles with buttons. R. 40. Plaintiff estimated that she could lift ten pounds and can sit for
about one hour. R. 38-39.
The ME opined he could not find any impairment that would limit Plaintiff’s ability to
lifting or carrying capacity, or her standing and sitting tolerance. R. 46. The doctor, however,
found that Plaintiff’s carpal tunnel syndrome would limit her to frequent use of her upper
extremities. R. 47. In addition, the doctor believed that Plaintiff’s COPD would result in
environmental limitations. Id.
The VE testified that a hypothetical individual with Plaintiff’s background who was
limited to light work and was restricted to frequent use of both upper extremities, reaching,
carrying, manipulating, and fingering, and required to avoid concentrated exposure to cold,
Treatment notes reveal Plaintiff had a right thyroid lobectomy and isthmusectomy on May 3, 2012.
R. 382-83.
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An x-ray revealed mild degenerative arthritis. R. 371. The consultative exam (“CE”) revealed mild
swelling and crepitus, as well as decreased flexion of the left knee joint. R. 332.
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In November 2013, an electrodiagnostic study revealed bilateral median nerve compression which
was “consistent with the diagnosis of bilateral carpal tunnel syndrome.” R. 345-46.
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humidity, and fumes, could perform work in the national economy. R. 58-59. In particular, the
VE opined that such an individual could work as a lens molding equipment operator 4, and filling
machine operator 5. R. 59. The VE noted that machine operation would be the transferable skill.
Id.
On March 23, 2016, the ALJ issued a written decision finding that Plaintiff was not
disabled. R. 13-22. On June 6, 2017, Plaintiff’s request for review by the Appeals Council was
denied, making the ALJ’s decision the final decision of the Commissioner. R. 1-4. This action
followed.
B. ALJ Decision
On March 23, 2016, the ALJ issued an unfavorable decision. R. 13-22. At step
one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her
alleged onset date. R. 15. At step two, the ALJ found Plaintiff suffered from severe impairments
of COPD, carpal tunnel syndrome, degenerative joint disease of the left knee, and obesity. Id. At
step three, the ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medical equaled the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526). R. 16.
Before step four, the ALJ found that she had the residual functional capacity (“RFC”) to
perform work at a light exertional level, subject to some limitations. 6 R. 17. At step four, the ALJ
concluded that Plaintiff was not capable of performing her past relevant work 7. R. 20. At step
The VE noted the job title as “cutting, pressing tenders.” R. 59. According to the VE, there were
approximately 13,000 jobs nationally and approximately 600 in Illinois. Id.
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The VE noted the job title as “packing and filling machine tender.” R. 59. According to the VE,
there were approximately 44,000 jobs nationally and approximately 2,800 in Illinois. Id.
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She is limited to frequent use of both upper extremities, reaching, carrying, manipulating, and
fingering. Plaintiff must also avoid concentrated exposure to cold, humidity, and fumes. R. 16.
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Plaintiff’s past relevant work included punch press operator, a semi-skilled job, and hopper
attendant, an unskilled job. R. 20.
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five, the ALJ found Plaintiff could perform other work, including cutting, pressing tenders and
packaging and filling machine tender. R. 21. Because of this determination, the ALJ found that
Plaintiff was not disabled under the Act. Id.
II. DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision of
the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g).
If supported by substantial evidence, the Commissioner’s factual findings are conclusive. Id.
Substantial evidence exists if there is enough evidence that would allow a reasonable mind to
determine that the decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts
or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d 408,
413 (7th Cir. 2008).
However, the Seventh Circuit has emphasized that review is not merely a rubber stamp.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere scintilla” is not substantial evidence).
A reviewing court must conduct a critical review of the evidence before affirming the
Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when
adequate record evidence exists to support the Commissioner’s decision, the decision will not be
affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to
the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover, federal courts
cannot build the logical bridge on behalf of the ALJ. See Mason v. Colvin, No. 13 C 2993, 2014
U.S. Dist. LEXIS 152938, at *19 (N.D. Ill. Oct. 29, 2014).
