Danny Ray v. Nancy Berryhill ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2229
DANNY J. RAY,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division
No. 1:17-cv-01322 — Matthew P. Brookman, Magistrate Judge.
____________________
ARGUED JANUARY 23, 2019 — DECIDED FEBRUARY 12, 2019
____________________
Before WOOD, Chief Judge, and KANNE, and ST. EVE, Circuit
Judges.
PER CURIAM. Danny Ray applied for Supplemental Secu-
rity Income and Disability Insurance Benefits based on a host
of physical disorders and mental conditions. An administra-
tive law judge found that Ray was severely impaired by most
of his physical conditions, but she denied benefits after find-
ing that he could perform his past relevant work as a school
2 No. 18-2229
bus monitor. Ray challenges that finding, arguing that the ALJ
erroneously discredited him, failed to treat his prior job as
“composite,” and improperly assessed his functional abilities
compared to the job requirements for a bus monitor in the
general economy. The district court affirmed the ALJ’s deci-
sion. We agree with Ray and vacate the judgment.
I. BACKGROUND
Ray lives with diabetes, hypertension, obesity, kidney dis-
ease, degenerative disc disease, anxiety, and depression.
When his conditions worsened, he began working gradually
easier jobs, from janitor to forklift operator to bus monitor for
children with special needs, until eventually he gave up his
employment entirely. As a bus monitor, he would lift disa-
bled children into their seats on the bus, strap down wheel-
chairs, and monitor the children’s behavior. He ultimately
quit because it was too painful for his hands, feet, and hips.
Ray receives medical care for his physical impairments but
has been noncompliant with some treatments, mostly in rela-
tion to his diabetes. He struggles to remember to test his
blood-glucose levels, eat healthfully, and take insulin. Doc-
tors who treat Ray’s back condition also have noted that he
takes more pain medication than the prescribed amount.
In November 2013, Ray applied for social security bene-
fits. During the review process, two consulting state-agency
psychologists and an examining clinical psychologist,
Dr. Zera, evaluated his functioning. The consulting psycholo-
gists both concluded that Ray is moderately limited in his
ability to maintain attention and concentration for extended
periods but is not significantly limited in any other aspect of
concentration, persistence, or pace. Dr. Zera determined that
No. 18-2229 3
Ray has an anxiety disorder and learning disorder, noting his
“difficulty reading and poor math skills.” Ray also met with
Dr. Fish, an agency physician, who determined that Ray’s ma-
jor functional impairment is exertional tolerance. Dr. Fish
noted a positive result from a supine straight-leg test, which
reflects lumbar nerve root compression, though the less-sen-
sitive seated test was negative.1
The agency denied Ray’s applications initially and upon
reconsideration, and his case proceeded to a hearing with an
ALJ. At the hearing, Ray testified—and his mother and girl-
friend corroborated with written statements—that his daily
activities include taking his medication, making himself three
simple meals, watching television, using the dishwasher, and
showering (while using a shower seat). Outside of these tasks,
he sits and watches television. Ray occasionally does laundry
if reminded, and he had the laundry machines moved from
the basement to the first floor of his house because the stairs
were difficult for him. Once per week, he goes grocery shop-
ping with the assistance of an electric cart. When he did not
have family to drive him, the hospital provided him a bus
pass because he is physically incapable of walking home.
In addition to his physical impairments, Ray has limited
intellect. He testified that he completed eight grades of special
education, but he struggles to read and write. Although he
will occasionally purchase a newspaper, it takes time for him
to make sense of what he sees. Because of his limitations, his
1 See Alon Rabin, et al., The Sensitivity of the Seated Straight-Leg Raise
Test Compared with the Supine Straight-Leg Raise Test in Patients Presenting
with Magnetic Resonance Imaging Evidence of Lumbar Nerve Root Compression,
88 PHYSICAL MED. & REHAB. 840, 842 (2007).
4 No. 18-2229
mother or girlfriend must write his checks and complete his
paperwork.
