Heather Tutwiler v. Kilolo Kijakazi

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2808
HEATHER TUTWILER,
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, Fort Wayne Division.
No. 1:21-cv-00291-WCL — William C. Lee, Judge.
____________________
ARGUED SEPTEMBER 12, 2023 — DECIDED DECEMBER 7, 2023
____________________
Before EASTERBROOK, HAMILTON, and PRYOR, Circuit
Judges.
HAMILTON, Circuit Judge. Alleging that numerous health
problems prevented her from holding a job, plaintiff-appel-
lant Heather Tutwiler applied under the Social Security Act
for Disability Insurance Benefits and Supplemental Security
Income. After an evidentiary hearing, an administrative law
judge found that Tutwiler could not perform her prior jobs
2 No. 22-2808
but was still able to perform some forms of sedentary work,
with some additional restrictions. The ALJ found that jobs
within Tutwiler’s abilities existed in the economy in such
numbers that she was not disabled under the Social Security
Act. On judicial review in the Northern District of Indiana,
Judge Lee affirmed the denial of benefits. On appeal, we agree
that the ALJ’s decision was supported by substantial evidence
and was not otherwise contrary to law. We affirm the judg-
ment of the district court.
I. Factual and Procedural Background
Heather Tutwiler was diagnosed with endometrial cancer
in May 2014 at the age of 41. Radiation treatment caused her
significant gastrointestinal problems, including frequent
vomiting, nausea, and diarrhea. Her gastrointestinal symp-
toms persisted in the following years. She had her gallbladder
removed, had surgery for a hernia reduction and repair, and
experienced significant weight loss, depression, asthma, and
nicotine dependence.
Tutwiler’s gastrointestinal problems caused her signifi-
cant issues in her housekeeping and laundry jobs. She fre-
quently vomited at work or had to take time off due to other
gastrointestinal symptoms. As her symptoms got progres-
sively worse, her employers cut her hours from full-time to
part-time and then to working only “as needed.” Eventually,
Tutwiler was fired from her last job.
In May 2019, Tutwiler applied for Disability Insurance
Benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401–433, and for Supplemental Security Income under Ti-
tle XVI of the Act, 42 U.S.C. §§ 1381–1383f. After the state
agency denied Tutwiler’s application initially and on
No. 22-2808 3
reconsideration, she requested a hearing before an ALJ. Tut-
wiler appeared at her hearing with counsel. A vocational ex-
pert also testified.
In October 2021, the ALJ concluded that Tutwiler was not
disabled within the meaning of the Social Security Act. He
applied the five-step test set forth in Social Security
Administration regulations, 20 C.F.R. § 404.1520(a). At step
one, the ALJ found that Tutwiler had not engaged in
substantial gainful employment since her onset date of
January 1, 2018. At step two, the ALJ determined that
Tutwiler’s hernia surgeries, gastrointestinal symptoms,
asthma, and depression constituted severe impairments that
significantly limited her ability to perform basic work
activities. The ALJ also noted that Tutwiler’s history of
endometrial cancer, as well as her marijuana,
methamphetamine, and alcohol use disorders, were non-
severe impairments—conditions that were abnormal but
restricted only minimally her ability to work. At step three,
the ALJ found that Tutwiler’s impairments, alone or in
combination, did not meet or equal the severity of any
impairments listed in the Social Security regulations that lead
to automatic findings of disability. At step four, the ALJ
determined Tutwiler had the residual functional capacity to
perform sedentary work with some additional restrictions:
she could climb stairs or kneel or crouch only occasionally,
and she could never climb ladders or ropes. The ALJ also
found that Tutwiler needed to avoid concentrated exposure
to extreme temperatures and that she could not perform fast-
paced assembly-line work. Considering this residual
functional capacity, as well as Tutwiler’s age, education, and
work experience, the ALJ found at step five that Tutwiler
could work as an information clerk, table worker inspector,
4 No. 22-2808
sorter, document preparer, and address clerk. Because these
jobs existed in significant numbers in the national economy,
the ALJ determined that Tutwiler was not disabled for
purposes of the Social Security Act. Tutwiler sought judicial
review of the ALJ’s decision. The district court affirmed,
finding that the ALJ’s decision was supported by substantial
evidence. Tutwiler has appealed.
II. Standard of Review
When reviewing a district court’s decision on an ALJ’s de-
cision, we review the district court’s decision de novo, but the
law requires us to apply the same deferential standard of re-
view to the ALJ’s decision that the district court applies. Geda-
tus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021). We will reverse an
ALJ’s decision only if it is the result of an error of law or if it
is unsupported by substantial evidence. Id. Substantial evi-
dence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Butler v. Kijakazi,
4 F.4th 498, 501 (7th Cir. 2021); see also 42 U.S.C. §405(g) (“The
findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive ….”);
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
An ALJ must provide an adequate “logical bridge” con-
necting the evidence and her conclusions, but an ALJ’s opin-
ion need not specifically address every single piece of evi-
dence. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir.
