Opinion
Case No. 19-CV-38-JPS
2020-03-20
Gloria Jean KRUG, Plaintiff, v. Andrew M. SAUL, Commissioner of Social Security, Defendant.
Daniel A. Skaar, Skaar Law, Grapevine, TX, for Plaintiff. Brian E. Pawlak, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, Catherine Leigh Gibbons, United States Social Security Administration Office of the General Counsel—Region V, Chicago, IL, Social Security Administration, for Defendant.
Daniel A. Skaar, Skaar Law, Grapevine, TX, for Plaintiff.
Brian E. Pawlak, United States Department of Justice (ED-WI) Office of the US Attorney, Milwaukee, WI, Catherine Leigh Gibbons, United States Social Security Administration Office of the General Counsel—Region V, Chicago, IL, Social Security Administration, for Defendant.
ORDER
J. P. Stadtmueller, U.S. District Judge
1. INTRODUCTION
In this action, Plaintiff seeks reversal of a decision of the Commissioner of Social Security denying her benefits pursuant to the Social Security Act, 42 U.S.C. § 405(g). The parties have submitted their briefs on the matter. (Docket #14, #16, and #17). Upon review of the entire record, and in light of the arguments presented, the Court finds that Defendant's decision must be affirmed and this action dismissed.
2. BACKGROUND
2.1 Legal Framework for Social Security Disability Claims
To be eligible for disability benefits under the Social Security Act, a claimant must be found to be "disabled" by the Social Security Administration ("SSA"). 42 U.S.C. § 423(a). In most cases, to determine whether a claimant is disabled within the meaning of the Act, an Administrative Law Judge ("ALJ") gathers evidence, holds a hearing, takes testimony, and performs a five-step legal evaluation of the claimant using that evidence. 20 C.F.R. § 404.1520.
In that evaluation, the ALJ must determine: (1) whether the claimant is "presently engaged in substantial gainful activity"; (2) whether the claimant has a "medically severe impairment or impairments"; (3) whether the claimant's impairment is equivalent to one of the impairments listed in the appendix of the relevant disability regulation; (4) whether the impairment prevents the claimant from performing her past relevant work; and (5) whether the claimant, in light of her age, education, work experience, and residual functional capacity ("RFC"), can still perform another job that is available in the national economy. Id. A claimant's RFC is an assessment of the most a claimant is able to do notwithstanding her physical and mental limitations. Elder v. Astrue , 529 F.3d 408, 412 (7th Cir. 2008). According to Social Security Ruling ("SSR") 96-8p, RFC is "an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities" in a work setting for eight hours per day, five days a week, or an equivalent work schedule. Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at *2 (S.S.A. July 2, 1996). It entails "a ‘function-by-function’ inquiry based on all of the relevant evidence of a claimant's ability to do work." Id. (citation omitted).
The SSA publishes SSRs that "are binding on all components of the Social Security Administration. These rulings represent precedent[ial] final opinions and orders and statements of policy and interpretations that [the SSA has] adopted." 20 C.F.R. § 402.35(b)(1).
The claimant bears the burden of proof in the first four steps of the evaluation. Young v. Barnhart , 362 F.3d 995, 1000 (7th Cir. 2004). At step five, however, the burden shifts to the Commissioner to identify specific jobs available in the national economy that the claimant can perform. Id. In making this determination, an ALJ may call upon a vocational expert ("VE") to testify as to whether a claimant can perform other work that exists in the national economy. See Kasarsky v. Barnhart , 335 F.3d 539, 543 (7th Cir. 2003). A VE may draw his or her conclusions from a number of sources, including the Dictionary of Occupational Titles ("DOT"). Herrmann v. Colvin , 772 F.3d 1110, 1113–14 (7th Cir. 2014). The DOT, last published by the U.S. Department of Labor in 1991, provides a brief description of occupations within the national economy and lists the capabilities that each occupation requires of a worker. See generally DOT, 1991 WL 645964. Along with VE testimony, the SSA generally relies on the DOT to determine if there are jobs in the national economy that a claimant can perform given his or her RFC, age, education, and work experience. See 20 C.F.R. §§ 416.966 – 416.969. The ALJ has "final responsibility" for determining the claimant's vocational factors to incorporate into the ALJ's decision on the availability of jobs in the national economy. See id. §§ 404.1527(d)(2), 416.927(d)(2).
