Plaintiff Sherlyn M. ("Ms. M.") applied for disability insurance benefits ("DIB") and supplemental security income ("SSI") from the Social Security Administration ("SSA") on August 21, 2014, alleging an onset date of April 15, 2012. [ECF No. 5-6 at 4; ECF No. 5-6 at 11.] Her applications were initially denied on December 19, 2014, [ECF No. 5-4 at 2; ECF No. 5-4 at 6], and upon reconsideration on March 17, 2015, [ECF No. 5-4 at 11; ECF No. 5-4 at 14]. Administrative Law Judge Belinda J. Brown conducted a hearing on November 1, 2016 and issued an unfavorable decision on December 30, 2016. [ECF No. 5-3 at 50-53.] On July 13, 2017, the Appeals Council remanded the case back to an Administrative Law Judge to consider new and material evidence that had been submitted on appeal. [ECF No. 5-3 at 67-68.] Administrative Law Judge Ronald Jordan (the "ALJ") conducted a hearing on November 30, 2017. [ECF No. 5-2 at 44-61.] The ALJ issued a decision on December 19, 2017, concluding that Ms. M. was not entitled to receive DIB and/or SSI. [ECF No. 5-2 at 13.] The Appeals Council denied review on June 17, 2018. [ECF No. 5-2 at 2.] On August 10, 2018, Ms. M. timely filed this civil action asking the Court to review the denial of benefits according to 42 U.S.C. §§ 405(g) and 1383(c). [ECF No. 1.]
"The Social Security Act authorizes payment of disability insurance benefits
When an applicant appeals an adverse benefits decision, this Court's role is limited to ensuring that the ALJ applied the correct legal standards and that substantial evidence exists for the ALJ's decision. Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004) (citation omitted). For the purpose of judicial review, "[s]ubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quotation omitted). Because the ALJ "is in the best position to determine the credibility of witnesses," Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008), this Court must accord the ALJ's credibility determination "considerable deference," overturning it only if it is "patently wrong." Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006) (quotations omitted).
The ALJ must apply the five-step inquiry set forth in 20 C.F.R. § 404.1520(a)(4)(i)-(v)
Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000) (citations omitted) (alterations in original). "If a claimant satisfies steps one, two, and three, she will automatically be found disabled. If a claimant satisfies steps one and two, but not three, then she must satisfy step four. Once step four is satisfied, the burden shifts to the SSA to establish that the claimant is capable of performing work in the national economy." Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).
After Step Three, but before Step Four, the ALJ must determine a claimant's residual functional capacity ("RFC") by evaluating "all limitations that arise from medically determinable impairments, even those that are not severe." Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). In doing so, the ALJ "may not dismiss a line of evidence contrary to the ruling." Id. The ALJ uses the RFC at Step Four to determine whether the claimant can perform her own past relevant work and if not, at Step Five to determine whether the claimant can perform other work. See 20 C.F.R. § 404.1520(e), (g). The burden of proof is on the claimant for Steps One through Four; only at Step Five does the burden shift to the Commissioner. See Clifford, 227 F.3d at 868.
If the ALJ committed no legal error and substantial evidence exists to support the ALJ's decision, the Court must affirm the denial of benefits. Barnett, 381 F.3d at 668. When an ALJ's decision is not supported by substantial evidence, a remand for further proceedings is typically
Ms. M. was 58 years of age at the time she alleged her disability began. [ECF No. 5-6 at 4.] She has completed high school and previously worked as factory floor supervisor and managing and training subcontractor. [ECF No. 5-7 at 10-11.]
The ALJ followed the five-step sequential evaluation set forth by the Social Security Administration in 20 C.F.R. § 404.1520(a)(4) and ultimately concluded that Ms. M. was not disabled. [ECF No. 5-2 at 24.] Specifically, the ALJ found as follows:
Ms. M. raises three assignments of error, that the ALJ: (1) inadequately analyzed Listings 1.02 and 1.04, including by failing to consider all the regulatory examples of an inability to ambulate effectively, (2) did not follow the applicable SSA rulings in concluding that Ms. M. was capable of performing other work based on her RFC and transferable skills from her past relevant work, and (3) failed to acknowledge Ms. M.'s strong work history when assessing her credibility.
