Herrmann v. Commissioner of Social Security
Filing
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OPINION AND ORDER: The decision of the Commissioner is REVERSED and the Court REMANDS this case to the Social Security Administration for an award of disability benefits to the Plaintiff for the period from June 9, 2003, to September 6, 2010. Signed by Judge William C Lee on 12/20/2017. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHELE A. HERRMANN,
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Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
Case No. 1:17-CV-56
OPINION AND ORDER
This matter is before the Court on the Defendant’s “Motion for Reversal with Remand for
Further Administrative Proceedings and Development Under Sentence Four of 42 U.S.C. §
405(g),” filed on October 17, 2017 (ECF 20). Plaintiff Michelle A. Herrmann filed a response in
opposition on October 26, 2017 (ECF 21). The Commissioner chose not to file a reply brief and
so the motion is ripe for resolution. Also before the Court is Herrmann’s opening “merits” brief,
filed pursuant to Local Rule 7-3(b) on July 11, 2017 (ECF 15). The Commissioner chose to file
the motion for remand in lieu of a response to the merits brief. For the reasons discussed below,
the decision of the Commissioner is REVERSED and the Court REMANDS this case to the
Social Security Administration for an award of disability benefits to the Plaintiff for the period
from June 9, 2003, to September 6, 2010.
PROCEDURAL BACKGROUND
The process of obtaining Social Security benefits can take years, given the agency level
administrative procedures and subsequent federal court litigation that many cases, like this one,
go through before they are resolved. A few examples from recent social security cases filed in
this district illustrate this. See Keys v. Berryhill, 679 F.App’x 477, 478 (7th Cir. 2017)
(claimant/plaintiff applied for benefits in December 2011; decision by ALJ denying benefits on
April 22, 2013; complaint filed on August 15, 2014; decision by this Court on February 5, 2016,
affirming ALJ’s denial of benefits; affirmed by Seventh Circuit on February 9, 2017); Parker v.
Colvin, 660 F.App’x 478, 479 (7th Cir. 2016) (claimant/plaintiff applied for benefits in May
2012; decision by ALJ denying benefits on August 15, 2013; complaint filed on January 10,
2014; decision by this Court on November 5, 2015, affirming ALJ’s denial of benefits; affirmed
by Seventh Circuit on October 20, 2016); Reed v. Colvin, 656 F.App’x 781, 782 (7th Cir. 2016)
(claimant/plaintiff applied for benefits in June 2011; decision by ALJ denying benefits on
January 10, 2013; complaint filed on March 14, 2014; decision by this Court on August 18, 2015,
affirming ALJ’s denial of benefits; affirmed by Seventh Circuit on August 16, 2016).
The present case has been winding its way laboriously through the system much longer
than most–about 10 years longer. Michele Herrmann filed her application for Supplemental
Security Income on June 9, 2003, alleging a disability onset date of January 1, 1980.
Administrative Record Transcript (“Tr.”) (ECF 10), p. 31.1 Herrmann’s application was rejected
initially, after reconsideration, and in a decision issued by Administrative Law Judge Bryan
Bernstein on March 27, 2007. Tr., pp. 31-40. Herrmann requested review by the Appeals Council
but was denied on August 7, 2007 (Tr., p. 14), at which point the ALJ’s decision became the
final decision of the Commissioner. Herrmann filed a complaint in this Court on October 12,
2007, in case number 1:07-CV-255. Tr., p. 392. United States Magistrate Judge Roger B. Cosbey
1
The page numbers of the transcript (and the pleadings) cited by the Court are those
assigned by the Court’s electronic court filing (ECF) system (in the upper right corner of each
page) and may not coincide with the page numbers on the original documents.
2
issued an opinion on August 8, 2008, reversing ALJ Bernstein’s decision (Tr., pp. 391-413) and
the Appeals Council remanded the matter to the ALJ. Tr., pp. 387-88. ALJ Bernstein conducted a
second hearing and again denied Herrmann’s application in a decision issued on January 26,
2011. Tr., pp. 337-50. Herrmann again requested review by the Appeals Council, which this time
issued a partially favorable decision on May 9, 2012, finding that Herrmann became disabled as
of September 6, 2010, and was entitled to benefits as of that date. Tr., pp. 326-29. The Appeals
Council, however, upheld the ALJ’s determination that Herrmann was not disabled between the
filing date and September 6, 2010. Id. It is that period–from June 9, 2003, through September 6,
2010–that is in dispute now. Herrmann continues to insist that she was disabled during that
period and therefore entitled to benefits. Herrmann filed a second complaint in this Court on July
6, 2012, in cause number 1:12-CV-229. Tr., p. 706. United States Magistrate Judge John E.
Martin affirmed the Commissioner’s decision on September 24, 2013. Tr., p. 710. Herrmann
appealed that judgment to the Seventh Circuit, which issued an opinion on December 4, 2014,
reversing the Magistrate’s decision. Tr., pp. 697-705. Magistrate Judge Martin remanded the
matter to the Commissioner for further proceedings in light of the Seventh Circuit’s decision. Tr.,
p. 711. Following a third hearing, ALJ Stephanie Katich once again concluded that Herrmann
was not disabled during the period in question and entered a decision on October 13, 2016,
explaining her reasoning. Tr., pp. 648-68. Herrmann did not file exceptions with the Appeals
Council and the Appeals Council did not take jurisdiction of the claim. Thus, ALJ Katich’s
decision became the (most recent) final decision of the Commissioner. Herrmann then filed this
case on February 10, 2017 (ECF 1). In compliance with this district’s Local Rule 7-3, Herrmann
filed her opening brief in support of her Complaint on July 11, 2017, asking this Court to
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“reverse the decision of the ALJ and remand this matter for an award of benefits, or, in the
alternative, reverse the ALJ’s decision and remand for further proceedings[.]” Plaintiff’s Merits
Brief (ECF 15), p. 26.
The Commissioner responded by filing the pending motion to remand in lieu of a typical
response brief, arguing that “[r]emand is warranted because the ALJ failed to properly evaluate
part of the opinion of consultative examiner Michael E. Holton, M.D. . . . contrary to the Seventh
Circuit’s decision remanding the case in December 2014. . . . Accordingly, the Defendant moves
this court to remand this case to SSA for a new hearing and decision pursuant to the fourth
sentence of 42 U.S.C. § 405(g), which provides that this ‘court shall have power to enter, upon
the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.’” Defendant’s Motion for Remand, p. 1. The Commissioner states that “[s]pecifically,
this Court should order that, on remand, the Commissioner: 1) will conduct further
administrative proceedings; 2) give consideration to the opinion of consultative examiner Holton,
and explain the weight assigned to such; 3) and [sic] issue a new decision.” Id., pp. 1-2. The
Commissioner acknowledges that “Plaintiff’s counsel . . . indicated he did not consent to a
remand motion with this language.” Id., p. 2. That is because Herrmann contends “the
appropriate remedy is an award of benefits to Ms. Herrmann, for the period at issue–June 2003
through September 6, 2010.” Plaintiff’s Response, p. 1. Furthermore, argues Herrmann, “[t]he
Commissioner failed to address numerous errors in the ALJ’s decision which Plaintiff discussed
at length in her opening merits brief. By filing this motion for remand, following Plaintiff having
filed a 25 page detailed brief, asserting numerous errors in the ALJ’s decision, the Commissioner
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has put the case in a procedurally awkward position. The lack of response to an argument creates
a negative inference, waiving defense of the issue. . . . Thus, if the Court does not find remand
for an award of benefits to be the appropriate remedy in this matter, the Court should remand on
each issue raised by Plaintiff in her opening merits brief, because the Commissioner has waived a
defense to any and all issues raised by Plaintiff.” Id., p. 2. In her opening brief, Herrmann
contends that 1) the ALJ erred by not giving proper weight to, and by improperly assessing, the
medical opinions of her treating physician, Dr. Bauscher, as well as consultative examining
physicians, Drs. Holton, Bacchus, and Ksionski; 2) that the ALJ erred when calculating her
residual functional capacity; 3) that the ALJ erred in assessing Herrmann’s testimony regarding
the severity of her impairments; and 4) that the ALJ erred by relying on the testimony of a
vocational expert. Plaintiff’s Merits Brief, pp. 15-25. Herrmann contends that for all these
reasons “the Court [should] reverse the decision of the ALJ and remand this matter for an award
of benefits, or, in the alternative, reverse the ALJ’s decision and remand for further proceedings
consistent with the argument set forth above.” Id., p. 26.