2.2 Relevant Facts
Plaintiff's alleged disability began on March 2, 2015, when she was forty-nine years old. Her date last insured ("DLI") was December 31, 2019. To be entitled to benefits, a claimant must demonstrate that she was disabled from the day she claimed benefits until her DLI. 42 U.S.C. § 423 ; Parker v. Astrue , 597 F.3d 920, 924 (7th Cir. 2010). Plaintiff was born with cerebral palsy. Her brief cites a Wikipedia article reciting the symptoms that accompany this disorder, but no medical opinions or records directly diagnosing her with the condition or describing how it affects her. Plaintiff nonetheless relates that her cerebral palsy has affected her left leg and arm in a manner which is visually apparent to any onlooker. Her use of her arm is particularly limited; Plaintiff does nearly all grabbing and lifting with her right hand.
Despite her condition, Plaintiff began working when she was thirty years old. She performed "accommodated" work (what the accommodation or work was, Plaintiff does not say) from 1997 to 2004. In 2005, Plaintiff was hired by Wal-Mart as a greeter. She worked in that role for about six months, then became a cashier for the next four years. Plaintiff was then reassigned to be a fitting room coordinator and performed that job for seven years. Plaintiff's employment ended on March 2, 2015, when she was terminated for an alleged conflict with another employee. After being fired, Plaintiff contacted the Division of Vocational Rehabilitation to find employment. She claims that prospective employers were clearly biased against her because of the outward symptoms of her cerebral palsy. She could not find a job through the government or any of three private employment agencies. Plaintiff's medical records are scant. What little she provided relates mostly to the pre-onset time period. In mid-2013, Plaintiff had surgery for rectal prolapse. The records from that time reflect that she had a seizure disorder, but the last seizure occurred some two years prior. The doctor, Dr. Kirk Ludwig, found her otherwise healthy and alert with normal mood and affect. After surgery, Plaintiff reported some discomfort with walking, though it was not enough to prevent her from doing so.
In April 2014, Plaintiff saw her primary physician, Dr. Lisa Weber ("Dr. Weber"). The doctor noted that Plaintiff was off of a number of prior medications, but still took Adderall during the day. Plaintiff complained that she was a little irritable. Dr. Weber's examination was, however, normal, and she declined to change Plaintiff's Adderall dosage.
In May 2014, Plaintiff saw Dr. Weber to obtain her approval for Plaintiff to periodically use the Family Medical Leave Act to excuse her work absences. Plaintiff complained of sleep disorders and a difficulty in getting up for work. Plaintiff wanted Dr. Weber's approval to avoid the repeated reprimands she was receiving from Wal-Mart for tardiness. Dr. Weber examined Plaintiff and found her health to be normal, but nevertheless agreed that she should be excused from work one day every three weeks due to drowsiness from her medications.
Plaintiff returned to Dr. Weber in August 2014 with more concerns. Plaintiff said she had been terminated for tardiness and for using a racially derogatory term. Plaintiff claimed that her previous primary physician had diagnosed her with sleep apnea and narcolepsy. Dr. Weber disagreed, finding that the diagnoses were not substantiated upon further testing. Plaintiff had a final follow-up in November 2014, at which Dr. Weber noted that despite the primary physician's diagnoses, Plaintiff was not following the appropriate treatment for those issues (a CPAP machine). Dr. Weber nonetheless again recommended that Plaintiff be allowed intermittent absences from work.
At the end of November 2014, Plaintiff went to the emergency room for a head injury. The doctors there found her health to be normal save for her cerebral palsy-related limb issues. She was told to use ice and over-the-counter medication to treat the injury. Plaintiff's last pre-onset medical appointment was a routine checkup with her gynecologist.
Plaintiff offers even fewer post-onset medical records. In March 2015, Plaintiff saw Dr. Weber for a preoperative checkup before a cervical biopsy. Plaintiff claimed to have no medical issues and was feeling well. She reported no issues with pain, headaches, memory loss, or sleeplessness. Plaintiff had her biopsy that month and, other than a recommendation for regular follow-ups, she was told she could resume normal activity.
