Allen Surprise v. Andrew Saul

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3233
ALLEN L. SURPRISE,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 18-cv-01432-WCG — William C. Griesbach, Judge.
____________________
ARGUED JUNE 3, 2020 — DECIDED JULY 29, 2020
____________________
Before SYKES, Chief Judge, and BAUER and ST. EVE, Circuit
Judges.
ST. EVE, Circuit Judge. Allen Surprise appeals the denial of
his claim for disability insurance benefits and supplemental
social security income. The initial ALJ assigned to his case de-
termined that Surprise’s residual functional capacity (“RFC”)
included a limitation regarding fine manipulation, but never-
theless concluded that Surprise was not entitled to benefits.
2 No. 19-3233
Surprise challenged this decision in the United States District
Court for the Eastern District of Wisconsin, which twice re-
manded the matter: once because the transcript of the voca-
tional expert’s testimony was incomplete and once in re-
sponse to a stipulation from the parties. Surprise contests two
aspects of the decision the second ALJ made upon remand: (1)
that she failed to adequately account for a portion of the med-
ical expert’s opinion in the hypothetical question posed to the
vocational expert, and (2) that her decision violated the law of
the case doctrine by failing to adopt the fine manipulation
limitation the initial ALJ found in the course of his RFC as-
sessment. Surprise, however, has not identified any obvious
conflict between the hypothetical question and the Dictionary
of Occupational Titles (“DOT”), nor did the district court
make any factual findings that became the law of the case
when it entered its remand orders. We therefore affirm.
I. Background
A. Factual Background
Surprise injured a tendon in the middle finger of his right
hand in January 2009, resulting in two surgeries and several
months of physical therapy. He initially experienced severe
pain, “so severe it often ma[de] him nauseous.” At various
points, though, Surprise showed some improvement. In April
2009, for example, Surprise’s therapist noted that his pain had
decreased significantly, and that therapy was no longer nec-
essary as he could open soda cans and use a coffee cup with
his right hand.1
1
The record and Surprise’s opening brief describe back pain and left-
hand weakness as additional physical limitations. As Surprise does not
No. 19-3233 3
Surprise also suffered a concussion, resulting in post-con-
cussion syndrome, in a 2000 snowmobile accident. In Novem-
ber 2009, Dr. Sandra King, Ph.D., a psychologist, noted Sur-
prise could not read well, could follow only a simple, three-
step command, and had poor short-term memory and a lim-
ited knowledge base. Surprise also experiences depression
and anxiety, although his doctors noted that medications kept
these conditions under control.
B. Procedural Background
In May 2012, Surprise had a hearing before ALJ Patrick J.
Toal. When determining Surprise’s RFC, ALJ Toal identified
physical limitations regarding frequent overhead reaching
and occasional fine manipulation. ALJ Toal nevertheless de-
nied Surprise’s claims. Surprise requested a review of this de-
cision by the Appeals Council, but the Council denied that re-
quest.
Surprise challenged this decision in the district court. In
November 2014, the district court remanded because some of
the vocational expert’s testimony was inaudible, and the hear-
ing transcript thus omitted critical information. Accordingly,
in April 2016, ALJ Toal presided over a second hearing with
vocational testimony. After this hearing, ALJ Toal again de-
nied Surprise’s claims but considered the same physical limi-
tations—those involving overhead reaching and fine manip-
ulation—when assessing Surprise’s RFC.
Surprise refiled his action in the district court, but the par-
ties soon agreed to a stipulated remand. Thus, in March 2017,
challenge any aspects of the ALJ or the district court’s decisions regarding
these ailments, though, we do not discuss them further.
4 No. 19-3233
the district court issued an order, simply stating, “On judicial
remand, the Commissioner will offer Plaintiff the opportunity
to submit additional evidence and to have a hearing, and is-
sue a new decision.” As with all remands, this matter returned
to the Appeals Council, which subsequently remanded to the
ALJ with directions to further evaluate the opinion of medical
expert Dr. James Wargel, Ph.D., and reassess Surprise’s men-
tal RFC. 20 C.F.R. §§ 404.983, 416.1483.