So, Herrmann wants the Court to remand for the granting of benefits or, in the alternative,
issue a remand order that protects her ability to raise before the ALJ all the arguments she
presents in her merits brief. The Commissioner seeks remand on a much more limited scope.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of a final decision denying benefits,
but also provides that an ALJ’s findings must be accepted as conclusive if supported by
substantial evidence. Visinaiz v. Berryhill, 243 F.Supp.3d 1008, 1011 (N.D. Ind. 2017). “Thus, a
court reviewing the findings of an ALJ will reverse only if the findings are not supported by
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substantial evidence or if the ALJ has applied an erroneous legal standard.” Id. (citing Briscoe v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005)). Substantial evidence consists of “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citations
omitted).
The district court “reviews the entire administrative record but does not reconsider facts,
re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute
its judgment for that of the ALJ.” Id. (citing Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir.
2005); Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055
(7th Cir. 1999)). The question on judicial review of an ALJ’s finding that a claimant is not
disabled within the meaning of the Social Security Act is not whether the claimant is, in fact,
disabled, but whether the ALJ “‘uses the correct legal standards and the decision is supported by
substantial evidence.’” Id. at 1011-12 (quoting Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013) and citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v.
Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004)). “‘[I]f the Commissioner commits an error of law,’ the Court may reverse the decision
‘without regard to the volume of evidence in support of the factual findings.’” Id. at 1012
(quoting White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999)). Put another way, this Court must
review an ALJ’s findings and conclusions to ensure that they are not contrary to applicable law
and that the ALJ adequately explains his or her reasoning for those conclusions. As Magistrate
Judge Martin explained in Visinaiz:
At a minimum, an ALJ must articulate his or her analysis of the evidence in order
to allow the reviewing court to trace the path of her reasoning and to be assured
that the ALJ considered the important evidence. See Scott v. Barnhart, 297 F.3d
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589, 595 (7th Cir. 2002); Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995); Green
v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must “‘build an accurate and
logical bridge from the evidence to [the] conclusion’ so that, as a reviewing court,
we may assess the validity of the agency’s final decision and afford [a claimant]
meaningful review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting
Scott, 297 F.3d at 595)); see also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ
need not specifically address every piece of evidence, but must provide a ‘logical
bridge’ between the evidence and his conclusions.”); Zurawski v. Halter, 245 F.3d
881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
Id. This case presents an added dimension in that the Court must apply the established standard
of review against the backdrop of the Seventh Circuit’s decision remanding the case.
DISCUSSION
Herrmann is correct that this case is “in a procedurally awkward position.” An ALJ issues
a decision that is favorable to the Commissioner; the claimant files suit in federal court
challenging that decision; the Commissioner, rather than defend that favorable decision by filing
a response to the claimant’s merits brief, seeks remand on the basis that the decision failed in
some unspecified way to comply with the Seventh Circuit’s decision reversing the previous
ALJ’s decision. Adding another wrinkle to this case, as Herrmann points out, is that the
Commissioner’s decision to forgo filing a response to Herrmann’s merits brief gives rise to
waiver issues (as discussed below). But while the case is certainly in a quirky posture, the path to
resolving it is clear and starts with the Seventh Circuit’s decision in Herrmann v. Colvin, 772
F.3d 1110 (7th Cir. 2014).
The appellate court reversed ALJ Bernstein’s decision (and Magistrate Judge Martin’s
decision affirming it) for several reasons, of which the issue of Dr. Holton’s opinion was one.
Beginning there, the Seventh Circuit noted that the ALJ “discussed at great[] length the evidence
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of Dr. Michael Holton,” but concluded that the ALJ’s explanation of his assessment of Dr.
Holton’s opinion–that is, his decision to give it no weight–was “garbled.” Herrmann, 772 F.3d at
1112. The appellate court concluded that “[t]he district court’s statement that ‘the ALJ’s
evaluation of Dr. Holton’s opinion may not be perfect’ is a considerable understatement. Coupled
with the administrative law judge’s unreasoned brush off of the evidence offered by the other
consulting physicians, his confused rejection of Dr. Holton’s evidence should have persuaded the
[magistrate] judge to reverse the denial of relief to [Herrmann] and remand the matter to the
Social Security Administration.” Id.
So, this peripatetic case went back to the SSA and landed with ALJ Katich, who reviewed
the case yet again, conducted another hearing, and concluded that “the undersigned largely agrees
with the findings of the prior Administrative Law Judge, whose opinion has since been vacated.
There is little basis in the objective medical evidence for the severity and frequency of symptoms
alleged by the claimant. While the physical examinations from 2003 through June 2010 revealed
some abnormalities, they were neither persistent nor preclusive of all work activity[.]” ALJ
Katich Decision, Tr., p. 666.
Herrmann filed the present case to challenge this conclusion for the reasons set out in her
merits brief. The Commissioner also wants the case remanded, but for only one reason–so an
ALJ can “give consideration to the opinion of consultative examiner [Dr. Michael] Holton, and
explain the weight assigned to such[.]” Motion for Remand, p. 2. The Commissioner states that
since “[t]he Seventh Circuit, considering Dr. Holton’s opinion, did not find reversal for payment
to be the appropriate remedy . . . [i]t is still not the appropriate remedy.” Id. The Commissioner
contends that since the Seventh Circuit remanded the case for further proceedings rather than
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reverse for an award benefits, this Court should likewise deny Herrmann’s request for benefits
and remand the case so yet another ALJ can take a stab at assessing Dr. Holton’s opinion and
explaining–finally and properly, in keeping with the Seventh Circuit’s decision–why it should be
credited or not credited.
The Commissioner claims that ALJ Katich failed to apply the Seventh Circuit’s decision
when she reheard the case, specifically with regard to Dr. Holton’s opinion. The Commissioner is
silent though–completely silent–with regard to how ALJ Katich erred or why her decision is
flawed. As Herrmann puts it, “the Commissioner does not include any specific reasons the ALJ
should reconsider Dr. Holton’s opinion, explain which portion(s) of the opinion the ALJ did not
properly consider, or explain any particular error in the ALJ’s prior consideration of the opinion.
As this case has been pending with the Agency for 14 years, such a generic remand is hardly
appropriate.” Plaintiff’s Response, p. 1. The Commissioner wants a remand and wants an ALJ to
“issue a new decision.” Id., p. 2. But for what reason and to what end? The Commissioner’s
argument is nothing more than a request for a remedy–remand and a new decision–but she fails
to identify a single issue with ALJ Katich’s decision that allegedly requires further administrative
review. Instead, the Commissioner bases her request on the unadorned conclusion that Judge
Katich failed to heed the decision of the appellate court, without bothering to explain how she
failed to do that.
Notwithstanding the Commissioner’s failure to present a developed argument in support
of remand, the Court cannot resolve this case now without determining whether ALJ Katich’s
decision corrects or avoids the problems identified in the Seventh Circuit’s December 4, 2014,
decision. In other words, even though the Commissioner fails to explain how ALJ Katich’s
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decision runs afoul of the Seventh Circuit’s decision, this Court has to review her decision in
light of that opinion anyway. So in essence the Commissioner wins a battle here–the case must
be remanded because the ALJ’s decision is flawed, in part due to her incorrect assessment of Dr.
Holton’s opinion as the Commissioner contends–but loses the war because the Court concludes
that remand for an award of benefits is the proper resolution for several reasons in addition to the
issue of Dr. Holton’s opinion.
