Adams v. Commissioner of Social Security

Filing 26

MEMORANDUM AND ORDER, The final decision of the Commissioner of Social Security denying Susan C. Adams' application for disability benefits is AFFIRMED. The clerk of court is DIRECTED to enter judgment in favor of defendant. Signed by Judge J. Phil Gilbert on 7/31/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
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SUSAN C. ADAMS,
Plaintiff,
vs.
NANCY J. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.1

Civil No. 16-cv-389-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Susan C. Adams seeks judicial review of
the final agency decision denying her application for Disability Insurance Benefits (DIB) pursuant
to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for DIB in November 2012, alleging disability beginning on September
26, 2011. After holding an evidentiary hearing, ALJ Stuart T. Janney denied the application in a
written decision dated December 12, 2014. (Tr. 11-25). The Appeals Council denied review,
and the decision of the ALJ became the final agency decision. (Tr. 1). Administrative remedies
have been exhausted and a timely complaint was filed in this Court.
Issue Raised by Plaintiff
Plaintiff raises the following issues:
1.

The ALJ erred in relying on vocational expert testimony that lacked a reliable basis.

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. See, Casey v. Berryhill, 853 F.3d 322 (7th
Cir. 2017). She is automatically substituted as defendant in this case. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g).

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2.

The ALJ’s residual functional capacity assessment was erroneous where it was
expressed in terms of “light exertion” rather than in a function-by-function
analysis.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the applicable
statutes. For these purposes, “disabled” means the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. §423(d)(1)(A).
A “physical or mental impairment” is an impairment resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.

42 U.S.C. §423(d)(3).

“Substantial gainful

activity” is work activity that involves doing significant physical or mental activities, and that is
done for pay or profit. 20 C.F.R. §§ 404.1572.
In order to receive DIB, plaintiff must establish that she was disabled as of her date last
insured. Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997).
Social Security regulations set forth a sequential five-step inquiry to determine whether a
claimant is disabled. 20 C.F.R. § 404.1520. Under this procedure, it must be determined: (1)
whether the claimant is presently unemployed; (2) whether the claimant has an impairment or
combination of impairments that is serious; (3) whether the impairments meet or equal one of the
listed impairments acknowledged to be conclusively disabling; (4) whether the claimant can
perform past relevant work; and (5) whether the claimant is capable of performing any work within
the economy, given his or her age, education and work experience. Simila v. Astrue, 573 F.3d
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503, 512-513 (7th Cir. 2009); Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992).
The Seventh Circuit Court of Appeals has explained this process as follows:
The first step considers whether the applicant is engaging in substantial gainful
activity. The second step evaluates whether an alleged physical or mental
impairment is severe, medically determinable, and meets a durational requirement.
The third step compares the impairment to a list of impairments that are considered
conclusively disabling. If the impairment meets or equals one of the listed
impairments, then the applicant is considered disabled; if the impairment does not
meet or equal a listed impairment, then the evaluation continues. The fourth step
assesses an applicant's residual functional capacity (RFC) and ability to engage in
past relevant work. If an applicant can engage in past relevant work, he is not
disabled. The fifth step assesses the applicant's RFC, as well as his age, education,
and work experience to determine whether the applicant can engage in other work.
If the applicant can engage in other work, he is not disabled.
Weatherbee v. Astrue, 649 F.3d 565, 568-569 (7th Cir. 2011).
This Court reviews the Commissioner’s decision to ensure that the decision is supported by
substantial evidence and that no mistakes of law were made. It is important to recognize that the
scope of review is limited. “The findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive. . . .” 42 U.S.C. § 405(g). Thus, this Court
must determine not whether plaintiff was, in fact, disabled at the relevant time, but whether the
ALJ’s findings were supported by substantial evidence and whether any errors of law were made.
See Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306
(7th Cir. 1995)).
This Court uses the Supreme Court’s definition of substantial evidence, i.e., “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971). In reviewing for “substantial evidence,” the entire
administrative record is taken into consideration, but this Court does not reweigh evidence, resolve
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conflicts, decide questions of credibility, or substitute its own judgment for that of the ALJ.
Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir. 1997). However, while judicial review is
deferential, it is not abject; this Court does not act as a rubber stamp for the Commissioner. See
Parker v. Astrue, 597 F.3d 920, 921 (7th Cir. 2010), and cases cited therein.
The Decision of the ALJ
ALJ Janney followed the five-step analytical framework described above. He determined
that plaintiff had not been engaged in substantial gainful activity since the alleged onset date. She
was insured for DIB only through December 31, 2012. The ALJ found that plaintiff had severe
impairments of osteoarthritis, lumbar spine degenerative disc disease without herniation, torn
medial meniscus in the left knee, chronic obstructive pulmonary disease, neuropathy, and
obesity. He further determined that these impairments do not meet or equal a listed impairment.
The ALJ found that plaintiff had the residual functional capacity (RFC) to perform work at
the light exertional level with a number of physical limitations. The RFC assessment did not
specify how many hours plaintiff could stand/walk or sit. Based on the testimony of a vocational
expert (VE), the ALJ found that plaintiff was not able to do her past relevant work as a registered
nurse. The VE testified that she had acquired skills from her past work that would transfer to
other light exertion jobs that she could do. The ALJ accepted this testimony and concluded that
she was not disabled.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in formulating this
Memorandum and Order. The following summary of the record is directed to the points raised by
plaintiff and is confined to the relevant time period. In view of plaintiff’s arguments, the Court
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will omit a discussion of the medical evidence.
1.