On appeal, Plaintiff argues that reversal or remand is appropriate because the
Commissioner failed to prove that a significant amount of jobs that Plaintiff can perform exist. At
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step five, the ALJ determines whether an individual can “make an adjustment to other work.” See
20 C.F.R. § 404.1520(a)(5)(v). The Commissioner bears the burden at step five. See Weatherbee
v. Astrue, 649 F.3d 565, 569 (7th Cir. 2011). This means that the Commissioner is responsible for
establishing that there are a significant number of jobs that the claimant is capable of performing.
See 20 C.F.R. § 404.1560(c)(2); McKinnie v. Barnhart, 368 F.3d 907, 911 (7th Cir. 2004) (“[i]t is
the Commissioner’s burden at Step [five] to establish the existence of a significant number of jobs
that claimant can perform.”) Although VEs are not required, Ehrhart v. Sec'y of Health & Human
Servs., 969 F.2d 534, 540 (7th Cir. 1992), ALJs typically rely on VEs to “assess whether there are
a significant number of jobs in the national economy that the claimant can do.” See 20 C.F.R. §
404.1566(e); Liskowitz v. Astrue, 559 F.3d 736, 742–43 (7th Cir. 2009) (VEs often provide an
impartial assessment of the availability of positions); see also Lee v. Sullivan, 988 F.2d 789, 793
(7th Cir. 1993) (“A vocational expert may be used by the Secretary in order to assess whether there
are a significant number of jobs in the national economy that the claimant can do.”)
The VE in this case testified that Plaintiff could adjust to other work. R. 59. In particular,
the VE opined that Plaintiff could work as a lens molding equipment operator and as a filling
machine operator. Id. Based on this testimony, the ALJ concluded that a finding of “not disabled”
was appropriate under medical-vocational rule 202.15 (“the grids”) 8. R. 21.
Plaintiff objects, claiming that the Commissioner did not meet its step five burden because
the ALJ’s decision violated the Program Operations Manuel System (“POMS”) 9. Dkt. 12 at 6.
The grids are “a series of tables broken into separate rules ‘which classif[y] a claimant as disabled
or not disabled, based on the claimant's physical capacity, age, education, and work experience.’” Haynes
v. Barnhart, 416 F.3d 621, 627 (7th Cir. 2005) (citation omitted).
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The POMS manual is a handbook for internal use by employees of the agency. Schweiker v.
Hansen, 450 U.S. 785, 790, 101 S.Ct. 1468, 1472, 67 L.Ed.2d 685 (1981).
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More specifically, Plaintiff argues that the ALJ’s decision violated POMS DI 25025.030 10 because
the ALJ cited to only two jobs. Id. Plaintiff’s argument is flawed for two reasons. First, the POMS
manual has no legal force and is, at best, persuasive. See Parker for Lamon v. Sullivan, 891 F.2d
185, 190 (7th Cir. 1989) (“[t]he POMS manual has no legal force and therefore cannot be
controlling in this case.”); Thompson v. Astrue, 11C472, 2013 WL 393290, at *4 (N.D. Ind. Jan.
31, 2013).
Second, even if the POMS manual were controlling, Plaintiff’s argument would be
deficient because POMS DI 25025.030 does not require the ALJ to cite more than two jobs.
Although it recommends that the ALJ cite three occupations, it explicitly states that the ALJ may
cite to less than three occupations so long as “it is clear that jobs exist in significant numbers within
fewer than three occupations.” To determine whether jobs exist in significant numbers, the POMS
manual encourages ALJs to consult a vocational specialist. That is precisely what the ALJ did in
this case. At the hearing, the VE opined that there were approximately 13,000 equipment operator
jobs nationally, 600 in Illinois. R. 21. In addition, the VE testified that there were approximately
44,000 machine operator jobs nationally, 2,800 in Illinois. Id. While the Seventh Circuit has never
provided a bright line rule as to what constitutes a significant number, “[i]t is well-established that
1,000 jobs is a significant number.” Liskowitz, 559 F.3d at 743; Brown v. Colvin, 845 F.3d 247,
255 (7th Cir. 2016) (implying that it is well-established that 1000 jobs is a significant number.)