2.3 Procedural History
Plaintiff filed an application for disability benefits in March 2015. She was eventually afforded a hearing on November 30, 2017. Present for the hearing were the ALJ, Plaintiff, her attorney, and a VE. The hearing began with an opening statement by Plaintiff's counsel. Afterward, the ALJ asked counsel if the record was complete, which counsel affirmed, and if there would be any witnesses beyond Plaintiff, which he denied.
Plaintiff then began her testimony. She related her inconsistent and minimally profitable employment history after her Wal-Mart termination. The testimony then moved to the Wal-Mart job itself. Plaintiff explained the circumstances of her termination, which revealed that she had a difficult working relationship with her fellow employees. She felt that they lied about her in order to have her fired. Additionally, Plaintiff mentioned incidents when she had allegedly tried to hurt herself on the job, and when a coworker had threatened her life. The ALJ did not explore those incidents; he stated they were irrelevant to the proceeding.
The ALJ then allowed Plaintiff's attorney to inquire of her. Her attorney focused on the disability symptoms Plaintiff felt and how they impacted her work. Plaintiff stated that her ailments caused her trouble with dressing, falling, lifting things, and difficulty making food. She had attempted to live alone for about a year-and-a-half, but financial distress caused her to move back in with her parents. She also claimed to be on medication to address anxiety and depression. At work, Plaintiff explained, she experienced fatigue and an inability to communicate effectively with customers and coworkers, leading to frustration and emotional outbursts. Plaintiff also felt hurt and exasperated by the post-Wal-Mart job search process, as she believed that each prospective employer saw her disabilities and immediately discounted her.
Finally, the ALJ elicited testimony from the VE. The VE explored Plaintiff's various roles at Wal-Mart to determine their equivalence to certain DOT classifications, finding that they were unskilled positions involving light or medium exertion. The ALJ then asked the VE a hypothetical question about how many jobs would exist for someone with Plaintiff's limitations. The VE responded that Plaintiff could be a cashier, as she had been at Wal-Mart, or hold a number of other unskilled positions. The VE estimated that, with the number of such jobs available in the national economy, reduced to the jobs that could accommodate Plaintiff's limitations, there were still hundreds of thousands of positions available to her.
The hearing concluded, and the ALJ issued his decision two months later. Following the five-step sequential evaluation process, the ALJ first determined that Plaintiff's DLI was December 31, 2019, and that she had not engaged in substantial gainful activity since her onset date of March 2, 2015. At step two, the ALJ addressed Plaintiff's impairments, finding that she had severe impairments of cerebral palsy, which caused deformity in her left arm and leg, as well as asthma. He found that her claims of having a seizure disorder, sleep apnea, and fatigue did not amount to severe impairments. Similarly, the ALJ discounted Plaintiff's attention-deficit disorder and other mental issues as having a minimal impact on her ability to perform basic work activities. He based this conclusion on the opinions of two consulting physicians, Dr. Pat Chan ("Dr. Chan") and Dr. Mina Khorshidi ("Dr. Khorshidi"), who evaluated Plaintiff in 2015 and found no severe impairments. The ALJ also cited Plaintiff's capacity to care for herself and noted that her issues at work did not evince an overarching problem with authority figures or getting along with coworkers. At step three, the ALJ found that Plaintiff did not have an impairment, or combination of impairments, that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Before turning to step four, the ALJ determined Plaintiff's RFC. Specifically, he found that Plaintiff had a capacity for light work, including an adjustment for her physical handicaps. Relying again on the physicians’ evaluations, the ALJ noted that Plaintiff reported few limitations in her day-to-day activities. He acknowledged that her cerebral palsy clearly affected her limbs, sometimes causing falls and difficulty grabbing and lifting. The ALJ also mentioned that Plaintiff's asthma was stable. However, the ALJ further noted that Plaintiff's medical records did not reveal any concerns or doctor visits related to the cerebral palsy or asthma. Moreover, despite her testimony on the severity of her symptoms, Plaintiff worked for years under these impairments. Nevertheless, the ALJ gave little weight to the physicians’ conclusion that Plaintiff did not have any severe impairments, as this was inconsistent with her demonstrable issues with cerebral palsy. The ALJ concluded by remarking that no other medical opinions in the record established greater limitations than what he included in his RFC assessment.
