THOMPSON et al

Filing 31

ENTRY ON JUDICIAL REVIEW - The decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Entry. (See Entry.) Signed by Judge William T. Lawrence on 3/1/2016. (GSO)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
CRYSTAL THOMPSON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
) Cause No. 2:14-cv-345-WTL-DKL
)
)
)
)
)
)

ENTRY ON JUDICIAL REVIEW
Plaintiff Crystal Thompson requests judicial review of the final decision of the
Defendant, Carolyn W. Colvin, Acting Commissioner of the Social Security Administration
(“Commissioner”), denying Thompson’s applications for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“the Act”) and Supplemental Security Income (“SSI”)
under Title XVI of the Act. The Court, having reviewed the record and the briefs of the parties,
rules as follows.
I. APPLICABLE STANDARD
Disability is defined as “the inability to engage in any substantial gainful activity by
reason of a medically determinable mental or physical impairment which can be expected to
result in death, or which has lasted or can be expected to last for a continuous period of at least
twelve months.” 42 U.S.C. § 423(d)(1)(A). In order to be found disabled, a claimant must
demonstrate that her physical or mental limitations prevent her from doing not only her previous
work, but any other kind of gainful employment which exists in the national economy,
considering her age, education, and work experience. 42 U.S.C. § 423(d)(2)(A).

In determining whether a claimant is disabled, the Commissioner employs a five-step
sequential analysis. At step one, if the claimant is engaged in substantial gainful activity, she is
not disabled, despite her medical condition and other factors. 20 C.F.R. § 404.1520(b).1 At step
two, if the claimant does not have a “severe” impairment (i.e., one that significantly limits her
ability to perform basic work activities), she is not disabled. 20 C.F.R. § 404.1520(c). At step
three, the Commissioner determines whether the claimant’s impairment or combination of
impairments meets or medically equals any impairment that appears in the Listing of
Impairments, 20 C.F.R. pt. 404, subpt. P, App. 1, and whether the impairment meets the twelvemonth duration requirement; if so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(d). At
step four, if the claimant is able to perform her past relevant work, she is not disabled. 20 C.F.R.
§ 404.1520(f). At step five, if the claimant can perform any other work in the national economy,
she is not disabled. 20 C.F.R. § 404.1520(g).
In reviewing the ALJ’s decision, the ALJ’s findings of fact are conclusive and must be
upheld by this court “so long as substantial evidence supports them and no error of law
occurred.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001). “Substantial evidence
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion,” id., and this Court may not reweigh the evidence or substitute its judgment for that
of the ALJ. Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). The ALJ is required to
articulate only a minimal, but legitimate, justification for his acceptance or rejection of specific
evidence of disability. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). In order to be
affirmed, the ALJ must articulate his analysis of the evidence in his decision; while he “is not

1

The Code of Federal Regulations contains separate sections relating to DIB and SSI that
are identical in all respects relevant to this case. For the sake of simplicity, this Entry contains
citations to DIB sections only.
2

required to address every piece of evidence or testimony,” he must “provide some glimpse into
[his] reasoning . . . [and] build an accurate and logical bridge from the evidence to [his]
conclusion.” Dixon, 270 F.3d at 1176.
II. BACKGROUND
Thompson protectively filed for DIB on July 14, 2011, alleging that she became disabled
on May 1, 2011, primarily due to bi-polar disorder, panic disorder, PTSD, substance abuse in
remission, arthritis in her knees, status post knee surgery, and bilateral carpal tunnel syndrome.
Thompson was born on March 28, 1982, and was 29 years old on the alleged disability onset
date. Thompson has at least a high school education, and her past relevant work is unskilled.
Thompson’s application was denied initially on September 15, 2011, and upon
reconsideration on January 4, 2012. Thereafter, Thompson requested and received a hearing in
front of an Administrative Law Judge (“ALJ”). A video hearing, during which Thompson was
represented by counsel, was held by ALJ John P. Giannikas on February 14, 2013. During the
hearing, the vocational expert (“VE”) was unable to give a complete answer to the first
hypothetical posed to him. The record was held open to give the VE time to submit a complete
answer. The VE provided the information and entered it into the record. Thompson’s
representative requested a supplemental hearing with a VE, and the ALJ held a supplemental
video hearing on July 19, 2013. Thompson was present and represented by counsel. The VE also
appeared at the supplemental hearing. The ALJ issued his decision denying Thompson’s claim
on July 23, 2013; the Appeals Council denied Thompson’s request for review on September 2,
2014. Thompson then filed this timely appeal.

3

III. THE ALJ’S DECISION
The ALJ determined that Thompson met the insured status requirements of the Social
Security Act through December 31, 2011. The ALJ determined at step one that Thompson had
not engaged in substantial gainful activity since May 1, 2011, the alleged onset date. At steps
two and three, the ALJ concluded that Thompson had the severe impairments of “Posttraumatic
stress disorder (PTSD), dysthymia, polysubstance abuse in remission, chondromalacia [of] her
bilateral [knees], lumbar pain with signs of spondylosis, and bilateral carpal tunnel syndrome,”
Record at 29, and that the impairments more than minimally limited Thompson’s ability to
perform the full range of basic work activities and therefore were severe within the meaning of
the Regulations. The ALJ found that Thompson did not have an impairment or combination of
impairments that met or medically equaled the severity of any of the listed impairments in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526,
416.920(d), 416.925, and 416.926). At step four, the ALJ determined that Thompson had the
Residual Functional Capacity (“RFC”) to:
lift and/or carry and push and/or pull up to 20 pounds occasionally and up to 10
pounds frequently. She can occasionally climb ramps or stairs, balance, stoop,
crouch, or crawl. The claimant must avoid all kneeling, as well as avoid all ladders,
ropes, or scaffolds. She can perform repetitive hand functions with her right side
only on an occasional basis. The claimant can stand and/or walk for a total of four
hours in an eight-hour workday and sit for a total of six hours in an eight-hour
workday. She can understand, remember, and carry out simple and detailed
instructions. The claimant can interact with supervisors and coworkers on an
occasional and superficial basis. She may have no contact with the public. The
claimant can handle routine changes in a work setting commensurate with her
previous limitations.
R. at 31. Given this RFC, the ALJ determined that Thompson could not perform any of her past
relevant work. At step five, the ALJ determined that Thompson could perform the requirements
of a few representative occupations, such as bakery worker, conveyer line (D.O.T.#524.687-022;

