Fast, Peggy A. v. Barnhart, Jo Anne B. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3615
PEGGY FAST,
Plaintiff-Appellant,
v.
JO ANNE BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 02-0625-C-T/L—John Daniel Tinder, Judge.
____________
ARGUED AUGUST 3, 2004—DECIDED FEBRUARY 2, 2005
____________
Before POSNER, ROVNER, and WOOD, Circuit Judges.
WOOD, Circuit Judge. Peggy Fast seeks disability in-
surance benefits, alleging that nonexertional mental
impairments, including delusional disorder, depressive
disorder, and paranoid personality disorder, render her
unable to work. The Administrative Law Judge (ALJ)
denied her request on the ground that she is still able to
perform a significant number of jobs within the regional
economy. The district court affirmed, and Fast appeals,
arguing that the ALJ erred because he relied exclusively on
testimony from a Vocational Expert (VE) rather than using
the Medical Vocational Guidelines (commonly known as the
grids) as some kind of binding “framework” for his decision.
2 No. 03-3615
Fast’s argument that the grids must structure the outcome
to this degree is not supported by Social Security regula-
tions, the agency’s internal management directives, or
relevant judicial decisions. We therefore affirm.
I
At the time of her benefits hearing in July 1999, Fast was
fifty-four years old. She held undergraduate and masters
degrees in administrative counseling. Before 1998, when
Fast alleges that she became disabled from stress and
psychosis, she worked as a professional counselor, teacher,
administrator, and guidance counselor. In 1999, Fast was
hospitalized for treatment of a delusional disorder and
paranoid personality disorder. Post-hospitalization progress
reports between October 1999 and April 2000 state that
despite a couple of setbacks, Fast was consistently improv-
ing, was able to maintain a job, was tolerating medication,
and refused counseling.
Fast testified that she had been working part-time for a
year-and-a-half as a cashier, was occasionally substitute
teaching, and was planning to begin a new job at CVS
Pharmacy as a cashier and pharmacy assistant. She also
testified that she was working on her doctorate. Fast has a
driver’s license and a car, lives alone and takes care of her
own personal needs, and spends her time going to work,
reading, visiting the library, listening to the radio, watching
TV, walking, cleaning her apartment, and fixing meals.
The ALJ asked a VE whether a person with Fast’s
limitations could perform work that exists in significant
numbers in the region. The VE testified that even though
Fast could not perform her past work, she could perform
other work, including the positions of bookkeeper/ accoun-
tant/auditor (1,750 jobs in the region), records clerk (140
light and 69 sedentary jobs in the region), production
coordinator (129 medium, 258 light, and 129 sedentary jobs
No. 03-3615 3
in the region), traffic/shipping/receiving clerk (2,063 jobs in
the region), stock/inventory clerk (1,027 medium and 2,019
light jobs in the region), and material/recording/ scheduling
clerk (58 medium, 337 light, and 54 sedentary jobs in the
region).
Applying the normal five-step analysis, see 20 C.F.R.
§ 404.1520 and 20 C.F.R. § 416.920, the ALJ found that
Fast has severe impairments supported by objective medical
evidence (step one) that significantly interfere with her
ability to perform her past work (step two). He found that
she has no functional limitations, and that therefore her
impairments do not meet or equal any impairments enu-
merated in the “Listing of Impairments” (step three). See 20
C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. § 416.920 (a)(4)(iii).
Finally, he found that although she could not return to
her past work (step four), she could perform other jobs
that exist in significant numbers in the state of Indiana
(step five), and was therefore not disabled. In reaching
his conclusion, the ALJ relied on the VE’s testimony that
Fast could perform simple, repetitive, low stress work
that requires no more than superficial interaction with
others, and that such jobs exist in significant numbers in
the state of Indiana. The appeals council denied Fast’s
request for review, rendering the ALJ’s decision final. Fast
sought review in the district court, arguing that the
ALJ erred at step five of the analysis because he did not use
the grids as a “framework” in reaching his conclusion. The
district court disagreed and affirmed the ALJ’s decision
denying benefits.