2010). We will reverse the ALJ’s decision “only if the record
compels a contrary result.” Gedatus, 994 F.3d at 900.
III. Analysis
Tutwiler focuses her challenge on the ALJ’s residual func-
tional capacity determination at step four of the analysis. She
No. 22-2808 5
argues on appeal that the ALJ failed to consider all her limita-
tions in his analysis and that he “cherry-picked” the record
for facts that were unfavorable to Tutwiler. But in the district
court, Tutwiler set forth only one argument: that the ALJ
failed to consider adequately how Tutwiler’s gastrointestinal
symptoms prevented her from working. Tutwiler has for-
feited any argument unrelated to her gastrointestinal symp-
toms. As to the merits of that argument, we conclude that the
ALJ’s decision was supported by substantial evidence and is
free from legal error.
A. Forfeiture
Tutwiler argues that the ALJ should have considered her
significant weight loss, her limited drug use, and her mental
limitations when calculating her residual functional capacity.
Tutwiler did not raise any of these issues in the district court.
She contends, however, that she preserved these new argu-
ments for appeal because she discussed broadly the ALJ’s re-
sidual functional capacity determination in the district court
and argued that the ALJ did not incorporate all her limita-
tions—including these three—in his analysis.
The argument section of Tutwiler’s district court brief,
however, did not mention weight loss, drug use, or mental
limitations. It discussed only the effects of her gastrointestinal
issues on her ability to work. Tutwiler thus forfeited argu-
ments resting on any other limitations by failing to discuss
them in her district court brief. E.g., United States v. Sheth, 924
F.3d 425, 435 (7th Cir. 2019).
Tutwiler resists this conclusion, citing Arnett v. Astrue, 676
F.3d 586 (7th Cir. 2012), for the proposition that it is “suffi-
cient” for an appellant to have raised “the ALJ’s [residual
6 No. 22-2808
functional capacity] determination overall in the district
court.” Id. at 593. The quoted language must be considered
within the context of that case. The Arnett claimant’s district
and appellate court arguments were not nearly as different as
Tutwiler’s. In the district court, the Arnett claimant had ar-
gued that the ALJ should have given greater consideration to
her inability to sit or stand for a sustained time. On appeal,
she shifted her argument slightly, arguing that “the ALJ failed
to formulate [a residual functional capacity] that is suffi-
ciently specific as to how often she must be able to sit and
stand.” Id. at 593. Although the Arnett claimant’s argument
changed slightly, her appellate brief still referred to the same
factors that she had discussed in her district court brief. This
context clarifies our holding in Arnett as standing for the prop-
osition that a litigant sufficiently preserves an issue for appeal
when the similarity between trial and appellate arguments re-
sembles that of the Arnett claimant’s. Cf. Milhem v. Kijakazi, 52
F.4th 688, 693 (7th Cir. 2022) (distinguishing Arnett and find-
ing waiver where claimant argued for first time on appeal that
Commissioner should be required to define by regulation
how many jobs are “significant” for step-five calculation).
This case is very different, and Tutwiler asks us to adopt a
standard that would be much more disruptive to orderly liti-
gation. She invites this appellate court to reverse a district
court’s judgment based on matters never brought to the dis-
trict court’s attention. While the plain-error standard (applied
more often in criminal cases) sometimes allows such rever-
sals, it should not be freely extended to Social Security disa-
bility litigation. Tutwiler’s district court brief did not mention
the specific factors—her weight loss, drug use, or mental lim-
itations—that she now highlights on appeal. She asserted only
generally that the ALJ must consider all limiting effects in his
No. 22-2808 7
residual functional capacity determination. Her position
would allow claimants to raise any issue relating to their re-
sidual functional capacity so long as they raised a single issue
related to it in the district court. That approach would run
contrary to the limited role of reviewing courts. It also would
contradict this court’s general practice of treating arguments
raised in “a perfunctory or general manner” in the district
court as forfeited on appeal. E.g., Sheth, 924 F.3d at 435; see
also Persinger v. Southwest Credit Systems, L.P., 20 F.4th 1184,
1195 n.5 (7th Cir. 2021) (applying same forfeiture standard in
civil case). We decline to adopt a standard that would allow
an appellant to present a case on appeal that the district court
would no longer recognize.
B. Gastrointestinal Symptoms
Tutwiler argues that the ALJ erred by “cherry-picking” the
record for evidence that minimized the disabling effects of her
gastrointestinal symptoms, by discounting her own testi-
mony, and by ignoring other evidence in the record that sup-
ported her testimony. After reviewing the ALJ’s decision and
the evidentiary record underlying it, we conclude that the
ALJ’s credibility determination was not patently wrong and
that Tutwiler did not identify any objective evidence that
would compel a contrary result.