1. Hearing before ALJ O’Grady
ALJ Margaret J. O’Grady, the newly assigned ALJ, held a
third hearing in March 2018. At that hearing, Dr. Wargel testi-
fied that Surprise could “perform work involving simple,
noncomplex, routine, repetitive, type of instructions.” When
Surprise’s counsel asked Dr. Wargel to clarify what he meant
by “simple instructions,” Dr. Wargel defined them as
“[d]irect, one or two steps or three steps that can be easily fol-
lowed.” In Surprise’s case, Dr. Wargel explained, “verbal in-
structions or demonstration is necessary.”
Bob Hammond, a vocational expert, followed Dr. Wargel.
ALJ O’Grady began by telling Mr. Hammond she would as-
sume his testimony was consistent with the DOT unless Mr.
Hammond indicated otherwise (which he never did). ALJ
O’Grady then asked Mr. Hammond whether work was avail-
able for a hypothetical individual who, among other things,
“would be able to perform work that’s considered routine, re-
petitive, noncomplex, simple, noncomplex-type of instruc-
tions.” Mr. Hammond identified two light-work jobs that met
all of ALJ O’Grady’s proposed criteria: a press operator, DOT
614.685-014, of which he said there were 127,000 positions na-
tionally, and an injection molder, DOT 556.685-038, of which
he said there were 121,000 positions nationally.
No. 19-3233 5
Counsel for Surprise then asked Mr. Hammond to identify
jobs with a General Educational Development (“GED”) “rea-
soning level of 1,” instead of using the terms “routine, non-
complex, simple, and repetitive.” He noted his client, with a
limitation to instructions of “one to three steps,” would fall
somewhere between levels 1 and 2. Mr. Hammond noted that
it was difficult for him to answer this question because, while
the DOT discusses “one, two, and three step operations,” it
does “not describe exactly what a step is.” He explained that
no jobs that he had identified required only level 1 in each of
the three GED categories—math, language, and reasoning.
The press operator, for example, had language and math lev-
els of 1 and a reasoning level of 2.
2. ALJ O’Grady’s Decision
ALJ O’Grady concluded that Surprise was not disabled,
using the five-step sequential disability adjudication process
outlined in 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). First, at
step one, she concluded that Surprise had not engaged in sub-
stantial gainful activity since his March 10, 2008, onset date.
She concluded at step two that Surprise’s tendon injury to his
right middle finger was a non-severe impairment. At step
three, ALJ O’Grady determined that Surprise did not have an
impairment that meets or medically equals the severity of one
of the impairments listed in the relevant appendix.
When assessing Surprise’s RFC—his ability to perform
work-related activities despite his limitations, as required by
20 C.F.R. §§ 404.1520(e), 416.920(e)—ALJ O’Grady deter-
mined that, among other things, he was limited to light work
with “no more than frequent overhead reaching.” She omit-
ted, however, the limitation to occasional fine manipulation
that ALJ Toal had previously included. Regarding Surprise’s
6 No. 19-3233
mental limitations, she found that Surprise “can perform rou-
tine, repetitive tasks and follow simple, non-complex instruc-
tions.” She gave Dr. Wargel’s opinion “great weight” and con-
sidered all of his findings in her decision.
At step four, ALJ O’Grady determined that, although Sur-
prise was unable to perform his past work, he remained capa-
ble of working as a press operator or injection molder. As a
result, at step five, ALJ O’Grady announced that Surprise was
not disabled.
Surprise contested this decision in the district court. The
district court upheld the ALJ’s decision, concluding that the
ALJ did not err by limiting Surprise to routine, repetitive,
non-complex work involving simple instructions, and that
her decision did not violate the law of the case doctrine by
omitting from the RFC assessment the limitation to occasional
fine manipulation that ALJ Toal had previously included.
