Ball v. Commissioner of Social Security

Filing 20

MEMORANDUM AND OPINION. The Commissioner's final decision denying plaintiff's application for social security disability benefits is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of defendant. Signed by Magistrate Judge Clifford J. Proud on 11/19/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DORRIE L. B., 1

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Plaintiff,
vs.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

Civil No. 18-cv-0007-CJP 2

MEMORANDUM and ORDER
PROUD, Magistrate Judge:
In accordance with 42 U.S.C. § 405(g), plaintiff 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 benefits in May 2014, alleging disability beginning on
August 1, 2012.

After holding an evidentiary hearing, ALJ Jo Ann L. Draper

denied the application on July 28, 2017.

(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.
In keeping with the court’s recently adopted practice, plaintiff’s full name will not be used in this
Memorandum and Order due to privacy concerns. See, Fed. R. Civ. P. 5.2(c) and the Advisory
Committee Notes thereto.

1

This case was assigned to the undersigned for final disposition upon consent of the parties
pursuant to 28 U.S.C. §636(c). See, Doc. 16.

2

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Issues Raised by Plaintiff
Plaintiff raises the following issues:
1.

Whether the ALJ erred in finding plaintiff was able to return to a
composite past job as generally performed.

2.

Whether the ALJ erred in failing to identify and reconcile apparent
conflicts with the DOT.
Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the
applicable statutes. In this context, “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.
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
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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 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) (Under the five-step evaluation, an “affirmative
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answer leads either to the next step, or, on Steps 3 and 5, to a finding that the
claimant is disabled…. If 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 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. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539
(7th Cir. 2003).

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
conflicts, decide questions of credibility, or substitute its own judgment for that of
the ALJ. Murphy v. Colvin, 759 F.3d 811, 815 (7th Cir. 2014). 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.
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The Decision of the ALJ
ALJ Draper followed the five-step analytical framework described above.
She determined that plaintiff had not been engaged in substantial gainful activity
since the alleged onset date and that plaintiff was insured for DIB only through
December 31, 2016.

The ALJ found that plaintiff had severe impairments of

degenerative disc disease with surgeries including hemi-laminectomy and
laminectomy/fusion; Achilles tendon surgical repair, twice; and right knee
meniscus tear. She 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 a limited range of sedentary work. Among other limitations, she cannot
reach overhead with the right arm.
Based on the testimony of a vocational expert, the ALJ found that plaintiff
was not disabled because she was able to do her past relevant work as a collection
clerk as that job is generally performed in the national economy.
The Evidentiary Record
The Court has reviewed and considered the entire evidentiary record in
formulating this Memorandum and Order. In view of plaintiff’s arguments, the
Court will omit a discussion of the medical evidence.
Plaintiff completed a work history form but did not list her past job at First
Mid-America Credit Union. (Tr. 273-279).
Plaintiff was represented by an attorney at the evidentiary hearing in June
2017. (Tr. 38).
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Plaintiff testified that she worked at one point “in collections” for First
Mid-America Credit Union. (Tr. 62).
A vocational expert (VE) also testified. The VE asked for more information
about plaintiff’s job at First Mid-America. Plaintiff described her job:
I did a lot of telephone work. It was collections. There were times I had to
go out and do an actual repossession of a vehicle. I had someone with me,
but I was more behind the phone and [doing] paperwork.
(Tr. 67).
The VE classified her job at First Mid-America as a collection clerk, DOT
214.357-010. She said that job was sedentary as it is generally performed, but it
was medium as performed by plaintiff. (Tr. 68).
The ALJ asked a hypothetical question which corresponded to the RFC
assessment. The VE testified plaintiff was able to do her past job as a collection
clerk as that job is generally performed. (Tr. 68-73).
At the beginning of the VE’s testimony, the ALJ asked “Do you understand
that if you give an opinion that conflicts with the information in the Dictionary of
Occupational Titles, you need to advise me of that conflict and the basis for your
opinion?”

The VE responded, “Yes.”

(Tr. 64).

The VE did not identify any

conflicts relevant to the collection clerk job.
Plaintiff’s counsel asked a few questions of the VE, but she did not identify a
conflict with the DOT, raise the composite job issue, or object to the VE’s testimony.
(Tr. 74-76).
Analysis
Plaintiff’s second point can be disposed of swiftly.
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Plaintiff argues that the VE’s testimony conflicted with information in the
DOT because the hypothetical question limited her to no overhead reaching with the
right arm, but the DOT does not address whether jobs require overhead reaching.
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).
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 does not, of course, speak to every possible aspect of the job title. Defendant
agrees that the DOT is silent on whether overhead reaching is required. Doc.19, p.
8.
When a VE testifies, the ALJ is required to ask the VE whether there are any
conflicts between her testimony and the information in the DOT; if so, the ALJ must
resolve those conflicts. Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008).
The ALJ did ask the VE about conflicts here, and the VE did not identify any
conflicts relevant to the collection clerk job.
Plaintiff argues that there was a conflict because the VE testified about
limitations that are not addressed in the DOT.

