Purdy v. Berryhill
Opinion
This is an appeal from the district court's affirmance of an administrative law judge's finding that the appellant, Rita Purdy, was not disabled and was thus not entitled to Supplemental Security Income (SSI) benefits. Although the record of her attempts to demonstrate disability is a complicated interplay of medical testimony, the facts to be considered in this appeal may be stated with relative economy, so far as they bear on the two issues raised before us: Whether the administrative law judge (ALJ) lapsed into error in according only slight weight to the testimony of a physician who treated Purdy for a non-displaced fracture of her left femur, and whether the ALJ was entitled to rely on evidence presented by the appellee Commissioner about available jobs that Purdy was qualified to perform. We affirm on both issues.
I
An applicant for SSI benefits
1
bears the burden of proof at the first four steps of a five-step procedure established to determine whether an applicant is entitled to disability benefits.
Freeman
v.
Barnhart
,
The five-step sequence employed by the Social Security Administration (the SSA) proceeds as follows:
1) if the applicant is engaged in substantial gainful work activity, the application is denied; 2) if the applicant does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the "listed" impairments in the Social Security regulations, then the application is granted; 4) if the applicant's "residual functional capacity" is such that he or she can still perform past relevant work, then the application is denied; 5) if the applicant, given his or her residual functional capacity, education, work experience, and age, is unable to do any other work, the application is granted.
Seavey
v.
Barnhart
,
Put differently, even if an applicant fails to show disability at Step 3 because his impairment does not meet the conditions of a "listed" impairment in the Federal Regulations, he may still be eligible for benefits. In particular, if the applicant's "residual functional capacity"
2
is such that he cannot perform jobs he performed in the past, "the Commissioner then has the burden at Step 5 of coming forward with evidence of specific jobs in the national economy that the applicant can still perform," or else a finding of disability is required.
Freeman
,
II
On October 10, 2011, Purdy filed an application for SSI benefits, alleging disability due to a total knee replacement in April 2011; thoracic and lumbar spine degenerative disc disease ; right shoulder rotator cuff bone spurs; severe migraines, nerve damage, and throat problems; attention deficit hyperactivity disorder (ADHD) and attention deficit disorder ; post-traumatic stress disorder ; panic disorder ; substance abuse; and learning difficulties. Purdy's claim was initially denied on March 19, 2012, and again on reconsideration. In November 2012, Purdy filed a request for a hearing, which took place on February 11, 2014. On February 27, 2014, the administrative law judge who presided over Purdy's hearing issued a decision finding that Purdy was not disabled within the meaning of the Social Security Act and denying her claim. 3
At Step 1, the ALJ found that Purdy had not engaged in substantial gainful activity since filing her application. At Step 2, the ALJ found that Purdy had the following severe impairments (
i.e.
, impairments significantly limiting her ability to
perform basic work activities,
see
Having determined that Purdy's impairments did not meet the conditions for a listed impairment, the ALJ's next task was to determine Purdy's "residual functional capacity based on all the relevant medical and other evidence in [the] case record."
The ALJ explained that though Purdy claimed that she was unable to lift, bend, sit, stand, walk, or kneel without suffering extreme pain, Purdy's "statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely credible." Add. 25. In particular, Purdy's October 2011 "Function Report" indicated that she was able to cook meals, perform all household chores, go out alone, use public transportation, shop in stores, manage her finances, socialize with friends, and attend meetings. These activities, the ALJ reasoned, established Purdy's ability to perform sedentary tasks. The ALJ also observed, based on the notes from an emergency room visit in April 2012, that "[i]t seems [Purdy] exaggerates her symptoms and engages in opiate seeking behavior." Add. 26.
Significantly for purposes of this appeal, the ALJ accorded little weight to the opinion of Dr. Michael Kessler as provided on an SSA-issued form that Dr. Kessler completed regarding Purdy's ability to perform work-related activities. Dr. Kessler found that Purdy could lift or carry less than 10 pounds occasionally (and nothing frequently); could stand or walk for less than two hours in an eight-hour workday; could sit for about six hours in an eight-hour workday; was limited in her ability to push or pull with her lower extremities; could not climb, balance, kneel, crouch, crawl, or stoop; and could endure only limited exposure to vibration and humidity. Dr. Kessler attributed these limitations in Purdy's functioning to a "fracture of [the] left femur [with] delayed union."
