Butler v. Commissioner of Social Security

Filing 20

OPINION AND ORDER: The court OVERRULES the objections 19 and ADOPTS the report and recommendation submitted by Magistrate Judge Joshua P. Kolar 18 . The court DENIES Mr. Butler's requested relief and AFFIRMS the ALJ's decision. This order terminates the case. Signed by Judge Damon R Leichty on 9/11/2020. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
MIKE BUTLER,
Plaintiff,
v.

CAUSE NO. 3:19-CV-401 DRL-JPK

ANDREW M. SAUL,
Commissioner of the Social Security
Administration,
Defendant.
OPINION & ORDER
Mike Butler appeals from the Social Security Commissioner’s judgment denying his application
for disability insurance. See 42 U.S.C. § 405(g). His appeal was referred to Magistrate Judge Joshua P.
Kolar, who recommended this court deny the requested relief and affirm the Commissioner’s decision.
Mr. Butler now objects to the recommended findings of the Magistrate Judge. Having reviewed the
underlying record and Mr. Butler’s objections, the court overrules his objections and accepts the
decision of the administrative law judge.
BACKGROUND
Mr. Butler suffers from a variety of physical impairments [R. 17-18]. On January 19, 2016, he
filed an application for disability insurance benefits, alleging a disability onset date of November 4,
2015 [R. 15]. At the time of his alleged onset date, Mr. Butler was 51 years old [R. 24]. He has a high
school education and has previous work experience as a millwright and a machine repair maintenance
worker. Id.
Mr. Butler’s claims received an administrative hearing before Administrative Law Judge Robert
Long on November 15, 2017 [R. 15]. In an April 19, 2018 decision, the ALJ denied Mr. Butler’s
petition on the basis that he could not show he was disabled as defined by the Social Security Act [R.

15-26]. Thereafter, Mr. Butler challenged the decision by filing a request for review with the Appeals
Council. After the Council denied his request, Mr. Butler timely filed a complaint here.
On July 24, 2020, Magistrate Judge Joshua P. Kolar recommended this court deny Mr. Butler’s
request for remand and affirm the ALJ’s decision. Mr. Butler timely objected on various grounds. The
Commissioner did not respond to the objections.
STANDARD
The court must “make a de novo determination of those portions of the report or specific
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also
Fed. R. Civ. P. 72(b)(3). The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
The court is bound by a strict standard when reviewing an ALJ’s decision under 42 U.S.C. §
405(g). Because the Council denied review, the court evaluates the ALJ’s decision as the
Commissioner’s final word. See Schomas v. Colvin, 732 F.3d 702, 707 (7th Cir. 2013). The ALJ’s findings,
if supported by substantial evidence, are conclusive and nonreviewable. See Craft v. Astrue, 539 F.3d
668, 673 (7th Cir. 2008). Substantial evidence is that evidence which “a reasonable mind might accept
as adequate to support a conclusions,” Richardson v. Perales, 402 U.S. 389, 401 (1971), and may well be
less than a preponderance of the evidence, Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007) (citing
Richardson, 402 U.S. at 401). If the ALJ has relied on reasonable evidence and built an “accurate and
logical bridge from the evidence to conclusion,” the decision must stand. Thomas v. Colvin, 745 F.3d
802, 806 (7th Cir. 2014). Even if “reasonable minds could differ” concerning the ALJ’s decision, the
court must affirm if the decision has adequate support. Simila v. Astrue, 573 F.3d 503, 513 (7th Cir.
2009) (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).

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DISCUSSION
When considering a claimant’s eligibility for disability benefits, an ALJ must apply the standard
five-step analysis: (1) is the claimant currently employed; (2) is the claimant’s impairment or
combination of impairments severe; (3) do his impairments meet or exceed any of the specific
impairments listed that the Secretary acknowledges to be so severe as to be conclusively disabling; (4)
if the impairment has not been listed as conclusively disabling, given the claimant’s residual function
capacity, is the claimant unable to perform his former occupation; (5) is the claimant unable to perform
any other work in the national economy given his age, education, and work experience. 20 C.F.R. §
404.1520; Young v. Secretary of Health & Human Servs., 957 F.2d 386, 389 (7th Cir. 1992). The claimant
bears the burden of proof until step five, when the burden shifts to the Commissioner to prove that
the claimant can perform other work in the economy. See Young, 957 F.2d at 389.
Mr. Butler’s arguments in front of the magistrate judge and his objections here all center
around step five of this analysis.
A.

The ALJ Used the Medical-Vocational Guidelines as a Framework.