Ms. M. contends that the ALJ's analysis of Listings 1.02 and 1.04 was inadequate, being limited to no more than a simple list of the respective requirements and the ALJ's conclusions. [ECF No. 7 at 17.] Ms. M. acknowledges that the ALJ explained that he had given great weight to the opinion of a medical expert, Mark O. Farber, M.D., that no listing was met or equaled. [ECF No. 7 at 18 (citing ECF No. 5-2 at 21).] However, Ms. M. contends that Dr. Farber "did not specifically provide an explanation as to why all of the evidence that does support a meeting or equaling status is insufficient to make such a finding." [ECF No. 7 at 18.] Ms. M. also asserts that Dr. Farber's "testimony about the record is not even accurate." [ECF No. 7 at 18-19.] Ms. M. acknowledges that "an inability to ambulate effectively" is required by both of the relevant listings, but she asserts that the ALJ failed to consider all the regulatory examples of the functional requirement and also relied on his observations of her at the hearing, which she contends "is an inadequate reason to dismiss the requirement of effective ambulation." [ECF No. 7 at 20-22.]
To meet an impairment identified in the listings, a claimant must establish, with objective medical evidence, the precise criteria specified in the listing. See 20 C.F.R. § 404.1525; Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990); Rice v. Barnhart, 384 F.3d 363, 369 (7th Cir. 2004) ("The applicant must satisfy all of the criteria in the Listing in order to receive an award of" benefits at Step Three). In the alternative, a claimant can establish "medical equivalence" in the absence of one or more of the findings if she has other findings related to the impairment or has a combination of impairments that "are at least of equal medical significance." See 20 C.F.R. § 404.1526(a)-(b). In considering whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than a perfunctory analysis of the listing. See Brindisi ex rel. Brindisi v. Barnhart, 315 F.3d 783, 786 (7th Cir. 2003); Scott v. Barnhart, 297 F.3d 589, 595-96 (7th Cir. 2003). For example, in Minnick v. Colvin, 775 F.3d 929, 935-36 (7th Cir. 2015), the Seventh Circuit found the ALJ's perfunctory analysis to warrant remand when it was coupled with significant evidence of record that arguably supported the listing. See Kastner v. Astrue, 697 F.3d 642, 647-48 (7th Cir. 2012) (remanding where the ALJ's cursory listing analysis failed to articulate a rationale for denying benefits when the record supported finding in the
The ALJ's analysis of the relevant listings in the portion of the decision dedicated to his Step Three findings was conclusory. [See ECF No. 5-2 at 19.] However, other portions of the ALJ's decision provided further explanation of the ALJ's relevant analysis. The Seventh Circuit has explained "it is proper to read the ALJ's decision as a whole, and ... it would be needless formality to have the ALJ repeat substantially similar factual analyses" throughout the decision. Rice, 384 F.3d at 370 n.5.
To begin with, the ALJ's Step Three conclusions were significantly bolstered by the opinion of the medical expert, Dr. Farber. The ALJ explained:
[ECF No. 5-2 at 21.] The Seventh Circuit has held that "[t]he ALJ may properly rely upon the opinion of ... medical experts," as substantial evidence that no listing was met or equaled. Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004) (citing Scott v. Sullivan, 898 F.2d 519, 524 (7th Cir. 1990); Farrell v. Sullivan, 878 F.2d 985, 990 (7th Cir. 1989)). In Scheck, the Seventh Circuit discussed the ALJ's "duty to `minimally articulate his or her justification for rejecting or accepting specific evidence of disability,'" and found the absence of any contrary, supportive opinion a relevant factor in assessing whether the ALJ's listing conclusions were supported by substantial evidence. 357 F.3d at 700 (quoting Steward v. Bowen, 858 F.2d 1295, 1299 (7th Cir. 1988) (internal citations removed)). Here too, there is no supportive medical opinion in favor of Ms. M. that contradicts the ALJ's or the medical expert's listing conclusions.
