Addams v. Berryhill

Filing 22

MEMORANDUM AND ORDER, The Commissioner's final decision denying Daemon Addams' application for social security disability benefits is REVERSED and REMANDED to the Commissioner for rehearing and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).The Clerk of Court is directed to enter judgment in favor of plaintiff. Signed by Judge J. Phil Gilbert on 10/10/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAEMON ADDAMS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

Civil No. 17-cv-151-JPG-CJP

MEMORANDUM and ORDER
In accordance with 42 U.S.C. § 405(g), plaintiff Daemon Addams seeks judicial review of
the final agency decision denying his application for Disability Insurance Benefits (DIB) pursuant
to 42 U.S.C. § 423.
Procedural History
Plaintiff applied for DIB in February 2013, alleging disability beginning on December 12,
2011.1 After holding an evidentiary hearing, ALJ Stephen M. Hanekamp denied the application
in a written decision dated July 21, 2015. (Tr. 12-24.) The Appeals Council denied review, and
the decision of the ALJ became the final agency decision. (Tr. 1.) Administrative remedies have
been exhausted and plaintiff filed a timely complaint in this Court.
Issue Raised by Plaintiff
Plaintiff argues that the ALJ erred in failing to resolve conflicts between the testimony of
the vocational expert and information contained in the Dictionary of Occupational Titles.
Applicable Legal Standards
To qualify for DIB, a claimant must be disabled within the meaning of the applicable

1

At the time he filed his application, plaintiff’s name was William Allen Pruitt. He changed his name to Daemon
Nox Addams in April 2014. (Tr. 106.)

1

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 he was disabled as of his 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. 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).
Stated another way, it must be determined: (1) whether the claimant is presently

2

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. 20 C.F.R. §§ 404.1520; Simila v. Astrue, 573 F.3d 503, 512-513
(7th Cir. 2009).
If the answer at steps one and two is “yes,” the claimant will automatically be found
disabled if he or she suffers from a listed impairment, determined at step three. If the claimant
does not have a listed impairment at step three, and cannot perform his or her past work (step four),
the burden shifts to the Commissioner at step five to show that the claimant can perform some
other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984). See also Zurawski v. Halter,
245 F.3d 881, 886 (7th Cir. 2001) ([u]nder the five-step evaluation, an “affirmative answer leads
either to the next step, or, on Steps 3 and 5, to a finding that the claimant is disabled…. [i]f a
claimant reaches step 5, the burden shifts to the ALJ to establish that the claimant is capable of
performing work in the national economy.”).
This Court reviews the Commissioner’s decision to ensure that the decision is supported by
substantial evidence and that the Commissioner made no mistakes of law. This 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 only whether the
ALJ’s findings were supported by substantial evidence and whether the ALJ made any errors of
law. 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

3

evidence: “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 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); Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). While judicial
review is deferential, however, 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 Hanekamp 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. He was insured for DIB only through December 31, 2016. The ALJ found that
plaintiff had severe impairments of complex regional pain syndrome of the left arm, mild left
carpal tunnel syndrome, morbid obesity, depression, and anxiety/post-traumatic stress disorder.
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 sedentary exertional level, with a number of physical and mental limitations. As is relevant
here, he was limited to only occasional reaching, handling, fingering, and pushing/pulling with his
left (non-dominant) upper extremity. He was not limited in using his right hand and arm.
Based on the testimony of a vocational expert (VE), the ALJ found that plaintiff was not
able to do his past relevant work, but that he was able to do other jobs that exist in significant
numbers in the economy.

4

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 point raised by
plaintiff and is confined to the relevant time period. In view of plaintiff’s arguments, the Court
will omit a discussion of the medical evidence.
1.

Evidentiary Hearing

Mr. Addams was represented by an attorney at the evidentiary hearing in April 2014. (Tr.
31.) Plaintiff had worked in the past cleaning airplanes for about six months, and had worked as a
CNA for a number of years after that. (Tr. 33.) The VE testified that both of plaintiff’s past jobs
were classified as medium exertion, although he had performed the airplane cleaner job at the light
level. The ALJ asked the VE a hypothetical question that corresponded to the RFC assessment,
including the limitation of only frequent use of the left upper extremity to reach, handle, finger,
and push/pull. The VE testified that this person could not do plaintiff’s past work. He identified
two other jobs that could be done by a person with plaintiff’s RFC: circuit board screener (DOT
726.684-110) and semiconductor bonder (DOT 726.685-669). (Tr. 45-48.)
The ALJ then asked about conflicts with the DOT:
Q.

All right. So – pardon me – are there any conflicts between the information in the
DOT and the selected characteristics of occupations compared to your testimony
today?

A.

There’s no conflicts, Your Honor, even though some of the information is not
included, such as off-task, absenteeism, contact with others, I think and I hope
that’s all.

Q.

All right. And your opinion about those matters is based on what?

A.

25 years experience doing job placement activity and talking to employers and
doing job analysis where I find out the essential functions of the job.

(Tr. 49.)