Surprise now appeals the district court’s decision.
II. Discussion
We review the district court’s decision de novo and will
uphold the decision of the Commissioner of Social Security if
the ALJ applied the correct legal standards and supported her
decision with substantial evidence. Stephens v. Berryhill, 888
F.3d 323, 327 (7th Cir. 2018). Substantial evidence is “such rel-
evant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
A. Consideration of Dr. Wargel’s Opinion
Surprise takes issue with the ALJ’s failure to cite Dr.
Wargel’s specific testimony about one- to three-step
No. 19-3233 7
instructions in her decision. ALJ O’Grady formulated Sur-
prise’s capabilities by explaining that Surprise “can perform
routine, repetitive tasks and follow simple, non-complex in-
structions.” We uphold RFC determinations like the one
here—confining a claimant to “routine tasks and limited in-
teractions with others”—“when they adequately account for
the claimant’s demonstrated psychological symptoms.”
Jozefyk v. Berryhill, 923 F.3d 492, 498 (7th Cir. 2019). Surprise
argues, however, that Dr. Wargel’s testimony demonstrated
an obvious conflict between the DOT and Mr. Hammond’s
testimony, and ALJ O’Grady should have resolved this con-
flict. We conclude there is no conflict, obvious or otherwise.
Surprise highlights that Dr. Wargel defined “simple in-
structions” as involving “one or two steps or three steps.” He
compares this to Mr. Hammond’s testimony that a limitation
to one- to three-step instructions would fall somewhere be-
tween reasoning levels 1 and 2 under the GED assessment.
These two reasoning levels involve, respectively:
 Level 1: “Apply[ing] commonsense understanding to
carry out simple one- or two-step instructions.
Deal[ing] with standardized situations with occasional
or no variables in or from these situations encountered
on the job.” DOT App. C.
 Level 2: “Apply[ing] commonsense understanding to
carry out detailed but uninvolved written or oral in-
structions. Deal[ing] with problems involving a few
concrete variables in or from standardized situations.”
Id.
Surprise contends that the occupations ALJ O’Grady cited fell
outside his capabilities, as they all require a reasoning level 2
8 No. 19-3233
assessment. Thus, according to Surprise, these occupations
exceed the limitations Dr. Wargel announced.
Social Security Ruling (“SSR”) 00-4p imposes an affirma-
tive obligation on ALJs to ask vocational experts whether their
testimony is consistent with the information in the DOT. SSR
00-4p. Here, ALJ O’Grady asked Mr. Hammond to note any
instances in which his testimony conflicted with the DOT, and
he noted none. In addition, SSR 00-4p requires the ALJ to in-
vestigate and resolve apparent conflicts between vocational
experts and the DOT. Id. Because Surprise did not identify any
apparent conflicts at the time of hearing, he now must demon-
strate “that the conflicts were obvious enough that the ALJ
should have picked up on them without any assistance.”
Overman v. Astrue, 546 F.3d 456, 463 (7th Cir. 2008).
Surprise has not identified any conflict between a one- to
three-step instruction limitation and a job requiring reasoning
level 2, let alone an obvious one. As a preliminary matter, at
least one of our sister circuits has determined a discrepancy
between a simple-tasks limitation and the DOT reasoning lev-
els—like the one presented here—“is not the type of actual or
apparent conflict that necessitates a resolution under SSR 00-
4p” because a vocational expert and the DOT may use differ-
ent terminology. See Winslow v. Comm’r of Soc. Sec., 566 F.
App’x 418, 420 (6th Cir. 2014). But even assuming this sort of
inconsistency could present an apparent conflict, Surprise has
identified no authority saying that a one- to three-step instruc-
tions limitation is incompatible with reasoning level 2. Rather,
courts have concluded only that a limitation to one- to two-
step instructions disqualifies a claimant from occupations re-
quiring this reasoning level. See Stanton v. Comm’r, Soc. Sec.
