Betty L. BROWN, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
No. 16-1066
United States Court of Appeals, Seventh Circuit.
Decided December 22, 2016
247-255
Argued September 21, 2016
limited formal education of a fourth grader” and was dependent on help from other inmates. He also submitted a list of the law firms and legal-aid organizations he had asked to represent him. The district court denied the IFP application because McWilliams had written “N/A” instead of answering “no” to each specific question. The court then struck McWilliams‘s motion for appointment of counsel as moot and dismissed the action.
II. Analysis
The district court erred. As we have noted, the information purportedly missing from McWilliams‘s first IFP application was already in the court‘s hands, not only on his contemporaneously filed complaint but also in the trust officer‘s certification incorporated into the IFP application. And the court‘s conclusion that the application was inaccurate simply because McWilliams‘s trust account did not show a deposit of $188 is unpersuasive; even if that amount was donated to McWilliams and not to Brittany Smith (as the form says), nothing suggests that the funds were received in a lump sum. More importantly, we are not aware of any requirement that all financial resources available to an inmate be deposited into his or her trust account. What matters is disclosure; a district court may dismiss a complaint if a plaintiff‘s allegation of poverty is untrue,
That McWilliams was indigent and qualified to proceed IFP is apparent from the two applications he submitted to the district court. This case should have proceeded nearly two years ago, and unless significant financial resources have become available to McWilliams since we granted his application to proceed IFP on appeal, the district court must grant IFP and move the case forward. On remand the district court should take up McWilliams‘s request for counsel, since identifying the correct defendants through discovery will be a critical first step in the litigation.
III. Conclusion
The judgment is VACATED, and the case is REMANDED for further proceedings consistent with this opinion.
Dana Wayne Duncan, Attorney, Duncan Disability Law, SC, Nekoosa, WI, for Plaintiff-Appellant.
Richard D. Humphrey, Attorney, Office of the United States Attorney, Madison, WI, Alison Talbert Schwartz, Assistant Regional Counsel, Social Security Administration, Chicago, IL, for Defendant-Appellee.
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
Betty Brown applied for disability benefits on the ground that her bad back and obesity left her in too much pain to work. The Social Security Administration denied Brown‘s application, and after holding a hearing, an administrative law judge (ALJ) upheld the denial, concluding that Brown could perform sedentary work associated with six jobs identified by a vocational expert.
Brown challenges this denial of benefits on several grounds. First, she argues that the ALJ insufficiently considered her obesity. We disagree. The ALJ repeatedly stated that he had considered Brown‘s obesity, discussed multiple treatment records that identified the obesity, and rejected the opinions of several government-related experts that insufficiently accounted for the obesity. Brown also contends that the ALJ improperly relied on the vocational expert‘s testimony from the administrative hearing, claiming that the ex-pert
However, we agree with Brown that the ALJ violated the Treating Physician Rule when he rejected certain opinions proffered by Brown‘s doctor regarding Brown‘s ability to sit and stand for prolonged periods of time. In substituting his own opinions for the doctor‘s, the ALJ focused on facts that did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. So we vacate the ALJ‘s denial of benefits and remand the case for further proceedings.
I. BACKGROUND
Betty Brown is five feet five inches tall and her weight has exceeded 300 pounds for over ten years. Medical records dating back to February 2004 indicate that Brown has long suffered from chronic back pain, due at least in part to several mild spinal fractures that she suffered during a car accident in 2003. Brown‘s back pain became more significant as the result of a second car accident in July 2004, as well as incidents in June 2006 and January 2007 during which she heard popping noises in her back. Throughout this period, Brown regularly visited her treating physician, Dr. William Shannon, who prescribed her several medications—most notably (and most often) oxycodone, with the daily dosage steadily increasing from 30 mg in May 2004 to 240 mg in September 2009.
In March 2007, Brown applied for disability insurance benefits and supplemental security income under
For reasons that we need not discuss, the ALJ was required to consider Brown‘s benefits applications two additional times, most recently in August 2014. In that latter decision, the ALJ again denied Brown‘s applications, and in doing so followed the five-step sequential evaluation process outlined in
II. ANALYSIS
On appeal, Brown raises the same three arguments that the district judge considered and rejected—that the ALJ improperly evaluated her obesity, that the ALJ improperly applied the Treating Physician Rule, and that there was inadequate support for the vocational expert‘s testimony about jobs available to Brown in light of her physical limitations. Because we review the district judge‘s decision de novo, we review the ALJ‘s decision directly and ask whether there is “substantial evidence” that “a reasonable mind might accept as adequate to support” the conclusions at issue. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (citation omitted). In doing so, we may not decide facts anew or make independent credibility determinations, and must affirm the ALJ‘s decision even if reasonable minds could differ about the ultimate disability finding. Id. (citations omitted). “We limit our review to the reasons articulated by the ALJ in the written decision.” Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011).
