Lanigan, Joshua v. Colvin, Carolyn

Filing 13

OPINION AND ORDER affirming Commissioner decision regarding Social Security benefits RE: 8 Social Security Transcript. Signed by District Judge Barbara B. Crabb on 5/11/16. (jat)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JOSHUA RAY LANIGAN,

OPINION AND ORDER

Plaintiff,

15-cv-474-bbc

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Joshua Ray Lanigan has filed this action seeking judicial review of the social
security commission’s denial of his application for disability benefits and supplemental social
security income. Plaintiff contends that the commission erred in two respects when denying
his application: (1) the administrative law judge failed to account for plaintiff’s moderate
limitations in concentration, persistence and pace; and (2) the vocational testimony offered
at the hearing was unsupported by substantial evidence because the expert failed to lay a
proper foundation for his testimony. Plaintiff requests that the case be remanded for
additional proceedings so that these alleged errors can be corrected.
After reviewing the parties’ briefs and the record before the administrative law judge,
I conclude that remand is not warranted. Although the administrative law judge did not
specifically refer to plaintiff’s problems with concentration, persistence and pace, these
problems were nevertheless incorporated into the hypothetical questions posed to the

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vocational expert, who clearly was aware of these limitations. Moreover, plaintiff waived his
objections both to the form of the hypothetical question and the vocational expert’s
testimony by failing to raise these objections at the hearing. Plaintiff cannot sit idle during
a hearing and then demand that the entire matter be remanded to correct technical errors
he could have raised at the hearing or otherwise before a decision was rendered. Accordingly,
I am upholding the administrative law judge’s decision.

RECORD FACTS
A. Background
Plaintiff applied for disability insurance benefits and supplemental social security
income in March 2012. In his applications, plaintiff stated that he had been disabled since
May 28, 2009 because of back and neck pain, depression and anxiety. Plaintiff’s application
was denied initially on June 11, 2012 and upon reconsideration on March 15, 2013.
Plaintiff then requested a hearing, which was held on May 14, 2013 before Administrative
Law Judge Joseph D. Jacobson in Madison, Wisconsin. Plaintiff appeared at the hearing and
was represented by counsel. Allen J. Noll, an impartial vocational expert, also testified at the
hearing. After the hearing, the administrative law judge issued a 10-page decision concluding
that plaintiff was not disabled. This decision became the final decision of the commissioner
on May 27, 2015 when the Appeals Council denied plaintiff’s request for review. Plaintiff
filed suit on July 31, 2015 challenging the Appeals Council’s decision.

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B. Medical Evidence
On May 28, 2009, plaintiff fell while pushing a heavy cart at work, sustaining injuries
to his lower back and neck that caused him significant pain, stiffness and difficulty moving.
He saw doctors on multiple occasions following the injury for both pain management and
physical therapy. Although these interventions helped, they did not resolve his symptoms.
Despite his back problems, however, plaintiff continued to work in low-wage unskilled jobs.
His lower back pain continued and he eventually was given a diagnosis of “moderate
multilevel degenerative disc disease.”
In late 2011, plaintiff was told he had diabetes. When he saw his doctor on January
26, 2012, he indicated that he was struggling with depression and anxiety, which he
attributed to his diabetes diagnosis and the fact that he had recently lost his job. He saw a
number of mental health professionals over the ensuing months and complained of “low selfworth,” suicidal thoughts and being “somewhat limited in his social outlet.” On July 24,
2012, his diagnosis was “major depression with anxiety disorder” and “possibly atypical
bipolar disorder.” However, plaintiff reported that his mental health problems improved
with psychological help and anti-anxiety medications.

C. Hearing Testimony
At the administrative hearing conducted on May 14, 2013, plaintiff testified that he
was 40 years old, had a high school education and was currently working part-time at a
Michael’s retail store. He testified that he worked between 15 and 22 hours each week