5

Plaintiff’s counsel asked no questions of the VE.
Analysis
As was noted above, at step five of the sequential analysis, if the claimant is not able to
perform his past work, the Commissioner bears the burden of showing that he is capable of
performing other work that exists in significant numbers in the economy.
In making the step five determination, the ALJ generally relies on the DOT for information
about the typical characteristics of jobs as they exist in the economy. An ALJ is required to take
administrative notice of job information contained in various publications, including the DOT,
published by the Department of Labor. See, 20 C.F.R. § 404.1566(d)(1). The ALJ often also
relies on testimony from a VE to “supplement the information provided in the DOT by providing
an impartial assessment of the types of occupations in which claimants can work and the
availability of positions in such occupations.” Weatherbee v. Astrue, 649 F.3d 565, 569 (7th Cir.
2011).
When a VE testifies, the ALJ is required to ask the VE whether there are any conflicts
between his testimony and the information in the DOT:
Occupational evidence provided by a VE or VS [vocational specialist] generally should be
consistent with the occupational information supplied by the DOT. When there is an
apparent unresolved conflict between VE or VS evidence and the DOT, the adjudicator
must elicit a reasonable explanation for the conflict before relying on the VE or VS
evidence to support a determination or decision about whether the claimant is disabled. At
the hearings level, as part of the adjudicator's duty to fully develop the record, the
adjudicator will inquire, on the record, as to whether or not there is such consistency.
SSR-004p, 2000 WL 1898704, at *2.
The Seventh Circuit agrees that, pursuant to SSR-004p, an ALJ has an affirmative duty to
ask the VE whether her testimony conflicts with information contained in the DOT. Prochaska v.
Barnhart, 454 F.3d 731, 735 (7th Cir. 2006).

6

For each job title, the DOT specifies whether certain physical and mental activities are
required, and, if so, the frequency with which they are required. The DOT specifies whether
reaching, handling, and fingering are required, and if so, whether they are required occasionally,
frequently, or constantly. Occasionally means up to one-third of the time, and frequently means
from one-third to two-thirds of the time. The DOT does not, however, say whether bilateral
reaching, handling or fingering are required, meaning it does not specify whether the job can be
done by a person like plaintiff who is limited in his ability to use one arm and hand.
The VE testified that, with the RFC assessed by the ALJ, plaintiff could do the jobs of
circuit board screener and semiconductor bonder. The job of circuit board screener requires
frequent reaching, handling, and fingering. DOT 726.684-110, Circuit Board Screener, 1991 WL
679616. The job of semiconductor bonder requires occasional reaching, frequent handling, and
frequent fingering. DOT 726.685-066, Semiconductor Bonder, 1991 WL 679631.
Plaintiff argues that there is a conflict between the VE’s testimony and information
contained in the DOT where, as here, the VE testified about a subject not covered by the DOT:
whether a job requires the use of both arms and hands at the frequency specified by the DOT.
At the hearing, plaintiff’s counsel did not point out any conflict between the VE’s
testimony and the DOT. Counsel asked no questions at all of the VE. Therefore, in this Court,
plaintiff “now has to argue that the conflicts were obvious enough that the ALJ should have picked
up on them without any assistance, for SSR 00–4p requires only that the ALJ investigate and
resolve apparent conflicts between the VE's evidence and the DOT.” Overman v. Astrue, 546
F.3d 456, 463 (7th Cir. 2008) (citing Prochaska v. Barnhart, 454 F.3d 731, 735 (7th Cir. 2006))
(emphasis in original).
Relying on Zblewski v. Astrue, 302 F. App'x 488 (7th Cir. 2008), defendant argues that

7

there is no conflict where the VE testifies about information that is not contained in the DOT.
In Zblewski, the ALJ asked the VE a hypothetical question that included a limitation to a
sit/stand option. The ALJ there did not ask the VE whether his testimony conflicted with the
DOT. Plaintiff argued that the ALJ erred because he failed to resolve the inconsistency between
the VE’s testimony and the DOT, based on the absence of a definition in the DOT of a sit/stand
option. Noting that the ALJ has a duty to enquire into and resolve apparent conflicts, the Seventh
Circuit disagreed, holding that “[b]ecause the DOT does not address the subject of sit/stand
options, it is not apparent that the testimony conflicts with the DOT.” Zblewski, 302 F. App'x at
494.
Defendant reads Zblewski to mean that there is no conflict between the VE’s testimony and
“the occupational information supplied by the DOT” if the DOT does not supply such information.
(Doc. 21, p. 4.) In the Court’s view, this is too broad a reading. First, Zblewski is an unpublished
opinion. More importantly, because the conflict had not been identified at the hearing in
Zblewski, the issue before the Court was whether the conflict was apparent such that, under
Overman, supra, the ALJ had a duty to enquire into the conflict. In that context, the Seventh
Circuit’s holding, quoted above, is more properly read as meaning that the conflict was not
apparent, and not, as defendant would read it, that there was no conflict.
Moreover, this Court’s reading of Zblewski is in line with SSR 00-4p. In the section of the
SSR entitled “Reasonable Explanations for Conflicts (or Apparent Conflicts) in Occupational
Information,” the agency gives two examples of “reasonable explanations for such conflicts.”
The first example involves evidence from a VE which includes “information not listed in the
DOT.” The second example is “[t]he DOT lists maximum requirements of occupations as
generally performed, not the range of requirements of a particular job as it is performed in specific

