Dimmett v. Colvin

816 F.3d 486, 2016 U.S. App. LEXIS 4643, 2016 WL 946628
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 14, 2016
DocketNo. 15-2233
StatusPublished
Cited by14 cases

This text of 816 F.3d 486 (Dimmett v. Colvin) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dimmett v. Colvin, 816 F.3d 486, 2016 U.S. App. LEXIS 4643, 2016 WL 946628 (7th Cir. 2016).

Opinion

POSNER, Circuit Judge.

The plaintiff who is now 62 years old, applied in 2011 to the Social Security Administration for disability benefits. He claimed to be disabled from any gainful employment by a combination of ailments including asthma, chronic obstructive pulmonary disease (COPD), asbestosis, and a heel spur in his right foot. Turned down by the administrative law judge who heard his case, and then by the Social Security Appeals Council (which declined to review the administrative law judge’s decision), he appealed to the district court, also without success; for on the recommendation of the magistrate judge to whom the district judge had referred the case, the district judge affirmed the denial of benefits without discussion, precipitating this appeal, which highlights several important recurring issues in the disability program.

For 33 years before the June day in 2011 on which, shortly after suffering a possible heart attack, he quit his job and simultaneously applied for benefits, the plaintiff had been a sheet metal journeyman, work that is conceded to be “heavy” and beyond his physical capacity to do any longer. In fact for several years prior to his onset date he had been given accommodations at work to compensate for his diminishing abilities, and as a result- was effectively performing “light” rather than “heavy” work in 2011.

In 2001, while still employed, he’d suspected that he was being exposed to asbestos on the job.- A doctor whom he consulted concluded from X-rays of the plaintiffs lungs, and from breathing tests, that the plaintiffs lungs indeed had scarring “consistent with asbestos exposure.” The doctor also inferred from the 'tests a “possibility of decreased lung volume.” As far as we can tell, the plaintiff hadn’t taken the doctor’s advice to consult an expert in asbestos-related diseases, but around the time of his possible heart attack he had consulted a doctor about shortness of breath and chest pain and the doctor had diagnosed COPD and encouraged the plaintiff to stop smoking. Earlier he had also been diagnosed and treated for asthma. He used an inhaler to alleviate his pulmonary distress.

The administrative law judge determined that the plaintiffs asthma and chronic obstructive pulmonary disease were “severe impairments,” but noted that the plaintiff had not been diagnosed with asbestosis and ruled that his heel spur was not a significant impediment to working. The plaintiff disagrees with the latter two findings, but his appeal primarily challenges the administrativé law judge’s further finding that the plaintiffs asthma and chronic obstructive pulmonary disease, although they preclude his returning to his old job as a sheet metal worker, do not disable him from full-time employment in jobs involving unskilled medium work provided that the work doesn’t expose him to extreme temperatures, humidity, or airborne pollutants.

For asthma to be disabling, the Social Security Administration’s regulations require that “attacks ..., in spite of prescribed treatment and requiring physician intervention, [must occur] at least once [488]*488every 2 months or at least six times a year.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.03(B). .The administrative law judge ruled that the plaintiffs asthma didn’t reach that level. That may be correct, but he failed to consider the effect of the asthma—which remember he acknowledged was a “severe” impairment—on the plaintiffs other impairments, notably his other breathing impairment: chronic obstructive pulmonary disease. Worse, he failed even to mention the regulations’ test for determining whether a claimant’s COPD is presumptively disabling. The test requires assessment of the patient’s FEVj.—forced expiratory volume in one second, id. § 3.02(A)—the volume of air that a person of a given height can breathe out in one second after taking a deep breath. The higher the volume, the healthier the person’s lungs. A pulmonary function test found that the plaintiffs FEVj was only. 51 percent of normal fop a, person of his height. The administrative law judge did not discuss whether this implied a low enough FEVi score to be presumptively disabling, and also did not discuss how this low score affected the plaintiffs residual functional capacity for work.

In fact the administrative law judge, ignored the plaintiffs COPD almost entirely when determining what work he could still perform, and as a result there is no evi-dentiary basis, for the finding that he’s capable of engaging in medium work. One might think that even though he can’t do medium work he can do light or sedentary work. But his age makes the distinction between medium and light work critical: a person of his age who has no skills transferable to light or sedentary work is presumptively disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2,- Table No. 1, Rule 201.06; id., Table No. 2, Rule 202.06,

Having determined to his satisfaction the scope and limits of the plaintiffs impairments, the administrative law judge asked the vocational expert assigned to the case whether there were jobs that the plaintiff could perform given his impairments. The administrative law judge explained that those impairments ruled out jobs in which the plaintiff would be exposed to temperature extremes and humidity as well as to such lung irritants as odors, fumes, dust, and chemicals. Testifying by phone at the end of the hearing and thus unfamiliar with the medical testimony, the vocational expert listed three types of job that he thought the plaintiff could perform: “order filler,” “self-service laundry and dry cleaning attendant,” and “dining room attendant.” Order filler covers a variety of jobs and tasks, such as: “conveys materials and items from receiving or production areas to storage or to other designated areas by hand, hand-truck, or electric handtruck. Sorts and places materials' or items on racks, shelves, or in bins according to predetermined sequence, such as size, type, style, color, or product code. Sorts and stores perishable goods in' refrigerated rooms. Fills requisitions, work orders, or requests for materials, tools, or other stock items and distributes items to production workers or assembly line.... May use computer to enter records. May compile worksheets or tickets from customer specifications. May drive vehicle to transport stored items from warehouse to plant or to pick up items from several locations for shipment.” U.S. Department of Labor, Dictionary of Occupational Titles, “Laborer, Stores,” www.occupationalinfo.org/ 92/922687058.html (visited March 11, 2016, as were the other websites cited in this opinion). Neither the vocational expert nor the administrative law judge discussed whether the plaintiff, given his pulmonary problems, can move heavy items, or, given his age, education, and work his[489]*489tory, track work orders and use order-management software.

, The other two jobs mentioned by the vocational expert should have caused alarm bells' to ring in the administrative law judge’s ears given that he’d instructed the vocational expert that the plaintiff is incapable of performing jobs that would expose him to temperature extremes, humidity, and airborne pollutants. A laundry or dry-cleaning attendant will routinely inhale odors, fumes, dust, and chemicals, as these are jobs that require the employee to perform such chores as dampening clothes with cleaning solvent and bleach. And a dining room attendant, among other duties, carries dirty dishes to the restaurant’s kitchen, where he is likely to inhale fumes, steam,, and odors and be exposed to heat.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sims v. Kijakazi
N.D. Illinois, 2023
H L v. Kijakazi
E.D. Wisconsin, 2022
Klemp, Tammy v. Saul, Andrew
W.D. Wisconsin, 2022
DOAKS-PERKINS v. KIJAKAZI
S.D. Indiana, 2022
Abudayyeh v. Saul
N.D. Illinois, 2022
Saulsbury v. Saul
N.D. Illinois, 2021
MUKES v. KIJAKAZI
S.D. Indiana, 2021
Kelly Chavez v. Nancy Berryhill
Seventh Circuit, 2018
Chavez v. Berryhill
895 F.3d 962 (Seventh Circuit, 2018)
Owens v. Berryhill
N.D. Illinois, 2018
Sinclair v. Berryhill
266 F. Supp. 3d 545 (D. Massachusetts, 2017)
Rivera v. Berryhill
242 F. Supp. 3d 1226 (D. New Mexico, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
816 F.3d 486, 2016 U.S. App. LEXIS 4643, 2016 WL 946628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dimmett-v-colvin-ca7-2016.