Plaintiff’s counsel did not point

out any conflict between the VE’s testimony and the DOT at the evidentiary
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hearing. 3 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].
Defendant argues that there is no conflict here at all because the VE testified
about subjects not addressed in the DOT. She cites Zblewski v. Astrue, 302 F.
App’x 488, 494 (7th Cir. 2008) and a number of cases from district courts in this
circuit in support of her position. See, Doc. 19, pp. 8-10. This Court finds the
reasoning of those cases persuasive. Further, since the filing of the briefs in this
case, the Seventh Circuit issued its decision in Collins v. Berryhill, ___ F. App'x ___,
2018 WL 3783601 (7th Cir. Aug. 9, 2018), reh'g denied (Sept. 24, 2018), also
agreeing with defendant’s argument.

Although Collins is nonprecedential, its

reasoning is persuasive. The Seventh Circuit found that there was a conflict where
the VE testified about a topic addressed in the DOT (exertional level), but there was
not a conflict where the DOT was silent (sit/stand option).

Collins, 2018 WL

3783601, at *3-4.
For her first point, plaintiff argues the that the ALJ erred in determining
whether she could do her past work because the ALJ failed to treat her past work as
a composite job.

She argues that the DOT title of collection clerk does not

adequately describe her job at First Mid-America because she also repossessed
3

Plaintiff is represented by a different attorney in this Court.

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automobiles.

The DOT title of collection clerk (DOT 241.357-010) does not

include repossessing merchandise; a person who repossesses merchandise is
classified in the DOT as a repossessor (DOT 241.367-022). The repossessor job is
medium exertion, while collection clerk is sedentary.
In determining whether a claimant can perform the functional demands and
job duties of her past job, the “Dictionary of Occupational Titles (DOT)
descriptions can be relied upon -- for jobs that are listed in the DOT -- to define the
job as it is usually performed in the national economy.” SSR 82-61, 1982 WL
31387, at *1 (emphasis in original). However, “composite jobs have significant
elements of two or more occupations and, as such, have no counterpart in the DOT.
Such situations will be evaluated according to the particular facts of each individual
case.” Ibid.
The agency’s Program Operations Manual (POMS), states the following about
composite jobs:
Composite jobs have significant elements of two or more occupations and as
such, have no counterpart in the DOT…. The claimant’s PRW [past relevant
work] may be a composite job if it takes multiple DOT occupations to locate
the main duties of the PRW as described by the claimant…. When comparing
the claimant’s RFC to a composite job as the claimant performed it, find the
claimant capable of performing the composite job only if he or she can
perform all parts of the job….A composite job does not have a DOT
counterpart, so do not evaluate it at the part of step 4 considering work “as
generally performed in the national economy.”
POMS DI 25005.020, https://secure.ssa.gov/apps10/poms.nsf/lnx/0425005020,
visited on November 19, 2018.
Defendant argues that the record does not clearly demonstrate that plaintiff’s
past work was a composite job because her testimony did not indicate that
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repossessing vehicles was a main duty of her job. Rather, she testified that “there
were times” when she had to repossess a vehicle, but she “was more behind the
phone and [doing] paperwork.” (Tr. 67).
The Court agrees that, without more, plaintiff’s testimony did not clearly
establish that her past work was a composite job. Moreover, plaintiff did not
object at the hearing or inform the VE that she considered her past work at First
Mid-America to be a composite job. Plaintiff was represented by counsel and she
is presumed to have put forth her best case for benefits at the hearing. Skinner v.
Astrue, 478 F.3d 836, 842 (7th Cir. 2007). An ALJ may rely on even “purely
conclusional” VE testimony that goes unchallenged. Barrett v. Barnhart, 355 F.3d
1065, 1067 (7th Cir.), on reh'g, 368 F.3d 691 (7th Cir. 2004). See also, Liskowitz
v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (“Had [plaintiff] actually objected to
the VE’s testimony, the VE could have said more . . .. As it stands, however, the VE’s
testimony was both unobjected to and uncontradicted. Thus, the ALJ was entitled
to credit this testimony.”); Donahue v. Barnhart, 279 F.3d 441, 446-47 (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.”)
Conclusion
The Commissioner’s final decision denying plaintiff’s application for social
security disability benefits is AFFIRMED.
The Clerk of Court is directed to enter judgment in favor of defendant.
IT IS SO ORDERED.
DATED:

November 19, 2018.
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s/ Clifford J. Proud
CLIFFORD J. PROUD
U.S. MAGISTRATE JUDGE

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