Mike Butler v. Kilolo Kijakazi ( 2021 )

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.