At step four, the ALJ found that jobs were available for Plaintiff performing her past relevant work as a cashier. The ALJ noted that based on the VE's testimony, Plaintiff could perform that job or a number of other forms of light work even with her limitations. The ALJ found that such employment was available in significant numbers in the national economy. The ALJ addressed Plaintiff's counsel's statement at the hearing that Plaintiff's limb issues would preclude her from any future work. The ALJ disagreed, finding that she still had at least some use of her limbs, and that in any event the VE's opinion accounted for their limited function. The ALJ concluded, then, that he could not find Plaintiff "disabled" from March 2, 2015 onward.
Plaintiff sought review of the unfavorable decision with the SSA's Appeals Council. The Council denied review on October 4, 2018. Plaintiff's counsel then filed a motion to reopen her case with the Council, which was likewise denied on December 3, 2018. This appeal followed on January 6, 2019, seeking judicial review of the Council's decision.
3. LEGAL STANDARD
A district court has jurisdiction over a civil case challenging a final decision of the Commissioner. 42 U.S.C. § 405(g). The court has the authority to reverse or remand the Commissioner's decision if it is not supported by substantial evidence or is not made in accordance with applicable law or regulations. See Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Stephens v. Berryhill , 888 F.3d 323, 327 (7th Cir. 2018). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson , 402 U.S. at 401, 91 S.Ct. 1420 (citation and quotation marks omitted). Substantial evidence "must be more than a scintilla [of proof] but may be less than a preponderance." Skinner v. Astrue , 478 F.3d 836, 841 (7th Cir. 2007).
This standard mandates deference to the Commissioner's decision. The reviewing court "cannot substitute its own judgment for that of the SSA by reevaluating the facts, or reweighing the evidence to decide whether a claimant is in fact disabled." Stephens , 888 F.3d at 327. "As long as the Appeals Council identified supporting evidence in the record and built a logical bridge from that evidence to its conclusion," this Court must affirm the Commissioner's decision, "even if reasonable minds could differ about the ultimate disability finding." Schloesser v. Berryhill , 870 F.3d 712, 717 (7th Cir. 2017) (quotation omitted). The Court must nevertheless remember that "it is not intended to be a rubber-stamp on the Commissioner's decision." Stephens , 888 F.3d at 327.
4. ANALYSIS
Plaintiff presents four arguments. First, she argues that RFC assessment failed to account for the full weight of her disabilities considered in combination with one another. Second, Plaintiff accuses the ALJ of failing to appropriately develop a medical record which would properly address her disability claims. Third, she asserts that her testimony regarding her symptoms and impairments was incorrectly discounted. Fourth, Plaintiff maintains that the VE's testimony must be rejected because the VE failed to provide an accurate computation of available jobs.
As explained below, the Court rejects each of these positions. The Court begins with Plaintiff's argument about development of the record, as it lays bare a primary problem with Plaintiff's case—lack of evidence to support her claimed disability.
4.1 Development of the Record
Plaintiff argues that it is the ALJ's duty to develop a full and fair record, and because the record of medical evidence in this case is a "very small size," the record was incomplete and therefore this case must be remanded. (Docket #14 at 14). Specifically, Plaintiff complains that the administrative record lacks information from her sessions at the Division of Vocational Rehabilitation, medical records from her primary care physician who treated her prior to the date of her alleged disability onset, and medical records from a doctor who treated her in 2015 for cerebral palsy and seizures. She suggests that the Commissioner should have ordered the completion of further medical examinations.
First, Plaintiff has waived any argument regarding the completeness of the record because she failed to raise the issue during administrative proceedings. At the start of her hearing, at which she was represented by counsel, the ALJ asked counsel if the record was complete, which counsel affirmed. See McFadden v. Astrue , 465 F. App'x 557, 560 (7th Cir. 2012) ("[A] claimant represented by counsel is presumed to have made her ‘best case’ before the ALJ[ ]."). In cases where the claimant appears pro se, the ALJ is "required to supplement the record, as necessary, by asking detailed questions, ordering additional examinations, and contacting treating physicians and medical sources to request additional records and information," Nelms v. Astrue , 553 F.3d 1093, 1098 (7th Cir. 2009), but that heightened duty does not apply in this case.