I. Herrmann v. Colvin, 772 F.3d 1110 (7th Cir. 2014).
The Seventh Circuit began by noting that Herrmann’s application for benefits “was turned
down by an administrative law judge of the Social Security Administration for the benefit she
sought for years before she turned 55. But because of the less demanding showing of disability
required of applicants that age and older, she was deemed to have become disabled when she
reached 55.” Herrmann, 772 F.3d at 1110. Next, addressing the period from June 2003 to
September 2010, the Seventh Circuit summarized the medical evidence as follows:
The applicant’s treating physicians, together with three consultative physicians
selected by the Social Security Administration who examined the applicant and
studied her medical records, advised the administrative law judge that she suffers
from fibromyalgia, spinal disk disease, “photophobia” (abnormal sensitivity to
light), and other ailments unnecessary to discuss, and that as a result she walks
haltingly, has difficulty gripping objects, experiences difficulty in rising from a
sitting position, has trouble concentrating in a bright room or when looking at a
computer screen, and as a result of this assemblage of impairments cannot do even
light work on a full-time basis. If this is right she was disabled before she turned
55 and is therefore entitled to a back payment of Supplemental Security Income.
Id. at 1111. That last sentence states the issue in this case: if substantial evidence supports the
summary of impairments, then Herrmann should be awarded benefits beyond what she has
received.
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The Seventh Circuit was displeased with ALJ Bernstein’s decision because the Court felt
that he botched the assessment of physicians’ opinions (not just Dr. Holton’s) and gave weight to
unreliable statistical evidence presented by a vocational expert. As to the first issue, the appellate
court concluded that “the [ALJ] brushed aside the physicians’ findings. Typical was his statement
that the opinion of Dr. Dauscher, one of the applicant’s treating physicians, would be ‘given no
significant weight, because the functional limitations are not supported by Dr. Dauscher’s sparse
treatment statement notes or by examination findings made by other physicians.’ The [ALJ]
seems to have thought that a physician’s evidence can be disregarded unless he has detailed notes
to back it up and other physicians can provide identical evidence even if they don’t contradict
him–in other words no credibility without corroboration. These are insufficient grounds for
disbelieving the evidence of a qualified professional.” Id. (italics added). The Court held that
even though ALJ Bernstein “discussed at greatest length the evidence of Dr. Michael Holton,” . .
. his findings and conclusions regarding that evidence were “garbled” and “confused.” Id. at
1112. In other words, ALJ Bernstein’s decision failed to provide a “‘logical bridge’ between the
evidence and his conclusions[,]” O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010),
so the case had to be remanded.
The Seventh Circuit also found that “[t]here is more wrong with [ALJ Bernstein’s]
opinion. The more involves an issue we discussed in Browning v. Colvin, 766 F.3d 702, 708-12
(7th Cir. 2014), concerning testimony by vocational experts regarding the number of jobs in the
local, state, and national economy that an applicant for social security benefits is capable of
performing.” Id. The appellate court expressed concerns about the reliability of the testimony of
the vocational expert in this case. The Seventh Circuit’s criticism of VE testimony is not limited
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to this case and some other circuits share the concern. Id. at 1113 (“[w]e are not alone in
harboring such doubts.”) (citing Brault v. Social Security Administration, 683 F.3d 443, 446-47
(2d Cir. 2012) (“we agree with the Seventh Circuit that evidence cannot be substantial if it is
‘conjured out of whole cloth.’”) (quoting Donahue, 279 F.3d at 446)); Guiton v. Colvin 546
F.App’x 137, 143-45 (4th Cir. 2013) (questioning reliability of VE testimony). The Seventh
Circuit pointed out that the statistics relied on by VEs are based, at least in large part, on “the
Dictionary of Occupational Titles (4th ed. 1991) (the ‘DOT’ as it is called)[,]” which the court
concluded is “an obsolete catalog of jobs (most of the entries in it date back to 1977) but it
contains no statistics regarding the number of jobs in a given job category that exist in the local,
state, or national economy.” Id. To arrive at those numbers, vocational experts use additional
data, such as census data, and then arrive at an estimate of the number of jobs in the local and
national economy that an applicant could perform–a process the Seventh Circuit believes “would
be an arbitrary estimate[.]” Id. at 1114. As the court put it, “[i]f the only jobs that the applicant is
physically and mentally capable of doing no longer exist in the American economy (such as pin
setter, phrenologist, leech collector, milkman, pony express rider, and daguerreotypist), the
applicant is disabled from working, and likewise, as a realistic matter, if there is an insignificant
number of such jobs.” Id. at 1113. More specific to this case, according to the Seventh Circuit,
was that “[w]e do not know how the vocational expert in this case calculated the numbers to
which he testified. Nothing in the record enables us to verify those numbers, which the
administrative law judge accepted.” Id. at 1114.
For those reasons the Seventh Circuit remanded this case and the unenviable task of
hearing the matter all over again fell to ALJ Katich. This Court must determine whether Judge
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Katich’s decision is “supported by substantial evidence or if the ALJ has applied an erroneous
legal standard.” Visinaiz v. Berryhill, 243 F.Supp.3d at 1011 (citing Briscoe v. Barnhart, 425
F.3d 345, 351 (7th Cir. 2005)). In this case that determination turns mostly on whether ALJ
Katich addressed the issues identified by the appellate court.
II. ALJ decision of October 13, 2016 (Tr., pp. 648-68).
It is curious and rather disappointing that while ALJ Katich discussed Dr. Holton’s
opinion in her decision, and also relied on statistical vocational evidence, her only mention of the
Seventh Circuit’s decision is her statement that ALJ Bernstein’s prior decision “has since been
vacated.” She didn’t even cite the case, let alone discuss it or indicate whether–and if so how–it
affected her review. Let’s be frank here–the Seventh Circuit thought that ALJ Bernstein’s
decision stunk, but ALJ Katich concluded after reviewing this case that she “largely agrees with
the findings” contained in Bernstein’s decision. If her assessment of the evidence was proper and
her reasoning supported by substantial evidence then her decision would have to be affirmed,
even if it might seem counterintuitive that her determination could be based on the fact that she
“largely agrees with the findings” of a decision that the Seventh Circuit concluded was
fundamentally flawed. Put another way, if ALJ Katich applied the proper legal standards to her
review of the evidence and if her conclusions are supported by substantial evidence, then her
decision should be affirmed even though her ultimate determination–that Herrmann was not
disabled during the period of time in question–is the same as ALJ Bernstein’s. The Court agrees
with Herrmann, however, that the ALJ’s decision is inconsistent with the Seventh Circuit’s
decision. And, given that the Commissioner has waived any arguments that she could have raised
in response to the arguments presented by Herrmann in her merits brief, remand for an award of
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benefits is warranted.
After she reviewed the record and conducted a hearing, the ALJ made the following
relevant findings and conclusions:
1) Herrmann “had the following severe impairments: fibromyalgia . . . and degenerative disc
disease of the thoracic and lumbar spines[.]” Tr., p. 651;
2) Herrmann “had the residual functional capacity to perform less than the full range of light
work . . . except that she could not stand and/or walk for four hours during and eight-hour
workday and for thirty minutes at one time, she could occasionally balance, stoop, kneel, crouch
and crawl, and she could perform work activity that was free from a rapid pace or a production
rate pace.” Tr., p. 658;
3) “Considering the claimant’s age, education, work experience, and residual functional capacity,
there are jobs that exists in significant numbers in the national economy that the claimant can
perform[.]” Tr., p. 667; and
4) Herrmann “has not been under a disability, as defined in the Social Security Act, since June 9,
2003, the date the application was filed[.]” (Id.).
ALJ Katich determined that “[t]here is little basis in the objective medical evidence for
the severity and frequency in symptoms alleged by the claimant.” Tr., p. 666. In short, the ALJ
concluded that the objective medical evidence did not support a finding of total disability during
the period at issue and that Herrmann’s subjective testimony was not entirely credible.