II
Before this court, Fast contends again that the ALJ erred
at step five of his analysis because he should have used the
grids as a “framework,” by which she means that the ALJ
should have compared the number of jobs available to a
person considered disabled under the grids with the number
4 No. 03-3615
of jobs that the VE testified she could perform. She claims
that Social Security rules and regulations, as well as a case
from the Ninth Circuit, call for this approach. Fast believes
that such a comparison in her case would lead to a finding
of disability because the number of jobs that the VE said
that she could perform (1,600 jobs) is fewer than the
number of jobs available to a person whom the grids regard
as disabled (17,895 jobs). This court reviews the ALJ’s legal
conclusions de novo. See Old Ben Coal Co. v. Dir., Office of
Workers’ Compensation Programs, 292 F.3d 533, 538 (7th
Cir. 2003).
At step five of the sequential analysis, an ALJ must
determine (taking into account the step four finding that
the claimant can no longer perform her past work) whether
the person can do any other work that exists in the national
or regional economy. See 20 C.F.R. § 404.1520(a) (4)(v), (e);
20 C.F.R. § 416.920(a)(4)(v), (e). To this end, the ALJ may
use the grids to determine whether other jobs exist in the
national or regional economy that a claimant can perform.
The grids, however, generally take account only of
exertional impairments. Exertional impairments are those
that affect the claimant’s “ability to meet the strength
demands of jobs (sitting, standing, walking, lifting, carry-
ing, pushing, and pulling).” 20 C.F.R. § 404.1569a(b).
Nonexertional impairments—such as depression, anxiety,
difficulty concentrating or remembering—are defined as all
other impairments that do not affect a claimant’s ability to
meet the strength demands of jobs. 20 C.F.R. §
404.1569a(c)(1). Where a nonexertional limitation might
substantially reduce the range of work an individual can
perform, use of the grids is inappropriate and the ALJ must
consult a VE. Zurawski v. Halter, 245 F.3d 881, 889 (7th
Cir. 2001) (citing Luna v. Shalala, 22 F.3d 687, 691 (7th
Cir. 1994)).
Fast acknowledges that the grids do not apply directly,
but she urges that they should nonetheless have been
No. 03-3615 5
used as a framework for decision. She contends that 20
C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) and its corre-
sponding policy statement, SSR 85-15, support her theory
because both discuss the use of the grids as a “framework.”
20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) reads as
follows:
[W]here an individual has an impairment or combina-
tion of impairments resulting in both strength limita-
tions and nonexertional limitations, the rules in this
subpart are considered in determining first whether
a finding of disabled may be possible based on the
strength limitations alone, and if not, the rule(s)
reflecting the individual’s maximum residual strength
capabilities, age, education, and work experience pro-
vide a framework for consideration of how much the
individual’s work capability is further diminished in
terms of any types of jobs that would be contraindicated
by the nonexertional limitations.
20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e)(2) (emphasis
added). Similarly, SSR 85-15 states that where a claimant
suffers both exertional and nonexertional impairments, the
grids may provide a framework for consideration:
The table rules reflect the potential occupational base
of unskilled jobs for individuals who have severe
impairments which limit their exertional capaci-
ties . . . . Where individuals also have nonexertional
limitations of function or environmental restrictions, the
table rules provide a framework for consideration of how
much the individual’s work capability is fur-
ther diminished in terms of any types of jobs within
these exertional ranges that would be contraindicated
by the additional limitations or restrictions.
SSR 85-15 (emphasis added).
But Fast is not reading either 20 C.F.R. Pt. 404, Subpt. P,
App. 2 § 200.00(e)(2) or SSR 85-15 carefully enough. Both
of them address the situation in which someone suffers
6 No. 03-3615
from two kinds of impairments—exertional and nonex-
ertional—and they describe how the two are to be handled
together. Fast, in contrast, suffers solely from nonexertional
limitations. In that situation, both 20 C.F.R. Pt. 404, Subpt.