However, unlike in Scheck, where there was "no evidence" supporting a listing, 357 F.3d at 701 (emphasis in original), Ms. M. presents significant evidence that established the diagnostic and gross anatomical deformity requirements of Listing 1.02(A) for major dysfunction of a joint, including osteoarthritis of her bilateral knees, pelvic subluxation and hypomobility, limited and asymmetrical range of motion and strength in her lower extremities, and effusion—a sign of derangement—of her knee joints. [See ECF No. 7 at 18-20.] Listing 1.02(A) requires:
20 C.F.R. § Pt. 404, Subpt. P, App. 1, 1.02.
Having found the other requirements met, the Court focuses, as Ms. M. does, on the last functional requirement—a requirement shared by both listings Ms. M. asserts were met or equaled—that her condition
20 C.F.R. § Pt. 404, Subpt. P, App. 1, 1.00(B)(2)(b).
The Court finds that substantial evidence supports the ALJ's conclusion that the functional requirement was not met or equaled and that the ALJ's written decision sufficiently articulated his rationale with reference to such relevant evidence.
Contrary to Ms. M.'s assertion, Dr. Farber's testimony did include a discussion of the evidence that would be relevant to the listing analysis, which the ALJ summarized, "Dr. Farber also noted conflicting exams where the claimant exhibited antalgic or unsteady gait at some exams, yet normal gait at other exams during the same time period." [ECF No. 5-2 at 18.] Dr. Farber testified:
[ECF No. 5-2 at 50-51.]
Conscious that symptoms may wax and wane and that Ms. M. specifically testified that her gait can change from day to day, there may have been an explanation for the seemingly conflicted evidence. [See ECF No. 5-2 at 59.] However, its noteworthy that the medical expert cited evidence showing that Ms. M. was able to fully bear her weight while walking during some examinations and also did not need to use any assistive devices. Under the standard of review, the Court "must examine the entire record, but we cannot reweigh the evidence or substitute our own judgment for that of the ALJ." Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000) (citing Schroeter v. Sullivan, 977 F.2d 391, 394 (7th Cir. 1992)). "If reasonable minds can differ as to whether [the claimant] is disabled, we must uphold the decision under review." Schmidt, 201 F.3d 970, 972 (7th Cir. 2000) (citing Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996)).
Moreover, the ALJ provided a reasonable explanation as to how he resolved the conflict in the record. The ALJ detailed Ms. M.'s positive response to treatment, explaining that she "received an injection and participated in physical therapy, and by August 2016, she reported significant relief and was pleased with her functional progress, as she was independent and without discomfort or difficulty with daily activities or functional activities. She even reported that she was off medications." [ECF No. 5-2 at 21 (internal citations omitted).] The ALJ explained that Ms. M.'s activities of daily living included aerobic classes and walking for exercise three to five times a week. [ECF No. 5-2 at 22.]
The ALJ's description of the record was supported by substantial evidence. On October 28, 2014, Ms. M. reported to her treating provider that "[s]he exercises 3 to 5 times each week. Her exercise regimen consists of aerobic classes, walking, and yoga." [ECF No. 5-11 at 5.] On January 13, 2015, Ms. M.'s treating provider documented the following concerning Ms. M.'s pain:
[ECF No. 5-11 at 18.] On August 5, 2016, Ms. M. reported "she is feeling better and rates her pain at 2/10." [ECF No. 5-12 at 32.] On August 19, 2016, she reported "that she is off her meds now. She is very pleased with her functional progress." [ECF No. 5-12 at 34.] Ms. M. reported her current pain level was "0/10" and her "condition has improved." [ECF No. 5-12 at 34.] The evidence of Ms. M.'s functional improvement and ability to specifically walk for exercise undermines her contention that she was unable to ambulate effectively,
Ms. M. argues that the ALJ cannot analyze only supportive evidence and must confront evidence that does not support his conclusion, but Ms. M. does not specifically identify any evidence that the ALJ failed to confront. [See ECF No. 7 at 22-23.]