ALJ Katich also found, based on the testimony of a vocational expert, that jobs Herrmann
could perform existed in sufficient numbers in the national economy. On this issue the ALJ
concluded as follows:
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The vocational expert testified that given all of [Herrmann’s impairments she]
would have been able to perform the requirements of representative occupations
such as an office helper (DOT 239.567-010) (approximately 117,000 jobs in the
United States). He identified other representative jobs as a mail sorter (DOT
209.687-026) (approximately 72,000 jobs nationwide) and a parking lot attendant
(DOT 915.473-010) (approximately 69,000 jobs nationally). . . . [T]he
undersigned has determined that the vocational expert’s testimony is consistent
with the information contained in the Dictionary of Occupational Titles. Based on
the testimony of the vocational expert, the undersigned concludes that,
considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant is capable of making a successful adjustment to
other work that exists in significant numbers in the national economy. A finding
of “not disabled” is therefore appropriate under the framework of the above-cited
rules.
Tr., pp. 667-68. ALJ Katich did not discuss or even mention the portion of the Seventh Circuit’s
decision that questioned the reliability of this sort of expert evidence. She did not explain why
she relied on the vocational evidence, just that it was consistent with the DOT and therefore jobs
existed that Herrmann was capable of performing. It would have been helpful if the ALJ had
elaborated on this issue (the language quoted above constitutes the entirety of her discussion of
the matter) and explained why she found this testimony to be “adequate and reliable” in light of
the Seventh Circuit’s scathing criticism of such evidence. At the same time, the Court
acknowledges that this issue about the reliability of VE testimony–specifically as to statistical
evidence–is a tough nut to crack and has even divided the federal circuits.2 One district court
2
See, e.g., Rivera v. Berryhill, 242 F.Supp.3d 1226, 1240-42 (D.N.M. 2017) (“In support
of his position that the VE’s reduction of the number of jobs available to him was speculative,
Plaintiff relies upon cases from the Seventh Circuit which are highly critical of VE testimony.
See . . . Herrmann v. Colvin, 772 F.3d 1110 (7th Cir. 2014); Alaura v. Colvin, 797 F.3d 503 (7th
Cir. 2015); Browning v. Colvin, 766 F.3d 702 (7th Cir. 2014); and Hill v. Colvin, 807 F.3d 862
(7th Cir. 2015). . . . While the Court takes note of the lack of confidence expressed by the
Seventh Circuit towards VEs and the testimony they offer, . . . the Tenth Circuit has accepted
without reservation VE testimony concerning the number, percentage and location of jobs within
a claimant's capacity.”).
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addressed this issue and concluded that “[t]he Herrmann court stated that the DOT was ‘an
obsolete catalog of jobs’ with most of its entries dating back to 1977. . . . While of course the
Court duly notes this observation, the fact is that language was dicta. Therefore this passing
observation is not a basis for remand.” Allen v. Colvin, 2015 WL 7272229, at *4 (S.D. Ind. Nov.
16, 2015). Another court likewise refused to reverse an ALJ on the claimant’s contention that the
ALJ relied on flawed statistical evidence in contravention of Herrmann. In March v. Colvin,
2015 WL 12683829, at *3 (C.D. Ill. Aug. 3, 2015), the court held that “[w]hile the Seventh
Circuit [in Herrmann] cast doubt on the VE’s reliance on the DOT, it reversed and remanded the
case on different grounds and did not find that reliance on the DOT for calculating job numbers is
a reversible error on its own.”). Those statements are correct as far as they go, but the Seventh
Circuit has said much more about this issue than what it said in Herrmann. Most notably, the
appellate court has explained that “[a] finding of an ALJ based on unreliable VE testimony is
equivalent to a finding that is not supported by substantial evidence and must be vacated.”
Overman v. Astrue, 546 F.3d 456, (7th Cir. 2008) (quoting Britton v. Astrue, 521 F.3d 799, 803
7th Cir. 2008) (italics added)). Although a VE is entitled to rely on various methods and sources
of data, the foundation for the VE’s opinions must be adequate and the VE’s testimony must be
reliable. Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002). The Seventh Circuit has
recognized that “the standards by which an expert’s reliability is measured may be less stringent
at an administrative hearing than under the Federal Rules of Evidence, [but] because an ALJ’s
findings must be supported by substantial evidence, an ALJ may depend upon expert testimony
only if the testimony is reliable.” McKinnie v. Barnhart, 368 F.3d 907, 910 (7th Cir. 2004)
(citing Donahue, 279 F.3d at 446). “Evidence is not ‘substantial’ if vital testimony has been
16
conjured out of whole cloth.” Id. (quoting Donahue, 279 F.3d at 446). “A vocational expert is
‘free to give a bottom line,’ but the data and reasoning underlying that bottom line must be
‘available on demand’ if the claimant challenges the foundation of the vocational expert’s
opinions.” Id. (quoting Donahue, 279 F.3d at 446). “If the basis of the vocational expert’s
conclusions is questioned . . . then the ALJ should make an inquiry . . . to find out whether the
purported expert’s conclusions are reliable.” Donahue, 279 F.3d at 446 (italics omitted). In Gracz
v. Berryhill, the district court, relying on Donahue and McKinnie, concluded that “remand was
necessary because the VE failed to provide underlying data when the claimant challenged the
foundation of the vocational expert’s opinions as to job availability.” Gracz v. Berryhill, 2017
WL 1344532, at * 4 (N.D. Ill. April 12, 2017). In summary, the law in the Seventh Circuit is
clear–an ALJ must articulate why she relied on a VE’s testimony, meaning she must articulate
how it was “adequate and reliable.”
This Court concludes that ALJ Katich’s decision is not supported by substantial evidence
and conflicts with the Seventh Circuit’s decision. Her findings and conclusions regarding the
medical evidence, as she readily admits, essentially mirror (if not adopt) Bernstein’s. Her
explanation for those conclusions, though, is unconvincing–especially in light of Herrmann.
Likewise, and also in contravention of Herrmann, the ALJ failed to articulate her reasons for
accepting the VE’s testimony in this case.
A. Medical evidence and physicians’ opinions.
When she reviewed Dr. Holton’s opinion–the one on which the Commissioner bases her
motion for remand–ALJ Katich acknowledged that Dr. Holton, in his November 2008 medical
source statement, concluded “that it was unlikely [Herrmann] could work an eight-hour day even
17
with medications. More specifically, he stated the claimant could not sit or stand more than
twenty minutes or walk for longer than five minutes.” Tr., p. 665. Katich rejected Dr. Holton’s
professional opinion, though, because she believed it was “based on the claimant’s statements
during the interview portion of the examination wherein she stated she could sit or stand about
ten to twenty minutes and perhaps walk one-half block; at the very least it is not consistent with
the lack of any significant clinical findings. Id. The “lack of any significant clinical findings” that
the ALJ refers to means the records from an examination of Herrmann by Dr. Charles Coates in
June of 2008. Id. The ALJ writes that “Dr. Coates’ June 2008 exam showed the claimant to have
normal gait and station. She did not appear in any distress due to pain and presented as pleasant
with good attention to her hygiene. Inspection of her bones, joints, and muscles was
unremarkable. Her coordination was good . . . . Dr. Coates’ June 2008 examination findings are
notable given the November 2008 medical source statement by Dr. Michael Holton that it was
unlikely the claimant could sit or stand more than twenty minutes or walk for longer than five
minutes.” Id. Thus, Katich gave little to no weight to Dr. Holton’s opinion because she found it
to be inconsistent with Dr. Coates’ “unremarkable” assessment of Herrmann’s “bones, joints, and
muscles” several months earlier, and also because she believed that Dr. Holton, in arriving at his
professional opinion, relied too heavily on his patient’s subjective complaints. This second
point–that a doctor’s opinion is not entitled to much or any weight because the doctor was fooled
by Herrmann’s subjective complaints regarding the severity of her impairments–is a favorite
theme in the ALJ’s decision. For example, in a section of her decision addressing the issue of
Herrmann’s alleged photophobia, ALJ Katich acknowledged that Herrmann’s optometrist, Dr.
Richard Windsor “diagnosed the claimant as having severe photophobia and that over time his
18
records reflect increasing complaints of such by the claimant. However, despite repeat
examinations, there were no objective findings to explain the claimant’s complaints and only
speculations as to what might be the cause, i.e., fibromyalgia, migraine headaches, conversion
disorder. Despite [no] clear etiology for the claimant’s complaints, Dr. Windsor opined that
because of her vision problems it was difficult for her to concentrate and function in a day to day
work environment.” Tr., p. 653. The ALJ believed that “Dr. Windsor’s opinion . . . appears to be
largely based on the claimant’s self reports. Further, the opinions appear to have been requested
to bolster the claimant’s case for disability, rather than based on treatment of the claimant.” Id.