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unloading goods from trucks, stocking the store and setting up displays. Although he
interacted with customers on occasion, he found such interactions stressful. Plaintiff also
testified that from 2011-12, he had held a full-time seasonal position at Target. Prior to
that, plaintiff worked full-time for approximately twelve years as an equipment buffer and
general laborer in an industrial setting.
With respect to his physical health, plaintiff testified that he had persistent back pain.
He said that in order to get through a day of work, he needed various over-the-counter pain
medications and muscle relaxers. He testified that he had significant difficulty sitting in one
place for long periods of time, but he could stand on his feet with relative ease so long as he
could move around and stretch. He also said he could lift 50 pounds occasionally and could
lift 20 pounds regularly with ease.
When questioned about his mental health problems, plaintiff’s testimony related
primarily to his anxiety around people. He said he would frequently have panic attacks and
had a difficult time in social situations. He testified that while at work, he had to excuse
himself often during his shifts, particularly when he had to interact with customers.
However, he testified that his mental health problems never caused him to miss a shift at his
then-current job. Plaintiff also testified that he occasionally had “black outs” and would
engage in conduct that he could not remember. During one of these incidents, he reportedly
shot out car windows with a pellet gun and was arrested.
The administrative law judge then questioned Andrew Noll, an impartial vocational
expert. Noll testified that he had listened to plaintiff’s testimony (in fact, Noll asked

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plaintiff his own questions at one point during plaintiff’s testimony), reviewed plaintiff’s
medical file and familiarized himself with plaintiff’s vocational background. The
administrative law judge then asked Noll hypothetical questions regarding the availability
of jobs in Wisconsin for people with plaintiff’s abilities.
First, the administrative law judge asked Noll to assume that plaintiff could work at
“the light exertional level,” could occasionally stoop, crouch, kneel and crawl, and could
perform only “simple, routine, repetitive tasks.” He then asked whether such an individual
could perform any of plaintiff’s past relevant work. Noll testified that those skills would not
be enough to perform plaintiff’s past relevant work because that work was semi-skilled, but
that there were a number of other jobs in the region that plaintiff could perform. In
particular, Noll testified there were approximately 300 packer positions, 650 machine
operator positions and 2,300 factory-related inspector, tester or sorter positions.
The administrative law judge then further qualified the hypothetical. He asked Noll
to assume plaintiff also needed to be “off task 10 percent of the work day” and needed a
“low-stress job” that did not involve piece work or fast-moving assembly line work. He also
asked Noll to assume that plaintiff could tolerate only “occasional decision-making,”
“occasional changes in the work setting” and “occasional interaction with the public and
coworkers.” Noll testified that with these qualifications, the number of jobs would be
reduced by between 30% to 50%, but there were still a significant number of positions
available.

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D. The Administrative Law Judge’s Decision
In his decision, the administrative law judge performed the required five-step
sequential analysis set forth in 20 C.F.R. § 404.1520. At step one, he determined that
plaintiff had not engaged in substantial gainful activity since May 28, 2009, the alleged
onset date of his disability.

At step two, he determined that plaintiff suffered from

degenerative disc disease, obesity, affective disorder and anxiety disorder.

The

administrative law judge determined that these impairments were “severe” within the
specialized meaning of the Social Security Act because in combination they significantly
interfered with plaintiff’s ability to engage in basic work activities.

At step three, he

concluded that plaintiff’s impairments, although severe, did not meet or medically equal any
impairment listed in 20 C.F.R. 404, Subpart P, Appendix 1.
With respect to step four, the administrative law judge determined that plaintiff
generally had the residual functional capacity to perform the type of light work defined in
20 C.F.R. §§ 404.1567(b) and 416.967(b). However, the administrative law judge also
noted that plaintiff’s ability to perform this work was subject to various additional
restrictions. In particular, plaintiff could stoop, crouch, kneel or crawl only occasionally; he
was limited to “simple, routine, repetitive tasks”; he required a “low stress” job; he could
interact with the public and coworkers only occasionally; and he could not perform tandem
tasks. Additionally, plaintiff was unable to do piece work or assembly line work and needed
to be “off task” 10% of the work day.
At the fifth and final step, the administrative law judge concluded that plaintiff could

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no longer perform his past relevant work as a buffing machine operator or general laborer.
However, the administrative law judge also found that, even with his additional restrictions,
plaintiff could perform a variety of jobs typically classified as “light work.”

This

determination was based on Noll’s testimony at the hearing regarding the number of jobs
suitable for someone with plaintiff’s limitations and residual functional capacity.
Accordingly, the administrative law judge concluded that plaintiff was “not disabled” for
purposes of obtaining social security benefits.