Ms. M. does take issue with the testimony of Dr. Farber that Ms. M.'s knee effusions had resolved. [ECF No. 7 at 18-19 (citing ECF No. 5-2 at 49 (Dr. Farber summarized the evidence from January 2015 and testified, "I think her knee effusions has [sic] since gone away.")).] Ms. M. accurately points out that some of the most recent treatment evidence of record—which was also the evidence that the Appeals Council remanded the claim back to the ALJ to consider—conflicts with Dr. Farber's summary. [ECF No. 7 at 19 (citing ECF No. 5-13 at 6).] On November 4, 2016, Ms. M. returned to Dr. Haber for pain management and reported "a significant increase in her bilateral knee pain," and "modified ADL [activities of daily living] and [f]unctional activity." [ECF No. 5-13 at 6.] She was noted to be "ambulating with bilateral walking sticks," although the examination findings also reference a "single point cane." [ECF No. 5-13 at 6.] Dr. Haber's examination findings further indicated "moderate effusion" of the knees, decreased range of motion and muscle strength, and that she "moves poorly." [ECF No. 5-13 at 6.]
However, it is not clear from the record to what degree, if any, the continued presence or reoccurrence of knee effusion would have affected Dr. Farber's conclusions. Ms. M.'s hearing representative declined to cross-examine Dr. Farber about his summary of the evidence or his assessments of Ms. M.'s functioning. [See ECF No. 5-2 at 53.] It is also not clear how relevant the clinical sign is to a listing that does not specifically require or mention effusion. The examination itself—beyond the evidence of effusion—is relevant to an analysis of Ms. M.'s ability to ambulate effectively, including her poor movement and need to use an ambulatory aid potentially in both hands.
Most important to the Court's analysis here, the ALJ specifically confronted the examination findings detailed above. [See ECF No. 5-2 at 21.] However, the ALJ explained:
[ECF No. 5-2 at 21 (citing ECF No. 5-13 at 7 (Dr. Haber's treatment plan included "[n]o further treatments scheduled. Ortho[pedic] eval[uation] may be appropriate.")).] Inconsistencies with the severity of symptoms reported at the hearing and those reported while seeking treatment or the failure to regularly seek treatment for those symptoms can support an ALJ's credibility finding. See Sienkiewicz v. Barnhart, 409 F.3d 798, 803-04 (7th Cir. 2005). Ms. M. demonstrated a positive response to treatment in the past, but there is no indication that she either sought an orthopedic evaluation—after she reported increased symptoms in November 2016—or that she pursued further pain management treatment with Dr. Haber.
