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Phillips v. Colvin

United States District Court, E.D. Wisconsin

March 18, 2016




Richard Phillips appeals the denial of his application for Supplemental Security Income disability insurance benefits (DIB). The road to this point has been a long one. Phillips filed for DIB on February 8, 2002. An Administrative Law Judge (ALJ) conducted a hearing on July 7, 2005, and denied Phillips’s claim on July 25, 2005. The agency’s Appeals Council declined review and thereafter Phillips sought review in federal court in this district (case number 06-C-272). The Commissioner agreed to a remand, so Magistrate Judge William E. Callahan remanded the case on August 1, 2006. A second ALJ held a hearing on December 21, 2007, and denied Phillips’s claim on February 22, 2008. Phillips again sought review in this district (case number 09-C-547). The case was remanded under “sentence six” because the record was incomplete, but, subsequently it returned to federal court. District Judge J.P. Stadtmueller remanded the case again on August 10, 2011, (under “sentence four”), identifying several errors. A third ALJ held a hearing on August 30, 2013, and denied Phillips’s claim once more, by decision dated September 6, 2013. The Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner, and Phillips filed the present case to challenge the third ALJ’s decision.

During all three hearings and on this appeal Phillips has been represented by counsel. At the second hearing, Phillips and vocational expert (VE) Michele Albers testified and at the third, Phillips and VE Margaret Ford testified.

Phillips seeks judicial review pursuant to 42 U.S.C. § 405(g), claiming disability beginning April 15, 2000. Because Phillips was awarded benefits as of December 28, 2009, pursuant to a subsequent application, the parties agree that a closed period between April 15, 2000, and December 27, 2009, is at issue in this matter.[1] (See Tr. 1051.)

Under § 405(g), the findings of the Commissioner as to any fact shall be conclusive if supported by substantial evidence. The Commissioner's final decision may be overturned only if it lacks support by substantial evidence, is grounded in legal error, or is too poorly articulated to permit meaningful review. Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 699 (7th Cir. 2009). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Powers v. Apfel, 207 F.3d 431, 434 (7th Cir. 2000). The court views the record as a whole but does not reweigh the evidence or substitute its judgment for that of the ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000). The ALJ is not required to address every piece of evidence or testimony presented, but must provide a “logical bridge” between the evidence and his or her conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). Evidence favoring as well as disfavoring the claimant must be examined by the ALJ, and the ALJ’s decision should reflect that examination. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).

The Social Security Administration has adopted a sequential five-step process for determining whether a claimant is entitled to DIB. 20 C.F.R. §§ 404.1520. Familiarity with the five-step process is presumed. The first ALJ concluded Phillips’s case at step four. The second and the third ALJs found against Phillips at step five.

Phillips does not challenge any of the latter ALJ’s analysis through step four, including the determination of residual functional capacity (RFC). Therefore, the ALJ’s decision is affirmed as to all of those steps. Phillips’s sole challenge is to the ALJ’s determination at step five, based on the testimony of VE Ford, that work for Phillips existed in significant numbers in the national economy during the period at issue.


At the RFC stage, the ALJ determined that Phillips could perform unskilled light work with several restrictions, including work involving

no more than minimal use of the non-dominant (left) upper extremity: that is, it can be used for occasional reaching and handling while assisting the right (dominant) upper extremity with balancing or with stabilizing objects, but with no overhead reaching, pushing, pulling, fingering, or more than occasional reaching with the non-dominant upper extremity.

(Tr. 381.) The record showed that Phillips had injured his left arm in a motorcycle accident in July 1978; medical records acknowledged subsequent atrophy and other effects from the injury, resulting in minimal use of the left arm. (Tr. 382-83.) Phillips testified at the third hearing that he could not reach with the left arm and he used the right hand to lift and place his left arm into position. (Tr. 1069-70.) Phillips’s limitations eroded the unskilled light occupational base.

At the third hearing, the ALJ had asked VE Ford about jobs available to a hypothetical person of Phillips’s age, education, and work experience, with the same restrictions on the left extremity as he subsequently adopted in his RFC. VE Ford identified four positions: usher, sandwich-board carrier, bakery worker conveyor line, and ticket taker. (Tr. 1064.) When questioned about whether the Dictionary of Occupational Titles (DOT) required more handling or fingering by the left extremity, VE Ford said that her testimony differed from the DOT because in her opinion the positions of usher, sandwich-board carrier, and ticket taker could be done one-handed and the bakery-worker-conveyor-line position did not require fingering, as long as the left hand could be used as “an assist.” (Tr. 1065-66.) She stated that the DOT requires “occasional fingering” for the usher, sandwich-board carrier, and ticket-taker positions but that “[i]n reality, the job can be done, one-handed with the left used as an assist, ” meaning that the fingering required could be done one-handed. (Tr. 1066.) VE Ford based this opinion and any inconsistencies with the DOT on her twenty-seven years as a vocational expert placing individuals in positions. (Id. at 1066, 1069) VE Ford testified that such jobs would remain available to someone limited to work involving no pushing or pulling with the left upper extremity; no more than simple, routine and repetitive tasks; no fast-paced production requirements; only simple decisions; and few workplace changes. (Tr. 1066-68.)

Phillips’s attorney then questioned VE Ford as follows regarding her opinion that a person who cannot reach the left arm independently of the right (but instead needs the right hand to place the left arm in position) could still do the four jobs:

Q Okay, so does the, does that differ from the DOT? Does the DOT require reaching in these jobs?
A As I indicated before, the usher does require occasional reaching –
Q Okay.
A – the sandwich board carrier does require occasional reaching, baker[y] worker does require occasional reaching, ticket taker does require frequent reaching. That’s what the DOT indicates.
Q Okay. So, what are you basing your testimony on, then?
A My 27 years’ experience as a vocational expert, placing people . . . .

(Tr. 1076.) When asked if she had any studies that showed that a person could do these jobs without any reaching or fingering with one arm, VE Ford pointed to an article by several authors titled “employer validation of jobs performed with one arm” in the “Journal of Forensics, vocational analysis; 11(2), . . . pages 37 through 48.” (Tr. 1077.) Phillips’s attorney asked for a copy of the article. (Id.) VE Ford referred counsel to the ALJ, who told counsel that he had been given the cite and could “look it up. She gave you the pages.” (Id.) VE Ford suggested that counsel look for the article at the library or online. (Id.) When counsel asked again for the article to be provided to him to ensure he was looking at the same document the VE referenced, the ALJ again told counsel to look it up because VE Ford gave him the cite. (Tr. 1081.) VE Ford then stated that her opinion was based primarily on her twenty-seven years of experience, with some support from the article. (Tr. 1081-82.) Counsel objected to the VE’s reliance on experience alone and to the VE’s testimony if he was not given the article. (Id.)

Additionally, counsel questioned VE Ford regarding whether she had reduced the numbers of jobs available to account for the discrepancy between the DOT and her testimony. She indicated that ...

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