In her decision, the ALJ analyzed Ray’s application based
on the five-step process set forth in 20 C.F.R. § 404.1520 and
found him not disabled. She determined that he is not en-
gaged in substantial gainful employment (step one) and that
he has severe impairments of diabetes mellitus, obesity, de-
generative disc disease, osteoarthritis of the hip, coronary ar-
tery disease, kidney disease, hypertension, and a history of
atrial fibrillation (step two). But his impairments, she con-
cluded, do not meet a listing (step three).
The ALJ determined that Ray has the residual functional
capacity (“RFC”) to perform light work (lifting ten to twenty
pounds) and to stand or walk for six hours. She also found
that he is able to “understand, remember, and carry out semi-
skilled tasks” and “attend to tasks for a sufficient period in
order to complete tasks.” Regarding Ray’s limitations, the
ALJ found him only “partially credible,” largely based on the
notion that, if his symptoms were as severe as alleged, his
daily activities would be more restricted and he would be
more compliant with his prescribed treatments.
The ALJ presented Ray’s RFC to the vocational expert,
who concluded that Ray could work as a school bus moni-
tor—not as he had performed the job, but as it is performed
in the national economy. At the hearing, Ray questioned the
vocational expert about the required level of language devel-
opment for that position. The vocational expert confirmed
that a requirement of the job, as it is generally performed, is
the ability to “write compound and complex sentences, using
cursive style, proper end punctuation, and employing adjec-
tives and adverbs.”
No. 18-2229 5
At the hearing and in a supplemental brief, Ray argued
that his previous position as a bus monitor for disabled
schoolchildren was a composite job—that is, one that com-
bines “significant elements of two or more occupations and,
as such, ha[s] no counterpart in the [Dictionary of Occupa-
tional Titles],” Social Security Ruling 82-61. His job, Ray ar-
gued, involved substantial activities from both the school bus
monitor and child care attendant positions as they are de-
scribed in the DOT. Ray questioned the vocational expert on
this subject, but the testimony is transcribed as “inaudible”
during the key responses, and Ray and the agency represent
those portions differently.
In her written decision, however, the ALJ dismissed Ray’s
argument about composite jobs as “unpersuasive and unsup-
ported” and concluded that Ray could be a bus monitor as
that job is generally performed. She did not discuss the undis-
puted language-development requirements for that position.
Ultimately, based on the vocational expert’s testimony that
Ray could perform his past relevant work, the ALJ concluded
that he is not disabled.
II. ANALYSIS
We uphold an ALJ’s decision only if substantial evidence
from the record supports her determination. Lanigan v. Ber-
ryhill, 865 F.3d 558, 563 (7th Cir. 2017).
Ray raises four challenges in this appeal: (1) the ALJ erred
in evaluating his daily activities and medical reports, making
her credibility determination patently wrong; (2) the ALJ
erred in concluding that he could perform his past relevant
work because his bus-monitor job was a composite job, which
precludes a finding at step four; (3) the ALJ erred in finding
6 No. 18-2229
that he could do the bus-monitor job as generally performed
because he does not meet the necessary General Educational
Development Level; and (4) the ALJ erred in assessing his
mental impairments by finding them not severe and by not
including any limitations on concentration, persistence, and
pace in his RFC.
With respect to the adverse credibility determination, this
is the rare case in which the claimant can overcome the “con-
siderable deference” we afford such findings unless they are
“patently wrong,” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.
2009). Specifically, the ALJ erroneously evaluated Ray’s
symptoms and daily activities, misinterpreted medical evi-
dence, and failed to ask why he skipped some appointments.
In assessing Ray’s back and hip pain, the ALJ acknowl-
edged that Ray had a herniating disc, degenerative disc and
joint disease of the lower lumber spine, a herniated nucleus
pulpous, and chronic pain syndrome. But to support her de-
termination that these impairments “are not as limiting as he
alleged,” she cited irrelevant records from treatment he re-
ceived for a staph infection and she noted that his extremities
were not fractured, tender, or swollen. The connection be-
tween those characteristics and Ray’s alleged pain and re-
stricted mobility is nowhere explained. She also mischaracter-
ized Dr. Fish’s report, writing that the straight-leg raise test
was negative when the opposite was true.