Furthermore, at her hearing just over a year later, Ms. M presented without the use of any ambulatory aid and appeared to ambulate effectively according to the ALJ's observations. Ms. M. contends that this reasoning is inadequate to find against
Kelley v. Sullivan, 890 F.2d 961, 964 (7th Cir. 1989) (quoting Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982)). There are perhaps limits to what an ALJ can reasonably observe at a hearing. In Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000) (emphasis in original), the Seventh Circuit explained:
(citing Marbury v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992); Miller v. Sullivan, 953 F.2d 417, 422 (8th Cir. 1992); Lovejoy v. Heckler, 790 F.2d 1114, 1116 (4th Cir. 1986); Lovelace v. Bowen, 813 F.2d 55, 60 (5th Cir. 1987)). The Seventh Circuit concluded, "[l]ikewise, we have repeatedly endorsed the role of observation in determining credibility and refuse to make an exception in this situation." Powers, 207 F.3d at 436 (citing Dray v. Railroad Retirement Bd., 10 F.3d 1306, 1314 (7th Cir. 1993); Ehrhart v. Sec'y of Health and Human Servs., 969 F.2d 534, 541 (7th Cir. 1992); Strunk v. Heckler, 732 F.2d 1357, 1362 (7th Cir. 1984)). Here, the ALJ's simple observation that Ms. M. appeared at the hearing without any ambulatory aid is self-evident and certainly relevant. Notably, the mention of Ms. M. using two walking sticks (or possibly a single point cane) in November 2016 appears to be the sole evidence of her using any kind of an ambulatory aid. Even the ALJ's more involved conclusion that Ms. M. demonstrated an ability to ambulate effectively is not particularly problematic. The listing involves an assessment as to whether the claimant can carry-out routine activities without severe interference with ambulation. While the ALJ's opportunity to observe Ms. M.'s ability to walk during the hearing was likely quite limited both in duration and distance, the fact itself that she was able to appear at the hearing without any kind of assistance with ambulation supported the idea that she could carry-out daily activities that required similar functional abilities.
Accordingly, for all the reasons detailed above, the Court concludes that the ALJ's listing conclusions were supported by substantial evidence and that such evidence was adequately presented by the ALJ in the written decision.
Ms. M. also challenges the basis of the ALJ's Step Five determination, citing Social Security Ruling ("SSR") 96-9p and SSR 82-41. [ECF No. 7 at 24-26.] In particular, Ms. M. contends that: (1) the VE did not specifically identify the transferable skills to sedentary work that Ms. M had gained through her work experience, (2) she has had "no training in the far more complex computer systems of today," (3) "[n]either the ALJ nor the VE took [Ms. M.'s] ability to successfully learn to operate new and advanced technology into consideration," and (4) the ALJ "did not address [Ms. M.'s] testimony that because
Ms. M. cites to SSR 96-9p that "[a]n RFC for less than a full range of sedentary work reflects very serious limitations resulting from an individual's medical impairment(s) and is expected to be relatively rare." [ECF No. 7 at 24 (quoting SSR 96-9p (S.S.A. July 2, 1996), 1996 WL 374185, at *1).] The following sentence in the ruling makes clear:
SSR 96-9p, 1996 WL 374185, at *1 (emphasis added). Ms. M. also cites the ruling for the following:
[ECF No. 7 at 24 (quoting SSR 96-9p, 1996 WL 374185, at *5).] The preceding sentence of the ruling is also relevant:
SSR 96-9p, 1996 WL 374185, at *5 (emphasis added).
Ms. M. does not develop any argument based on SSR 96-9p. Regardless, the ALJ followed the ruling. As detailed above, the ALJ found that Ms. M. was capable of a reduced range of sedentary work. The ALJ's RFC finding matched the medical expert, Dr. Farber's assessment of Ms. M.'s limitations. [See ECF No. 5-2 at 51-52.] The ALJ posed a hypothetical to the VE that described those same limitations and the VE testified that there were jobs available in the national economy that an individual could have performed with those limitations and utilizing the transferable skills Ms. M. had gained through her past work experience. [ECF No. 5-2 at 56.] The VE provided examples of such jobs, including as a production clerk, personnel scheduler, and appointment clerk, and further approximated the number of jobs available in the national economy for each example, which totaled 349,000 combined jobs in the representative examples. [ECF No. 5-2 at 55.] The ALJ specifically inquired and the VE confirmed that it was her opinion that these jobs could be performed with the significant limitations that were identified, including "even with no postural activities." [ECF No. 5-2 at 56.]
Ms. M.'s hearing representative did not cross-examine the VE as to any portion of her relevant opinion, except to ask, "On the transferable skills that you discussed[,] how much paperwork or computer work is going to be part of what she's doing?"