So again the ALJ rejected a physician’s diagnosis on the basis that it was not credible since it was
based on Herrmann’s subjective complaints, which were themselves not credible.
The ALJ’s fixation with the idea that several physicians in this case were fooled into
accommodating Herrmann by basing their medical opinions on her allegedly exaggerated
complaints wasn’t limited to Drs. Holton and Windsor. The ALJ rejected the opinion of
consultative examining physician Sebastian Ksionski for the same reason. The ALJ conceded
that “Dr. Ksionski observed the claimant to ‘far’ reach at objects, to be unable to do fine finger
maneuvers, and almost fall off the examination table due to misinterpreting the distance. He
indicated this was indicative of coordination and neuromuscular issues with regard to visualized
objects. He opined the claimant’s daily functioning was limited given her neuromuscular
compromise and fibromyalgia[.]” Tr., p. 652. The ALJ also noted that “[t]he above examination
findings by Dr. Ksionski are suggestive of visual difficulties.” Id. But she nonetheless rejected
Dr. Ksionski’s opinion for the stunning reason that another doctor, “Dr. J. Sands, a State agency
medical consultant, who evaluated the claimant’s case . . . noted that Dr. Ksionski did not
19
recognize the likelihood that the claimant was magnifying her symptoms and that he interpreted
her subjective presentation as objective manifestations of disease[.]” Id. This is incredible. The
ALJ rejected an examining physician’s opinion because another (non-examining) physician
opined that the first physician was likely hoodwinked by his patient! But wait, it goes on! The
same applied to the opinion of consultative examining physician H.M. Bacchus. ALJ Katich first
acknowledged that “it could [be] argued that the medical source statement from Dr. H.M.
Bacchus, who performed a consultative examination of the claimant in August 2003, is
consistent with [treating physician Dr. Daniel] Dauscher’s opinions,” but then she rejected Dr.
Bacchus’ opinion because “[t]he lack of objective clinical findings on exam suggests that Dr.
Bacchus’ opinion may have been more influenced by the claimant’s subjective complaints than
his own objective examination findings.” Tr., p. 660. In short, ALJ Katich gave little or no
weight to the opinions of physicians who concluded that Herrmann suffers from a host of
impairments because all of those doctors were either naive or overly solicitous of Herrmann’s
effort to obtain benefits.
In Herrmann, the Seventh Circuit held that ALJ Bernstein erred by failing to give proper
weight to physicians’ opinions on the basis that those opinions lacked “credibility without
corroboration.” The appellate court held that “[t]hese are insufficient grounds for disbelieving the
evidence of a qualified professional.” Similarly now, ALJ Katich’s reason for rejecting many of
the physicians’ opinions in this case–i.e., that Herrmann’s lack of credibility renders those
doctors’ opinions unreliable–is an insufficient basis for rejecting those professional opinions.
ALJs are duty bound to make credibility determinations, but what the ALJ did here was apply a
credibility determination–that is, her belief that Herrmann’s subjective complaints were
20
exaggerated–across the board, as it were, and use it as a reason for giving little or no weight to
certain doctors’ opinions and statements. This is just one example of how the ALJ ignored or cast
aside a blanket of substantive evidence in this case, focusing instead on picking at loose threads.3
Also troubling in light of the Seventh Circuit’s decision is ALJ Katich’s conclusion to
give no weight to treating physician Dr. Dauscher’s statements in “disability paperwork” he
completed “for the township trustee’s office at the claimant’s request in December 2003[,]” in
which he “reported [that Herrmann] was unable to work due to debilitating fibromyalgia, [and]
regular employment was not feasible,” because those medical statements “are not consistent with
his own treatment records” and “there is very little by way of his chart notes to document these
conditions or disabling limitations due to them.” Tr., p. 660. According to the Seventh Circuit,
Bernstein made the same error in reasoning when he rejected Dr. Dauscher’s opinion on the basis
that it was “‘not supported by Dr. Dauscher’s sparse treatment statement notes or by examination
findings made by other physicians.’” Herrmann, 772 F.3d at 1111. ALJ Katich repeated this error
by applying a “no credibility without corroboration” standard to reject Dr. Dauscher’s opinions.
Another example of an “unreasoned brush off” of the evidence is the ALJ’s conclusion
that Herrmann’s fibromyalgia was not disabling because of her “limited treatment for
fibromyalgia.” Tr., p. 663. The evidence, though, shows that Herrmann complained of and was
treated for symptoms of fibromyalgia over the course of many years. As the ALJ notes, “[t]he
3
Perhaps “ignored” is too strong a word. ALJs Bernstein and Katich tried to wade their
way through the morass of evidence and issues in this case, which of course spans many years,
and determine, as best they could, what it all adds up to. That they had difficulty doing so is no
surprise given that two ALJs (on three separate reviews), two federal magistrates, the Seventh
Circuit, and now this district court have all taken a crack at trying to sort through and resolve this
case.
21
claimant testified that during the relevant period from June 9, 2003 through September 6, 2010,
her most significant health problem was fibromyalgia, which she described as devastating. She
elaborated that due to this condition she suffered from crushing wide spread body pain, muscle
spasms and rigidity, cramping/Charlie horses, and fatigue[.]” Tr., pp. 658-59. As to the ALJ’s
finding that Herrmann received only “limited treatment” for this condition, and therefore it did
not rise to the level of disabling, that finding is belied by the facts recited in the decision. In her
decision the ALJ notes the following:
1) Herrmann was examined by “rheumatologist Steven Behrendsen in July 2001,” and “told him
she felt she was disabled and unable to work and reported numerous symptoms including, but not
limited to, total body pain, low back pain, shoulder pain, crampy [sic] calf pain, right leg
weakness, and muscle pulling and cramping. . . . Dr. Behrendsen assessed the tender points were
consistent with fibromyalgia, and advised the claimant that Dr. Dauscher could increase her dose
of flexeril and try treating her with ultram.” Tr., p. 659.
2) Treating physician Dr. Mark Zolman examined Ms. Herrmann at the request of Dr. Dauscher
on September 9, 2004. Dr. Zolman diagnosed fibromyalgia and possible lumbar radiculopathies,
recommended continued treatment with medication, and opined that Herrmann might benefit
from “formal physical therapy here at Fort Wayne Orthopaedics.” Zolman Opinion, Tr., pp. 19092.
3) “Thereafter, Dr. Dauscher prescribed flexeril for the claimant’s fibromyalgia[.]” Id.
4) Herrmann treated with Dr. Dauscher during the period from July 2005 through April 2007,
visiting his office about a half dozen times, “and received prescriptions for Tylenol # 3, flexeril,
and midrin once again.” Tr., p. 662.
22
5) In January 2007, “Dr. Dauscher prescribed lyrica for the claimant’s fibromyalgia.” Id.
6) Beginning in June 2008, Herrmann “went to Dr. Charles Coates as a new patient . . . [and] was
still taking Tylenol with codeine and flexeril[.] A November 2008 treatment record from Dr.
Coates indicates the claimant was still taking these medications.” Dr. Coates also gave Herrmann
a prescription for Vicodin. Tr., p. 664.
7) Herrmann treated with “Dr. Daniel Roth at the Centers for Pain Relief in January 2010. She
complained of all over body pain of seven out [of] ten severity that at times was as severe as ten
out of ten. . . . Dr. Roth prescribed Percocet, flexeril, klonopin, trazodone and Cymbalta and
recommended treatment with an epidural steroid injection.” Tr., p. 666.