In the ALJ's view, Dr. Kessler's opinion was conclusory and unsubstantiated: Dr. Kessler had "simply check marked boxes indicating [Purdy] had limitations that would increase the likelihood of [her] obtaining benefits[,] but did not explain why those limitations were chosen; in particular, he gave no examples of objective laboratory findings, symptoms or other medical evidence to support the conclusions." Add. 27.
By contrast, the ALJ accorded evidentiary weight to the findings of the State agency's non-examining medical and psychological consultants. 6 Those physicians had agreed, based on their analysis of the evidence in January and September 2012, respectively, that Purdy was capable of performing sedentary work within the limitations identified by the ALJ.
The ALJ completed Step 4 by finding that Purdy had no past relevant work and went on to Step 5, where she determined that there were jobs existing in significant numbers in the national economy that Purdy could perform. That determination was based on the testimony of an impartial vocational expert (VE). The ALJ asked the VE to consider whether jobs were available in the national economy for someone with Purdy's age and education who could lift 10 pounds frequently and 20 pounds occasionally; could stand and walk for two hours in a workday; could sit for six hours in a workday; could rarely balance, crouch, crawl, kneel, or climb; could not work around hazards; could not climb ladders, ropes, or scaffolds; could not operate foot controls; and who could perform only simple jobs with simple instructions, limited changes, and only occasional interaction with the public. 7 The VE testified that such an individual could perform the sedentary, unskilled jobs of surveillance system monitor (of which she estimated there were 11,000 jobs in the national economy); document preparer (20,000 jobs in the national economy); and stem mounter (1,400 jobs in the national economy). On the basis of that testimony, the ALJ found that Purdy was not disabled within the meaning of the Social Security Act and denied her application.
The SSA's Appeals Council denied Purdy's request for review, rendering the ALJ's decision the Commissioner's final determination, which Purdy then appealed by bringing this action in federal district court. The magistrate judge recommended affirming the Commissioner's decision, and the district court, on de novo review, adopted the recommendation.
III
We review the district court's decision to affirm or reverse a final decision
of the Commissioner
de novo
and the Commissioner's underlying decision for substantial evidence and conformity to relevant law.
Seavey
,
As mentioned before, Purdy's first claim of error is that the ALJ assigned inadequate weight to the opinion of her treating orthopedic physician, Dr. Kessler, as to her physical limitations. The ALJ's factual findings must be supported by substantial evidence and the legal standards must be correct. The relevant legal standard for a claim filed before March 27, 2017 (as Purdy's was) is the rule that a treating physician's opinion is controlling if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record."
To begin with, Dr. Kessler's opinion as reflected on the SSA-issued form made little sense on its face. Dr. Kessler indicated both that Purdy had experienced the same physical limitations since 2011 and that the cause of her limitations was the 2013 femur injury. Moreover, Dr. Kessler provided no discussion or analysis of his own prior observations, as the ALJ noted when she described his submission as merely checking the right boxes. That itself goes a long way toward supporting the ALJ's determination to accord Dr. Kessler's opinion little weight.
Matney
v.
Sullivan
,
But even more significant were Dr. Kessler's examination and treatment notes. Quite simply, Dr. Kessler's medical records of treating Purdy were at odds with his conclusions purporting to support Purdy's application. Purdy was diagnosed with a probable stress fracture in April 2013. Dr. Kessler's notes tracking the progress of the fracture made it clear that her prognosis was good. In July 2013, for example, Dr. Kessler noted that "there is a very, very strong chance that she will heal satisfactorily with no surgery." There was no displacement of the bone, and the required treatment was to avoid stress on the area so nature could take its course. The last mention of the femur in Dr. Kessler's records was on November 5, 2013, some three months before Purdy's hearing before the ALJ, and then Dr. Kessler noted that Purdy had a good range of motion in both hips and walked with minimal to no limp and without a cane (despite his recommendation). Though Purdy was continuing to experience pain, Dr. Kessler noted that "chances [were] she [would] end up getting away without having any surgery," and that even if the fracture did "fall apart," which Dr. Kessler labelled a "very small" risk, it could be fixed with surgery. Dr. Kessler's notes regarding Purdy's three further appointments before her hearing before the ALJ focused on a wrist injury and do not mention the stress fracture, or any pain associated with it, at all.
