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Stiles v. Berryhill

United States District Court, S.D. Indiana, Indianapolis Division

March 17, 2017

EVERETT A. STILES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Denise K. LaRue United States Magistrate Judge

         ENTRY

         Plaintiff Everett A. Stiles applied for disability benefits under the supplemental security income program (“S.S.I.”) of the Social Security Act. The defendant Commissioner of Social Security denied his application and Mr. Stiles filed this suit for judicial review of the Commissioner's decision. On the parties' consents, the district judge referred this Cause to this magistrate judge to conduct all proceedings and order the entry of final judgment. Order of Reference [doc. 16]. This Entry explains the Court's findings and conclusions on review of the Commissioner's decision.

         Standards

         Judicial review of the Commissioner's factual findings is deferential: courts must affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If the evidence is sufficient for a reasonable person to conclude that it adequately supports the Commissioner's decision, then it is substantial evidence. Richardson v. Per ales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758 (7th Cir. 2004). This limited scope of judicial review derives from the principle that Congress has designated the Commissioner, not the courts, to make disability determinations:

In reviewing the decision of the ALJ [administrative law judge], we cannot engage in our own analysis of whether [the claimant] is severely impaired as defined by the SSA regulations. Nor may we reweigh evidence, resolve conflicts in the record, decide questions of credibility, or, in general, substitute our own judgment for that of the Commissioner. Our task is limited to determining whether the ALJ's factual findings are supported by substantial evidence.

Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While review of the Commissioner's factual findings is deferential, review of her legal conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).

         The Social Security Act defines disability as the “inability 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 12 months . . . ." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). A person will be determined to be disabled only if his impairments “are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). 20 C.F.R. §§ 404.1505, 404.1566, 416.905, and 416.966. The combined effect of all of an applicant's impairments shall be considered throughout the disability determination process. 42 U.S.C. §§ 423(d)(2)(B) and 1382c(a)(3)(G). 20 C.F.R. §§ 404.1523 and 416.923.

         The Social Security Administration has implemented these statutory standards in part by prescribing a “five-step sequential evaluation process” for determining disability. If disability status can be determined at any step in the sequence, an application will not be reviewed further. At the first step, if the applicant is currently engaged in substantial gainful activity, then he is not disabled. At the second step, if the applicant's impairments are not severe, then he is not disabled. A severe impairment is one that “significantly limits [a claimant's] physical or mental ability to do basic work activities.” Third, if the applicant's impairments, either singly or in combination, meet or medically equal the criteria of any of the conditions included in the Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is deemed disabled. The Listing of Impairments are medical conditions defined by criteria that the Social Security Administration has pre-determined are disabling. 20 C.F.R. § 404.1525. If the applicant's impairments do not satisfy the criteria of a listing, then her residual functional capacity (“RFC”) will be determined for the purposes of the next two steps. RFC is an applicant's ability to do work on a regular and continuing basis despite his impairment-related physical and mental limitations and is categorized as sedentary, light, medium, or heavy, together with any additional non-exertional restrictions. At the fourth step, if the applicant has the RFC to perform his past relevant work, then he is not disabled. Fifth, considering the applicant's age, work experience, and education (which are not considered at step four), and his RFC, the Commissioner determines if he can perform any other work that exists in significant numbers in the national economy. 42 U.S.C. § 416.920(a)

         The burden rests on the applicant to prove satisfaction of steps one through four. The burden then shifts to the Commissioner at step five to establish that there are jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to perform the full range of work at her assigned RFC level, then the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the “grids”), may be used at step five to arrive at a disability determination. The grids are tables that correlate an applicant's age, work experience, education, and RFC with predetermined findings of disabled or not-disabled. If an applicant has non-exertional limitations or exertional limitations that limit the full range of employment opportunities at his assigned work level then the grids may not be used to determine disability at that level. Instead, a vocational expert must testify regarding the numbers of jobs existing in the economy for a person with the applicant's particular vocational and medical characteristics. Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an advisory guideline in such cases.