8

settings. A VE, VS, or other reliable source of occupational information may be able to provide
more specific information about jobs or occupations than the DOT.” SSR-004p, 2000 WL
1898704, at *2-3. Thus, it would appear that the agency’s own interpretation is that there is a
conflict between the VE’s testimony and the DOT where the VE testifies about information that is
not contained in the DOT.
Plaintiff’s position is also supported by Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir.
2006). There, the ALJ failed to ask whether the VE’s testimony conflicted with the DOT. One
of the limitations in issue was a reaching limitation. The Seventh Circuit held that the ALJ has an
affirmative duty to enquire about conflicts with the DOT. The Court noted, “It is not clear to us
whether the DOT's requirements include reaching above shoulder level, and this is exactly the sort
of inconsistency the ALJ should have resolved with the expert's help.” Prochaska, 454 F.3d at
736. This language suggests that the VE’s testimony here conflicted with the DOT.
Defendant also cites a number of unpublished district court cases and a Fifth Circuit
opinion in support of her assertion that “courts have consistently held that no conflict exists
between the DOT and VE testimony that a claimant with limited use of his non-dominant arm
could perform jobs requiring frequent reaching, fingering, or handling.” (Doc. 21, p. 5.) She
fails to cite two opinions that hold the opposite and support plaintiff’s argument: Pearson v.
Colvin, 810 F.3d 204 (4th Cir. 2015), and Moore v. Colvin, 769 F.3d 987, 988 (8th Cir. 2014).
This Court finds that the VE’s testimony conflicted with the DOT with regard to the
reaching, handling, and fingering requirements of the two jobs he identified.

Of course,

plaintiff’s counsel did not raise the conflict at the hearing, and plaintiff therefore cannot raise it
here unless the conflict was obvious enough that the ALJ should have recognized it without any
prompting from plaintiff. Overman, 546 F.3d at 463. An ALJ who routinely handles social

9

security disability hearings presumably has a working knowledge of DOT job descriptions; he
should know that those descriptions specify the frequency of reaching, handling and fingering,
but not whether bilateral reaching, handling and fingering is required. Accordingly, when a VE
testifies that a particular job can be performed by a person who is limited to reaching, handling and
fingering at a frequency less that what is required by the DOT, it should be obvious to the ALJ that
the VE’s testimony conflicts with the DOT.2
There is an additional factor here: the VE (most likely unintentionally) misled the ALJ.
He said that he had testified about subjects not included in the DOT “such as off-task, absenteeism,
contact with others, I think and I hope that’s all.” That testimony was incorrect; the subject of
whether the jobs require bilateral reaching, handling, and fingering at the specified frequency is
not included in the DOT.
It is not a meaningless formality to require the ALJ to ask the VE about conflicts with the
DOT. If the testimony conflicts with the DOT or is about a subject not included in the DOT, the
basis of the VE’s testimony obviously cannot be the DOT. The testimony of a VE can constitute
substantial evidence to support the ALJ’s step five finding, but only if that testimony is reliable.
McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004). Again, the Commissioner bears the
burden of proof at step five.

Although the Federal Rules of Evidence do not apply in

administrative proceedings, expert witnesses still must use “reliable methods” to arrive at their
conclusions. “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
Federal Rule of Evidence 702) to find out whether the purported expert's conclusions are reliable.”
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). There is no way to assess the reliability

2

Of course, the conflict with the DOT should also be apparent to an attorney experienced in social security disability
law. Raising the issue at the hearing is obviously the better practice.

10

of the VE’s testimony where he testifies about a subject not included in the DOT and gives no
other basis for his testimony.3
Because the ALJ’s decision was not supported by substantial evidence, this case must be
remanded. Remand is required where, as here, the decision “lacks evidentiary support or is so
poorly articulated as to prevent meaningful review.” Kastner v. Astrue, 697 F.3d 642, 646 (7th
Cir. 2010).
The Court wishes to stress that this Memorandum and Order should not be construed as an
indication that the Court believes that plaintiff was disabled during the relevant time or that he
should be awarded benefits. On the contrary, the Court has not formed any opinions in that
regard, and leaves those issues to be determined by the Commissioner after further proceedings.
Conclusion
The Commissioner’s final decision denying Daemon Addams’ application for social
security disability benefits is REVERSED and REMANDED to the Commissioner for rehearing
and reconsideration of the evidence, pursuant to sentence four of 42 U.S.C. §405(g).
The Clerk of Court is directed to enter judgment in favor of plaintiff.
IT IS SO ORDERED.
DATE: October 10, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

3

Note that an ALJ’s explanation that he relied on his unspecified past experience, knowledge of the labor market, and
labor studies is an insufficient basis on which to judge the reliability of his testtimony. Herrmann v. Colvin, 772 F.3d
1110, 1113 (7th Cir. 2014).

11