Further, "[i]t is axiomatic that the claimant bears the burden of supplying adequate records and evidence to prove [her] claim of disability." Scheck v. Barnhart , 357 F.3d 697, 702 (7th Cir. 2004) ; see also Bowen v. Yuckert, 482 U.S. 137, 146, n.5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987) ("It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so."). The regulations also make this clear. See 20 C.F.R. § 404.1512(c) ("You must provide medical evidence showing that you have an impairment and how severe it is during the time you say that you were disabled."). Plaintiff's effort in this regard was woefully lacking. Leading up to her administrative hearing, Plaintiff submitted fifty-five pages of medical records, only eight pages of which related to treatment from after her alleged onset date. To support her cerebral palsy diagnosis, Plaintiff cites in her brief to a Wikipedia entry describing the condition.
While it is true that the ALJ has a duty to make a complete record, "this requirement can reasonably require only so much." Scheck, 357 F.3d at 702. Here, the ALJ satisfied his obligation. He inquired with both Plaintiff and her counsel about the completeness of the record, and neither identified an omission. Then, in evaluating the record, the ALJ discussed Plaintiff's history of cerebral palsy, with left arm and left leg deformity. He discussed the only post-onset-date treatment record relating to the impairments Plaintiff claimed caused her disability, a record from a visit with Dr. Weber. As to Plaintiff's asthma, the ALJ considered Dr. Weber's treatment record confirming that Plaintiff's condition was stable and that she had not suffered any recent exacerbations or hospitalizations. He considered the instances in which Plaintiff complained of her other alleged conditions, including her reports of seizures, sleep apnea, and fatigue. He also weighed the opinions of the reviewing experts, Drs. Chan and Khorshidi, who considered Plaintiff's cerebral palsy, asthma, sleeping problems, fatigue. The ALJ's findings regarding Plaintiff's limitations exceeded what either doctor had found. In other words, the ALJ was generous in his interpretation of the relevant medical records. Based on all of the above, the ALJ reasonably concluded that the record was sufficient to reach the reasonable conclusion that Plaintiff was not disabled and that she could perform a reduced range of light work.
Finally, it is notable that Plaintiff did not submit additional records in the months after the hearing and before the ALJ's decision, she did not submit any records to the Appeals Council in requesting review of the ALJ's decision, and she did not submit the allegedly missing records to this Court. See Nelms , 553 F.3d at 1098 ("[A] claimant must set forth specific, relevant facts—such as medical evidence—that the ALJ did not consider."). Nor does she articulate how or why her case was prejudiced by their absence. See Million v. Astrue , 260 F. App'x 918, 921 (7th Cir. 2011). In short, Plaintiff's argument about the completeness of the record does not compel remand.
4.2 RFC Assessment
Plaintiff next argues that the ALJ made two errors in his RFC assessment. First, she claims he did not consider the combined effects of her severe and non-severe impairments. Second, she complains that the RFC was not "function by function." Neither argument has merit.
4.2.1 Consideration of All Impairments
When making an RFC assessment, the ALJ "must consider the combination of all limitations on the ability to work, including those that do not individually rise to the level of a severe impairment." Denton v. Astrue , 596 F.3d 419, 423 (7th Cir. 2010) (citing 20 C.F.R. § 404.1523 ). Here, the ALJ determined that Plaintiff had two severe impairments, cerebral palsy and asthma, and several mild impairments, including seizure disorder, sleep apnea, attention-deficit disorder, and anxiety. He properly and fully considered the impact of all of these impairments.
With respect to her severe impairments, the ALJ discussed Plaintiff's history of cerebral palsy, with left arm and left leg deformity, and he cited the only post-onset-date treatment record relating to the disabling symptoms Plaintiff claims she suffers. (Docket #13-1 at 24). Dr. Weber's March 2015 treatment record included Plaintiff's statement that she had "no significant issues or concerns" and "has been feeling well." Id. at 329. The ALJ noted that, as it related to her asthma, Dr. Weber's treatment record also confirmed that her condition was stable and that she had not suffered any recent exacerbations or hospitalizations. Id. at 331. The ALJ also discussed what was not in the record regarding Plaintiff's cerebral palsy and asthma. While Plaintiff "reported significant limitations related to her impairments ...the record did not show any office visits or significant medical concerns." Id. at 24. No other records demonstrate that Plaintiff's conditions cause her any symptoms in addition to those the ALJ considered.
