Prochaska, Nancy v. Barnhart, JoAnne B. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3218
NANCY PROCHASKA,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, Commissioner
of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-0644-C—Barbara B. Crabb, Chief Judge.
____________
ARGUED MAY 9, 2006—DECIDED JULY 24, 2006
____________
Before CUDAHY, KANNE, and WOOD, Circuit Judges.
CUDAHY, Circuit Judge. Nancy Prochaska appeals the
denial of her application for supplemental security in-
come and disability insurance benefits. She contends that
the Administrative Law Judge’s ruling that she is not
disabled was flawed for both procedural and substantive
reasons. Because the ALJ failed to explore inconsistencies
between the vocational expert’s testimony and the Dic-
tionary of Occupational Titles, as required by Social
Security Ruling 00-4p, we vacate and remand this case for
further proceedings.
2 No. 05-3218
I. Background
Prochaska spent her last 13 years of employment working
for two different employers manufacturing window case-
ments. Her employment ended after she aggravated an
existing back injury in 2000. She saw a number of physi-
cians with respect to her condition, which was diagnosed as
“degenerative disc disease” accompanied by acute pain. One
of these physicians was her family doctor, Dr. Michael
Cragg. His notes show that she complained of pain in her
back radiating to her right leg, but that even though she
suffered from “moderate obesity” her gait and the range
of motion in her extremities and head were normal. He also
reported that Prochaska had a history of “panic attacks and
depression,” but that she was “doing quite well” and that
the attacks were “just fine as long as she stays on the [anti-
depressant medication] Paxil.” Prochaska received a second
opinion as to her mental health in May 2001 from psycholo-
gist Dr. Jean Warrior. Warrior’s diagnosis was that
Prochaska suffered from “no medically determinable mental
impairment,” and she found no degree of limitation in
Prochaska’s daily activities, social functioning or concentra-
tion.
Dr. Cragg’s final medical evaluation of Prochaska was
that she could sit, stand and walk for four hours each but
that she was incapable of stooping, squatting, crawling
or climbing. He reported that she could only occasionally
crouch, kneel, balance, push or pull. She could, he deter-
mined, occasionally carry up to 10 pounds and lift up to 24
pounds. He wrote that she could make repetitive move-
ments with her right foot, but not her left, and that both
hands were capable of repetitive motions.
Prochaska had an administrative hearing in December
2001, and in March 2002 the ALJ denied her benefits.
Applying the five-step analysis used to evaluate disability,
see 20 C.F.R. § 404.1520(a)-(g), the ALJ found that: (1)
No. 05-3218 3
Prochaska had not performed substantial work since the
alleged onset of the disability; (2) her impairments were
severe under the regulations; (3) the medically determina-
ble impairments did not equal a listed impairment; (4) she
was unable to perform any of her past work; and (5) she
was “able to perform work existing in significant numbers
in the national economy,” such as “cashier, assembly,
packaging, and assembly” jobs.
The ALJ also found that Prochaska’s “allegations regard-
ing her limitations are not totally credible.” He based that
finding on his determination that Prochaska’s testimony
that “she cooks, cleans house, reads, and attends to per-
sonal grooming on a daily basis” and “drives, shops, visits
relatives and friends on a weekly basis” was “inconsistent
with her allegation of disability.” The ALJ also noted that
Prochaska’s worker’s compensation claim had been denied
because “she had deliberately falsified an employment
application.”
The Appeals Council declined to review the ALJ’s ruling,
and Prochaska filed suit in district court seeking review
under 42 U.S.C. § 405(g). The district judge, adopting the
recommendation of a magistrate judge, affirmed the Com-
missioner’s decision to deny Prochaska benefits.
II. Discussion
Because the appeals council declined review, we treat the
ALJ’s ruling as the Administration’s “final decision.”
Haynes v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005).
Although we perform a de novo review of the ALJ’s conclu-
sions of law, our review of the ALJ’s factual determinations
is deferential. Id. We will affirm the ALJ’s decision “if it is
supported by substantial evidence.” Id.; see also 42 U.S.C.
