Mike Butler v. Kilolo Kijakazi

4 F.4th 498

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 14, 2021
• Docket: 20-3187
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-3187 MIKE BUTLER, Plaintiff-Appellant, v.

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. ____________________

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:19-cv-00401-DRL-JPK — Damon R. Leichty, Judge. ____________________

ARGUED MAY 26, 2021 — DECIDED JULY 14, 2021 ____________________

Before EASTERBROOK, ROVNER, and HAMILTON, Circuit Judges. ROVNER, Circuit Judge. Mike Butler sought disability insur- ance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–433, and that claim for benefits was denied by the Ad- ministrative Law Judge (ALJ) following a hearing. The Ap- peals Council declined to review the denial, and therefore the decision of the ALJ is the final decision for purposes of our 2 No. 20-3187

review. Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2010); 20 C.F.R. §§ 404.955, 404.981. Butler now challenges the ALJ’s de- termination that he was capable of doing light work with some restrictions, and that a sufficient number of such jobs existed that he could perform. The relevant time period at is- sue is from the alleged date of disability, November 4, 2015, through the ALJ’s decision on April 19, 2018. We review de novo the district court’s affirmance of the ALJ’s decision and review directly the decision of the ALJ. Id. The ALJ’s decision will be affirmed if it was supported by sub- stantial evidence, which is “’such relevant evidence as a rea- sonable mind might accept as adequate to support a conclu- sion.’” Id., quoting Yurt v. Colvin, 758 F.3d 850, 856 (7th Cir. 2014). “An ALJ need not specifically address every piece of evidence, but must provide a ‘logical bridge’ between the ev- idence and his conclusions.” Id., quoting O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). Eligibility for disability benefits is determined by applying a five-step analysis, in which “[t]he ALJ must consider whether: (1) the claimant is presently employed; (2) the claim- ant has a severe impairment or combination of impairments; (3) the claimant's impairment meets or equals any impairment listed in the regulations as being so severe as to preclude sub- stantial gainful activity; (4) the claimant's residual functional capacity leaves him unable to perform his past relevant work; and (5) the claimant is unable to perform any other work ex- isting in significant numbers in the national economy.” Bris- coe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351–52 (7th Cir. 2005); 20 C.F.R. §§ 404.1520, 416.920. The sole issue in this case concerns the application of Step 5 of the disability benefits analysis, and at that stage of the analysis, the burden shifts to No. 20-3187 3

the Commissioner to prove that the claimant can perform other work in the economy. Id. at 352. As for the other steps of the test, it is undisputed: (1) that he worked in the past as a millwright and machine repair maintenance worker, and that he stopped working and argued that he became disabled as of November 4, 2015; (2) that his claim of disability is based on severe impairments stemming from a stroke, seizures, and heart disease; (3) that those impairments do not meet the list- ings and therefore do not render him conclusively disabled; and (4) that he is unable to perform his prior occupation. That leads us to step 5, which requires consideration of whether the claimant is unable to perform any other work in the national economy given his age, education, and work ex- perience. The ALJ held that the evidence established that in addition to his exertional limitations, Butler has some nonex- ertional impairments that placed additional limits on his abil- ity to perform light work. Accordingly, rather than rely solely on Medical Vocational Guidelines (“the grids”) for determin- ing disability, the ALJ heard testimony from a vocational ex- pert (“VE”) as to the availability of jobs that Butler could per- form in light of those additional nonexertional limits. Specifi- cally, the ALJ asked the VE to assume a hypothetical individ- ual who was 51 years old and therefore closely approaching advanced age under the regulations, and had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that he can never climb lad- ders, ropes, or scaffolds; can occasionally climb ramps and stairs; can occasionally balance, stoop, kneel, crouch, and crawl; can have only occasional exposure to pulmonary irritants such 4 No. 20-3187

as fumes, odors, dusts, gases, and poor ventila- tion; can never work around humidity or tem- perature extremes; can never work around haz- ards such as unprotected heights or moving ma- chinery; can occasionally operate foot controls with the left lower extremity; can occasionally reach in all directions with the left upper ex- tremity; and can occasionally grip, handle, and finger with the left upper extremity. ALJ Decision at 4, App. 18. Assuming those limitations and characteristics, the VE identified three unskilled light work occupations that Butler could still perform, namely: furniture rental consultant, Dictionary of Occupational Titles (“DOT”) 295.357-018, with about 44,000 jobs in the nation; usher, DOT 344.677-014, with about 26,000 jobs in the nation; and infor- mation clerk, DOT 237.367-108, with about 66,000 jobs nation- wide. Id. at 25. The VE subsequently also testified as to the number of those jobs in Butler’s state of Indiana, finding 3,050 jobs in those occupations. That total included 550 furniture rental consultant, 1,200 usher, and 1,300 information clerk po- sitions. On appeal, Butler argues that the ALJ failed to properly apply the grids in denying benefits. He alleges that in deter- mining that Butler could perform three occupations with 136,000 jobs, the ALJ failed to consider that Butler had the ad- ditional adverse vocational factor of being a person closely approaching advanced age, in that he was between the ages of 50–54. But that argument is belied by the record. The ALJ quite clearly recognized that Butler was in the category of per- sons closely approaching advanced age, and in eliciting the testimony from the VE as to jobs that Butler could perform, No. 20-3187 5