1. Credibility Determination
The ALJ discounted Tutwiler’s subjective reporting of her
gastrointestinal symptoms, finding that multiple factors im-
paired Tutwiler’s credibility. First, the ALJ reasoned that the
intensity, persistence, and limiting effects of the symptoms
that Tutwiler described in her testimony did not parallel her
medical records, which showed that her symptoms were
8 No. 22-2808
sometimes debilitating but other times were not. Second, the
ALJ thought that Tutwiler’s inability to maintain full-time em-
ployment was likely due to reasons other than her impair-
ments. Third, the ALJ found that Tutwiler’s ability to care for
herself at home—which included the ability to bathe herself,
to care for a pet, and to do chores—stood in tension with her
assertion that she could not work due to her symptoms. Fi-
nally, the ALJ recognized that the evidentiary record showed
that Tutwiler had previously used marijuana and metham-
phetamine, even though she testified at her hearing that she
had never used drugs.
Reviewing these factors, we conclude that the ALJ’s cred-
ibility determination was not “patently wrong,” as it would
need to be for this court to reverse on that basis. E.g., Craft v.
Astrue, 539 F.3d 668, 678 (7th Cir. 2008). Although the ALJ
might have erred in his analysis of some factors, enough of
them had adequate supporting evidence for this court to up-
hold his credibility determination. See Bates v. Colvin, 736 F.3d
1093, 1098 (7th Cir. 2013) (upholding ALJ’s credibility deter-
mination despite disagreeing with some underlying reasons
for that decision). For example, Tutwiler testified at her hear-
ing that she had never used any illicit substances, but the ev-
identiary record plainly shows that she had used marijuana
and methamphetamine before. 1 Also, despite Tutwiler’s as-
sertions at her hearing that her gastrointestinal symptoms
1 We have noted before that a claimant might be afraid to admit to a
government official that she committed a crime by using drugs. McClesky
v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010) (finding ALJ’s analysis of credi-
bility was inadequate). Nevertheless, as McClesky recognized, an ALJ is
still entitled to weigh such lies or errors in testimony in weighing overall
credibility. Id.No. 22-2808 9
were constant and untreatable, Tutwiler had herself reported
some improvement in prior years. Because the ALJ made his
credibility determination based on the totality of these factors
and enough of them withstand scrutiny to support his deci-
sion, his determination does not amount to a reversible error.
2. Objective Medical Evidence
Tutwiler also contends that the ALJ ignored objective
medical evidence that tended to prove she was disabled. She
argues that medical records from 2014 through 2020 show
that her gastrointestinal symptoms were persistent and debil-
itating. She also argues that those symptoms would have
caused her to miss more than one day of work per month and
to be “off-task” for more than ten percent of a workday. Ac-
cording to the vocational expert, either of those effects would
have caused Tutwiler to lose almost any job she might have
found.
But the evidentiary record does not uniformly support
Tutwiler’s assertions. Evidence indicates that her symptoms
were abating toward the end of her claimed disability period.
Notes from two of Tutwiler’s 2020 doctor appointments re-
port that she was not experiencing gastrointestinal symptoms
at those times. Another note from October 2019 reported that
Tutwiler’s diarrhea had “improved” since she started taking
medication. Taken as a whole, the medical evidence presented
an ambiguous picture as to the severity and persistence of
Tutwiler’s symptoms. The ALJ considered some evidence that
could have supported a more restrictive residual functional
capacity than the ALJ found here, but other substantial evi-
dence supports the ALJ’s decision.
10 No. 22-2808
Reasonable minds could disagree with the ALJ’s appraisal
of this conflicting evidence. Yet judicial review is not designed
for appellate judges looking at a transcript to re-weigh con-
flicting evidence. Instead we ask whether the ALJ’s decision
“reflects an adequate logical bridge from the evidence to the
conclusions.” Gedatus, 994 F.3d at 900. The ALJ’s decision met
this standard. He weighed the competing evidence, assessed
testimony from Tutwiler and the vocational expert, and con-
sidered the opinions of treating physicians and other physi-
cians who had examined Tutwiler. The ALJ’s careful consid-
eration is shown by the fact that he departed from the residual
functional capacity recommended by the state agency physi-
cians who evaluated Tutwiler. They found that she could per-
form work at the light exertional level (with some additional
restrictions). The ALJ found that Tutwiler could perform no
more than sedentary work (with those additional restrictions)
based on his independent review of the full evidentiary rec-
ord.
Also, Tutwiler did not provide any opinion from a doctor
who would have imposed greater restrictions than those the
ALJ found in his decision. See Gedatus, 994 F.3d at 904. The
lack of an opposing medical opinion makes it difficult for us
to find that the ALJ misjudged the evidence so significantly as
to warrant reversal. Doing so would essentially put ourselves
in the ALJ’s shoes to re-weigh the evidence, a role that we try
to avoid.
In sum, the ALJ supported his opinion with substantial ev-
idence, and Tutwiler has not identified anything in the record
that compels a contrary result. Deborah M. v. Saul, 994 F.3d
785, 788 (7th Cir. 2021). The judgment of the district court is
AFFIRMED.