A. ALJ Adequately Considered Brown‘s Obesity
Although obesity has been removed as a standalone listing from Appendix 1‘s list of disabling impairments, it must still be considered when evaluating the severity of other impairments in the five-step sequential analysis. Castile v. Astrue, 617 F.3d 923, 928 (7th Cir. 2010) (discussing SSR 02-1p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002)). Obesity cannot be ignored because “[t]he combined effects of obesity with other impairments may be greater than might be expected without obesity.” SSR 02-1p; see also Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011) (“It is one thing to have a bad knee; it is another thing to have a bad knee supporting a body mass index in excess of 40.“). While an ALJ need not painstakingly evaluate every piece of evidence when undertaking this analysis, the ALJ “must build a logical bridge from evidence to conclusion.” Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (per curiam).
Brown maintains that although the ALJ acknowledged her obesity, he “fail[ed]” to make the bridge between that condition and the numerous physical problems noted in the record.” According to Brown, the ALJ linked her back injuries with her complaints of pain and use of prescription medication, but failed to acknowledge that the severity of her pain and the corresponding need for large amounts of medication could only have resulted from injury and obesity.
Although the issue is close, we find that the ALJ adequately considered Brown‘s obesity alongside her severe back pain. As Brown herself concedes, the ALJ repeatedly asserted that he had considered her obesity. For example, he stated that he “considered the fact that obesity may increase the severity of [Brown]‘s back pain symptoms and may increase her fatigue and ability to sustain work activity on a regular and continuing basis“; that Brown‘s “back disorder, obesity, and migraine headaches, considered in combination, warrant the restrictions set forth in the residual functional capacity“; and that he “fully considered the impact of [Brown]‘s morbid obesity on her musculoskeletal impairment.” Brown claims that these statements are merely conclusory, but we disagree. On multiple occasions, the ALJ referenced portions of Dr. Shannon‘s treatment notes that discussed Brown‘s weight, his encouragement that she lose
To be sure, the ALJ could have more explicitly detailed the effect that he believed Brown‘s obesity, in conjunction with her back pain, had on her ability to sit, stand, walk, and otherwise move. Cf. Castile, 617 F.3d at 928-29 (concluding that ALJ adequately considered obesity by discussing, among other things, the claimant‘s functioning with her obesity prior to her onset date, and the absence of advice from any treating physician that she restrict work-related activities, observe certain precautions, or not work at all). However, after reviewing the ALJ‘s eighteen-page, single-spaced opinion, we cannot say that he failed to “articulate at some minimal level his analysis of the evidence,” Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (citation and internal quotation mark omitted), or that we simply “don‘t know what he thought,” Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004). So Brown has failed to demonstrate that the ALJ‘s consideration of her obesity was unacceptable.
B. Treating Physician Rule Improperly Applied
Under the Treating Physician Rule, a treating physician‘s opinion “regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record.” Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). When controlling weight is not given, an ALJ must offer “good reasons” for doing so, after having considered: (1) whether the physician examined the claimant, (2) whether the physician treated the claimant, and if so, the duration of overall treatment and the thoroughness and frequency of examinations, (3) whether other medical evidence supports the physician‘s opinion, (4) whether the physician‘s opinion is consistent with the record, and (5) whether the opinion relates to the physician‘s specialty. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (citing
Here, Dr. Shannon opined that Brown (i) could sit for no more than thirty minutes at a time and no more than two hours during a workday; (ii) could stand for no more than fifteen minutes at a time and no more than two hours during a workday; (iii) would need frequent periods of walking and lying down throughout the workday; (iv) could occasionally lift up to ten pounds at a time; and (v) would likely be absent from work more than three times per month. The ALJ decided not to give controlling weight to Dr. Shannon‘s opinions regarding sitting, walking/lying down, and work absences, reasoning that they were not supported by his treatment notes and were belied by Brown‘s own reports of her daily living activities. Instead, the ALJ determined that Brown could perform a full day of sedentary work alternating between sitting and standing (though doing neither for more than thirty minutes at a time).
That decision was erroneous. For one, Dr. Shannon‘s treatment records support his opinions. In over a dozen individualized assessments spread across five years, Dr. Shannon repeatedly referenced the chronic and severe back pain that radi-ated
In addition, the Commissioner supplies little insight into what additional observations or tests Dr. Shannon could have conducted to support his challenged opinions. Nor does the Commissioner‘s brief discuss any cases that shed light on this issue. Perhaps the Commissioner would be satisfied only if Dr. Shannon had somehow replicated a full work day to test the limits of Brown‘s sitting and standing endurance. Such an approach, however, would be both cruel for patients and unrealistic for doctors, given the average medical practitioner‘s time and resource constraints.
And even assuming that some of Dr. Shannon‘s opinions were not fully corroborated by his treatment records, the ALJ cited no evidence that contradicted the opinions. This distinction is an important one, since the mere absence of detailed treatment notes, without more, is “insufficient grounds for disbelieving the evidence of a qualified professional.” Herrmann v. Colvin, 772 F.3d 1110, 1111 (7th Cir. 2014); accord Clifford, 227 F.3d at 870. The ALJ emphasized the fact that Dr. Shannon frequently observed that Brown had a stable gait, performed leg raises without incident, and had normal reflexes and mild to moderate range-of-motion limitations. But these observations do nothing to undermine the sitting, resting, and work-absence opinions that the ALJ rejected. Brown‘s gait was observed as she walked, the leg raises were likely performed while she was lying down, and it is unclear how (if at all) the reflexes and range-of-motion tests were relevant to Brown‘s ability to sit or stand for extended periods. In effect, the ALJ substituted his judgment for Dr. Shannon‘s without explaining why Brown‘s activities were inconsistent with Dr. Shannon‘s opinions.
