MILLER v. COLVIN
Filing
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DECISION on Complaint for Judicial Review: The court AFFIRMS the Commissioner's decision that Ms. Miller was not disabled. See Decision for details. Signed by Magistrate Judge Debra McVicker Lynch on 3/22/2018.(SWM)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MERRI ELLEN MILLER,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security,
Administration,
Defendant.
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) Case No.: 1:16-cv-03504-DML-JMS
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Decision on Complaint for Judicial Review
Plaintiff Merri Ellen Miller applied in September 2012 for Disability
Insurance Benefits under Title II of the Social Security Act, alleging she has been
disabled since May 2012. Acting for the Commissioner of the Social Security
Administration following a hearing on July 7, 2015, administrative law judge
Michael Carr issued a decision on August 25, 2015, that Ms. Miller is not disabled.
The Appeals Council denied review of the ALJ’s decision on November 15, 2016,
rendering the ALJ’s decision for the Commissioner final. Ms. Miller timely filed this
civil action under 42 U.S.C. § 405(g) for review of the Commissioner’s decision. The
parties consented to the magistrate judge conducting all proceedings and ordering
the entry of judgment in accordance with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Ms. Miller asserts that the Commissioner’s decision must be reversed and
remanded because (1) the ALJ did not address her counsel’s post-hearing
submission regarding vocational evidence; (2) the ALJ erred in his evaluation of a
medical opinion; and (3) the ALJ’s credibility analysis is flawed because he did not
address Ms. Miller’s lengthy work history.
The court will first describe the legal framework for analyzing disability
claims and the court’s standard of review, and then address Ms. Miller’s specific
assertions of error.
Standard for Proving Disability
To prove disability, a claimant must show she is unable to “engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months.” 42
U.S.C. § 423(d)(1)(A). Ms. Miller is disabled if her impairments are of such severity
that she is not able to perform the work she previously engaged in and, if based on
her age, education, and work experience, she cannot engage in any other kind of
substantial gainful work that exists in significant numbers in the national economy.
42 U.S.C. § 423(d)(2)(A). The Social Security Administration has implemented
these statutory standards by, in part, prescribing a five-step sequential evaluation
process for determining disability. 20 C.F.R. § 404.1520.
Step one asks if the claimant is currently engaged in substantial gainful
activity; if she is, then she is not disabled. Step two asks whether the claimant’s
impairments, singly or in combination, are severe; if they are not, then she is not
disabled. A severe impairment is one that “significantly limits [a claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). The
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third step is an analysis of whether the claimant’s impairments, either singly or in
combination, meet or equal the criteria of any of the conditions in the Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. The Listing of
Impairments includes medical conditions defined by criteria that the SSA has predetermined are disabling, so that if a claimant meets all of the criteria for a listed
impairment or presents medical findings equal in severity to the criteria for a listed
impairment, then the claimant is presumptively disabled and qualifies for benefits.
20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant’s impairments do not satisfy a listing, then her residual
functional capacity (RFC) is determined for purposes of steps four and five. RFC is
a claimant’s ability to do work on a regular and continuing basis despite her
impairment-related physical and mental limitations. 20 C.F.R. § 404.1545. At the
fourth step, if the claimant has the RFC to perform her past relevant work, then she
is not disabled. The fifth step asks whether there is work in the relevant economy
that the claimant can perform, based on her vocational profile (age, work
experience, and education) and RFC; if so, then she is not disabled.
The claimant bears the burden of proof at steps one through four. Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant meets that burden, then the
Commissioner has the burden at step five to show that work exists in significant
numbers in the national economy that the claimant can perform, given her
vocational profile and functional capacity. 20 C.F.R. § 404.1560(c)(2); Young v.
Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004).
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Standard for Review of the ALJ’s Decision
Judicial review of the Commissioner’s (or ALJ’s) factual findings is
deferential. A court must affirm if no error of law occurred and if the findings are
supported by substantial evidence. Dixon v. Massanari, 270 F.3d 1171, 1176 (7th
Cir. 2001). Substantial evidence means evidence that a reasonable person would
accept as adequate to support a conclusion. Id. The standard demands more than a
scintilla of evidentiary support, but does not demand a preponderance of the
evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001).