OPINION
Plaintiff contends that this case should be remanded for further proceedings for two
reasons, both of which relate to the administrative law judge’s finding at step five that
plaintiff was capable of performing a sufficient number of jobs in the national economy.
First, plaintiff argues that the administrative law judge erred by presenting the vocational
expert with a hypothetical question that did not reflect plaintiff’s moderate limitations in
concentration, persistence and pace. Second, plaintiff argues that the administrative law
judge erred by relying on the vocational expert’s testimony regarding the number of suitable
positions because this testimony lacked an adequate foundation. I disagree with both of
plaintiff’s arguments and conclude that the administrative law judge’s finding at step five was
supported by substantial evidence.

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A. The Vocational Expert’s Testimony Accounted for Plaintiff’s Moderate Limitations in
Concentration, Persistence and Pace
At step five of the five-step framework for evaluating claimant’s alleged disabilities,
an administrative law judge must consider whether, based on a claimant’s residual functional
capacity, age, education and work experience, the claimant can make an adjustment to other
work. Although they are not required to do so, administrative law judges often rely on
vocational experts’ opinions regarding the type of jobs suitable for a claimant and how many
such jobs exist in the applicant’s state. However, such testimony qualifies as “substantial
evidence” sufficient to support a finding that a claimant can make an adjustment to other
work only when it accurately accounts for a claimant’s limitations. Simila v. Astrue, 573
F.3d 503, 520-21 (7th Cir. 2009). Plaintiff contends that Noll’s testimony did not qualify
as “substantial evidence” sufficient to support the administrative law judge’s step-five
conclusion because it was offered in response to a hypothetical question that failed to reflect
plaintiff’s moderate limitations in concentration, persistence and pace.
The Court of Appeals for the Seventh Circuit has held consistently that
administrative law judges are required to orient a vocational expert to the totality of a
claimant’s limitations, Simila, 573 F.3d at 520; Indoranto v. Barnhart, 374 F.3d 470, 474
(7th Cir. 2004), including limitations related to the claimant’s concentration, persistence
and pace. O’Connor-Spinner v. Astrue, 627 F.3d 614, 619 (7th Cir. 2010); Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 334 F.3d 539, 544 (7th
Cir. 2003). Ensuring that a vocational expert is properly oriented to a claimant’s limitations
is not complicated: it is enough to simply inform the expert in perfunctory terms that the

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claimant has “limitations in concentration, persistence and pace” to some certain degree.
O’Connor-Spinner, 627 F.3d at 620-21 (“[F]or most cases, the ALJ should refer expressly
to limitations on concentration, persistence and pace in the hypothetical in order to focus
the [vocational expert’s] attention on these limitations . . . .”).

In this case, the

administrative law judge did not use the terms “concentration, persistence and pace” in his
hypothetical. However, although it may be the most efficient means of orienting a vocation
expert to a claimant’s limitations, there is no per se requirement that these specific terms be
used. Id. at 619 (“We have not insisted, however, on a per se requirement that this specific
terminology (‘concentration, persistence and pace’) be used in the hypothetical in all cases”).
After reviewing the record as a whole, I conclude that Noll had an adequate understanding
of plaintiff’s problems with concentration, persistence and pace, even if he did not arrive at
this understanding by the customary route sanctioned by the court of appeals.
First, the court of appeals has noted that remand is often unnecessary despite the
administrative law judge’s failure to specifically refer to a claimant’s difficulties with
concentration, persistence or pace, when the vocational expert has “independently reviewed
the medical record or heard testimony directly addressing those limitations.” O’ConnorSpinner, 627 F.3d at 619. In this case, Noll testified that he had independently reviewed
plaintiff’s medical file, which discussed the nature and extent of his limitations with
concentration persistence and pace. Moreover, Noll was present for plaintiff’s hearing and
heard plaintiff’s testimony regarding how his limitations affected his ability to perform at
work—both in his previous positions (which he lost for business-related reasons, not