With respect to Plaintiff's non-severe impairments, the ALJ noted that Plaintiff had a diagnosis of seizure disorder but that "the record did not show any hospital visits or limitations from it." Id. at 21–22. He also addressed Plaintiff's sleep apnea and reported fatigue, noting that "the record showed [her sleep apnea ] does not require use of a CPAP machine and that she declined further testing." Id. at 22. With respect to Plaintiff's attention-deficit disorder and anxiety, the ALJ found that they do not cause more than minimal limitation in Plaintiff's ability to perform basic mental activities. For example, Plaintiff reported that she prepares her own meals, does housework, drives a car, shops in stores, and manages her own finances. Id. She reported that she ably follows spoken instructions. Id. The ALJ also found there to be no evidence of ongoing difficulty getting along with supervisors or coworkers. Id. The ALJ gave great weight to the opinion of the state agency psychological consultants who opined that Plaintiff does not have severe mental impairments. Id.
Plaintiff claims that the ALJ's consideration of her sleep apnea and fatigue was deficient because those issues had caused her "significant problems" at her Wal-Mart job, where she had "difficulty waking up in the morning, which lead to being late to work and sometimes being absent from work." (Docket #14 at 9). But the record supports the ALJ's finding that Plaintiff's alleged sleep apnea and fatigue caused minimal limitations at most; indeed, the records show that her sleep apnea was a misdiagnosis and her fatigue was treated with Adderall. In August 2014 when Plaintiff saw Dr. Weber because Plaintiff wanted a medical excuse for her tardiness at work, Dr. Weber noted that Plaintiff's previous diagnoses of sleep apnea and narcolepsy were "not substantiated" with further testing. (Docket #13-1 at 339). In November 2014, Dr. Weber recommended Plaintiff discontinue medications for sleeping disorders. Id. at 337. Moreover, Plaintiff cites no evidence that her alleged conditions were the cause of her tardiness at work.
Plaintiff also claims that the ALJ ignored evidence of "intellectual difficulties and attention deficit disorder ... which are [ ] common issues with persons suffering from [cerebral palsy ]." (Docket #14 at 10). This is not borne out by the record. Plaintiff cites no treatment records discussing actual mental limitations she experienced due to her cerebral palsy. Instead, she discusses cerebral palsy in the abstract, noting symptoms that are common in people with the disease, citing Wikipedia as support. She implies that the mental effects of her cerebral palsy caused her to make mistakes at work, but she points to no evidence of this.
In sum, the ALJ appropriately considered and weighed the evidence in the record regarding all of Plaintiff's impairments when making his RFC assessment. Plaintiff's view about the severity of her impairments is undermined by the minimal record she built below. Remand is not required for the purpose of reassessing the RFC.
4.2.2 Function-by-Function Analysis
Plaintiff's second argument with respect to the RFC assessment is that the ALJ did not perform a "function-by-function" analysis of her ability to perform daily living and work-related activities. She argues that the ALJ must separately address Plaintiff's ability to sit, stand, walk, lift, carry, push, and pull, and she insists that the ALJ is not permitted to use exertional terms—sedentary, light, medium, heavy, and very heavy—in this analysis.
In this case, the ALJ determined in his RFC assessment that Plaintiff could perform light work, but with certain enumerated physical limitations. Specifically, the ALJ found that Plaintiff can never climb ladders, ropes, or scaffolds. She can occasionally climb ramps or stairs, and occasionally balance, stoop, kneel, crouch, and crawl. She can occasionally reach with the non-dominant left upper extremity. She can never handle, finger, or feel with the non-dominant left upper extremity but can use the left upper extremity to assist—mostly in a stationary manner—the right upper extremity. The ALJ explained his inclusion of these functional limitations in narrative form, citing Plaintiff's descriptions of her own functional limitations and the medical evidence. The ALJ's work at this step was sufficient.
The Seventh Circuit has explained that "although the ‘RFC assessment is a function-by-function assessment,’ SSR 96–8p, the expression of a claimant's RFC need not be articulated function-by-function; a narrative discussion of a claimant's symptoms and medical source opinions is sufficient." Knox v. Astrue , 327 F. App'x 652, 657 (7th Cir. 2009). The ALJ satisfied this requirement by analyzing the objective medical evidence and Plaintiff's testimony when determining the severity of Plaintiff's limitations. Plaintiff does not draw the Court's attention to any evidence that conflicts with the ALJ's conclusion. She complains that the ALJ did not address her ability to sit, stand, walk, lift, carry, push, and pull. But she does not claim that she is limited in doing any of those things in particular, and even if she had so claimed, she did not point to supporting evidence. Moreover, the ALJ's RFC did include physical restrictions—climbing, balancing, reaching, handling, et cetera—and Plaintiff does not explain how these restrictions are insufficient to address her functional limitations.