Mr. Butler objects to the magistrate judge’s finding that the ALJ properly considered Mr.
Butler’s nonexertional limitations and whether they substantially limit the range of work he can
perform. Specifically, he argues the ALJ failed to follow the binding mandate of 20 C.F.R. Pt. 404,
Subpt. P, App. 2 § 200.00(e)(2) and Social Security Rulings 83-12, 1983 SSR LEXIS 32, and 83-14,
1983 SSR LEXIS 33.
At step five of the sequential analysis, an ALJ must determine “whether the person can do any
other work that exists in the national or regional economy.” Fast v. Barnhart, 397 F.3d 468, 470 (7th
Cir. 2005) (citing 20 C.F.R. §§ 404.1520(a)(4)(v), (e)). “To this end, the ALJ may use the [MedicalVocational Guidelines],” known as the “grids,” “to determine whether other jobs exist in the national
or regional economy that a claimant can perform.” Id. The ALJ should be able to line up a claimant’s
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limitations and vocational factors in the appropriate grid table and discern a finding of disabled or not
disabled. See Haynes v. Barnhart, 416 F.3d 621, 627 (7th Cir. 2005).
“The grids, however, generally take account only of exertional impairments.” Fast, 397 F.3d at
470. When a claimant has nonexertional limitations imposed by a medically determinable impairment,
the grid doesn’t direct a conclusion of “disabled” or “not disabled.” See Fast, 397 at 470; Haynes, 416
F.3d at 628 (“Appendix 2 clearly envisions cases . . . in which the claimant has a ‘hybrid’ RFC, and
does not mandate the use of the grids in such cases”). Instead, the grids are used, “in conjunction with
the definitions and discussions provided in the text of the regulations, as a framework for
decisionmaking.” SSR 83-14, 1983 SSR LEXIS 33 at 1; see also 20 C.F.R. Pt. 404, Subpt. P, App. 2 §
200.00(e)(2). “Where an individual exertional RFC does not coincide with the definitions of any one
of the ranges of work as defined [by the regulations], the occupational base is affected and may or may
not represent a significant number of jobs in terms of the rules directing a conclusion as to disability.”
SSR 83-12, 1983 SSR LEXIS 32 at 3. In which case, ALJ will consider the extent of any erosion of the
occupational base and assess its significance. Id. The use of a vocational expert is sometimes necessary
to make such an assessment. See Haynes, 416 F.3d at 629; see also SSR 83-14, 1983 SSR LEXIS 33 at
10, 17; SSR 83-12, 1983 SSR LEXIS 32 at 8.
The ALJ found Mr. Butler capable of light work as defined in 20 C.F.R. 404.1567(b), but found
several nonexertional limitations, most notably a limitation to only occasional reaching, gripping,
handling, and fine manipulation with the left upper extremity [R. 18]. Because Mr. Butler has
nonexertional limitations, the grids act as a framework for the ALJ’s decision and are not definitive.
See Fast, 397 at 470; Haynes, 416 F.3d at 628. The ALJ recognized this in his decision [R. 24]. To
determine the extent to which Mr. Butler’s limitations eroded the light occupational base, the ALJ
relied on the testimony of a vocational expert [R. 25]. See SSR 83-14, 1983 SSR LEXIS 33 at 17 (the

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services of a vocational expert will be necessary when the ALJ doesn’t have a clear understanding of
how the limitations erode the occupational base).
The vocational expert testified that Mr. Butler’s limitations would erode the occupational base
(light) by about two-thirds [R. 65]. Even considering Mr. Butler’s full limitations, the vocational expert
reported approximately 3,050 combined jobs available in the Indiana economy [R. 69-70] and
approximately 136,000 combined jobs in the national economy that Mr. Butler could perform [R. 6263]. The vocational expert testified that an individual with Mr. Butler’s limitations would be unable to
perform positions at the unskilled, sedentary level [R. 64-65]. The ALJ considered the testimony of
the vocational expert and found there exist a significant number of jobs in the national economy that
Mr. Butler could perform [R. 25].
Mr. Butler argues that the ALJ did not address the extent to which his limitations erode the
unskilled occupational base (light). Specifically, Mr. Butler argues that the ALJ should have compared
the two grids (for light and sedentary work) and found Mr. Butler closer to the sedentary work grid,
and thus disabled. But this line of argument has already been rejected in this circuit. See Stanley v. Astrue,
410 F. Appx. 974, 977 (7th Cir. 2011) (“an analogy to the Guidelines is just one factor that the ALJ
should consider, together with testimony from a vocational expert and any other relevant evidence”);
see also Haynes, 416 F.3d at 627 (affirming the ALJ’s decision where claimant would have been disabled
under the sedentary grid but could still perform a significant amount of jobs in the light occupational
base).
The ALJ posed hypotheticals to the vocational expert to determine whether there were jobs
existing in significant numbers in the national economy. In his decision he cited examples of
occupations Mr. Butler can do functionally and vocationally and a statement of the incidence of such
work. This was all the ALJ needed to do. See Stanley, 410 F. Appx. at 977. One of the regulations Mr.
Butler points the court to states it just so plainly: “The ultimate question in the medical-vocational
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evaluation of the capability to do other work is whether work than an individual can do functionally
and vocationally exists in the national economy.” SSR 83-10, 1983 SSR LEXIS 30 at 9-10.
Though the ALJ didn’t specifically state the extent of the erosion, that is not grounds for
reversal when he otherwise found Mr. Butler could occupations that exists in significant numbers in
his region and nationally. See, e.g., Boone v. Barnhart, 353 F.3d 203, 210 (3d Cir. 2003) (reversal isn’t
mandated “whenever the ALJ does not set out specific findings concerning the erosion of the
occupational base if, as here, the ALJ has received the assistance of a VE in considering the more
precise question whether there are a significant number of jobs in the economy that the claimant can
perform”).
It is true Mr. Butler’s nonexertional limitations compromise the light occupational base,
perhaps even completely eroding the sedentary positions contained therein; but the vocational expert
still identified 3,050 light work jobs available in Indiana (136,000 nationally) for an individual with Mr.
Butler’s limitations. The magistrate judge’s opinion lists several other instances when an ALJ properly
relied on a vocational expert’s testimony that there existed a significant number of jobs in the national
economy that the claimant could perform. See, e.g., Stanley, 410 F. Appx. at 977; Cynthia P. v. Comm’r of
Soc. Sec., 2019 U.S. Dist. LEXIS 16290, 13-15 (C.D. Ill. Feb. 1, 2019); Sigite v. Colvin, 2015 U.S. Dist.
LEXIS 53805, 23-24 (C.D. Ill. Apr. 24, 2015). The court agrees with the Magistrate Judge’s finding
that the ALJ properly considered Mr. Butler’s exertional and nonexertional limitations under the
framework of the Medical-Vocational Guidelines.
B.