The ALJ is required to articulate a minimal, but legitimate, justification for
his decision to accept or reject specific evidence of a disability. Scheck v. Barnhart,
357 F.3d 697, 700 (7th Cir. 2004). The ALJ need not address every piece of evidence
in his decision, but he cannot ignore a line of evidence that undermines the
conclusions he made, and he must trace the path of his reasoning and connect the
evidence to his findings and conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th
Cir. 2012); Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000).
Analysis
I.
The ALJ’s Sequential Findings
Ms. Miller was born in 1962, was 50 years old as of her alleged disability
onset date in May 2012, and was 53 years old at the time of the ALJ’s decision. Ms.
Miller has a lengthy work history. Her earnings record shows that she accrued
covered earnings in every quarter since she was 21 years old. (R. 224-25). The most
recent work before her disability onset date was as a distribution clerk with the
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United States Postal Service. That job required standing 8 hours per work day and
longer if one worked overtime, and a lot of lifting (an average of 20 to 25 pounds
through the work day), pushing, pulling, bending, twisting, and stooping. (R. 4245).
At step one, the ALJ found Ms. Miller had not engaged in substantial gainful
activity since her alleged onset date. At steps two and three, the ALJ identified
certain severe impairments (obesity, degenerative disc disease of the lumbar spine,
residuals of deep vein thrombosis, and anxiety and affective disorders), but found
that no listing was met or medically equaled. Ms. Miller does not challenge the
ALJ’s findings at steps one through three.
The ALJ next determined Ms. Miller’s residual functional capacity (RFC) for
purposes of conducting the required analysis at steps four and five. He imposed
substantial limits on Ms. Miller’s physical and mental capabilities. The RFC limits
Ms. Miller to light work as defined at 20 C.F.R. § 404.1567(b), as modified by limits
on standing/walking and lifting/carrying, postural and climbing restrictions, and
accommodations because of mental impairments and pain:
sit/stand option while on task at work station, with alternating to
sitting every two to three minutes after every hour of standing,
alternating to sitting for two to three minutes after every hour of
walking, and alternating to standing for two to three minutes after
every hour of sitting.
standing and/or walking for four hours in an 8-hour workday
push/pull and lift/carry no more than 20 pounds at a time and
frequently up to 10 pounds, as provided in 20 C.F.R. § 404.1567(b)
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occasional balancing, stooping, kneeling, crouching, crawling, climbing
ramps and stairs
never climbing ropes, ladders, or scaffolds, and no exposure to
unprotected heights or moving mechanical parts, and no motor vehicle
operation
“ability to understand, remember and carry out simple, routine tasks
(due to problems with concentration) and, with regard to both using
judgment and dealing with changes in the work setting, the claimant
is capable of simple work related decisions. The claimant can
occasionally tolerate contact with supervisors, coworkers, and the
general public.”
(R. 25-26).
The ALJ found Ms. Miller cannot perform her past relevant work because its
demands exceed her functioning. The ALJ then concluded, based on the testimony
of a vocational expert, that Ms. Miller is capable of the following work existing in
significant numbers in the economy: Office Helper (DOT #239.567-010), Routing
Clerk (DOT #222.587-038), and Checker (DOT #222.587-038). Accordingly, he
found at step five that Ms. Miller was not disabled.
II.
Ms. Miller’s Assertions of Error
Ms. Miller raises several alleged errors. She argues that the ALJ erred
because (1) the credibility analysis is flawed; (2) the evaluation of a medical opinion
is flawed; and (3) he did not address her counsel’s post-hearing submission
regarding vocational evidence. The court will address these matters in turn below.
A. Ms. Miller has not demonstrated that the credibility
determination is patently erroneous.
Because the ALJ sees and hears the claimant, his assessment of the
claimant’s credibility is entitled to special deference from the court. Craft v. Astrue,
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539 F.3d 668, 678 (7th Cir. 2008). The court’s role is limited to examining “whether
the ALJ’s determination was reasoned and supported,” and it may not overturn the
ALJ’s finding unless it is “patently wrong.” Elder v. Astrue, 529 F.3d 408, 413-14
(7th Cir. 2008). “It is only when the ALJ’s determination lacks any explanation or
support that [the court] will declare it to be patently wrong and deserving of
reversal.” Id. (internal citations omitted).