         An application for benefits, together with any evidence submitted by the applicant and obtained by the agency, undergoes initial review by a state-agency disability examiner and a physician or other medical specialist. If the application is denied, the applicant may request reconsideration review, which is conducted by different disability and medical experts. If denied again, the applicant may request a hearing before an administrative law judge (“ALJ”).[1] An applicant who is dissatisfied with the decision of the ALJ may request the SSA's Appeals Council to review the decision. If the Appeals Council either affirms or declines to review the decision, then the applicant may file an action in district court for judicial review. 42 U.S.C. § 405(g). If the Appeals Council declines to review a decision, then the decision of the ALJ becomes the final decision of the Commissioner for judicial review.

         Background

         A hearing before an ALJ was held in April 2014, during which Mr. Stiles, a medical expert, a psychological expert, and a vocational expert testified. (R. 38, 39.) Mr. Stiles was represented by counsel during the administrative proceedings and the hearing. (Different counsel represents him in this suit.) The ALJ issued his decision in June 2014.

         At step one of the sequential evaluation process, the ALJ found that Mr. Stiles had not engaged in substantial gainful activity since he filed his application on July 18, 2012. At step two, he found that Mr. Stiles has several severe impairments: (1) degenerative disc disease, (2) osteoarthritis of his right foot, (3) chronic obstructive pulmonary disease (“COPD”), (4) obstructive sleep apnea, (5) depression, (6) anxiety disease, (7) post-traumatic-stress disorder, (8) borderline intellectual disorder, (9) coronary artery disease, and (10) substance and alcohol abuse. At step three, the ALJ found that Mr. Stiles's impairments, singly or in combination, do not meet or medically equal the severity of any of the conditions in the listing of impairments.

         For the purposes of steps four and five, the ALJ determined Mr. Stiles's RFC, the most that he can function with his impairments. He found that Mr. Stiles has the RFC to perform work at the sedentary level (lift and or carry up to 10 pounds occasionally and frequently, [2] stand and/or walk up to 2 hours and sit up to 6 hours in an 8-hour workday) with the following significant restrictions: (1) only occasional bilateral fingering; (2) mentally, only simple and repetitive tasks; (3) mentally, only occasional contact with the public, co-workers, and supervisors; (4) only work with routine expectations, with little or no change during the week; and (5) “no fast paced and assembly type work.” (R. 21.)

         At step four, the ALJ found that the defined RFC prevented Mr. Stiles from performing any of his past relevant work. At step five, the ALJ relied on the testimony of the vocational expert to find that, considering Mr. Stiles's RFC, age, education, and transferability of skills, he is able to perform occupations such as surveillance system monitor (500 jobs in Indiana and 19, 000 jobs nationally), coupon counter/scanner (1, 200 Indiana, 72, 000 nation), and general laborer (1, 600 Indiana, 48, 000 nation). The ALJ found that these numbers are significant in the national economy and, therefore, Mr. Stiles is not disabled.

         Discussion

         Mr. Stiles argues two categories of errors by the ALJ in his decision.

         1. Discrepancies and inaccuracies in the vocational expert's testimony. Mr. Stiles argues that discrepancies between the vocational requirements of the three occupations identified by the vocational expert and the criteria listed in the Dictionary of Occupational Titles (“D.O.T.”), and inaccuracies in the vocational expert selection of occupations render the ALJ's reliance on the vocational expert's testimony and, thus, his finding of non-disability, unsupported by substantial evidence and the result of legal error. The Commissioner argues that Mr. Stiles forfeited his objections to the vocational expert's testimony by failing to raise them at the hearing.