Agency Forms

Plaintiff was born in 1956 and was 56 years old on the date last insured. (Tr. 261).
Plaintiff alleged that she had stopped working in July 2007. (Tr. 265). A prior claim for social
security disability benefits had been denied in May 2011. (Tr. 114-130). She had worked as a
registered nurse beginning in 1989. (Tr. 266).
In a Work History Report, plaintiff stated that she had worked as an R.N. in nursing homes,
a hospital and a prison. Her job including supervising other staff, computer work, interviewing
employees, paperwork, charting, assisting doctors, taking vital signs, doing patient assessments,
giving medications, feeding patients, and giving treatments and emergency care. (Tr. 336-343).
2.

Evidentiary Hearing

Plaintiff was represented by an attorney at the evidentiary hearing in January 2014. (Tr.
41). She is represented by a different attorney in this Court.
The VE testified that plaintiff’s past relevant work was as a general duty registered nurse.
That is categorized in the Dictionary of Occupational Titles as medium and skilled. The ALJ
asked the VE a hypothetical question which conformed to the ultimate RFC assessment. The VE
testified that this person would not be able to do plaintiff’s past work as an R.N. The ALJ then
asked whether there were any semi-skilled or skilled jobs that the hypothetical person could do
“that would require skills acquired in the performance of past relevant work but no additional
skills?” The VE replied in the affirmative, identifying three light nursing positions: office nurse,
DOT 075.374-014; occupational nurse, DOT 075.374-022; and quality assurance coordinator,
DOT 075.167-014. The last job consists of reviewing the quality of care rendered by other
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nurses. (Tr. 64-67). The VE testified that plaintiff had acquired transferrable skills of patient
care skills, medical terminology, interpersonal skills, record keeping and recording.

She

described “nursing skills” as “ an all-encompassing type of skill set.” (Tr. 67).
The ALJ asked whether any of the VE’s testimony conflicted with the DOT or SCO
(Selected Characteristics of Occupations, a companion publication to the DOT).

The VE

answered, “I don’t think so, judge.” (Tr. 69). Plaintiff’s counsel asked no questions of the VE.
(Tr. 69).
Analysis
Both of plaintiff’s points border on the frivolous. Plaintiff worked as a registered nurse
and nursing supervisor for almost twenty years. (Tr. 275). She does not dispute that she
acquired skills in the areas of patient care, medical terminology, interpersonal skills, record
keeping and recording. Nor does she dispute that those skills would transfer to the jobs of office
nurse, occupational nurse, and quality assurance coordinator. Rather, she argues that the basis for
the VE’s testimony about her skills was not identified.2
The DOT describes the job of registered nurse as follows:
Provides general nursing care to patients in hospital, nursing home, infirmary, or
similar health care facility: Administers prescribed medications and treatments in
accordance with approved nursing techniques. Prepares equipment and aids
physician during treatments and examinations of patients. Observes patient,
records significant conditions and reactions, and notifies supervisor or physician of
patient's condition and reaction to drugs, treatments, and significant incidents.
Takes temperature, pulse, blood pressure, and other vital signs to detect deviations
from normal and assess condition of patient. May rotate among various clinical
services of institution, such as obstetrics, surgery, orthopedics, outpatient and
admitting, pediatrics, and psychiatry. May prepare rooms, sterile instruments,
2

None of the cases cited by plaintiff are on point. Those cases establish the general and unsurprising rule that a VE’s
testimony can provide substantial evidence in support of the ALJ’s decision only where the testimony is reliable.
None of those cases involved testimony regarding transferability of skills.