Here, the total number of positions estimated by the VE was 57,000. See Herrmann v. Colvin, 772
F.3d 1110, 1114 (7th Cir. 2014) (explaining that “if there is a substantial number of [sic] jobs in
the nation, the applicant’s claim fails, no matter how few there are in his locality or region.”); see
also 20 C.F.R. § 404.1566(a)(“ [w]e consider that work exists in the national economy when it
POMS DI 25025.030(C) provides ALJs with guidance on how to cite occupations, including how
many occupations to cite.
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exists in significant numbers either in the region where you live or in several other regions of the
country.”) Therefore, the Court finds that, contrary to Plaintiff’s claim, the Commissioner met her
burden by identifying a significant number of jobs, not only nationally, but regionally as well.
Nonetheless, Plaintiff also takes issue with the fact that one of the jobs cited by the ALJ
“constitute[ed] just 600 jobs in Illinois.” Dkt. 12 at 7. But, as the Commissioner points out, the
other job cited by the VE constituted 2,800 jobs in Illinois. Thus, even if there was some doubt as
to whether the 600 equipment operator jobs constituted a significant number 11, the Court still
would not remand the case, as it is clear the other job cited by the VE constituted a significant
number. Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013) (the court “will not remand a case
to the ALJ for further explanation if we can predict with great confidence that the result on remand
would be the same.”)
The Court recognizes that the ALJ may have erred in his reliance on grid rule 202.15,
because Plaintiff reached age 55 between his onset date and the time of the hearing. Under grid
rule 202.15, an individual closely approaching advanced age 12, who has at least a high school
education and previous work at the skilled or semi-skilled level, is deemed “not disabled” if there
are transferable skills. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 202.00(a). Upon reaching 55 however,
Plaintiff was a person of advanced age, and should have been evaluated under different grid rules.
Plaintiff maintains that grid rule 202.06 would direct a finding of disabled. Dkt. 12 at 5. While
true, she does not advance any arguments to support a conclusion that grid rule 202.06 applied.
Specifically, Plaintiff has not challenged the VE’s testimony regarding transferable skills. Moving
See Nix v. Sullivan, 744 F. Supp. 855, 863 (N.D. Ind. 1990) (finding 675 jobs constituted a
significant number.)
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Individuals aged 50-54 are considered closely approaching advanced age. 20 C.F.R. § 404.1563.
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from one age category to another does not, by itself, warrant a finding of disability13.
Consequently, by failing to develop her argument, Plaintiff has, in effect, forfeited her challenge.
Likewise, Plaintiff has forfeited any arguments concerning the source and accuracy of the
VE’s figures because she failed to address those issues during the administrative hearing.
Plaintiff’s counsel in this action is the same attorney who represented her at the administrative
level. At the hearing, counsel had no objection to the VE’s qualifications, R. 56-57, and declined
to ask any questions. R. 62. Thus, Plaintiff had the opportunity to challenge the VE’s figures, but
chose not to. As it stands, the VE’s testimony “was both unobjected to and uncontradicted”;
meaning the ALJ was permitted to credit it. See Brown v. Colvin, 845 F.3d 247, 254 (7th Cir. 2016)
(finding that claimant forfeited arguments regarding the vocational expert’s data by failing to
object to her testimony during the administrative hearing); Liskowitz, 559 F.3d at 744 (same);
Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (“[B]ecause [the claimant’s] lawyer did
not question the basis for the vocational expert’s testimony, purely conclusional though that
testimony was, any objection to it is forfeited.”); Donahue v. Barnhart, 279 F.3d 441, 446 (7th
Cir. 2002) (“When no one questions the vocational expert’s foundation or reasoning, an ALJ is
entitled to accept the vocational expert’s conclusion.”).
III. CONCLUSION
For the reasons stated in this opinion, Plaintiff’s motion for summary judgment [Dkt. 12]
is denied, and the Commissioner’s motion [27] is granted. The decision of the ALJ is affirmed.
Dated: October 31, 2018
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By:
______________________
Iain D. Johnston
United States Magistrate Judge
Compare the grid rule 202.15, the rule the ALJ used, to grid rule 202.07.
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