Despite a documented history of treatment for symptoms of fibromyalgia stretching over
many years, the ALJ thought it wasn’t enough. The ALJ attempted to support her conclusion that
Herrmann’s treatment for fibromyalgia was “limited” by observing that “[o]ther than continuing
to take flexeril there is no indication of any specific follow through with recommended treatment
for fibromyalgia, i.e., a trial of ultram, a referral to a self-help course offered by the Arthritis
Foundation of Northeast Indiana, and a listing of swimming pools for aquatic therapy, as
suggested by Dr. Behrendson. Tr., p. 664. Apparently, then, Herrmann’s treatment was too
limited in part because she was not prescribed a specific medicine on a trial basis, or referred to a
self-help course, or given a list of swimming pools she could go to for therapeutic exercise.
Even more problematic is the ALJ’s discussion and assessment of the medical evidence
regarding Herrmann’s fine finger manipulative ability and gripping ability–another problem in
ALJ Bernstein’s decision that the Seventh Circuit specifically addressed and which also centers
on Dr. Holton’s medical opinion. The Seventh Circuit concluded that ALJ Bernstein’s
23
assessment of this same evidence was fatally flawed, explaining as follows:
Consider next the statement attributed by the administrative law judge to [Dr.]
Holton that “manipulative abilities were normal.” In fact Holton noted “grip
strength” measurements of 31 pounds for [Herrmann’s] right hand and 11 pounds
for her left, which are well below the normal range for women of the applicant’s
age. . . . It’s true that Holton reported that the applicant’s “fine finger
manipulative abilities appear normal.” “‘Fingering’ involves picking, pinching, or
otherwise working primarily with the fingers. It is needed to perform most
unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all
levels of exertion.” Social Security Ruling 85-15:2. But Holton also opined that
the applicant would have trouble “handling,” a finding that is consistent with
reduced grip strength (indeed, gripping is a form of handling) and is an essential
manipulative activity in a great many jobs.
Herrmann, 772 F.3d at 1112. ALJ Katich, it appears, did not share the Seventh Circuit’s
concerns. She assessed the same evidence, noted Dr. Holton’s opinion that Herrmann was
disabled in part because of her gripping impairment, but then concluded as follows:
Dr. Holton also stated the claimant’s fine finger manipulative abilities appeared
normal. While the claimant’s grip strength in her right hand was 31 pounds and 11
pounds for her left, as noted above, muscle strength and tone in her upper
extremities (hands/arms) was normal. Furthermore, Dr. Holton assessed the
claimant was able to sort, handle, and use paper/files and lift/carry up to twenty
pounds occasionally, which seems inconsistent with the assessment the claimant
could only finger, handle, and reach on an occasional basis. Accordingly, the
undersigned finds Dr. Holton’s November 2008 examination findings are
inconsistent with his opinion the claimant could not work an eight-hour day,
sit/stand/walk on a sustained basis, or engage in more than occasional fingering,
handling, and reaching.
Tr., p. 665. ALJ Katich gave little to no weight to Dr. Holton’s opinion because: 1) she
determined that it was “based on the claimant’s statements,” (which she deemed exaggerated); 2)
Dr. Coates found during an examination conducted in December 2008 that Herrmann “did not
appear in any pain distress, displayed good coordination, and presented as pleasant with good
attention to her hygiene. Inspection of her bones, joints, and muscles was unremarkable.”; and 3)
24
Dr. Holton’s opinion that Herrmann was completely disabled due in part to her lack of grip
strength was inconsistent with his findings regarding her fine finger manipulative ability. Id.4
Katich’s assessment and reasoning here, like Bernstein’s, amounts to an “unreasoned brush off”
and “confused rejection” not just of Dr. Holton’s opinion, but “of the evidence offered by the
other consulting physicians[.]” Whereas the Seventh Circuit concluded that ALJ Bernstein failed
to consider relevant and material medical evidence by sweeping it to the side, ALJ Katich did
consider it, but her reasons for rejecting the opinions of several physicians who support
Herrmann’s contention that she is completely disabled are every bit as confused and
unconvincing.
III. Plaintiff’s Local Rule 7-3 brief.
A. Medical evidence.
Herrmann contends in her merits brief that ALJ Katich erred when she concluded that Dr.
Dauscher’s opinions and findings were not entitled to significant weight. Herrmann argues as
follows:
The ALJ failed to provide sound reasoning for rejecting Dr. Dauscher’s medical
opinions. The ALJ faulted Dr. Dauscher for failing to include in his treatment
records objective medical findings that supported the “extreme” limitations that
he proposed ([Tr., pp.] 647-50). The ALJ found that Dr. Dauscher’s opinions were
unsupported by his own treatment notes and therefore merited little weight. Id.
The ALJ’s finding, however, underscores her fundamental misunderstanding of
fibromyalgia. “There are no laboratory tests for the presence or severity of
fibromyalgia.” Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1995). Accord
Kennedy v. The Lily Extended Disability Plan, 856 F.3d 1136, 1139 (7th Cir.
2017) (“. . . it is error to demand laboratory data to credit the symptoms of
4
Curiously, while ALJ Katich put great weight on Dr. Coates’ report that Herrmann’s
exam was “unremarkable,” she also notes that Dr. Coates nonetheless “continued to treat her
with Vicodin, Ativan, and flexeril,” a fact that evidences Herrmann’s ongoing treatment for body
pain.
25
fibromyalgia–the crucial symptoms, pain and fatigue, won’t appear on laboratory
tests”); Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914,
919 (7th Cir. 2003) (“Pain often and in the case of fibromyalgia cannot be
detected by laboratory tests”).
Plaintiff’s Merits Brief (ECF 15), p. 14. As to the opinions of examining physicians Drs. Holton,
Ksionski and Bacchus, Herrmann contends that the ALJ erred by not according them greater
weight (controlling weight, even). Summarizing those doctors’ opinions, Herrmann argues as
follows:
The ALJ erred in weighing consulting physicians’ Drs. Bacchus, Ksionski, and
Holton’s medical opinions. . . . Each of the consultative physicians who examined
Ms. Herrmann provided ample support for their opinions. Dr. Bacchus concluded
that Ms. Herrmann could perform part-time work[.] Dr. Bacchus, for example,
observed that Ms. Herrmann requested that he turn off the florescent lighting in
the examination room, that she got on and off of the examination table slowly,
that she ambulated slowly and could barely walk on her heels or toes or tandemly,
that she could not hop due to pain, that her straight leg raise test was positive, that
her lumbar forward flexion was diminished, that her muscle and grip strength was
diminished, that her range of motion in the knees and hips was diminished, and
that she was mentally sluggish . . . . Dr. Ksionski supported his opinion that Ms.
Herrmann suffered significant limitations in functionality based on his
examination findings that reflected diminished lumbar flexion, extension, and
lateral bending; shoulder and low back nodularities; pain upon motion; and
diminished two-dimension and fingertip coordination. . . . Dr. Holton supported
his opinion of Ms. Herrmann’s diminished functional capacity by noting that Ms.
Herrmann demonstrated halting features when she stood from a chair and when
she got on and off of the examination table, stiff range of motion, paracervical and
paralumbar tenderness, and significantly diminished grip strength. . . . The more
support that a physician provides for his opinion, the greater weight that opinion
merits. 20 C.F.R. § 416.927(c)(3). The ALJ did not explain why, given the
evidence that each consultative examining physician cited in support of their
opinions, greater, not less weight should have been accorded to the opinions.
Id., pp. 15-18 (internal citations to record omitted).
Herrmann concludes this argument by noting that “[a]n ALJ is not a physician and is not
qualified or permitted to determine the significance of a particular medical finding. Stage v.
26
Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016). An ALJ is not permitted to substitute her opinion
for that of a physician without relying on a contrary medical opinion or medical authority. Boiles
v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). Here, the ALJ had no such medical opinion
evidence or authority. The ALJ evaluated the evidence of these physicians’ examinations and
came to her own lay, speculative conclusion.” Id., pp. 18-19.
All of the arguments Herrmann presses in her merits brief are valid and supported by
authority. They are also unrefuted, of course, since the Commissioner did not respond to them.