The ALJ also found that Brown‘s self-reported daily living activities undermined Dr. Shannon‘s opinions. Although there is not an absolute prohibition against this comparison, see Craft v. Astrue, 539 F.3d 668, 680 (7th Cir. 2008), we have repeatedly cautioned against equating daily living activities with the ability to perform a full day of work, as the former are often subject to different restraints (e.g., longer periods within which to complete and more frequent opportunities to rest) and at times can be avoided only at great personal cost. For example, we recently observed that
The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons (in this case, [the claimant]‘s husband and other family members), and is not held to a minimum standard of performance, as she would be by an employer.
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); see also, e.g., Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005) (“[Claimant] must take care of her children, or else abandon them to foster care or perhaps her sister, and the choice may impel her to heroic efforts.“).
In failing to heed these warnings, the ALJ misrepresented many of Brown‘s dai-ly
So the ALJ must conduct a reevaluation of Dr. Shannon‘s opinions to determine whether they are entitled to controlling weight.
C. No Reversible Error in Relying on Vocational Expert‘s Testimony
The ALJ determined that Brown could perform substantial gainful activity based primarily on testimony from a vocational expert regarding six particular jobs. Brown attacks the ALJ‘s reliance on this testimony on several grounds. For example, Brown claims that the ALJ erred in accepting the vocational expert‘s testimony that all six jobs could be performed sitting or standing and that the worker could be off task up to 10% of the time while doing so. However, Brown concedes that this testimony merely supplemented (and did not conflict with) the Dictionary of Occupational Titles (DOT), which means that she forfeited these arguments by failing to object to the testimony during the administrative hearing. Liskowitz v. Astrue, 559 F.3d 736, 744 (7th Cir. 2009) (claimant forfeited argument regarding reliability of data underlying vocational experts’ job-numbers opinions by failing to object during hearing); Barrett v. Barnhart, 355 F.3d 1065, 1067 (7th Cir. 2004) (same). Brown also forfeited her argument regarding the vocational expert‘s testimony about the number of positions for each of the six jobs by failing to object during the hearing. Id.1 And to the extent Brown alleges error in the ALJ‘s acceptance of the vocational expert‘s testimony relating to the telephone solicitor/call center position, Brown waived the issue by failing to raise it in her opening appellate brief. Bonnstetter v. City of Chi., 811 F.3d 969, 973 (7th Cir. 2016).
That leaves us with Brown‘s argument concerning the vocational expert‘s testimony on greeters/attendants. We have repeatedly noted that if a vocational ex-
At the administrative hearing here, the vocational expert opined that a person with Brown‘s residual functional capacity could perform work as a greeter/attendant. In doing so, she acknowledged that the DOT instructs that greeters/attendants perform “light” work, but opined that the “sedentary” label was more appropriate. The vocational expert defended this deviation by noting that greeters in theaters and in building lobbies typically have the option of sitting or standing, and that she had “place[d] a lot of people in those jobs, who use chairs, and are seated.” The ALJ believed this was enough, but Brown claims that the vocational expert‘s departure from the DOT needed more support.
Although the issue is close, we agree with Brown. While the vocational expert‘s opinion does not appear conclusory—after all, she referenced her personal experience with placing individuals in sedentary greeter positions—the record does not indicate that her knowledge on the topic exceeds that of the DOT authors, or that her opinion is informed by another reliable publication. And because the ALJ declined to pose any follow-up questions on the subject, we are left without any additional information about the approximate percentage of the greeter positions that can be performed in a sedentary manner. Perhaps it is 95%; or perhaps it is closer to 9%, which would be an insufficient ground for trumping the DOT. In addition, the DOT listing that the vocational expert cited at the hearing (DOT 342.667-014, Attendant-Arcade) is unhelpful, since it lists job responsibilities that likely are not sedentary—in particular, “Perform[ing] minor repairs on game machines“; “Remov[ing] coin accepter mechanism of machines, using key, and observ[ing] mechanism to detect causes of malfunctions, such as bent coins, slugs, or foreign material“; and “Remov[ing] obstructions, reposition[ing] mechanism, insert[ing] coins, and observ[ing] machine operation to determine whether malfunctions are still present.”
Nevertheless, this error is harmless, since the other five non-greeter positions totaled 5303 jobs in Wisconsin alone. Cf. Liskowitz, 559 F.3d at 743 (“[I]t appears to be well-established that 1000 jobs is a significant number.“). So Brown has failed to demonstrate that the ALJ committed reversible error in relying on the vocational expert‘s testimony.
III. CONCLUSION
The judgment of the district court is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. We encourage the Commissioner to assign a new ALJ to oversee any additional proceedings. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 357 (7th Cir. 2005).