The ALJ also improperly emphasized Ray’s lack of follow-
up on a recommended spine evaluation and his difficulty
with medication compliance. Within five years, Ray missed
two follow-up appointments, one for his heart and one for his
spine. When the ALJ asked him about the missed cardiology
appointment, he explained that he was uninsured at the time
No. 18-2229 7
and could not afford it. Although the record showed that Ray
had repeatedly lost his health insurance, the ALJ did not ask
him about his missed spine appointment and instead as-
sumed that he did not attend because his symptoms were not
serious. That was reversible error; an ALJ must not draw in-
ferences about a claimant’s lack of treatment without explor-
ing the reasons for the inaction. Beardsley v. Colvin, 758 F.3d
834, 840 (7th Cir. 2014). Moreover, the ALJ bolstered her pre-
sumption with evidence of Ray’s difficulty with medication
compliance, even though, with respect to his pain (as opposed
to his diabetes), those medical records point to Ray’s credibil-
ity. Ray’s “noncompliance” with his musculoskeletal treat-
ment stemmed from taking pain medication too frequently,
which does not support the ALJ’s inference that he was exag-
gerating his pain.
The ALJ also overemphasized Ray’s daily living activities.
The only evidence of those activities comes from Ray’s testi-
mony (which apparently the ALJ credited in this aspect) and
his family’s, and it shows that the sum of Ray’s daily routine
involves showering while seated, fixing simple meals, and us-
ing the dishwasher. In between these activities, he sits and
watches television. He could not walk even two hours home
from the hospital, a stark contrast to the ALJ’s finding that he
can stand or walk six hours every day. Ray’s minimal daily
activities do not support the ALJ’s finding that he exaggerated
his symptoms, nor do they support the ultimate RFC.
See Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Although
the ALJ credited him with caring for his son, his son is an
adult, and no evidence reflects the type of “care” that Ray
supposedly provided. Further, the struggle of living with his
son at one point sent Ray into a suicidal decompensation.
8 No. 18-2229
Ray is also correct that the ALJ made two technical errors
at step four that led to the unsupportable conclusion that he
could perform his past relevant work as a bus monitor as that
position exists in the national economy. First, the ALJ con-
cluded that Ray’s former position was not a “composite” job
and, therefore, that it could be assessed with reference to the
Dictionary of Occupational Titles. A claimant is not disabled
if he can do his past relevant work either in the manner he
performed it before the impairment or in the manner it is gen-
erally performed in the national economy. See Getch v. Astrue,
539 F.3d 473, 482 (7th Cir. 2008). But if the prior position was
a composite job, then the ALJ may not reference it when de-
termining whether a claimant can perform his past job as it is
generally performed. See Programs Operation Manual System
DI 25005.020; see also Wash. State Dep’t of Soc. & Health Servs.
v. Keffeler, 537 U.S. 371, 385 (2003) (POMS serve as guidance
and “warrant respect”); Cannon v. Apfel, 213 F.3d 970, 975
(7th Cir. 2000) (same).
Ray argues that his prior job was a composite job that com-
bined elements of the school bus monitor and school child-
care attendant positions. He cites the vocational expert’s tes-
timony to support his position, asserting that the expert testi-
fied that his bus monitor position was a composite job. The
agency, for its part, asserts that the expert testified to the op-
posite. Because key parts of the vocational expert’s testimony
are marked as “[inaudible],” his opinion is not clear. But a re-
view of the duties of a school child-care attendant bolsters
Ray’s point:
Attends to personal needs of handicapped children
while in school to receive specialized academic and
physical training: Wheels handicapped children to
classes, lunchrooms, treatment rooms, and other
No. 18-2229 9
areas of building. Secures children in equipment, such
as chairs, slings, or stretchers, and places or hoists
children into baths or pools. Monitors children using
life support equipment to detect indications of mal-
functioning of equipment and calls for medical as-
sistance when needed. Helps children to walk, board
buses, put on prosthetic appliances, eat, dress, bathe,
and perform other physical activities as their needs
require.