To the extent that Ms. M. has developed a challenge to the ALJ's Step Five determination, the arguments pertain to Ms. M.'s ability to perform the jobs identified based on transferable skills from her past relevant work. Ms. M. contends that the VE did not identify the specific skills that Ms. M. acquired in the performance of her past work. [ECF No. 7 at 24-25.] The VE was asked if Ms. M. had any transferable skills to sedentary work and the VE testified in response:
[ECF No. 5-2 at 54-55.] After the VE identified the jobs and numbers available, the ALJ followed-up, asking, "What skills did you say would be transferable to these positions?" [ECF No. 5-2 at 55.] The VE testified:
[ECF No. 5-2 at 55.] The ALJ identified the transferable skills in the decision as including "knowledge of production practices with underlying principles of getting product from beginning to end, personnel scheduling and overall management skills with coordination of personnel and materials." [ECF No. 5-2 at 23.]
Ms. M. cites SSR 82-41 for the definition of a skill in this vocational context. [ECF No. 7 at 25.] The ruling explains:
SSR 82-41 (S.S.A. Jan. 1, 1982), 1982 WL 31389, at *2. The Seventh Circuit had held, in agreement with two other circuits, that "`judgment' is too vague to constitute such a skill." Villano, 556 F.3d at 563-64 (citing Draegert v. Barnhart, 311 F.3d 468, 475-76 (2d Cir. 2002); Ellington v. Sec'y of Health & Human Servs., 738 F.2d 159, 159-61 (6th Cir. 1984)). In Draegert, the Second Circuit explained:
311 F.3d at 476 (quoting SSR 82-41, 1982 WL 31389, at *3) (internal citations omitted). When an ability is merely a character trait or aptitude, and not linked to any specific job task or refined through the claimant's occupational experience, the ability does not constitute a skill to be considered for transferability. The Sixth Circuit has further explained:
Ellington, 738 F.2d at 161.
Conversely, in Parrott v. Astrue, 493 F. App'x 801, 805 (7th Cir. 2012), the Seventh Circuit held in an unpublished decision "that the advanced communication and supervisory skills that Parrott would have developed as a park-district director are vocational skills within the meaning of the Social Security Act and could be transferred to other jobs." Id. (citing Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 857 (6th Cir. 2010) (agreeing with ALJ that supervisory skills are vocational skills that are transferable between industries); Albors v. Sec'y of Health & Human Servs., 817 F.2d 146, 148 (1st Cir.1986) (distinguishing between the mere ability to communicate and the transferable communication skills possessed by executives). The First Circuit held that the "claimant's past managerial work was a fairly highly skilled one, that claimant had developed valuable interpersonal, analytical, and intellectual skills performing it, and that these skills generally were transferable." Albors, 817 F.2d at 148. Furthermore, another district judge in the Southern District of Indiana upheld an ALJ's decision over a challenge to the VE's testimony, who had identified "scheduling, recordkeeping, ordering, and taking inventory" as the transferable skills obtained by the claimant. Smith v. Colvin, No. 1:15-CV-01236-TWP-MJD, 2017 WL 242550, at *3-4 (S.D. Ind. Jan. 19, 2017).
The Court finds that the ALJ identified specific skills to be considered for transferability. The ALJ's identification of Ms. M.'s production skills in the written decision, described as "knowledge of production practices with underlying principles of getting product from beginning to end," may seem somewhat vague as to the particular skills involved in a typical production cycle. [See ECF No. 5-2 at 23.] The VE specified that "production scheduling" was among those skills. [ECF No. 5-2 at 54.] The ALJ began getting testimony from the VE by asking if she had reviewed Ms. M.'s "pretty detailed explanation of her work at Exhibit 5E, more detailed that I can probably get through testimony."