the ALJ incorporated Butler’s age as one of the characteristics to be considered in making that determination, asking the VE “whether jobs exist in the national economy for an individual with the claimant’s age, education, work experience, and re- sidual functional capacity.” ALJ Decision at 11, App. 25. Butler also complains that the limitations to only occa- sional reaching, handling, and fingering with the left upper extremity would likely eliminate nearly all unskilled seden- tary work, and reduce the unskilled light occupational base by at least two-thirds, and argues that the ALJ improperly cut off cross examination as to how much more the light occupa- tional base would be eroded. He argues that the ALJ should have found him disabled based on application of the grids given the erosion of the number of jobs he could perform in the light occupational base and the inability to perform jobs at the sedentary occupational base. He further contends that the ALJ failed to address that Butler would be approved for disability even if capable of performing the full range of sed- entary unskilled work. But those arguments are unavailing because the ALJ followed the procedures that are appropriate to a case such as this one in which exertional and nonexer- tional impairments impede the claimant’s ability to perform some jobs within a category. Those arguments by Butler fail to undermine that analysis and do not relate to the issue ulti- mately before the ALJ. A case relied upon by Butler for his arguments, DeFran- cesco v. Bowen, 867 F.2d 1040 (7th Cir. 1989), is illustrative— and actually supports the ALJ’s decision in this case. In De- Francesco, the applicant could perform sedentary work, but that was immaterial given his age, education and work expe- rience. Id. at 1045. Accordingly, the relevant question was 6 No. 20-3187

whether he was able to perform light work. As to that level of work, he had the physical capacity to perform some, but not all, light jobs, and thus was “neither capable of doing light work nor incapable.” Id. We held that in such circumstances “[t]he Social Security Administration could, in the spirit of the grid, have used some mechanical decision formula to plug the gap. Instead it has advised its administrative law judges to get off their grids and hear testimony by a vocational specialist concerning whether there are enough jobs that this claimant can actually do to warrant a conclusion that his medical con- dition is not totally disabling.” (emphasis in original) Id. Be- cause the ALJ did not consult a vocational expert for that as- sessment, we remanded the case in DeFrancesco. Butler similarly has limitations which precluded a deter- mination that he could either perform all light work or per- form none. Unlike in DeFrancesco, the ALJ here consulted a vocational expert to obtain an assessment. The ALJ thus fol- lowed the procedure that was lacking in DeFrancesco, consult- ing with a vocational expert and denying benefits only after that expert identified light work jobs that Butler could per- form, which existed in sufficient numbers to conclude that Butler’s condition was not medically disabling. Therefore, our reasoning in DeFrancesco supports rather than undermines the decision of the ALJ in this case. Along the same lines, in numerous other cases we have upheld the resort to vocational experts in cases involving both exertional and nonexertional limitations, as are present here, because the grids do not reflect nonexertional limitations. For instance, in Haynes v. Barnhart, 416 F.3d 621, 628 (7th Cir. 2005), we recognized that the grids were designed for cases involving exertional or strength limitations. Where nonexertional No. 20-3187 7

impairments—such as limitations as to climbing, balancing, stooping, kneeling, crouching, or work environment—are present as well, we held that the ALJ first must determine whether the claimant can be found disabled based solely on the exertional limitations. Id. at 628–29. Where that is not a possibility, we recognized that the ALJ should use the grids as a framework, but should consult with a vocational expert where a claimant has a combination of exertional and nonexertional limitations. Id. at 629. Because Haynes’ residual functional capacity did not coincide with the full range of either sedentary or light work, and he had both exertional and nonexertional limitations, we held that “[t]he regulations and abundant caselaw clearly indicate that in such situations it is appropriate to consult with a vocational expert, which is precisely what the ALJ did. See Luna v. Shalala, 22 F.3d 687, 691 (7th Cir.1994) (‘[T]his court has said that in cases where a non-exertional limitation might substantially reduce a range of work an individual can perform, the ALJ must consult a vocational expert’).” (additional citations omitted) Haynes, 416 F.3d at 629. We upheld the ALJ’s denial of benefits in Haynes, holding that the ALJ committed no error in relying on the vocational expert’s determination, in light of Haynes’s age, education, vocational factors, and residual functional capacity, that Haynes could perform work in a significant number of jobs in the regional economy. Id. at 629–30. Therefore, where the exertional impairments alone do not dictate a finding of disabled, and where the impact of the non- exertional limitations on the ability to perform jobs is not ob- vious, we have required resort to a vocational expert to assess how the confluence of the exertional and nonexertional limi- tations impacted the number of jobs that the claimant could perform within a given occupational base. That is precisely 8 No. 20-3187