4.3 Credibility Assessment
Next, Plaintiff argues that her testimony regarding her symptoms and impairments was improperly discounted. She criticizes the ALJ for relying too heavily on Plaintiff's self-prepared function report for a description of her limitations, while providing only a "very cursory summary" of her hearing testimony regarding her symptoms. (Docket #14 at 16).
An ALJ's credibility determination may be overturned only if it is "patently wrong." Pepper v. Colvin , 712 F.3d 351, 367 (7th Cir. 2013) (quotation omitted). The ALJ must, however, "adequately explain his credibility finding by discussing specific reasons supported by the record." Id. (citation omitted). Plaintiff argues that the ALJ did not adequately explain his credibility determination because he used boilerplate language to describe his conclusion:
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
(Docket #13-1 at 24). It is true that this language is very similar to language the Seventh Circuit has described as "meaningless boilerplate" because it fails to link the conclusory statements made with objective evidence in the record. Pepper , 712 F.3d at 367. However, the Seventh Circuit had also made clear that an ALJ's use of boilerplate language does not automatically undermine or discredit his ultimate conclusion if he otherwise points to information that justifies his credibility determination. Id. at 367–68. The ALJ did that here.
Immediately preceding and following the use of the above-quoted boilerplate, the ALJ provided a narrative discussion of Plaintiff's testimony regarding the severity of her symptoms. For example, he noted that Plaintiff testified in her function report that her conditions "[don't] limit [her] at all" in terms of her ability to work. (Docket #13-1 at 240). She also testified that she had no problems with personal care other than being limited in the types of meals she could prepare, and she was able to do housework, drive a car, and shop in stores. The ALJ noted that with respect to the use of her extremities, Plaintiff reported that she can use her left arm to stabilize things but not pick anything up, and she sometimes trips and falls. He explained that the record did not show any office visits or significant medical concerns related to Plaintiff's cerebral palsy or asthma, and he noted that Plaintiff herself testified that she did not stop working due to her impairments. He also noted that no opinion, from any source, recommended limitations greater than those he included in the RFC assessment. Therefore, the ALJ found that limitations meant to accommodate Plaintiff's left extremity deformities and asthma were appropriate, but he did not find that limitations for any of Plaintiff's other reported symptoms were appropriate.
The ALJ's narrative sufficiently demonstrates that he relied on evidence in the record to conclude that the severity of Plaintiff's alleged symptoms, beyond physical limitations due to cerebral palsy and asthma, was overstated. See Prochaska v. Barnhart , 454 F.3d 731, 738 (7th Cir. 2006) (concluding that the ALJ appropriately considered diverse factors in his credibility determination, including the claimant's hearing testimony and the objective medical records, even though all the claimant's allegations were not discussed in the ALJ's written opinion). The Court cannot say that his assessment was patently wrong. Tellingly, Plaintiff does not point to any particular piece of her own testimony that the ALJ improperly weighed. Instead, her complaint is based only on her criticism of the ALJ's brevity in his written decision. This is not sufficient to convince the Court that remand is required.
4.4. Vocational Expert Testimony
Finally, Plaintiff attacks the ALJ's reliance on the opinion given by the VE. He testified at the hearing that a person with Plaintiff's RFC could perform Plaintiff's past relevant work, which he classified as a cashier. He also testified that such a person could perform other representative jobs in the national economy such as a laundry worker (DOT 302.685-010), office helper (DOT 239.567-010), and a checker/inspector (DOT 221.587-010). According to the VE, there were 355,400 laundry worker jobs nationally, 113,900 officer helper jobs nationally, and 72,000 checker/inspector jobs nationally. However, for the latter two positions, the vocational expert testified that the numbers would be reduced to 49,000 and 10,000 respectively "because of limitations imposed on the left hand." (Docket #31-1 at 81). The VE explained that he had not reduced the number of jobs for the laundry-worker position because he "felt if [Plaintiff] had the use of the left hand for positioning ... she could do that job." Id.