§ 405(g). “Evidence is substantial when it is sufficient for a
reasonable person to conclude that the evidence supports
the decision.” Sims v. Barnhart, 309 F.3d 424, 428 (7th Cir.
4 No. 05-3218
2002). We do not “reweigh the evidence” in reviewing the
ALJ’s determination. Id.
A. Step Five Inquiry
SSR 00-4p requires an ALJ who takes testimony from a
vocational expert about the requirements of a particular job
to determine whether that testimony is consistent with the
Dictionary of Occupational Titles.1 The Ruling’s language
unambiguously sets out the ALJ’s affirmative duty:
When a VE or VS provides evidence about the require-
ments of a job or occupation, the adjudicator has an
affirmative responsibility to ask about any possible
conflict between that VE or VS evidence and informa-
tion provided in the DOT. In these situations, the
adjudicator will:
Ask the VE or VS if the evidence he or she has
provided conflicts with information provided in the
DOT; and
If the VE’s or VS’s evidence appears to conflict
with the DOT, the adjudicator will obtain a reason-
able explanation for the apparent conflict.
SSR 00-4p (emphasis added). The ALJ here took testimony
from an expert as to whether certain job requirements were
compatible with Prochaska’s various limitations, but did not
ask whether the expert’s analysis conflicted with the DOT.
Relying on Donahue v. Barnhart, 279 F.3d 441, 446 (7th
Cir. 2002), the magistrate judge here decided that
Prochaska forfeited her SSR 00-4p argument by failing
to raise it at the hearing. Donahue is our only interpreta-
1
The Dictionary, published by the Department of Labor, gives
detailed physical requirements for a variety of jobs. The Social
Security Administration has taken “administrative notice” of
the DOT. See 20 C.F.R. § 416.966(d)(1).
No. 05-3218 5
tion to date of the ALJ’s obligation under that Ruling. It
notes in dicta (because the Ruling was promulgated
after the hearing in that case) that SSR 00-4p “requires the
ALJ to ‘[e]xplain [in the] determination or decision how any
conflict [with the Dictionary] that has been identified was
resolved.’ ” Id. at 279 F.3d at 446. But the Ruling “empha-
sizes that before relying on [a vocational expert’s] evidence
to support a disability determination or decision,” an ALJ
must perform the required inquiry. SSR 00-4p (emphasis
added). And since Donahue, other circuits have held that
the Ruling imposes “an affirmative duty on the part of an
ALJ to inquire about conflicts between vocational expert
testimony and the DOT.” Rutherford v. Barnhart, 399 F.3d
546, 557 (3d Cir. 2005); see also Hackett v. Barnhart, 395
F.3d 1168, 1174-75 (10th Cir. 2005); Burns v. Barnhart, 312
F.3d 113, 127 (3d Cir. 2002). In Haddock v. Apfel, 196 F.3d
1084, 1087 (10th Cir. 1999), the Tenth Circuit explained the
Ruling’s core requirement:
[B]efore an ALJ may rely on expert vocational evidence
as substantial evidence to support a determination of
nondisability, the ALJ must ask the expert how his
or her testimony as to the exertional requirement of
identified jobs corresponds with the Dictionary of
Occupational Titles, and elicit a reasonable explanation
for any discrepancy on this point.
See also Hackett, 395 F.3d at 1175 (SSR 00-4p “essentially
codifies Haddock”). Prochaska was not required to raise this
issue at the hearing, because the Ruling places the burden
of making the necessary inquiry on the ALJ.
The government concedes that the ALJ failed to comply
with SSR 00-4p and explicitly waives any argument that
Donahue excuses that failure, but contends that the error
was harmless because “for a significant number of the
jobs that the ALJ cited, there were no inconsistencies
between the vocational expert’s testimony and the DOT.”
6 No. 05-3218
The specific positions identified by the ALJ were cashiering,
assembly, packaging and visual inspection.
But Prochaska counters that each job, as defined by
the DOT, requires specific physical capabilities that are
beyond her limitations. She points out, for example, that
according to the DOT the packaging and assembly work
identified by the expert requires stooping, which the ALJ
acknowledged she cannot do. And, she contends, the ALJ
asked the expert for work that could be done by someone
who could only “occasionally reach above shoulder level”
while a cashier’s requirements, under the DOT, include
“reaching” frequently.
