Betty Brown v. Carolyn W. Colvin , 845 F.3d 247 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1066
BETTY L. BROWN,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 14 CV 894 — Barbara B. Crabb, Judge.
____________________
ARGUED SEPTEMBER 21, 2016 — DECIDED DECEMBER 22, 2016
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Betty Brown applied for disabil-
ity benefits on the ground that her bad back and obesity left
her in too much pain to work. The Social Security Admin-
istration denied Brown’s application, and after holding a
hearing, an administrative law judge (ALJ) upheld the deni-
2 No. 16-1066
al, 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 consid-
ered 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 insuffi-
ciently accounted for the obesity. Brown also contends that
the ALJ improperly relied on the vocational expert’s testi-
mony from the administrative hearing, claiming that the ex-
pert failed to provide enough information to justify her de-
parture from the Dictionary of Occupational Titles—which
provides occupational information about myriad jobs in the
U.S. economy—and failed to verify the source of the data on
which her jobs-related opinions were based. But Brown for-
feited most of these arguments by failing to object to the ex-
pert’s testimony during the hearing, and the one error that
the ALJ did commit was harmless.
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 misrepre-
sented multiple statements Brown made to treatment pro-
viders and others. So we vacate the ALJ’s denial of benefits
and remand the case for further proceedings.
No. 16-1066 3
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 sev-
eral mild spinal fractures that she suffered during a car acci-
dent in 2003. Brown’s back pain became more significant as
the result of a second car accident in July 2004, as well as in-
cidents 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 no-
tably (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 42 U.S.C.
§§ 416(i) and 423. At the time, she weighed approximately
310 pounds, was not working (she claimed to have last
worked in October 2004), and complained that her back pain
prevented her from sitting or standing for more than 30
minutes at a time and required that she periodically lie
down. The Social Security Administration denied both bene-
fits applications, and an ALJ, after holding a hearing, fol-
lowed suit.
For reasons that we need not discuss, the ALJ was re-
quired to consider Brown’s benefits applications two addi-
tional times, most recently in August 2014. In that latter de-
cision, the ALJ again denied Brown’s applications, and in
doing so followed the five-step sequential evaluation process
outlined in 20 C.F.R. § 404.1520(a)(4). The ALJ first conclud-
4 No. 16-1066
ed Brown had not performed substantial gainful activity
since January 2007, and, second, found that Brown had three
“severe” impairments—back pain, obesity, and migraines.
Third, the ALJ determined that none of these impairments
individually or collectively met the listed impairments in
Appendix 1 to 20 C.F.R. § 404, Subpart P, and that Brown
had the residual functional capacity to perform sedentary
work with a sit/stand option so that she could avoid sitting
or standing for more than thirty minutes at a time. Fourth,
the ALJ found that Brown could not do her past work as a
cook based on this residual functional capacity. Finally, the
ALJ, relying on testimony from a vocational expert, found
that Brown could perform six other jobs that existed in sig-
nificant numbers in the economy—assembler, order clerk,
office helper, video surveillance monitor, greeter/attendant,
and telephone solicitor.
Based on these findings, the ALJ determined that Brown
was not disabled. The district judge affirmed the ALJ’s de-
termination, and this appeal followed.
II. ANALYSIS
On appeal, Brown raises the same three arguments that
the district judge considered and rejected—that the ALJ im-
properly evaluated her obesity, that the ALJ improperly ap-
plied the Treating Physician Rule, and that there was inade-
quate 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
No. 16-1066 5
doing so, we may not decide facts anew or make independ-
ent credibility determinations, and must affirm the ALJ’s de-
cision even if reasonable minds could differ about the ulti-
mate 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 list-
ing from Appendix 1’s list of disabling impairments, it must
still be considered when evaluating the severity of other im-
pairments 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 oth-
er 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 under-
taking 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 inju-
ries 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.
6 No. 16-1066
Although the issue is close, we find that the ALJ ade-
quately 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 in-
crease 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 impair-
ment.” Brown claims that these statements are merely con-
clusory, but we disagree. On multiple occasions, the ALJ ref-
erenced portions of Dr. Shannon’s treatment notes that dis-
cussed Brown’s weight, his encouragement that she lose
weight, the increasing pain she endured as a result of her
weight-loss attempts, and her inability to walk more than
two blocks at a time or lift more than five pounds. More no-
table is the ALJ’s rejection of the opinions of several gov-
ernment-affiliated doctors on the ground that the “longitu-
dinal record demonstrates that [Brown]’s back impairment
together with her morbid obesity would prevent her from work-
ing above the sedentary exertional level on a regular and
continuing basis.” (emphasis added).
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 obe-
sity prior to her onset date, and the absence of advice from
No. 16-1066 7
any treating physician that she restrict work-related activi-
ties, observe certain precautions, or not work at all). Howev-
er, 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 quota-
tion 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 sup-
ported 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 giv-
en, an ALJ must offer “good reasons” for doing so, after hav-
ing 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. Lar-
son v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010) (citing 20
C.F.R. § 404.1527(d)(2)); 20 C.F.R. § 404.1527(c).
