PEGGY FAST, Plаintiff-Appellant, v. JO ANNE BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 03-3615
United States Court of Appeals For the Seventh Circuit
ARGUED AUGUST 3, 2004—DECIDED FEBRUARY 2, 2005
Before POSNER, ROVNER, and WOOD, Circuit Judges.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP 02-0625-C-T/L—John Daniel Tinder, Judge.
I
At the time of her benefits hearing in July 1999, Fast was fifty-four years old. She held undergraduate and masters degrees in administrative counseling. Before 1998, when Fast alleges that shе became disabled from stress and psychosis, she worked as a professional counselor, teacher, administrator, and guidance counselor. In 1999, Fast was hospitalized for treatment of a delusional disorder and paranoid personality disorder. Post-hospitalization progress reports between October 1999 and April 2000 state that despite a couple of setbacks, Fast was consistently improving, was able to maintain a job, wаs tolerating medication, and refused counseling.
Fast testified that she had been working part-time for a year-and-a-half as a cashier, was occasionally substitute teaching, and was planning to begin a new job at CVS Pharmacy as a cashier and pharmacy assistant. She also testified that she was working on her doctorate. Fast has a driver‘s license and a car, lives alone and takes care of her own personal needs, аnd spends her time going to work, reading, visiting the library, listening to the radio, watching TV, walking, cleaning her apartment, and fixing meals.
The ALJ asked a VE whether a person with Fast‘s limitations could perform work that exists in significant numbers in the region. The VE testifiеd that even though Fast could not perform her past work, she could perform other work, including the positions of bookkeeper/accountant/auditor (1,750 jobs in the region), records clerk (140 light and 69 sedentary jobs in the regiоn), production coordinator (129 medium, 258 light, and 129 sedentary jobs in the region), traffic/shipping/receiving clerk (2,063 jobs in the region), stock/inventory clerk (1,027 medium and 2,019 light jobs in the region), and material/recording/scheduling clerk (58 medium, 337 light, and 54 sedentary jobs in the region).
Applying the normal five-step analysis, see
II
Before this court, Fast contends again that the ALJ erred at step five of his analysis because he should have used the grids as a “framework,” by which she means that the ALJ should have compared the number of jobs available to a person considеred disabled under the grids with the number of jobs that the VE testified she could perform. She claims that Social Security rules and regulations, as well as a case from the Ninth Circuit, call for this approach. Fast believes that such a comparison in her case would lead to a finding of disability because the number of jobs that the VE said that she could perform (1,600 jobs) is fewer than the number of jobs available to a person whom the grids regard as disabled (17,895 jobs). This cоurt reviews the ALJ‘s legal conclusions de novo. See Old Ben Coal Co. v. Dir., Office of Workers’ Compensation Programs, 292 F.3d 533, 538 (7th Cir. 2003).
At step five of the sequential analysis, an ALJ must determine (taking into account the step four finding that the claimant can no longer рerform her past work) whether the person can do any other work that exists in the national or regional economy. See
Fast acknowledges that the grids do nоt apply directly, but she urges that they should nonetheless have been used as a framework for decision. She contends that
[W]here an individual has an impairment or combination of impairments resulting in both strength limitations and nonexertional limitations, the rules
in this subpart are considered in determining first whether a finding of disabled may be possiblе based on the strength limitations alone, and if not, the rule(s) reflecting the individual‘s maximum residual strength capabilities, age, education, and work experience provide a framework for consideration of how much the individuаl‘s work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations.
The table rules reflect the potential occupational base of unskilled jobs for individuals who have severe impairments which limit their exertional capacities . . . . Where individuals also have nonexertional limitations of function or environmental restrictions, the table rules provide a framework for consideration of how much the individual‘s work capability is further diminished in terms of аny types of jobs within these exertional ranges that would be contraindicated by the additional limitations or restrictions.
SSR 85-15 (emphasis added).
But Fast is not reading either
Next, Fast contends that Swenson v. Sullivan, 876 F.2d 683 (9th Cir. 1989), supports her “framework” approach. In Swenson the Ninth Circuit reversed a finding by an ALJ that а claimant with a combination of exertional and nonexertional disabilities was not disabled, even though he was deemed disabled under the grids based on his exertional impairments alone. Id. at 689. The court “require[d] the Secretary to reject vocational testimony that is inconsistent with the grids’ overall framework.” Id. at 688. Fast argues that her case is analogous because the ALJ disregarded the grids and relied on VE testimony alone.
Once again, however, Fаst is overlooking a critical distinction. In Swenson, the claimant‘s exertional limitations alone supported a finding of disability under the grids, but the ALJ nonetheless relied on the VE‘s testimony to reach a result inconsistent with the grids. Fast‘s limitations, by contrast, could not support a finding of disability under the grids, because she has no exertional limitations. There is nothing in the ALJ‘s result here that conflicts with the result in Swenson.
Fast‘s only other authority for using the grids as a “framework” comes from the Social Security Administration‘s instructions
Fast‘s argument founders on the text of the POMS, which states in the subsection on solely nonexertional limitations that the grids should merely “providе guidance” in a disability determination. POMS DI 25025.001(B)(4)(c). Her Chevron theory also lacks merit. Even if there were language in the POMS that supported the idea of grids-as-“framework” (and we cannot find any unequivocal statement to that effect), such а reading would create a conflict with
Finally, Fast urges us to overrule Lee, 988 F.2d 789 at 793. Her problem with Lee is that this court did not insist there that thе ALJ use the grids as a framework. What the Lee opinion focused on was whether “a claimant‘s nonexertional limitations restrict the full range of employment opportunities at the level of work that he or she is capablе of performing.” In such a case, we said, the use of the guidelines is precluded. But, just as in this case, we went on to hold that the claimant was not disabled based on VE testimony that 1,400 jobs existed in the regional economy that the claimant could perform despite his exertional limitations. Id. at 793-94.
We see no reason to overrule Lee. Fast‘s rather odd argument that the grids must somehow be used as a framework has no support, and it conflicts with the common-sense rule that where the grids do not address a particular problem, the ALJ is entitled to rely on the expert testimony of a VE. We therefore AFFIRM the judgment of the district court upholding the ALJ‘s determination that Fast is not entitled to disability benefits.
A true Copy:
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-05