4

light; SVP 2; 53,000 jobs nationally; 1,050 jobs in Indiana); mill stenciler (D.O.T.#659.685-026;
light; SVP 2; 1,400 jobs nationally; 150 jobs in Indiana); and thermal surfacing machine operator
(D.O.T.#679.685-018; light; SVP 2; 2,000 nationally; 200 jobs in Indiana). The ALJ indicated
that, pursuant to SSR 00-4p, he had determined that the VE’s testimony was consistent with the
information contained in the Dictionary of Occupational Titles (“DOT”). Accordingly, the ALJ
concluded that Thompson was not disabled as defined by the Act.
IV. EVIDENCE OF RECORD
The medical evidence of record is aptly set forth in Thompson’s brief (Dkt. No. 21) and
need not be recited here. Specific facts are set forth in the discussion section below where
relevant.
V. DISCUSSION
In her brief in support of her complaint, the Plaintiff objects to the ALJ’s decision for one
reason: she argues that “[t]he Commissioner’s Step Five finding that Plaintiff can perform other
work existing in significant numbers is grounded in legal error and is not supported by
substantial evidence.” Dkt. No. 21 at 16. Specifically, the Plaintiff argues “that the expert’s
testimony about the requirements of the jobs he invoked and the quantity which are available for
a person with her RFC is not sufficiently reliable to provide substantial evidence for the
Commissioner’s Step Five finding.” Dkt. No. 29 at 2. The Plaintiff points to what she terms
inconsistencies between the VE’s testimony and the DOT and also what she argues is the ALJ’s
erroneous determination that he could not consider other vocational evidence regarding how the
job of a bakery worker is performed.
With respect to the alleged inconsistency, the VE testified that the bakery worker job
requires a person to “essentially stand and observe the confections as they are cooling down the

5

line and removing the confections from the line that are imperfect.” R. at 60-61. As the Plaintiff
points out, “a job which requires a person to stand most of the day cannot be performed by a
person who is sitting for half of it.” Dkt. No. 29 at 3. The bakery worker job is “classified as light
exertion in the DOT,” R. at 119, and the expert indicated it could be accommodated by the
reduced range of light work that the hypothetical questions contemplated. However, the DOT
describes this job as requiring light exertional demands, which “requires standing or walking, off
and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10. The only
vocational evidence suggesting someone can work as a bakery worker while sitting for one half
of an eight-hour work day is the testimony of the Commissioner’s vocational witness. The RFC
for the Plaintiff indicates that the Plaintiff can stand for at most 4 hours a day.
Despite this inconsistency, the ALJ found that there “are no conflicts between the DOT
and the VE testimony of which I have been made aware.” R. at 38. Due to the ALJ’s failure to
identify and resolve this inconsistency, his finding is thus not supported by substantial evidence.
See Prochaska v. Barnhart, 454 F.3d 731, 736 (7th Cir. 2006) (“unresolved potential
inconsistency in the evidence . . . should have been resolved” and failure to do so required
remand); SSR 00-4p (“If the VE’s or VS’s evidence appears to conflict with the DOT, the
adjudicator will obtain a reasonable explanation for the apparent conflict.”). 2
Of additional concern to the Court is whether the two other jobs cited by the VE, mill
stenciler and thermal surfacing machine operator, exist “either in the region where [the Plaintiff]
live[s] or in several other regions of the country.” C.F.R. ' 404.1566. The VE testified that he

2

On remand, the ALJ also should consider evidence submitted by the Plaintiff on
updated vocational evidence showing that the position requires one to use “one’s own hands and
arms in handling, installing, forming, positioning, and moving materials, or in manipulating
things” and “frequently” requires one to use his or her hands. R. at 350, 352.
6

was not aware whether the jobs existed in the state of Indiana. R. at 55, 37. The ALJ simply
found that “there was no evidence to suggest that these jobs do not exist in Indiana.” R. at 37.
The Commissioner has the burden of proof on this issue. The Seventh Circuit has provided
guidance in this area in recent years. See Voigt v. Colvin, 781 F.3d 871 (7th Cir. 2015);
Herrmann v. Colvin, 772 F.3d 1110, 1113 (7th Cir. 2014) (“If 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.”); Browning v. Colvin, 766 F.3d 702, 709 (7th Cir. 2014). The gist of these
opinions is that the DOT is an outdated catalog of jobs, with many entries dating back nearly 40
years. Moreover, it appears as though the DOT is not an accurate portrayal of the numbers of
jobs that exist in its various categories.
The concerns expressed by the Seventh Circuit are relevant to the Plaintiff’s case, and the
ALJ should address them on remand. A more careful analysis is required.
VI.

CONCLUSION

For the reasons set forth above, the decision of the Commissioner is REVERSED AND
REMANDED for further proceedings consistent with this Entry.
SO ORDERED: 3/1/16
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic communication.

7