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
8 No. 16-1066
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 ab-
sent 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 alternat-
ing 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 in-
dividualized assessments spread across five years, Dr. Shan-
non repeatedly referenced the chronic and severe back pain
that radiated to Brown’s upper back and hips; that this pain
was exacerbated by cold, damp weather and by physical ac-
tivity such as exercise and sitting or standing for prolonged
periods; that this pain often prevented her from sleeping for
more than two hours at a time; and that Brown required ev-
er-increasing dosages of oxycodone (from 30 mg initially to
240 mg) in order to manage her pain. Taken together, these
observations contradict the ALJ’s conclusion that Dr. Shan-
non’s “findings over time are quite benign and offer little
support for the degree of limitation that he assessed.”
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 sat-
No. 16-1066 9
isfied 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 dis-
tinction is an important one, since the mere absence of de-
tailed treatment notes, without more, is “insufficient
grounds for disbelieving the evidence of a qualified profes-
sional.” 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 ex-
tended 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 liv-
ing 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
10 No. 16-1066
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 perfor-
mance, 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 daily activities. Although Brown cared for
her young daughter throughout the day, she often sat or laid
down while doing so and at times received childcare assis-
tance from her mother and a friend. Brown also testified that
she made meals for her family, but many meals were easily
assembled—for example, microwavable frozen dinners and
Hamburger Helper. Brown walked to a nearby park with her
daughter on a near-daily basis, but the park was a mere two
blocks away and had benches (or something else she could
sit on). And although Brown may have performed “light”
housework, she received significant help from her neph-
ews—for example, transporting the laundry basket to and
from the laundry area and removing clean dishes from the
No. 16-1066 11
dishwasher and putting them away. See Craft, 539 F.3d at 680(holding that ALJ improperly considered claimant’s daily
living activities where claimant’s “so-called ‘daily walk’ was
merely to the mailbox at the end of the driveway, his vacu-
uming took only four minutes, and his grocery shopping
was done on a motorized cart at the store and he was able to
carry only one grocery bag in each hand into the house”);
Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001) (claim-
ant’s daily living activities “are fairly restricted (e.g., wash-
ing dishes, helping his children prepare for school, doing
laundry, and preparing dinner) and not of a sort that neces-
sarily undermines or contradicts a claim of disabling pain”).
So the ALJ must conduct a reevaluation of Dr. Shannon’s
opinions to determine whether they are entitled to control-
ling weight.
C. No Reversible Error in Relying on Vocational Ex-
pert’s Testimony
The ALJ determined that Brown could perform substan-
tial gainful activity based primarily on testimony from a vo-
cational 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 per-
formed 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
12 No. 16-1066
underlying vocational experts’ job-numbers opinions by fail-
ing 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 al-
leges error in the ALJ’s acceptance of the vocational expert’s
testimony relating to the telephone solicitor/call center posi-
tion, 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 expert’s testimony
appears to conflict with the DOT, the ALJ “must obtain ‘a
reasonable explanation for the apparent conflict,’” and that a
claimant’s failure to object during a hearing cannot excuse
an ALJ’s failure to do so. Overman v. Astrue, 546 F.3d 456,
462–63 (7th Cir. 2008) (per curiam) (quoting SSR 00-4p, 2000
WL 1898704 (Dec. 4, 2000)). An ALJ can accept conflicting
testimony if the vocational expert’s “experience and
knowledge in a given situation exceeds that of the DOT’s au-
thors, or when the [vocational expert]’s contrary testimony is
based on information in other reliable publications.” Id. at
464 (citation and internal quotation marks omitted).
1 Dueto this forfeiture, we need not reach the applicability of Voigt v.
Colvin, 781 F.3d 871, 879 (7th Cir. 2015) (criticizing but not holding to be
improper the ALJ’s acceptance of the vocational expert’s job-numbers
testimony based on the unknown underlying data source). Of course, if
another administrative hearing occurs, Brown may be able to test the
vocational expert’s reliance on her sources at that time.
No. 16-1066 13
At the administrative hearing here, the vocational expert
opined that a person with Brown’s residual functional capac-
ity could perform work as a greeter/attendant. In doing so,
she acknowledged that the DOT instructs that greet-
ers/attendants perform “light” work, but opined that the
“sedentary” label was more appropriate. The vocational ex-
pert defended this deviation by noting that greeters in thea-
ters and in building lobbies typically have the option of sit-
ting 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 ex-
pert’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 concluso-
ry—after all, she referenced her personal experience with
placing individuals in sedentary greeter positions—the rec-
ord does not indicate that her knowledge on the topic ex-
ceeds that of the DOT authors, or that her opinion is in-
formed 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 ap-
proximate percentage of the greeter positions that can be
performed in a sedentary manner. Perhaps it is 95%; or per-
haps 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 re-
sponsibilities that likely are not sedentary—in particular,
“Perform[ing] minor repairs on game machines”; “Re-
mov[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 “Re-
14 No. 16-1066
mov[ing] obstructions, reposition[ing] mechanism, in-
sert[ing] coins, and observ[ing] machine operation to deter-
mine 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 re-
versible 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).