There is no need for the Court to discuss more examples to demonstrate that ALJ Katich’s
decision was not well-reasoned and must be reversed. As noted at the outset, even the
Commissioner believes ALJ Katich got it wrong, at least as to her assessment of Dr. Holton’s
opinion, and argues that the whole mess should be sent back to the Agency until an ALJ gets this
right. The Court, though, finds that ALJ Katich’s decision is unsupported by the medical
evidence, that it fails to address (let alone correct) the problems identified by the Seventh Circuit,
and that it fails to present a “logical bridge” between the evidence and conclusions. For all of
these reasons (and still more as discussed below), the Court concludes that remand for an award
of benefits to Herrmann is the proper resolution of this case.
B. Vocational expert’s testimony.
Turning back to the issue of the VE’s testimony, Herrmann argues, and the Court agrees,
that ALJ Katich failed to explain how the vocational expert testimony she relied on was
sufficient in light of the Seventh Circuit’s decision. Herrmann challenges this portion of the
ALJ’s decision by arguing as follows:
The ALJ erred in relying on the VE’s testimony in finding that there existed a
27
significant number of jobs in the national economy that Ms. Herrmann could
perform. The ALJ questioned the VE about the availability of jobs to a
hypothetical individual who retained Ms. Herrmann’s RFC. The VE testified that
the hypothetical individual could perform the jobs of office helper, mail sorter,
and parking lot attendant. The VE reiterated that he relied only on his experience
in forming his opinion. The VE testified that he had no log or data that he could
provide to the ALJ to support his testimony. Based on the VE’s testimony, the
ALJ concluded that Ms. Herrmann retained the RFC to perform the jobs of office
helper, mail sorter, and parking lot attendant. As in the present matter, where an
ALJ relies on a VE’s testimony to find that there exists a substantial number of
jobs that a claimant can perform in the national economy, that testimony must be
reliable. Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2009). The Seventh
Circuit has held that a VE’s testimony is not reliable where the VE bases such
testimony solely on his experience and provides no data or statistics to support
that testimony. Hill v. Colvin, 807 F.3d 862, 870 (7th Cir. 2015) (J. Posner,
concurring); Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014); Browning
v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014). As the VE based his testimony on
his ephemeral experience, Ms. Herrmann had no method to ascertain its veracity.
Plaintiff’s Merits Brief, pp. 25-26 (internal citations to record omitted). The vocational expert in
this case testified that he based his findings and conclusions on DOT statistics and his “20 years
of experience of placing people into jobs, over 20 years experience doing job descriptions and
job analyses, and almost 20 years experience listening to people describe how they perform their
jobs in Social Security hearings.” Tr., pp. 1089-90. When asked by Herrmann’s attorney whether
he “rel[ied] on any labor market surveys or any kind of empirical data” to arrive at his estimation
of the number of jobs Herrmann could perform, the VE responded that “I don’t have data
because it’s based on my experience. And some of the best experiences to gain for how people
perform their jobs is listening to how people explain how they performed their job duties here in
Social Security hearings.” Id. Herrmann’s attorney then asked the VE if he “ke[pt] a list of
different DOT codes and claimant descriptions of jobs or anything like that so that there’s some
sort of log or data that can be provided to the Court[,]” and the VE stated that he did not. Tr., p.
28
1090. The VE testified that based on DOT statistics and his 20 years of experience he determined
that jobs Herrmann would be capable of performing existed in sufficient numbers in the national
economy.
This is just what the VE did the last time around when ALJ Bernstein was presiding
(although that VE also claimed to rely in part on “market surveys” to arrive at his conclusions)
and the Seventh Circuit would have none of it. It’s not that a VE’s personal experience in the
employment industry–writing job descriptions and placing people in jobs, for example–wouldn’t
be relevant and helpful to a VE who is trying to determine if there are jobs available that a
claimant could perform. The problem, as the Seventh Circuit made clear, is that the VE did not
explain “how past experience and ‘knowledge’ could enable him to determine numbers of
particular jobs.” Herrmann, 772 F.3d at 1113 (italics added). In this case, the VE likewise failed
to explain how his past experience, coupled with “obsolete” numbers from the DOT, provided a
basis for his statistical conclusions. In other words, this Court does “not know how the vocational
expert in this case calculated the numbers to which he testified. Nothing in the record enables us
to verify those numbers, which the administrative law judge accepted.” Id. at 1114. The issue
identified by the Seventh Circuit when it reversed ALJ Bernstein’s decision still exists in this
case because ALJ Katich offered nothing new or different that would enable this Court to “verify
th[e] numbers” the VE calculated. For these reasons, the Court concludes that the ALJ erred
when she accepted and relied on the VE testimony to support her conclusion that sufficient
numbers of jobs existed that Herrmann would be capable of performing.
Herrmann presents another, more fundamental argument to challenge the ALJ’s
acceptance of the VE’s statistical evidence. That is, the VE’s evidence is irrelevant since it was
29
based on the assumption that Herrmann was capable of “a restricted range of light work,” an
assumption Herrmann claims is wrong from the get-go. At the hearing, ALJ Katich premised her
questioning of the VE on her conclusion (or what became her conclusion) that Herrmann’s
residual functional capacity would permit her to perform certain light work. The ALJ presented
the VE with the following hypothetical: “I want you to assume a hypothetical individual with
claimant’s education . . . no past work history . . . I want you to assume further this hypothetical
individual can perform the full range of light exertional work activity except that the hypothetical
individual can stand and/or walk for four hours in an eight-hour workday day and for no more
than 30 minutes at one time. She can occasionally balance, stoop, kneel, crouch and crawl.” Tr.,
p. 1086. On the basis of that hypothetical, the VE posited that the individual could perform the
jobs of office helper, mail sorter, and parking lot attendant. Tr., p. 1088. But Herrmann contends
all this is meaningless because the ALJ erred in determining Herrmann’s RFC in the first place,
rendering the VE’s statistical evidence immaterial. At the hearing, Herrmann’s attorney
questioned the VE about this by presenting a different hypothetical:
Q. [I]f we assume a different hypothetical question where the individual is limited
to sedentary work and again with the same postural limitations that the Judge
outlined in the first hypothetical, and . . . we add a limitation [that] the individual
can frequently use bilateral upper extremities for feeling, but only occassional[ly]
for reaching, handling and fingering, are there any jobs at the sedentary level that
the individual could perform?
A. There would not be, counselor.
Tr., p. 1089. Herrmann’s lawyer then asked the VE whether “if we are looking at either the light
jobs you cited or other jobs that might be available at the light or sedentary levels, would there be
any work for an individual who cannot have any exposure to florescent lighting[?]” The VE
30
replied that “I would say that there would probably be no full-time competitive employment that
would be available.” Tr., p. 1091.
The Court agrees that the ALJ erred in determining Herrmann’s RFC, given that it was
based on errors she made when assessing the medical evidence (i.e., her RFC determination is
not supported by substantial evidence, but rather, is based on her erroneous rejection of much of
the medical evidence). And as Herrmann’s attorney’s question to the VE makes clear, if the
ALJ’s RFC is wrong then her hypothetical is wrong and the VE’s conclusion that jobs exist that
Herrmann could perform is also wrong. For these reasons, the Court concludes that the ALJ’s
acceptance of the VE’s testimony was error.
C. Waiver issue.
As the Court mentioned many pages ago, Herrmann argues that the Commissioner’s
decision not to file a response to her merits brief “creates a negative inference, waiving defense
of the issue[s].” Plaintiff’s Response, p. 2 (citing Kelly v. Colvin 2015 WL 4730119, *5 (N.D. Ill.
Aug. 10, 2015)). Herrmann points the court to cases holding “that the Commissioner’s failure to
address one of a claimant’s argument amounts to waiver.” Id. (citing Dogan v. Astrue, 751
F.Supp.2d 1029, 1042 (N.D. Ind. June 3, 2010) and Pino v. Berryhill, No. 2:16-CV-110 (N.D.
Ind. Sept. 6, 2017)). As Herrmann points out, in Pino this Court (Magistrate Judge Paul Cherry)
noted that “‘[i]f the Commissioner does not respond to an argument raised in Plaintiff’s opening
brief, the Commissioner’s silence constitutes waiver of the issue. See Bonte v. U.S. Bank, N.A.,
624 F.3d 461, 466 (7th Cir. 2010) (‘Failure to respond to an argument . . . results in waiver.’)
(citing U.S. v. Farris, 532 F.3d 615, 619 (7th Cir. 2008); Williams v. REP Corp., 302 F.3d 660,
667 (7th Cir. 2002)).” Id. (quoting Pino).
