Betty L. Brown, Plaintiff-Appellant,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.
September 21, 2016
from the United States District Court for the Western
District of Wisconsin. No. 14 CV 894 Barbara B. Crabb, Judge.
Flaum, Kanne, and Williams, Circuit Judges.
Williams, Circuit Judge.
Brown applied for disability benefits on the ground that her
bad back and obesity left her in too much pain to work. The
Social Security Administration denied Brown's
application, and after holding a hearing, an administrative
law judge (ALJ) upheld the denial, concluding that Brown
could perform sedentary work associated with six jobs
identified by a vocational expert.
challenges this denial of benefits on several grounds. First,
she argues that the ALJ insufficiently considered her
obesity. We disagree. The ALJ repeatedly stated that he had
considered Brown's obesity, discussed multiple treatment
records that identified the obesity, and rejected the
opinions of several government-related experts that
insufficiently accounted for the obesity. Brown also contends
that the ALJ improperly relied on the vocational expert's
testimony from the administrative hearing, claiming that the
expert failed to provide enough information to justify her
departure from the Dictionary of Occupational Titles-which
provides occupational information about myriad jobs in the
U.S. economy-and failed to verify the source of the data on
which her jobs-related opinions were based. But Brown
forfeited most of these arguments by failing to object to the
expert's testimony during the hearing, and the one error
that the ALJ did commit was harmless.
we agree with Brown that the ALJ violated the Treating
Physician Rule when he rejected certain opinions proffered by
Brown's doctor regarding Brown's ability to sit and
stand for prolonged periods of time. In substituting his own
opinions for the doctor's, the ALJ focused on facts that
did not directly pertain to sitting or standing and
misrepresented multiple statements Brown made to treatment
providers and others. So we vacate the ALJ's denial of
benefits and remand the case for further proceedings.
Brown is five feet five inches tall and her weight has
exceeded 300 pounds for over ten years. Medical records
dating back to February 2004 indicate that Brown has long
suffered from chronic back pain, due at least in part to
several mild spinal fractures that she suffered during a car
accident in 2003. Brown's back pain became more
significant as the result of a second car accident in July
2004, as well as incidents in June 2006 and January 2007
during which she heard popping noises in her back. Throughout
this period, Brown regularly visited her treating physician,
Dr. William Shannon, who prescribed her several
medications-most notably (and most often) oxycodone, with the
daily dosage steadily increasing from 30 mg in May 2004 to
240 mg in September 2009.
March 2007, Brown applied for disability insurance benefits
and supplemental security income under 42 U.S.C. §§
416(i) and 423. At the time, she weighed approximately 310
pounds, was not working (she claimed to have last worked in
October 2004), and complained that her back pain prevented
her from sitting or standing for more than 30 minutes at a
time and required that she periodically lie down. The Social
Security Administration denied both benefits applications,
and an ALJ, after holding a hearing, followed suit.
reasons that we need not discuss, the ALJ was required to
consider Brown's benefits applications two additional
times, most recently in August 2014. In that latter decision,
the ALJ again denied Brown's applications, and in doing
so followed the five-step sequential evaluation process
outlined in 20 C.F.R. § 404.1520(a)(4). The ALJ first
concluded Brown had not performed substantial gainful
activity since January 2007, and, second, found that Brown
had three "severe" impairments-back pain, obesity,
and migraines. Third, the ALJ determined that none of these
impairments individually or collectively met the listed
impairments in Appendix 1 to 20 C.F.R. § 404, Subpart P,
and that Brown had the residual functional capacity to
perform sedentary work with a sit/stand option so that she
could avoid sitting or standing for more than thirty minutes
at a time. Fourth, the ALJ found that Brown could not do her
past work as a cook based on this residual functional
capacity. Finally, the ALJ, relying on testimony from a
vocational expert, found that Brown could perform six other
jobs that existed in significant numbers in the
economy-assembler, order clerk, office helper, video
surveillance monitor, greeter/attendant, and telephone
on these findings, the ALJ determined that Brown was not
disabled. The district judge affirmed the ALJ's
determination, and this appeal followed.
appeal, Brown raises the same three arguments that the
district judge considered and rejected-that the ALJ
improperly evaluated her obesity, that the ALJ improperly
applied the Treating Physician Rule, and that there was
inadequate support for the vocational expert's testimony
about jobs available to Brown in light of her physical
limitations. Because we review the district judge's
decision de novo, we review the ALJ's decision directly
and ask whether there is "substantial evidence"
that "a reasonable mind might accept as adequate to
support" the conclusions at issue. Elder v.
Astrue,529 F.3d 408, 413 (7th Cir. 2008) (citation
omitted). In doing so, we may not decide facts anew or make
independent credibility determinations, and must affirm the
ALJ's decision even if reasonable minds could differ
about the ...