Plaintiff argues that this testimony must be rejected for two reasons. First, Plaintiff argues that the VE's testimony was not reliable because he did not provide local (as opposed to national) job numbers, and Plaintiff is allegedly confined to local work. She claims that she is unable to move because she "had only been able to live on her own for a year and one half during her entire life" and it had taken her more than twenty years to find her job at Wal-Mart. (Docket #14 at 17).
In support of this argument, Plaintiff cites Browning v. Colvin , 766 F.3d 702 (7th Cir. 2014). In that case, the Seventh Circuit recognized that, according to SSA regulations, work exists in the national economy "when it exists in significant numbers either in the region where you live or in several other regions of the country. It does not matter whether ... work exists in the immediate area where you live." Id. at 708 (quoting 20 C.F.R. § 404.1566 ). The court found that the plaintiff's circumstances in that case presented an exception to the rule, because she was incapable, by reason of her mental and physical condition, of seeking work outside of her immediate small town, which made "the number of jobs in the region or the nation irrelevant." Id. She was severely intellectually disabled with an IQ of 68, could not read beyond a kindergarten level, could not use a computer or obtain a driver's license, and lived at home with her mother, who did all of the chores. Her entire work history consisted of three days of part-time janitorial work. She was also severely obese and used a wheelchair or crutches because of defect in her leg. Because the plaintiff's "immobility [was] a consequence of the disability," her immobility needed "to be factored into the analysis of job availability." Id.
In this case, by contrast, Plaintiff had a ten-year work history at Wal-Mart, is not severely intellectually disabled, and is able to drive and care for herself. She lived on her own for more than a year, and only returned to live with her father because of financial constraints. Therefore, the Court is not persuaded that immobility is a consequence of Plaintiff's conditions, and therefore the general rule regarding national job statistics applies here. The VE's testimony is not unreliable simply because it included national, as opposed to local, numbers.
Second, Plaintiff argues that the VE's testimony is defective because he did not provide necessary support for the job numbers (and reductions in those numbers) that he offered during the hearing. But that is simply not the case. The VE explained how he classified Plaintiff's past work as the DOT equivalent to a cashier, and found that similar jobs such as laundry worker, officer helper, and checker/inspector were available in significant numbers. He also explained why he reduced the numbers of jobs for two of the representative positions, office helper and checker/inspector, but not the third representative position, laundry worker. Finally, he confirmed that his testimony was consistent with the DOT and based on his training, education, and experience.
It is true, as Plaintiff implies, that the Seventh Circuit has expressed serious concerns about the sources on which ALJs and VEs rely when assessing the number of jobs that exist in the local, regional, or national economies. The VE in this case did not state from where he derived the job numbers that were available for Plaintiff. The ALJ did not inquire about the issue, nor did Plaintiff's attorney. He may have relied on the DOT, as VEs commonly do in disability cases. The Seventh Circuit has forcefully noted that the DOT is decades out of date (having been last published in 1977), contains numerous jobs whose continued existence is doubtful, and provides no official source of numbers for available jobs. See id. at 709 ; see also Alaura v. Colvin , 797 F.3d 503, 508 (7th Cir. 2015) ; Voigt v. Colvin , 781 F.3d 871, 879 (7th Cir. 2015). Plaintiff piggybacks on these criticisms in arguing that remand is necessary because the ALJ in this case failed to inquire how the VE assessed the number of jobs that were available to her. Despite the Seventh Circuit's criticisms of the DOT in cases such as Browning, Alaura, and Voigt, those cases were not specifically decided on that issue of DOT unreliability. Indeed, the Seventh Circuit has not yet overturned an ALJ's denial of benefits on that basis alone. Similarly, this Court declines Plaintiff's invitation to remand on the basis that the VE did not disclose the source of his job numbers, especially given that Plaintiff's counsel did not object to the VE's testimony at the hearing when given the opportunity, and given that Plaintiff does not provide contradictory evidence demonstrating that the numbers the VE provided are wrong.
5. CONCLUSION
In light of the foregoing, the Court must affirm Defendant's decision denying benefits to Plaintiff. This action will, therefore, be dismissed with prejudice.
Accordingly,
IT IS ORDERED that the decision of the Commissioner of Social Security in this matter be and the same is hereby AFFIRMED ; and
IT IS FURTHER ORDERED that this action be and the same is hereby DISMISSED with prejudice .
The Clerk of Court is directed to enter judgment accordingly.