The ALJ’s Decision Accounted for Mr. Butler’s Age.

The court also agrees with the Magistrate Judge’s finding that the ALJ considered whether Mr.
Butler could adjust to the jobs identified by the vocational expert. Mr. Butler argues that the ALJ never
considered how Mr. Butler’s advancing age might affect his ability to adjust to other work. But the
ALJ expressly considered Mr. Butler’s age throughout the decision [R. 24, 25]. In fact, one of the ALJ’s
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explicit findings was that Mr. Butler “was 51 years old, which is defined as an individual closely
approaching advanced age, on the alleged disability onset date” [R. 24]. The ALJ then immediately
cites the precise regulation Mr. Butler argues he did not consider in the decision (20 C.F.R. § 404.1563).
The ALJ’s hypotheticals required the vocational expert to consider Mr. Butler’s age [R. 61-63].
Considering Mr. Butler’s age, with other factors, the ALJ found he was capable of successful
adjustment to other work [R. 25]. The Magistrate Judge said it succinctly: “Simply put, the ALJ did
consider Mr. Butler’s age.” ECF 18 at 16.
C.

The ALJ Cited A Significant Number of Jobs in The National Economy.

Mr. Butler argues the ALJ did not comply with the law when he found there was a significant
number of jobs available in the national economy that Mr. Butler could perform. Specifically, Mr.
Butler argues the regulations require the ALJ base his decision not national numbers, but “in terms of
the region in which the claimant lives or several regions of the county.” ECF 19 at 11 (citing 20 C.F.R.
§§ 404.1560, 404.1566).
To find a claimant not disabled, an ALJ must decide work exists “in the national economy,
regardless of whether such work exists in the immediate area in which [the claimant] lives . . . . For
purposes of the preceding sentence (with respect to any individual), ‘work which exists in the national
economy’ means work which exists in significant numbers either in the region where [the claimant]
lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A). The vocational expert here testified
to the incidence of jobs in both the Indiana economy, the state in which Mr. Butler resides, and in the
national economy [R. 62-63, 69-70].
His argument is no mere textual gripe. Despite the relevant statutes, regulations, and agency
decisions defining “work which exists in the national economy” to mean work existing in significant
numbers either in the claimant’s region or several regions of the country, see 42 U.S.C. § 423(d)(2)(A);
20 C.F.R. §§ 404.1566(b), 404.1560(c)(1); SSR 83-12, 1983 SSR LEXIS 32 at 11, the most recent circuit
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law on this issue allows the ALJ to rely on job incidence anywhere in the country. Compare Alaura v.
Colvin, 797 F.3d 503, 507 (7th Cir. 2015) (“if there is a significant number of jobs that the applicant
for benefits can perform anywhere in the United States he is deemed not disabled”) and Herrmann v.
Colvin, 772 F.3d 1110, 1114 (7th Cir. 2014) (“if there is a substantial number of such jobs in the nation,
the applicant’s claim fails, no matter how few there are in his locality or region”) with Barrett v. Barnhart,
368 F.3d 691, 692 (7th Cir. 2004) (per curiam) (observing vocational experts “almost always confine
their testimony to indicating the number of such jobs that exist in the applicant’s state”). As a result,
courts throughout this circuit continue to send mixed messages on the issue. Compare Dorothy B. v.
Berryhill, 2019 U.S. Dist. LEXIS 91276, 19-20 (N.D. Ill. May 31, 2019) (finding an ALJ can solely rely
on jobs available in the national economy) (citing Alaura, 797 F.3d at 507) with Yvonne S. v. Berryhill,
2019 U.S. Dist. LEXIS 147932, 35-38 (N.D. Ind. Aug. 30, 2019) (finding the proposition that an ALJ
can permissibly rely solely on national numbers “antithetical to a plain reading of the statute”) (relying
on Barrett, 355 F.3d at 1067).
Here, the debate is moot because the vocational expert cited regional numbers. Given the
circuit’s latest guidance on the subject and the vocational expert’s testimony as to the incidence of