It is not clear to us whether the DOT’s requirements
include reaching above shoulder level, and this is exactly
the sort of inconsistency the ALJ should have resolved with
the expert’s help. We cannot determine, based on the
record, whether the expert’s testimony regarding stooping
or reaching was actually inconsistent with the DOT. That
determination should have been made by the ALJ in the
first instance, and his failure to do so should have been
identified and corrected by the Appeals Council. We will
defer to an ALJ’s decision if it is supported by “substantial
evidence,” but here there is an unresolved potential incon-
sistency in the evidence that should have been resolved.
Haynes v. Barnhart, 416 F.3d at 626. We vacate the district
court’s judgment upholding the Commission’s decision and
remand this case so that the ALJ can determine whether
the job requirements identified by the vocational expert are,
in fact, consistent with the definitions in the DOT and
Prochaska’s limitations.
B. Prochaska’s Obesity and Depression
The rest of Prochaska’s arguments are unavailing, though
we address them here in the interest of completeness. One
of Prochaska’s contentions is that the ALJ erred by not
No. 05-3218 7
considering her obesity and her depression in connection
with her other impairments. She compares her case to
Clifford v. Apfel, 227 F.3d 863 (7th Cir. 2000), in which we
held that an ALJ, confronted with an obviously obese
applicant, “should have considered the weight issue with
the aggregate effect of her other impairments.” Clifford, 227
F.3d at 873. Prochaska contends that the ALJ ignored the
effect of her “documented obesity on her osteoarthritis in
both knees and acute spasmodic back pain,” when he should
have recognized that her obesity, in tandem with her
diagnosed back impairment, created a disability. In particu-
lar, she asserts that the ALJ violated Social Security Ruling
02-1p, which states that the adjudicator “will do an individ-
ualized assessment of the impact of obesity on an individ-
ual’s functioning when deciding whether the impairment is
severe.” SSR 02-1p. The ALJ failed to perform this assess-
ment, she argues, by adopting Dr. Cragg’s medical report,
which she characterizes as “solely based on Prochaska’s
back impairments and the objective evidence.”
According to SSR 02-1p, an ALJ should consider the
effects of obesity together with the underlying impairments,
even if the individual does not claim obesity as
an impairment. See Clifford, 227 F.3d at 873. But a failure
to explicitly consider the effects of obesity may be harm-
less error. In Skarbek v. Barnhart, 390 F.3d 500, 504 (7th
Cir. 2004), the ALJ did not address the claimant’s obesity
but did adopt “the limitations suggested by the specialists
and reviewing doctors” who were aware of the condition.
That, combined with the claimant’s failure to “specify how
his obesity further impaired his ability to work,” made the
error harmless: “although the ALJ did not explicitly
consider Skarbek’s obesity, it was factored indirectly into
the ALJ’s decision as part of the doctors’ opinions.” Id.
The ALJ’s implicit consideration of Prochaska’s obesity
through his review and discussion of her doctors’ reports
makes this case analogous to Skarbek. Although the ALJ
8 No. 05-3218
did not explicitly address Prochaska’s obesity, he specifi-
cally predicated his decision upon the opinions of physicians
who did discuss her weight: Drs. Zeman (“Ms. Prochaska is
an overweight female in no distress”), Cederberg (she was
overweight but “in no acute distress”), and Cragg (the
treating physician, who described her as “[c]hronically
obese”) in particular. A number of other medical reports
relied upon by the ALJ also noted her height and weight.
No medical opinion in the record identified Prochaska’s
obesity as significantly aggravating her back injury or
contributing to her physical limitations. She also fails to
point to any other evidence suggesting that her obesity
exacerbated her physical impairments. Because Prochaska
failed to “specify how [her] obesity further impaired [her]
ability to work,” and because the record relied upon by the
ALJ sufficiently analyzes her obesity, any error on the
ALJ’s part was harmless. Skarbek, 390 F.3d at 504.