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disability-related reasons) and his then-current retail position. As the regulations themselves
point out, “[l]imitations in concentration, persistence, or pace are best observed in work
settings.” 20 C.F.R., Part 404, Subpart P, App. 1, § 12.00(C)(3). Accordingly, by listening
to plaintiff’s testimony about his ability to perform in his past and then-current work, Noll
had a far more nuanced understanding of plaintiff’s limitations than he would have had if
the administrative law judge had simply used the vague and superficially meaningless terms
plaintiff contends he should have used.
Second, the “alternative phrasing” used by the administrative law judge was adequate
to convey the extent of plaintiff’s limitations related to concentration, persistence and pace.
O’Connor-Spinner, 627 F.3d at 618. Specifically, the administrative law judge asked Noll
to assume that plaintiff needed to be “off-task 10 percent of the work day in addition to
regularly scheduled breaks” and could not perform “piece work or fast-moving assembl[y]
line type work.” When read in context and alongside plaintiff’s testimony regarding how he
functioned at work, it is clear that these qualifications were intended to incorporate
plaintiff’s mental health limitations discussed throughout the hearing.

For example,

plaintiff’s problems with concentration and persistence prompted the administrative law
judge to inquire about jobs in which plaintiff could be off task for 10 percent of the day; and
his exclusion of jobs involving “piece work” or “fast-moving assembl[y] line type work” was
intended to address plaintiff’s problems with persistence and pace. See Britton v. Astrue,
521 F.3d 799, 802 (7th Cir. 2008) (capturing moderate concentration, persistence and pace
limitations by inquiring as to jobs that involved limited contact with public and interaction

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with coworkers); Arnold v. Barnhart, 473 F.3d 816, 820 (7th Cir. 2007) (capturing
concentration, persistence and pace limitations by inquiring as to jobs that involved low
production standards); Schmidt v. Astrue, 496 F.3d 833, 844-45 (7th Cir. 2007) (capturing
concentration, persistence and pace limitations by inquiring as to “low stress” jobs).
Plaintiff concedes that these limitations related to the amount of time he must be “off
task” and his inability to perform piece work or assembly line work “may address” issues
with concentration, persistence and pace.

However, plaintiff contends that the

administrative law judge failed to explain how he arrived at these specific limitations. In
particular, plaintiff argues that the administrative law judge failed to explain how he
determined that plaintiff needed to be “off task” 10% of the time, as opposed to 5% or 15%.
This argument is unavailing for at least two reasons. First, plaintiff fails to recognize that
the off-task limitation was generally consistent with plaintiff’s testimony regarding the
frequency with which he would “excuse himself” and take unscheduled breaks at his thencurrent retail job. Second, plaintiff cannot point to any evidence that a physician found that
plaintiff needed to be off task more than 10% during the workday. A.R. 21 (“[T]he record
does not contain any opinions from treating or examining physicians indicating that the
claimant is disabled or even has limitations greater than those determined in this decision.”).
In fact, plaintiff cites no evidence that a physician found that he had to be off-task at all, so
failing to explain why he adopted a 10% off-task limitation (as opposed to a 5% or 15% offtask limitation) does not require a remand. Castile v. Astrue, 617 F.3d 923, 927 (7th Cir.
2010) (“It was because of and not in spite of Castile’s testimony that the ALJ limited her to

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a more restrictive residual functional capacity finding than any physician on the record.”);
Rice v. Barnhart, 384 F.3d 363, 370-71 (7th Cir. 2004) (“More importantly, there is no
doctor’s opinion contained in the record which indicated greater limitations than those
found by the ALJ.”).
Third, the court of appeals has frequently upheld hypothetical questions aimed at
identifying types of jobs that are unlikely to exacerbate certain symptoms or problems that
are ultimately the root cause of a claimant’s problems concentrating, persisting or keeping
pace. O’Connor-Spinner, 627 F.3d at 619.

For example, if a claimant’s difficulty

concentrating, persisting or keeping pace is attributable to back pain, and the claimant
experiences back pain only when standing for extended periods of time, it is unnecessary to
refer specifically to “concentration, persistence and pace” if the hypothetical is designed to
identify jobs the claimant can perform while sitting down. Plaintiff’s moderate limitations
in concentration, persistence and pace were attributed to his anxiety, depression and
difficulty interacting with other people.