The Court also finds that personnel scheduling is a specific skill that would be useful in a variety of occupations, including as a personnel scheduler. Ms. M. described her supervisor experience as including "time and attendance using SAP" software. [ECF No. 5-7 at 22.]
Further, Ms. M. had supervisory abilities that were specific enough to meet the definition of a skill. She listed interpersonal communications skills under her areas of expertise. [ECF No. 5-7 at 22.] She described her experience as serving "as the go to person being the mediator, liaison, between the subcontractor(s) and factory floor." [ECF No. 5-7 at 23.] She also described that she "[m]anaged outside grounds and the sub-contractor over four separate facility locations, ensuring that the mutual agreed contract with the sub-contractors was adhered to." [ECF No. 5-7 at 23.] Further, she "[e]xecuted sign in sheets for meetings when I needed something changed, as a paper trail, stating what, why and how. I had employees sign it which symbolized they are aware and understood what was needed, why it was needed and expected." [ECF No. 5-7 at 23.] Along a spectrum of relevant skills, SSR 82-41 provides the example that "[t]he president or chief executive officer of a business organization may need exceptional ability to deal with people, organize various data, and make difficult decisions in several areas of knowledge." 1982 WL 31389, at *4. As explained above, under Parrott, these interpersonal and supervisory abilities qualify as skills to be considered for transferability.
As to whether Ms. M would be able to utilize those skills, she contends that she "is more than sixty years old, with only a remote high school education, and no training in the far more complex computer systems of today. Technology and computer systems have changed considerably since the time [she] was employed, and she testified that the majority of her work took place on the floor around the people, not at a computer." [ECF No. 7 at 25 (citing ECF No. 5-2 at 58).] Ms. M. was asked during the hearing how far she went in school, and she responded, "High school. I took a few computer or college classes but — [.]" [ECF No. 5-2 at 58.] Her representative then asked, "And how much of your old jobs dealt with you using computer
Ms. M. also asserts that "[n]either the ALJ nor the VE took [Ms. M.'s] ability to successfully learn to operate new and advanced technology into consideration." [ECF No. 7 at 25.] The regulations include the additional, relevant requirement concerning transferability of skills for claimants:
20 C.F.R. § 404.1568(d)(4). SSR 82-41 further provides:
1982 WL 31389, at *5. The ALJ asked the VE during the hearing, "So what in your opinion would be the vocational adjustment to these jobs? Would it be significant or — [?]" [ECF No. 5-2 at 56.] The VE testified, "I think it would be minimal." [ECF No. 5-2 at 56.] The ALJ followed-up, "How long do you think it would take?" [ECF No. 5-2 at 56.] The VE responded, "Thirty days to learn whatever kind of specific practices are performed by a specific employer. There may be different software that she would have to learn but it would be similar, I'm sure, to that which she used in her past relevant work." [ECF No. 5-2 at 56.] Both the ALJ and the VE considered the adjustment that would be necessary, and substantial evidence supported the ALJ's conclusion that the adjustment would be minimal.