positions both nationally and regionally, the court finds the ALJ’s conclusion that there exist
significant positions in the national economy was supported by substantial evidence. Mr. Butler’s
contention that a state is not a “region” in unavailing. See Browning v. Colvin, 766 F.3d 702, 708 (7th Cir.
2014) (presuming a “region” encompasses both a local area and the entire state); see also Barrett v.
Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (the function of a vocational expert “is to determine
which jobs the applicant for disability benefits can do and how many such jobs exist in the applicant’s
state”).
Finally, Mr. Butler argues remand is required because one of the three occupations cited by
the vocational expert, and relied on by the ALJ, cannot actually be performed by an individual with
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Mr. Butler’s limitations. The ALJ, relying on the vocational expert’s testimony, cited three occupations
that he believed Mr. Butler could perform: information clerk (DOT 237.367-018), usher (DOT
344.677-014, and furniture rental consultant (DOT 295.357-018) [R. 25, 63]. But according to the
Selected Characteristics of Occupations, the position of information clerk requires frequent reaching and
handling, see U.S. Dep’t of Labor, Selected Characteristics of Occupations Defined in the Dictionary of
Occupational Titles 98, 336 (4th rev. ed. 1993), though Mr. Butler is limited to only occasional use of
those functions.
Assuming Mr. Butler truly cannot perform that position, that leaves approximately 1,750
positions regionally (i.e., Indiana) and 70,000 positions nationally. These distilled numbers are still
above what courts have considered a “significant” number of positions. See, e.g., Liskowitz v. Astrue,
559 F.3d 736, 743 (7th Cir. 2009) (it “appears to be well-established that 1,000 jobs is a significant
number”); Stanley, 410 F. Appx. at 976 (“We have held that when a person can perform 1,000 or more
jobs, then work exists in ‘significant’ numbers.”); Lee v. Sullivan, 988 F.2d 789, 794 (7th Cir. 1993)
(finding 1,400 jobs is a significant number). That isn’t necessarily what Mr. Butler finds fault in. He
argues that the ALJ erred by not following the administration’s Program Operations Manual System
(POMS). The POMS instructs ALJs to cite three occupations as examples of work the claimant could
do given his limitations; however, it further instructs that an ALJ may cite fewer than three occupations
when it is clear that jobs exist in significant numbers within fewer than three occupations. See POMS
DI 25025.030(C)(1).
As the Magistrate Judge explained, the POMS isn’t a regulation that has controlling force. See
Parker v. Sullivan, 891 F.2d 185, 190 (7th Cir. 1989); Darley v. Berryhill, 2018 U.S. Dist. LEXIS 186621,
7 (N.D. Ill. Oct. 31, 2018) (finding the POMS direction to cite three occupations is, “at best,
persuasive”); Thompson v. Astrue, 2013 U.S. Dist. LEXIS 13075, 13 (N.D. Ind. Jan. 31, 2013) (“the
POMS manual does not impose judicially enforceable duties on an ALJ, it is considered persuasive”).
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Even if it were binding on the ALJ, he still followed the instruction. By finding two other occupations
with significant numbers in the national and regional economies, the ALJ was not required to cite a
third occupation. See POMS DI 25025.030(C)(1); see also Darley, 2018 U.S. Dist. LEXIS 186621 at 7
(finding that the ALJ followed the POMS directive finding two occupations that totaled 57,000
nationally and 3,400 regionally).
CONCLUSION
Having reviewed de novo those portions of the Magistrate Judge’s findings to which Mr. Butler
objects, the court OVERRULES the objections (ECF 19) and ADOPTS the report and
recommendation submitted by Magistrate Judge Joshua P. Kolar (ECF 18). The court DENIES Mr.
Butler’s requested relief and AFFIRMS the ALJ’s decision. This order terminates the case.
SO ORDERED.
September 11, 2020

s/ Damon R. Leichty
Judge, United States District Court

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