A.R. 94 (“Based on [claimant’s] anxiety and

depression, as described below, it is reasonable to find that the [claimant] may be moderately
limited in several areas.”); A.R. 108 (“Based on the [claimant’s] anxiety and depression, as
described it is reasonable to find that the [claimant] may be moderately limited in several
areas of [concentration, persistence and pace].”). Accordingly, it was appropriate for the
administrative law judge to formulate a hypothetical that restricted plaintiff to jobs involving
“low-stress, repetitive tasks” that did not require him to frequently interact with the public.
Johansen v. Barnhart, 314 F.3d 283 (7th Cir. 2002) (upholding hypothetical question

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restricting petitioner to “low-stress, repetitive work” when plaintiff’s disability was related
to depression and a “panic disorder”). By developing a hypothetical that was intended to
account for plaintiff’s underlying conditions, the administrative law judge adequately
accounted for plaintiff’s problems with concentration, persistence and pace.
Finally, even if there were a problem with the administrative law judge’s hypothetical
question, any objection has been forfeited because plaintiff did not raise such an objection
during the hearing. Ragsdale v. Shalala, 53 F.3d 816, 819 (7th Cir. 1995) (“[Plaintiff] did
not ask the expert if and to what extent he had considered [his] tinnitus, hearing loss, or
medical side effects in rendering his vocational assessments. . . . Ragsdale’s failure to protect
his own interests below cannot constitute sufficient ground for us to cast aside a prior
opinion.”). Plaintiff was represented by counsel at the hearing and his counsel could have
questioned Noll, posed his own hypothetical questions, requested the administrative law
judge to pose interrogatories or otherwise challenged Noll to explain and expand upon his
response to the administrative law judge’s hypothetical. Id. However, he failed to do so.
Having been given such an opportunity, plaintiff cannot obtain a remand after receiving an
unfavorable ruling simply by pointing out problems now that may well have been cured had
he identified them during the hearing.

B. The Vocational Expert’s Testimony Had an Adequate Foundation
Plaintiff also contends that Noll failed to provide an adequate explanation for his
opinion that despite the limitations identified by the administrative law judge plaintiff was

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capable of working as an inspector, tester, sorter, machine operator or packager. Plaintiff
contends that many of the limitations identified by the administrative law judge are not
described in the Dictionary of Occupational Titles or its companion publication, the
Selective Characteristics of Occupations. Moreover, neither the administrative law judge nor
Null provided much explanation for how the limitations affected plaintiff’s capacity to work.
Accordingly, plaintiff contends that there is no basis for evaluating whether he is actually
capable of performing the jobs Noll identified.
Plaintiff’s complaint that Noll’s testimony allegedly lacked an adequate foundation
comes too late. It is well-established that claimants cannot present arguments regarding a
vocational expert’s testimony for the first time in the district court. Any objection to the
reasoning behind or the foundation supporting a vocational expert’s opinion must be raised
during the hearing. Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002) (“When no
one questions the vocational expert’s foundation or reasoning, an [administrative law judge]
is entitled to accept the vocational expert’s conclusion[.]”). Although there is a limited
exception to this waiver rule for situations in which the vocational expert’s testimony
conflicts with the Dictionary of Occupational Titles, plaintiff does not contend that there
is any such conflict in this case. The fact that certain jobs and limitations identified by Noll
are not found in either the Dictionary of Occupational Titles or the Selective Characteristics
of Occupations does not show the existence of a conflict that requires further inquiry under
Overman v. Astrue, 546 F.3d 456 (7th Cir. 2008).
Finally, although recent court of appeals opinions have raised questions about the

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validity of all vocational expert testimony until the Dictionary of Occupational Titles is
updated, Forsythe v. Colvin, 813 F.3d 677, 680-81 (7th Cir. 2016), the court has yet to
overturn an administrative law judge’s denial of an appeal on that basis alone. Nor has the
court overturned Donahue’s requirement that the claimant raise objections to the foundation
for the vocational expert’s testimony at the time of the social security hearing. Accordingly,
it was not unreasonable for the administrative law judge in this case to rely on the vocational
expert’s opinion regarding the type of jobs plaintiff could perform and the number of such
jobs in the community.

ORDER
IT IS ORDERED that plaintiff Joshua Ray Lanigan’s motion for summary judgment,
dkt. #9, is DENIED. The decision denying benefits is AFFIRMED. The clerk of the court
is directed to enter judgment in favor of defendant, Carolyn W. Colvin, Acting
Commissioner of Social Security, and close this case.
Entered this 11th day of May, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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