To the extent that Ms. M. now raises on appeal that she would not be able to use modern computers or technology to make a successful adjustment and that she does not have specific skills that would be transferable—for example relevant to the Court's discussion above about the specific production-related skills she had attained through her work experience—the Court notes that Ms. M.'s representative did not raise these issues with the VE during the hearing. As noted above, Ms. M.'s representative only established in cross-examination that Ms. M. would need to use computers and paperwork to perform the jobs based on her transferable skills. Ms. M.'s representative had the opportunity to press the VE about the specific skills that would be involved in the process of getting a product from beginning to end. The representative could have also inquired into
Ms. M. also contends that the ALJ "did not address [Ms. M.'s] testimony that because of her pain and physical decline, her memory and focus are impaired." [ECF No. 7 at 25.] However, Ms. M. does not present any evidence of record supporting her contention beyond on her own testimony. The Seventh Circuit has "long held that an ALJ is not required to provide a `complete written evaluation of every piece of testimony and evidence' ...." Rice, 384 F.3d at 370 (quoting Diaz v. Chater, 55 F.3d 300, 308 (7th Cir. 1995)). To the extent that Ms. M.'s argument is a challenge to the ALJ's RFC finding, the Seventh Circuit has held that "the ALJ is required only to incorporate into his hypotheticals those impairments and limitations that he accepts as credible." Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007). As detailed above when discussing Ms. M.'s listing argument, the ALJ summarized substantial evidence that Ms. M. had reported a complete reduction in her pain with treatment. An ALJ is permitted to consider the effectiveness of treatment in making his credibility determination. Lambert v. Berryhill, 896 F.3d 768, 777 (7th Cir. 2018). The ALJ also explained that the record undermined Ms. M.'s later complaints of increased pain because it did not provide evidence of any further treatment. Furthermore, no physician assessed that Ms. M. had any limitation with memory or focus because of her pain. See Rice, 384 F.3d at 370 ("More importantly, there is no doctor's opinion contained in the record which indicated greater limitations than those found by the ALJ."). For all the reasons above, the Court does not find any error with the ALJ's Step Five determination.
Ms. M. also contends that the ALJ failed to take into consideration her strong work history when assessing her credibility. [ECF No. 7 at 27.]
On March 28, 2016, SSR 16-3p (S.S.A Oct. 25, 2017), 2017 WL 5180304, at *2, became effective, replacing SSR 96-7p, and providing new guidance regarding how a disability claimant's statements about the intensity, persistence, and limiting effects of symptoms are to be evaluated. Under SSR 16-3p, an ALJ now assesses a claimant's subjective symptoms rather than assessing her "credibility." Id. The Seventh Circuit has explained that the "change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character; obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence." Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016) (emphasis in original). Still, the standard remains whether the ALJ's assessment was patently wrong.
The ruling specifies that the SSA uses "all of the evidence to evaluate the intensity, persistence, and limiting effects of an individual's symptoms," but continues to utilize the regulatory factors relevant to a claimant's symptoms, including daily activities, the location, duration, frequency, and intensity of pain or other symptoms, factors that precipitate and aggravate the symptoms, the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; and treatment, other than medication, an individual receives or has received for relief of pain or other symptoms. SSR 16-3p, 2017 WL 5180304, at *7-8; 20 C.F.R. § 404.1529(c)(3).
The Seventh Circuit has explained that "[a]n ALJ is not statutorily required to consider a claimant's work history, but `a claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.'" Stark v. Colvin, 813 F.3d 684, 689 (7th Cir. 2016) (quoting Hill v. Colvin, 807 F.3d 862, 868 (7th Cir. 2015); Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)). Here, the Court has already detailed numerous, specific reasons that the ALJ provided for discounting Ms. M.'s credibility. Accordingly, the Court declines to provide any extended analysis that would be redundant and concludes that the ALJ's subjective symptom evaluation was not patently wrong.
While Ms. M.'s work history is one factor that supported her credibility generally, it was also notable that Ms. M.'s work history was a significant reason that she was denied based on the considerable skills that she attained while working. Ms. M. testified that she did not believe those skills could be utilized in employment without an ability to be "out on the floor." [ECF No. 5-2 at 58.] However, the VE disagreed to the extent she testified that there were sedentary jobs available in the national economy that could have been performed even with the significant limitations that Dr. Farber assessed. The Court cannot find that the ALJ was unaware of Ms. M.'s rather exemplary work history. And the Court cannot find that the ALJ erred in applying the SSA's regulations
"The standard for disability claims under the Social Security Act is stringent." Williams-Overstreet v. Astrue, 364 F. App'x 271, 274 (7th Cir. 2010). Taken together, the Court can find no legal basis presented by Ms. M. to reverse the ALJ's decision that Ms. M. was not disabled during the relevant time period. Therefore, the decision below is