Prochaska next contends that the ALJ similarly erred
by not considering the effect of her depression and panic
attacks on her alleged disability. The ALJ decided that “a
mental impairment is not medically determinable in this
matter,” because Prochaska failed to allege a disabling
mental impairment and had not “sought any psychological
or psychiatric treatment,” and the “state psychologists
who reviewed this matter” concluded that there was no
medically determinable mental impairment. Prochaska
asserts that none of these reasons are sufficient, and that
the ALJ “inexplicably” discredited the medical opinion of
Dr. Cragg, who diagnosed her with depression and panic
attacks.
Prochaska misapprehends the ALJ’s determination. The
ALJ did not discredit Cragg’s diagnosis; to the contrary,
that diagnosis is consistent with the ALJ’s conclusion.
While Cragg unambiguously diagnosed Prochaska with
depression and panic attacks, he repeatedly reported that
her psychiatric state was stable and controlled. He wrote
No. 05-3218 9
that Prochaska’s “depression can be particularly disabling”
(emphasis added), but clarified that she was “stabilized
on Paxil” and that she had “[n]o other neurological com-
plaints and states that her panic attacks are just fine as
long as she stays on the Paxil.” Cragg was of the opinion
that Prochaska’s mental condition was treatable and
under control, and controllable conditions do “not entitle
one to benefits or boost one’s entitlement by aggravating
another medical condition.” See Barrett v. Barnhart, 355
F.3d 1065, 1068 (7th Cir. 2004). That the ALJ decided that
Prochaska’s alleged disability was not aggravated by
her mental condition does not show that the he improperly
discredited Cragg’s diagnosis.
C. Credibility Finding
Finally, Prochaska contends that the ALJ improperly
made an adverse credibility finding that was not based
on specific reasons supported by the record. See SSR 96-7p.
She also argues that the ALJ improperly discredited her
allegations of subjective pain despite objective medical
evidence of an underlying physical condition. See Carradine
v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
We afford a credibility finding “considerable deference,”
and overturn it only if “patently wrong.” Carradine, 360
F.3d at 758 (citations omitted). “Only if the trier of fact
grounds his credibility finding in an observation or argu-
ment that is unreasonable or unsupported . . . can the
finding be reversed.” Sims v. Barnhart, 442 F.3d 536, 538
(7th Cir. 2006) (citation omitted). An ALJ may disregard a
claimant’s assertions of pain if he validly finds her incredi-
ble. Carradine, 360 F.3d at 753-54. SSR 96-7p instructs that
when “determining the credibility of the individual’s
statements, the adjudicator must consider the entire case
record,” and that a credibility determination “must contain
specific reasons for the finding on credibility, supported by
10 No. 05-3218
the evidence in the case record.” An ALJ should consider
elements such as objective medical evidence of the claim-
ant’s impairments, the daily activities, allegations of pain
and other aggravating factors, “functional limitations,” and
treatment (including medication). Scheck v. Barnhart, 357
F.3d 697, 703 (7th Cir. 2004); Rice v. Barnhart, 384 F.3d
363, 371 (7th Cir. 2004).
The ALJ summarized and discussed the various factors
supporting his credibility determination. He explained that
Prochaska’s description of her regular domestic activities
was “inconsistent with her allegation of disability.” He also
listed the medications she was taking in her course of
treatment and called attention to the fact that her unem-
ployment compensation was denied “after it was discovered
that she had deliberately falsified an employment applica-
tion.” The hearing transcripts show that he heard extensive
testimony from Prochaska regarding her allegations of
aggravating factors, even if he did not discuss those allega-
tions in his opinion. The ALJ’s credibility determination,
which took these diverse factors into account, was not
“patently wrong.” Carradine, 360 F.3d at 758.
III. Conclusion
Because the ALJ failed to comply with SSR 00-4p, we
cannot conclude that there is substantial evidence sup-
porting the outcome of the hearing. We remand this case in
part so that the ALJ may perform the necessary in-
quiry under that Ruling and resolve whether there are,
in fact, jobs in the national economy which Prochaska can
perform. Although there were other problems with the
ALJ’s order, all other errors were harmless, and need not be
addressed on remand. Accordingly, we VACATE and REMAND
this case in part, and AFFIRM in part.
No. 05-3218 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-24-06