what the ALJ did here. The ALJ consulted the vocational ex- pert and the expert testified as to the jobs that Butler could perform given his age, education, work experience, and his residual functional capacity. That procedure was proper, and therefore Butler’s challenge is without merit. Finally, Butler also contends that the ALJ’s decision failed to comply with 20 C.FR. § 404.1560(c)(1), which he argues re- quires the ALJ to state that work exists in significant numbers either in the region in which Butler lives or in several regions of the country. Butler contends that the ALJ’s decision fails to meet that requirement because the ALJ declared only that sig- nificant numbers of jobs exist in the national economy and did not include any VE statement specifically setting forth the availability of jobs in the region in which Butler lives or in several regions of the country. As an initial matter, we note that the VE was asked whether jobs exist “in the national economy” for a person with the claimant’s characteristics, and therefore the VE’s re- sponse as to the jobs that exist nationwide was responding to that question. ALJ Decision at 11, App. 25. The statute defines work in the national economy as encompassing “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A). There is no reason to believe that the VE was not using that statutory definition of “in the national economy” when testifying as to jobs available nationwide. But we need not explore that further, because Butler’s claim fails for another reason. Butler acknowledges that the VE tes- tified not only as to the number of positions available nation- wide, but also to the number of jobs available specifically in Indiana. The VE identified 136,000 jobs nationally and 3,050 No. 20-3187 9

light work jobs in Indiana which the claimant could perform. Butler does not argue that the VE testimony is insufficient to meet the regulatory requirement of establishing a significant number of jobs in the region in which he lives. Instead, Butler alleges only a pro forma error, asserting merely that the ALJ failed to specifically include that VE testimony regarding the Indiana jobs in the written decision. The ALJ mentioned only the nationwide numbers, and the Indiana numbers were first discussed in the district court opinion. Thus, Butler’s argu- ment is not that the VE testimony failed to establish a signifi- cant number of jobs in the region in which Butler lived, but that the ALJ, who relied on the VE’s testimony in determining the availability of work, failed to include the Indiana numbers along with the nationwide numbers in the decision denying benefits. As we have repeatedly held, the harmless error standard applies to judicial review of administrative decisions, and “we will not remand a case to the ALJ for further specification where we are convinced that the ALJ will reach the same re- sult.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011); Zero Zone, Inc. v. United States Dep't of Energy, 832 F.3d 654, 682 (7th Cir. 2016). In assessing whether an error is harmless, we ex- amine the record to determine whether we can “predict with great confidence what the result of remand will be.” McKinzey, 641 F.3d at 892. Here, Butler argues only that the ALJ failed to recite in the decision the undisputed testimony of the vocational expert. The alleged error, then, would be eliminated if the ALJ merely reissued the same opinion, in- cluding sentences that set forth that additional testimony by the vocational expert. Butler makes no argument that any ev- idence contradicted the VE’s testimony or called into question the number of jobs available in Indiana. Nor does he argue 10 No. 20-3187

that the VE’s testimony was unreliable, that the testimony can be challenged in any way, or that the uncontested opinion of the vocational expert is insufficient to establish that work ex- ists in significant numbers either in the region in which Butler lives or in several regions of the country. Because he alleges merely the pro forma error of failing to recite in the decision the uncontested testimony of the VE, we can predict with great confidence what the result of remand will be, and ac- cordingly any alleged error would be harmless. See McKinzey, 641 F.3d at 892 (holding that the ALJ’s oversight in failing to consider a state agency physician’s opinion was harmless er- ror because we can say with great confidence that the ALJ would reach the same result on remand); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (“If it is predictable with great confidence that the agency will reinstate its decision on re- mand because the decision is overwhelmingly supported by the record though the agency's original opinion failed to mar- shal that support, then remanding is a waste of time”). Accordingly, we affirm the district court’s judgment and the ALJ’s decision.