Ms. Miller testified about the limits on her abilities because of her physical
impairments and the pain they cause her (including the effects of her pain
medication) and because of her mental impairments and their effects. She stated
that she can walk only about 50 feet before her legs cramp and she becomes short of
breath, and she can stand or sit for only about 10 or 15 minutes at a time because of
the pain in her legs and in her back. She testified that she can lift or carry objects
only if they weigh no more than 5 to 10 pounds. She stated that her pain
medication interferes with her concentration and that she takes naps during the
day for relief, sometimes for up to two hours. She also testified about feelings of
anxiety around people, her lack of friends, and about socializing only at times when
a few family members visit.
The ALJ found, however, that her description of her limitations was out of
proportion to the medical evidence and was inconsistent with other evidence that
Ms. Miller, her niece, and a neighbor had provided to the Agency in disability
function reports. He noted, among other things, that (a) she had denied a need for
pain medication in some of her medical records, (b) the objective findings on
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physical examinations were generally normal (normal range of motion in her spine
and in her upper and lower extremities, no strength deficits in her upper and lower
extremities, and normal motor skills, coordination, balance, gait, and station), and
(c) after her September 2012 six-day hospitalization and surgical treatment for
bilateral deep vein thrombosis, in which she underwent right-side angioplasty and
Angiojet Rheolytic thrombolysis of the right lower extremity venous system,
diagnostic tests were negative for recurrence of deep vein thrombosis and she was
being successfully treated with blood-thinner medication. The ALJ also stressed
that her description at the hearing of daily activities and socialization activities was
inconsistent with disability function reports in the record and reports to medical
providers. He emphasized:
[I]n other statements for the record the claimant and her niece and
neighbor allowed that she takes care of her own personal needs, takes
care of the cats and two dogs, prepares the meals daily, does a variety
of household chores and yard work, drives, shops weekly for up to two
hours, visits with her neighbor 10 to 20 hours a week, plays with the
neighbor’s children, uses a computer, plays computer games, works
puzzles and crosswords, reads all the time, watches television,
manages her own finances, follows instructions very well, pays
attention as long as needed, and gets along with authority figures. . . .
[She also] informed medical sources that she reads books, listens to
audio books, uses Face Book, watches television, takes care of her own
personal needs without difficulty, spends time with the kids next door,
and does all of the cooking, cleaning and laundry.
(R. 28).
Ms. Miller attacks the credibility analysis on two grounds. The court rejects
both of her arguments. First, she contends that the ALJ did not acknowledge her
testimony that she shops “only after waiting to go [into the store] for fear people will
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attack her” and that her household cleaning tasks are done with intermittent
breaks.” (Dkt. 15 at p. 24). This argument fails to take into account the ALJ’s
wealth of reasons for doubting Ms. Miller’s testimony, as highlighted above, both
with respect to socialization activities and the amount of activities she engages in,
including household chores. Second, she contends that the credibility determination
cannot stand because the ALJ did not acknowledge her lengthy, 29 consecutiveyears work history. The Seventh Circuit has rejected that view. Work history is
one factor, among many, to be considered in evaluating credibility. But a stellar
work history is not dispositive of the claimant’s credibility. Loveless v. Colvin, 810
F.3d 502, 508 (7th Cir. 2016). When an ALJ has provided substantial evidence to
support his negative credibility determination, his silence about the claimant’s
lengthy work history provides an insufficient basis for finding that it is patently
wrong. Id. That is the case here.
B. The ALJ’s evaluation of Dr. Carter’s opinion is supported by
substantial evidence.
Ms. Miller challenges the ALJ’s evaluation of an opinion provided by Dr.
Weston Carter, a family physician. Dr. Carter provided a medical source statement
dated January 16, 2014, the same date he certified that Ms. Miller met the
qualifications to receive a disability parking placard from the state bureau of motor
vehicles. (R. 622-27; R. 29). He completed a form describing Ms. Miller’s
functioning because of chronic bilateral leg pain. (R. 624). He opined that she has
constant leg pain and poor exercise tolerance and as a result can sit 5 hours, stand 1
hour, and walk 1 hour in an 8-hour work-day. He opined that she requires frequent
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changes from a seated position per hour or rest periods. He also opined that she has
lifting and carrying difficulties and can lift/carry only up to 5 pounds frequently and
up to 20 pounds occasionally. (R. 625). Finally, he wrote that her pain would
interfere with her ability to sustain attention and concentration in a work day.