U.S. Dep’t of Lab., 1 Dictionary of Occupational Titles 258
(4th ed. 1991) (emphasis added). On the other hand, the du-
ties of a school bus monitor are:
Monitors conduct of students on school bus to main-
tain discipline and safety: Directs loading of stu-
dents on bus to prevent congestion and unsafe con-
ditions. Rides school bus to prevent altercations be-
tween students and damage to bus. Participates in
school bus safety drills. May disembark from school
bus at railroad crossings and clear bus across tracks.
Id. at 269.
Here, the ALJ concluded that Ray’s previous bus-monitor
job was not a composite job because his work matched the
DOT description “in all but the exertional requirements.” But
Ray’s testimony (the only evidence of his job duties) demon-
strates that as a bus monitor he performed significant ele-
ments of the childcare-attendant job, like assisting the stu-
dents in boarding buses and securing them in their equipment
and chairs. The DOT description of the bus-monitor job does
not include these duties, and the vocational expert’s testi-
mony is ambiguous. Thus, substantial evidence does not sup-
port the ALJ’s conclusion that Ray’s previous job was not a
composite job.
10 No. 18-2229
Relatedly, Ray argues that the ALJ erred further by con-
cluding that he could work as a bus monitor as the job is gen-
erally performed despite his lacking the necessary General
Educational Development Level for that job. The bus-monitor
position requires at least a Language Development Level 2,
which expects that employees will be able to, among other
things, “[w]rite compound and complex sentences, using cur-
sive style, proper end punctuation, and employing adjectives
and adverbs”; “[r]ead adventure stories and comic books,
looking up unfamiliar words in dictionary for meaning,
spelling, and pronunciation”; and “[r]ead instructions for as-
sembling model cars and airplanes.” U.S. Dep’t of Lab., 2 Dic-
tionary of Occupational Titles 1011 (4th ed. 1991). No evi-
dence supports the ALJ’s implied finding that Ray has these
skills.
To the contrary, Ray testified that he does not fill out his
own checks or paperwork because he misspells words and
that he can barely read a newspaper article, a limitation con-
firmed in Dr. Zera’s evaluation. When a vocational expert’s
testimony that a claimant can perform a job conflicts with the
claimant’s ability to meet the job’s listed requirements in the
DOT, then the ALJ must resolve that conflict before relying on
the testimony to support her disability findings. See Social Se-
curity Ruling 00-4p; Brown v. Colvin, 845 F.3d 247, 255 (7th Cir.
2016); Overman v. Astrue, 546 F.3d 456, 462 (7th Cir. 2008). The
ALJ’s failure to do that here, along with the other errors at
step four, warrants remand. See Myles v. Astrue, 582 F.3d 672,
678 (7th Cir. 2009) (cumulative effect of multiple errors war-
ranted remand).
Finally, Ray argues that the ALJ erred in evaluating his
mental limitations, first by finding them not severe at step two
No. 18-2229 11
and later by not including any limitations on concentration,
persistence, and pace in the RFC. To some extent, Ray is mis-
taken. Step two is merely a threshold inquiry; so long as one
of a claimant’s limitations is found to be severe, error at that
step is harmless. Arnett v. Astrue, 676 F.3d 586, 591 (7th Cir.
2012). Either way, the ALJ must later consider the limitations
imposed by all impairments, severe and non-severe. 20 C.F.R.
§ 404.1523; Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010).
Nevertheless, the ALJ based the RFC on her flawed credibility
finding, which led her to discredit the opinions of the two
agency experts who concluded that Ray had a severe mental
impairment. Therefore, the ALJ will have to revisit her assess-
ment of Ray’s mental impairments in any case.
Accordingly, we VACATE the judgment and REMAND to
the district court with instructions to remand the case to the
agency for further proceedings.