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Brown v. Colvin

United States Court of Appeals, Seventh Circuit

December 22, 2016

Betty L. Brown, Plaintiff-Appellant,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued September 21, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 14 CV 894 Barbara B. Crabb, Judge.

          Before Flaum, Kanne, and Williams, Circuit Judges.

          Williams, Circuit Judge.

         Betty 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.

         Brown 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.

         However, 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.

         I. BACKGROUND

         Betty 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.

         In 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.

         For 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 solicitor.

         Based on these findings, the ALJ determined that Brown was not disabled. The district judge affirmed the ALJ's determination, and this appeal followed.

         II. ANALYSIS

         On 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 ...

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