The ALJ determined that Dr. Carter’s opinions were inconsistent with the
“generally mild to normal findings on physical examinations,” the lack of the
necessity for ongoing treatment, and the breadth of Ms. Miller’s daily activities,
including the activities that the ALJ addressed above—caring for personal needs
and the needs of her pets, walking her dogs in her yard, playing with neighborhood
children, doing a variety of household chores, as well as cooking, yardwork,
shopping, driving, working puzzles, and using a computer.
Ms. Miller contends that because Dr. Carter is the only doctor who had
examined or treated Ms. Miller and who provided an opinion regarding her residual
functional capacity, it necessarily was error for the ALJ to have given little weight
to his opinion. The court disagrees.
The ALJ’s contrast of Dr. Carter’s opinion with the ALJ’s overall review of
the medical evidence and of Ms. Miller’s activities provided a sufficient basis for his
decision to not credit Dr. Carter’s opinion. The ALJ considered that Ms. Miller’s
deep vein thrombosis had not recurred since her September 2012 hospitalization
and treatment and that she had been continually monitored regarding blood
thinners to combat clotting. He also considered objective findings on examination by
a state agency physician, none of which was contradicted by other medical evidence.
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Indeed, the record does not contain objective examination findings by Dr. Carter,
likely the reason the ALJ characterized Dr. Carter’s opinion as not only inconsistent
with the medical evidence but also as “speculation.” While Ms. Miller suggests that
the state agency examining physician’s objective findings, and the reviewing
physician’s opinion about her functioning based on the record evidence available at
that time, should have been discounted because the examining doctor assessed only
her “pulmonary” impairments, Ms. Miller’s pulmonary impairments are the alleged
source of her leg pain. (See R. 569).
The court agrees with the Commissioner that the ALJ sufficiently articulated
his reasons for assigning little weight to Dr. Carter’s opinion. See Elder v. Astrue,
529 F.3d 408, 416 (7th Cir. 2008) (internal citation omitted) (“[B]ecause the ALJ
‘minimally articulated’ his reasons for declining to afford [the treating doctor’s]
medical opinion ‘substantial weight,’ we see no fault in his determination.”)
C. Ms. Miller has not demonstrated harmful error in the ALJ’s
evaluation of the VE’s opinion.
Ms. Miller argues that the ALJ’s “failure to rule on post-hearing objections to
the vocational expert’s testimony and qualifications” requires remand. Her
argument is focused on one of her post-hearing objections: that the opinion about
particular jobs the VE testified a person with Ms. Miller’s vocational profile and
RFC could perform is erroneous because O*NET identifies those jobs as semiskilled
to skilled jobs and not as unskilled jobs, to which Ms. Miller is limited under the
RFC. The Commissioner contends that any error in the ALJ’s omission to address
the post-hearing objection about O*NET’s identification of the jobs as requiring a
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skill level higher than that under the Dictionary of Occupational Titles is harmless
because the claimant’s post-hearing objections are essentially the same objections
she made before the hearing, to which the ALJ had responded in writing to Ms.
Miller’s representative. The court agrees with the Commissioner.
Before the hearing, the ALJ addressed in writing Ms. Miller’s objection to the
use of the Dictionary of Occupational Titles for the VE’s estimate of job numbers
and her demand that the ALJ order the VE to produce prior to the hearing “data or
data sources and methodology” upon which the VE intends to rely in giving opinions
about job numbers in the economy. (R. 322-23). The ALJ addressed Ms. Miller’s
contention that the VE must or should use O*NET (the “Occupational Information
Network)1 because the Dictionary of Occupational Titles is outdated and unreliable.
The ALJ stated that based on the claimant’s pre-hearing objection letter, she
obviously is familiar with the general sources of information that VEs rely upon and
would have the opportunity to test the VE’s opinion during the hearing: “Clearly
the [claimant’s] representative is familiar with the general sources of information
relied upon by vocational experts” and “has the ability to ascertain the accuracy of
the vocational expert’s testimony and to impeach that testimony if it should conflict
with data that is publicly available.” (Id.). The ALJ further stated that under
Social Security Ruling 00-4p, the Agency, in making disability determinations,
O*NET is a database that has been developed “under the sponsorship of the
U.S. Department of Labor/Employment and Training Administration through a
grant to the North Carolina Department of Commerce.” See
https://www.onetcenter.org/overview.html. It is described as “the nation’s primary
source of occupational information.” Id.