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equipment and supplies, and hand items to SURGEON (medical ser.) 070.101-094;
OBSTETRICIAN (medical ser.) 070.101-054, or other medical practitioner. May
make beds, bathe, and feed patients. May serve as leader for group of personnel
rendering nursing care to number of patients.
DOT, Section 075.364-010, 1991 WL 646751. This description is consistent with plaintiff’s
description of her job duties set forth in her Work History Report.
The DOT describes the job of office nurse as follows:
Cares for and treats patients in medical office, as directed by physician: Prepares
patient for and assists with examinations. Administers injections and medications,
dresses wounds and incisions, interprets physician's instructions to patients, assists
with emergency and minor surgery, and performs related tasks as directed.
Maintains records of vital statistics and other pertinent data of patient. Cleans and
sterilizes instruments and equipment, and maintains stock of supplies. May conduct
specified laboratory tests. May record and develop electrocardiograms. May act as
receptionist, perform secretarial duties, and prepare monthly statements.
DOT, Section 075.374-014, 1991 WL 646753

.

The DOT describes the job of occupational nurse as follows:
Provides nursing service and first aid to employees or persons who become ill or
injured on premises of department store, industrial plant, or other establishment:
Takes patient's vital signs, treats wounds, evaluates physical condition of patient,
and contacts physician and hospital to arrange for further medical treatment, when
needed. Maintains record of persons treated, and prepares accident reports and
insurance forms. Develops employee programs, such as health education, accident
prevention, alcohol abuse counseling, curtailment of smoking, and weight control
regimens. May assist physician in physical examination of new employees.
DOT, Section 075.374-022, 1991 WL 646755.
The DOT describes the job of quality assurance coordinator as follows:
Interprets and implements quality assurance standards in hospital to ensure quality
care to patients: Reviews quality assurance standards, studies existing hospital
policies and procedures, and interviews hospital personnel and patients to evaluate
effectiveness of quality assurance program. Writes quality assurance policies and
procedures. Reviews and evaluates patients' medical records, applying quality
assurance criteria. Selects specific topics for review, such as problem procedures,
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drugs, high volume cases, high risk cases, or other factors. Compiles statistical data
and writes narrative reports summarizing quality assurance findings. May review
patient records, applying utilization review criteria, to determine need for
admission and continued stay in hospital. May oversee personnel engaged in
quality assurance review of medical records.
DOT, Section 075.167-014, 1991 WL 646748.
It is apparent that there is considerable overlap between the functions of a registered nurse
and the functions of the three jobs which the VE testified plaintiff could do. Plaintiff’s argument
that the DOT does not identify job skills ignores this overlap. She also ignores the applicable
regulations. 20 C.F.R. § 404.1565(a) points out that “Work experience means skills and abilities
you have acquired through work you have done which show the type of work you may be expected
to do. Work you have already been able to do shows the kind of work that you may be expected to
do.” Regarding transferability of skills, 20 C.F.R. § 404.1568(d)(1) provides that “We consider
you to have skills that can be used in other jobs, when the skilled or semi-skilled work activities
you did in past work can be used to meet the requirements of skilled or semi-skilled work activities
of other jobs or kinds of work.

This depends largely on the similarity of occupationally

significant work activities among different jobs.” § 404.1568(d)(2) explains that transferability
of skills is most probable among jobs which require the same or a lesser degree of skill, use the
same or similar tools and machines, and involve the same or similar raw materials, products,
processes or services.
The DOT descriptions of the three jobs identified by the VE and the VE’s testimony
establish that they require the same level of skill and involve the use of the same or similar tools
and machines and the provision of the same or similar services as the job of registered nurse. The
VE indicated that her testimony was consistent with information contained in the DOT. Plaintiff
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has not identified any inconsistency. Her first point is denied.
Plaintiff’s second point is that the ALJ erred in expressing his RFC assessment in terms of
“light work as defined in 20 C.F.R. § 404.1567(b)” with specified limitations instead of in terms of
a function-by-function analysis. This error, if it was an error, is harmless.
Plaintiff makes no substantive challenge to the RFC assessment. She does not argue that
she is unable to meet the physical or mental demands of light exertion work with the specified
limitations. She does argue that both state agency consultants opined that she could sit, stand
and walk for about six out of eight hours. She claims that this is consistent with her “allegation
that she experiences limitations in those aspects of functioning.” Doc. 17, p. 17. She is
incorrect; “the full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the
remaining time.” SSR 83-10, 1983 WL 31251, *6.
In the absence of a substantive challenge to the RFC assessment, any technical flaw in the
expression of the RFC assessment is harmless.
Conclusion
After careful review of the record as a whole, the Court is convinced that ALJ Janney
committed no errors of law, and that his findings are supported by substantial evidence.
Accordingly, the final decision of the Commissioner of Social Security denying Susan C. Adams’
application for disability benefits is AFFIRMED.

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The clerk of court is DIRECTED to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATE: 7/31/2017
s/J. Phil Gilbert
J. PHIL GILBERT
U.S. DISTRICT JUDGE

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