         Surveillance-system monitor. Mr. Stiles argues that, while the “surveillance system monitor” occupation identified by the vocational expert satisfies the exertional, SVP, [3] and postural limits of the RFC defined by the ALJ, the Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (the “S.C.O.”)[4] provides that the job requires “frequent talking” and a temperament of “dealing with people beyond giving and receiving instructions, ” both of which contradict Mr. Stiles's RFC restriction to only occasional interaction with the public, co-workers, and supervisors. Mr. Stiles also argues that the occupation of surveillance system monitor, which was last defined in the D.O.T. in 1986, is stale. The more up-to-date O*NET[5] divides the D.O.T. occupation into the occupations of gaming surveillance officers and protective-service workers. The O*NET classifies both of these occupations with SVPs of 4 to 6 (at the upper end of the semi-skilled and into the skilled work grades), which Mr. Stiles argues are inconsistent with his RFC restriction to simple and repetitive tasks, with routine expectations. Finally, Mr. Stiles contends that, according to the O*NET, the gaming-surveillance-officer occupations require speaking as well as daily telephonic and face-to-face contact with others and most of the the protective-service-workers occupations require constant contact with others as well as group work. Mr. Stiles argues that these vocational characteristics contradict the ALJ's RFC restriction to only occasional contact with the public, co-workers, and supervisors.

         Coupon counter/scanner. Mr. Stiles points out that the D.O.T. code that the vocational expert gave for the occupation of “coupon counter/scanner” is erroneous; it is actually the code for “parimutuel-ticket checker, ” which requires constant handling, reaching, and fingering, which renders it inconsistent with his RFC restriction to only occasional bilateral fingering. Mr. Stiles goes further and identifies four D.O.T. occupations involving coupons that the vocational experts might have intended, namely coupon-manifest clerk, coupon and bond collection clerk, coupon collection clerk, and coupon redemption clerk. All of them, however, are precluded by their characteristics of frequent reaching, handling, and fingering; SVPs of 4 and 5; and/or a light, rather than sedentary, exertional level.

         General labor. Finally, Mr. Stiles points out that the D.O.T. code that the vocational expert gave for “general labor” is actually the code for the occupation of “leaf tier (tobacco).”[6] He argues that both the D.O.T. and the S.C.O. describe this occupation as requiring frequent reaching, handling, and fingering, which, as explained above, he argues is precluded by the ALJ's RFC restriction to only occasional bilateral fingering.

         The Commissioner argues that, under the holding of Donahue v. Barnhart, 279 F.3d 441, 446-47 (7th Cir. 2002), Mr. Stiles's arguments come too late and, therefore, are forfeited. The claimant's attorney in Donahue did not cross-examine or question the vocational expert at the hearing, but raised his argument about the inconsistency of the vocational expert's testimony with the D.O.T. only after the hearing had concluded.[7] The Court of Appeals for the Seventh Circuit held that the claimant forfeited his argument because he did not raise the inconsistency until after the ALJ's hearing. Donahue, 279 F.3d at 446 (“When no one questions the vocational expert's foundation or reasoning, an ALJ is entitled to accept the vocational expert's conclusion, even if that conclusion differs from the Dictionary's . . . .”).

         Donahue was decided before Social Security Ruling 00-4p became effective but it declared that the Ruling “is to much the same effect.” Id., at 446. S.S.R. 00-4p provides that “[t]he adjudicator must explain the resolution of the conflict [between vocational-expert testimony and the D.O.T.] irrespective of how the conflict was identified.” The Court noted that “[t]he ruling requires an explanation only if the discrepancy was ‘identified' ― that is, if the claimant (or the ALJ on his behalf) noticed the conflict and asked for substantiation, ” id., at 446-47, and the opinion's next sentences indicate, albeit implicitly, the deadline for identifying a discrepancy:

Raising a discrepancy only after the hearing, as Donahue's lawyer did, is too late. An ALJ is not obliged to reopen the record. On the record as it stands ― that is, with no questions asked that reveal any shortcomings in the vocational expert's data or reasoning ― the ALJ was entitled to reach the conclusion she did.

Id. A claimant must raise conflicts between a vocational expert's testimony and the D.O.T. before the hearing concludes or he forfeits them as grounds for ...


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