Admin., 899 F.3d 555, 558–59 (8th Cir. 2018); Henderson v.
No. 19-3233 9
Colvin, 643 F. App’x 273, 277 (4th Cir. 2016); Rounds v. Comm’r
Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015). In fact, we
have gone as far as to say that there is no apparent conflict
between a simple tasks limitations and level 3 reasoning—a
more demanding standard than level 2. Sawyer v. Colvin, 512
F. App’x 603, 610–11 (7th Cir. 2013).
Thomas v. Berryhill, 916 F.3d 307 (4th Cir. 2019), the case on
which Surprise relies to support his argument, does nothing
to aid him. There, the Fourth Circuit concluded that an indi-
vidual “limited to short, simple instructions[] may not be able
to carry out detailed but uninvolved instructions.” Id. at 314.
But that case did not discuss instructions in terms of the num-
ber of steps involved, the pivotal consideration here.
B. Law of the Case Doctrine
Surprise next argues that ALJ O’Grady erred by modify-
ing his RFC to exclude the limitation on fine manipulation
that ALJ Toal imposed. He contends that this modification vi-
olated the district court’s remand orders and the law of the
case doctrine.2
According to the law of the case doctrine, after “an appel-
late court either expressly or by necessary implication decides
an issue, the decision [is] binding upon all subsequent pro-
ceedings in the same case.” Dobbs v. DePuy Orthopaedics, Inc.,
2 We have never decided whether the law of the case doctrine applies
to previous findings not reviewed on appeal, such as “findings made by
one ALJ that implicated issues reexamined by a second ALJ.” Martin v.
Saul, 950 F.3d 369, 375 (7th Cir. 2020). Surprise, however, expressly limits
his argument to any findings the district court made by virtue of its re-
mand orders. We therefore need not decide today how the law of the case
doctrine applies to the decisions of a prior ALJ.
10 No. 19-3233
885 F.3d 455, 458 (7th Cir. 2018) (quoting Key v. Sullivan, 925
F.2d 1056, 1060 (7th Cir. 1991)). The law of the case doctrine
thus requires a lower court “to conform any further proceed-
ing on remand to the principles set forth in the appellate opin-
ion unless there is a compelling reason to depart.” Law v.
Medco Research, Inc., 113 F.3d 781, 783 (7th Cir. 1997). We apply
the law of the case doctrine to judicial review of administra-
tive decisions. Wilder v. Apfel, 153 F.3d 799, 803 (7th Cir. 1998)
(citing Key, 925 F.2d at 1060). For the law of the case doctrine
to come into play, the court must have first determined the
particular issue, as an “[a]ctual decision of an issue is required
to establish the law of the case.” United States v. Robinson, 724
F.3d 878, 886 (7th Cir. 2013) (quoting 18B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal Prac-
tice & Procedure § 4478 (3d ed. 2005)). “If an issue is left open
after remand, the lower tribunal is free to decide it.” Key, 925
F.2d at 1061; see also Poppa v. Astrue, 569 F.3d 1167, 1171 (10th
Cir. 2009) (concluding that, where a district court did not
make any determinations regarding the initial ALJ’s assess-
ment of the RFC, the newly-assigned ALJ was free to reassess
the RFC on remand without violating the law of the case doc-
trine).
The district court twice remanded this matter—once in
November 2014 and once in March 2017. The November 2014
order remanded for only one reason: because the record of the
vocational expert’s testimony was incomplete. The court did
not make any findings regarding, or preserve any part of, ALJ
Toal’s reasoning. The March 2017 order similarly did not in-
clude any findings—either explicitly or implicitly—regarding
Surprise’s RFC: the district court merely entered the stipu-
lated remand. As the district court did not make any
No. 19-3233 11
determinations regarding Surprise’s RFC, these orders did
not obligate ALJ O’Grady to adopt ALJ Toal’s findings.
III. Conclusion
For these reasons, we AFFIRM the judgment of the district
court.