P, App. 2 § 200.00(e) and SSR 85-15 state that the grids
should be given “consideration” only. If a nonexertional
limitation substantially limits a claimant’s ability to
perform other work, reliance on the grids is improper. See
Zurawski, 245 F.3d at 889 (citing Luna v. Shalala, 22 F.3d
687, 691 (7th Cir. 1994)); Lee v. Sullivan, 988 F.2d 789, 793
(7th Cir. 1993) (citing Warmoth v. Bowen, 798 F.2d 1109,
1112-13 (7th Cir. 1986) (per curiam)). As the district court
pointed out, the ALJ properly considered whether Fast
could perform other work, because he “made specific
reference to Grid Rule 204.00; [and he] recognized the Grid
was not controlling and sought another vocational source”
in the form of VE testimony.
Next, Fast contends that Swenson v. Sullivan, 876 F.2d
683 (9th Cir. 1989), supports her “framework” approach. In
Swenson the Ninth Circuit reversed a finding by an ALJ
that a claimant with a combination of exertional and
nonexertional disabilities was not disabled, even though
he was deemed disabled under the grids based on his
exertional impairments alone. Id. at 689. The court
“require[d] the Secretary to reject vocational testimony that
is inconsistent with the grids’ overall framework.” Id. at
688. Fast argues that her case is analogous because
the ALJ disregarded the grids and relied on VE testimony
alone.
Once again, however, Fast is overlooking a critical
distinction. In Swenson, the claimant’s exertional limita-
tions alone supported a finding of disability under the grids,
but the ALJ nonetheless relied on the VE’s testimony to
reach a result inconsistent with the grids. Fast’s limita-
tions, by contrast, could not support a finding of disability
under the grids, because she has no exertional limitations.
No. 03-3615 7
There is nothing in the ALJ’s result here that conflicts with
the result in Swenson.
Fast’s only other authority for using the grids as a “frame-
work” comes from the Social Security Administration’s
instructions to employees who make initial disability
determinations, which are found in the Programs Opera-
tions Manual System (POMS). The introduction to the
POMS rule to which Fast refers states that its purpose is to
“elaborate[ ] on the guidance” for using the grids as a
“framework for adjudication.” POMS DI 25025.001(A). She
argues that the use of the word “framework” in the intro-
duction to this section of the POMS supports her contention
that the grids should also be used as a framework where
solely nonexertional limitations exist. More than that, she
says, this statement in the POMS should be given deference
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984).
Fast’s argument founders on the text of the POMS, which
states in the subsection on solely nonexertional limitations
that the grids should merely “provide guidance” in a
disability determination. POMS DI 25025.001(B)(4)(c). Her
Chevron theory also lacks merit. Even if there were lan-
guage in the POMS that supported the idea of grids-as-
“framework” (and we cannot find any unequivocal state-
ment to that effect), such a reading would create a conflict
with 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 200.00(e) and
SSR 85-15. See Chevron, 467 U.S. at 844; EEOC v. Arabian
American Oil Co., 499 U.S. 244, 256-58 (1991) (overruled on
other grounds) (holding that EEOC’s internal guidelines
should not be given deference where they contradicted
language in subsequently enacted statute).
Finally, Fast urges us to overrule Lee, 988 F.2d 789 at
793. Her problem with Lee is that this court did not insist
there that the ALJ use the grids as a framework. What the
Lee opinion focused on was whether “a claimant’s non-
exertional limitations restrict the full range of employment
8 No. 03-3615
opportunities at the level of work that he or she is capable
of performing.” In such a case, we said, the use of the
guidelines is precluded. But, just as in this case, we went on
to hold that the claimant was not disabled based on VE
testimony that 1,400 jobs existed in the regional economy
that the claimant could perform despite his exertional
limitations. Id. at 793-94.
We see no reason to overrule Lee. Fast’s rather odd
argument that the grids must somehow be used as a
framework has no support, and it conflicts with the
common-sense rule that where the grids do not address a
particular problem, the ALJ is entitled to rely on the expert
testimony of a VE. We therefore AFFIRM the judgment of the
district court upholding the ALJ’s determination that Fast
is not entitled to disability benefits.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-2-05