31
As this Court noted in Dogan, this waiver issue is well established. See Dogan v. Astrue,
751 F.Supp.2d at 1042 (citing Lechner v. Barnhart, 321 F.Supp.2d 1015, 1030 (E.D.Wis. 2004)
(finding the Commissioner failed to specifically address plaintiff’s credibility argument in her
brief, thus waiving her right to do so); Stemper v. Barnhart, 2005 WL 857033, *5 (W.D.Wis.
April 14, 2005) (remanding based on the Commissioner’s failure to address one of plaintiff’s
arguments in her brief and the ALJ’s failure to provide a sufficient analysis on that argument);
Embry v. Barnhart, 2003 WL 21704425, *10 (N.D.Ill. July 18, 2003) (finding that the ALJ failed
to explain why he gave greater weight to a non-examining consultant’s report over an examining
physician’s report and reversing, noting the Commissioner failed to address the argument in her
brief).
In the present case, not only did the Commissioner choose not to file a response to
Herrmann’s merits brief, she also chose not to file a reply brief to Herrmann’s response in
opposition to the motion for remand. In other words, the Commissioner waived any arguments
she may have been able to raise in response to Herrmann’s complaint by not filing a response
brief, and also waived any argument about the issue of waiver itself by not filing a reply brief.
The Commissioner made a calculated choice to proceed this way, which was her prerogative; but
it left unchallenged all of Herrmann’s arguments urging reversal of the ALJ’s decision for an
award of benefits–and those arguments are compelling.
IV. “Pinball syndrome.”
At the beginning of this opinion the Court noted that many social security cases take years
to reach conclusion. But just because a case has been litigated for many years is not a reason, at
least by itself, to grant or deny benefits. That said, other courts have taken notice–and action–in
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social security cases that, like this one, have been “bouncing back and forth like a pinball” for
years. In Phillips v. Colvin, 171 F.Supp.3d 819 (E.D. Wis. 2016), the district court remanded a
case with instructions to award damages to the claimant. The court noted that the case had been
pending for 14 years (like this one), that three ALJs had conducted reviews and issued decisions
unfavorable to the claimant (like this one), and that the case had bounced back and forth between
the agency and the federal court several times (like this one). The court concluded that the ALJ
erred in relying on vocational expert testimony and that the error warranted remand. Judge
Clevert, Jr., decided that remand for an award of benefits was warranted, rather than remand for a
fourth administrative hearing and review. He summarized his decision as follows:
The ALJ’s decision must be reversed thereby raising the question of the
appropriate remedy. Phillips seeks an outright award of benefits under Worzalla v.
Barnhart, 311 F.Supp.2d 782 (E.D.Wis. 2004). In response, the Commissioner
argues that a remand for another hearing is more appropriate.
In Worzalla, District Judge Lynn Adelman found that an outright award of
benefits was appropriate (1) if the record overwhelming supports a finding of
disability, or (2) if “the delay involved in repeated remands has become
unconscionable, or the agency has displayed obduracy in complying with the law
as set down by the court,” 311 F.Supp.2d at 800. Wilder v. Apfel, 153 F.3d 799
(7th Cir. 1998), also supports the second basis, known as the “obduracy
exception,” for an award. Both cases involved drawn-out proceedings at the Social
Security Administration or the agency’s refusal on remand to follow court
directions.5
. . . [I]t strains reason to require a fourth opportunity, after fourteen years of this
case bouncing back and forth between the agency and the district court like a
pinball, for the Commissioner to determine Phillips’s claim fully and correctly.
Phillips v. Colvin, 171 F.Supp.3d at 829-30. In Israel v. Colvin the Seventh Circuit reluctantly
5
To be clear, Herrmann does not allege that the Commissioner was obdurate nor does the
Court believe that to be the case. However, after 14 years and several attempts by ALJs and the
federal courts to resolve this case, the issue of unreasonable or unconscionable delay is certainly
a valid consideration even when that delay was not the result of obduracy or even
unreasonableness on the part of either side.
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affirmed the district court’s remand of the case for a fourth hearing and review by an ALJ, and
lamented the fact that the case had been pending for nearly a decade. The Court wrote as follows:
Israel’s patience has understandably grown thin. We agree that it should not take
nine years to determine whether a claimant’s impairments prevent him from
engaging in full-time employment, especially a claimant who appears to have a
well-documented and well-supported claim for disability. Israel believes he is
entitled to a directed award of benefits at this stage, citing Wilder v. Apfel, 153
F.3d 799 (7th Cir. 1998). But the record in this case is not as severely lopsided as
it was in Wilder, and we do not perceive the same level of obduracy on the part of
the Agency. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir.
2005) (“Another remand for further proceedings was unnecessary in Wilder
because after two evidentiary hearings, the ALJ had no reasonable grounds to
reject the claimant’s claim.”). “It remains true that an award of benefits is
appropriate only if all factual issues have been resolved and the record supports a
finding of disability.” Briscoe, 425 F.3d at 356. If the case returns to this court
with the Agency seeking a fifth hearing, our analysis may change. . . . We strongly
encourage the Agency to expedite the proceedings in order to resolve Israel’s
claims once and for all.
Israel v. Colvin, 840 F.3d 432, 441-42 (7th Cir. 2016).
Like Phillips and Israel, this case also suffers from pinball syndrome and demands
closure. This Court has reviewed the record in this case and made an earnest attempt to do so by
taking a “30,000-foot view” of the evidence, much like the Seventh Circuit did when it
summarized the medical opinion evidence of Herrmann’s impairments. The Court concludes that
the medical evidence in this case supports a determination that Herrmann was disabled before
she turned 55 and therefore is entitled to an award of benefits for the period in question.
To reiterate, Dr. Dauscher, Herrmann’s treating physician, and consultative examining
physicians Bacchus, Holton and Ksionski, all opined that Herrmann suffered from fibromyalgia
(and many concomitant impairments including chronic pain, fatigue, and problems with gripping
and handling), photophobia, and degenerative spinal disk disease. The consensus opinion of
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those physicians was that Herrmann was severely limited or altogether prevented from
performing even light sedentary work due to her impairments. The ALJ, however, concluded that
Herrmann was capable of performing certain light duty jobs and therefore was not disabled
during the period in question. As the Seventh Circuit pointed out, though, “‘[l]ight work’ is
defined by the Social Security Administration as work that ‘involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls. To be considered capable of performing a full or wide range of
light work, [a claimant] must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of
time.’” Herrmann, 772 F.3d at 1111 (quoting 20 C.F.R. § 404.1567). As the Seventh Circuit
observed, “[t]his is a pretty precise description of the type of work that, according to the findings
by the doctors regarding [Herrmann’s] physical limitations, she can’t perform.” Id. (italics in
original).
Is there medical evidence in the record that arguably contradicts or is inconsistent with
these physicians’ conclusions? Absolutely–and both ALJ Bernstein and ALJ Katich relied on that
contrary evidence (such as the lack of “treatment notes” in some physicians’ opinions), along
with their findings that Herrmann’s testimony regarding the severity of her impairments was not
completely credible, to support their ultimate conclusions that Herrmann’s collection of
impairments did not render her totally disabled. The Seventh Circuit found fatal errors in ALJ
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Bernstein’s decision. This Court concludes that ALJ Katich’s decision must also be reversed
because it did not address, let alone correct, the errors identified by the appellate court. Finally,
Herrmann’s arguments in support of her Complaint are well founded and uncontested.
Accordingly, this case will be remanded to the Commissioner for the granting of benefits.
CONCLUSION
For all of the reasons set forth above, the decision of the Commissioner is REVERSED
and the Court REMANDS this case to the Social Security Administration for an award of
disability benefits to the Plaintiff for the period from June 9, 2003, to September 6, 2010.
Dated: December 20, 2017.
/s/ William C. Lee
William C. Lee, Judge
United States District Court
Northern District of Indiana
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