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relies primarily on the Dictionary of Occupational Titles and its companion
publication, the Selected Characteristics of Occupations (SCO), for information
about “the requirements of work in the national economy.” (R. 323). Finally, the
ALJ ruled that he “takes judicial notice of the DOT and the SCO thus, the
[claimant’s] representative’s Objection to the vocational expert’s use of the DOT for
estimating job numbers is OVERRULED.” (Id.)
At the hearing, the VE testified that three jobs in the DOT are consistent
with the functional capacity the ALJ described in his hypothetical question. He
explained that they are light, unskilled jobs, and that he reduced the numbers
available in the economy to account for the limitation on “foot-time” in the
hypothetical question. The VE stated that his opinions were based on his
professional experience, including that he has placed individuals in the jobs and
“seen those specific jobs done as a vocational expert.” (R. 73-76). The ALJ credited
the VE’s testimony and found that Ms. Miller is capable of performing these three
jobs: Office Helper (DOT #239.567-010), Routing Clerk (DOT #222.587-038), and
Checker (DOT #232.687-010). The parties agree that the DOT characterizes each of
these jobs as unskilled, consistent with the RFC.
Ms. Miller’s assertion of error—that the ALJ was required to address in his
decision her post-hearing objection that the jobs should be considered as semiskilled
or skilled jobs because O*NET purportedly classifies them in that category—is not
well-taken because the ALJ made clear in his pre-hearing response to her objections
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that he “takes judicial notice of the DOT and the SCO,” and he overruled the
objection that the DOT should not be used. (R. 323).
Ms. Miller’s contention in her reply brief that she could not have anticipated
at the hearing the skill requirements under the DOT of jobs the VE might
opine about (until the VE testifies, the specifec jobs are unknown) and she thus did not
have an opportunity to properly question the VE about whether the jobs reliably
may be classified today as requiring a higher skill level is also not well-taken. Ms.
Miller’s suggestion that she did not have the ability to ask the VE whether he had
cross-walked the DOT numbers against O*NET for purposes of determining
whether skill levels (or other job characteristics) have changed, or whether he would
change his opinion if O*NET indicated higher skill levels, is not persuasive. In fact,
obvious questions to a VE would include the date any particular DOT-numbered job
was last updated, whether there is other information (like O*NET or the VE’s own
experience) indicating the job has changed in skill level, and whether the VE did or
did not (and why or why not) take that information into account in giving his
opinion.
Moreover, the VE testified about cross-walking the DOT numbers through
O*NET for purposes of evaluating jobs numbers (he selected various DOT titles,
crosswalked them through O*NET, came up with a cluster of jobs and determined
which jobs are still in existence, R. 74). That testimony itself should have cued the
claimant’s counsel to address whether there was reason to believe that the jobs
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under the DOT numbers are now performed at a higher level according to O*NET,
or any other source counsel wanted to discuss with the VE.
Finally, the ALJ’s statement in his pre-hearing ruling that Social Security
Ruling 00-4p allows the Agency to rely on the DOT for information about work
requirements is correct. See also Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir.
2008) (addressing ALJ’s reliance on VE testimony that is consistent with the DOT
and need to address any conflicts between the VE’s testimony and the DOT if they
are properly raised). The court cannot find that the reliance on the DOT for skill
level was improper. The ALJ’s lack of response to the claimant’s post-hearing
objection about reliance on the DOT for skill level, if error at all, is harmless
because the court is convinced that the ALJ would make the same decision even if
directed on remand to address the VE’s (and ALJ’s) reliance on the DOT for skill
level. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (“[A]dministrative
error may be harmless; we will not remand a case to the ALJ for further
specification where we are convinced that the ALJ will reach the same result. That
would be a waste of time and resources for both the Commissioner and the
claimant.”)
Conclusion
For the foregoing reasons, the court AFFIRMS the Commissioner’s decision
that Ms. Miller was not disabled.
So ORDERED.
Dated: March 22, 2018
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____________________________________
Debra McVicker Lynch
United States Magistrate Judge
Southern District of Indiana
Distribution:
All ECF-registered counsel of record by email through the court’s ECF system
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