No one could reasonably read these records as support for finding or predicating a twelve-month duration of any impairment from the fracture. The contrary is true. There was therefore no legal error in refusing to treat Dr. Kessler's opinion as controlling or in according it little weight for purposes of determining whether the fracture constituted a severe impairment.
9
For the same reasons, the ALJ did not err in according Dr. Kessler's opinion little weight for purposes of determining Purdy's residual functional capacity. Based on the record and the particular circumstances of this case, the ALJ was entitled to make a "common-sense judgment[ ]" that the healing stress fracture did not preclude Purdy from performing some sedentary work.
Gordils
v.
Sec'y of Health & Human Servs.
,
As her second issue, Purdy says it was error for the ALJ to rely on the testimony of a VE to conclude that there were particular numbers of jobs that Purdy could perform, thus precluding (at Step 5) a conclusion that she was disabled. The nub of the objection is that the VE testified on the basis of numbers supplied by Job Browser Pro software available from a concern called SkillTRAN.
SkillTRAN's software has been recognized by at least one district court to be widely relied upon by vocational experts in estimating the number of relevant jobs in the national economy.
See, e.g.
,
Wood
v.
Berryhill
, No. 17 Civ. 5430,
The objection to the evidence given by the VE rested on her testimony that she did not know what precise analysis SkillTRAN followed to produce the job-number estimates she gave for jobs that Purdy could perform. On the basis of that testimony, and the third-party source for all figures used in the computations, Purdy argues that the VE's testimony should not be treated as expert evidence, but simply as parroting numbers immune to effective challenge by an applicant for benefits.
At the threshold, Purdy faces high hurdles. Admissibility of evidence before an ALJ presiding over Social Security proceedings is not subject to the Federal Rules of Evidence, and an ALJ is given express authority to assess the reliability of evidence offered.
See
To be sure, in spite of the breadth of judgment thus open to an ALJ, there have developed, not one, but two schools of thought for assessing the reliability of evidence in proceedings like this one. Drawing inspiration from
Daubert
v.
Merrell Dow Pharmaceuticals, Inc.
,
The Seventh Circuit stands alone, however, in imposing a
Daubert
-like requirement on ALJs in Social Security cases. The Ninth Circuit has disclaimed any such standard for testing the reliability of a VE's testimony regarding the number of relevant jobs in the national economy. Rather, that court has explained that "[a] VE's recognized expertise provides the necessary foundation for his or her testimony."
Bayliss
v.
Barnhart
,
We fail to see an adequate answer to the Second Circuit's argument. This is not to say that we could go to the extreme of approving reliance on evidence of the software numbers offered by a witness who could say nothing more about them than the name of the software that produced them.
12
But that is not the case here. The VE, whose qualifications Purdy did not challenge, testified that the job numbers were from the Bureau of Labor Statistics and were stated in reference to job descriptions in the DOT; that is, they were specific to jobs, not to broad amalgams of jobs, some of which an applicant might be able to perform but not others. The VE testified that the software's conclusions on the described basis were generally accepted by those who are asked to give the sort of opinions sought here. She testified, in other words, to a reliable and practical basis of fact on which analysis was performed, and to a wide reputation for reliability. Given the broad discretion on the part of an ALJ, and the complete lack of any competing evidence or critique, it is hard to see an abuse of discretion in the judge's refusal to demand, say, that a VE perform her own data-gathering field work, or be a statistician capable of duplicating the software analysis of the basic
material.
See
Pena
v.
Comm'r of Soc. Sec.,
IV
The ALJ's determination that Purdy was not disabled within the meaning of the Social Security Act was supported by substantial evidence. We affirm.
The Social Security Administration administers two separate benefits programs for the disabled: the Social Security Disability Insurance (SSDI) program under Title II of the Social Security Act and the SSI program under Title XVI of the Act. Whereas "[e]ligibility for SSDI depends on the insured person's contributions and insured status, SSI provides a minimum income for disabled people based on need."
Dion
v.
Sec'y of Health & Human Servs.
,
An applicant's residual functional capacity "is the most [he or she] can still do despite [his or her] limitations."
The SSA employs a four-step administrative-review process. First, the SSA makes an initial determination of eligibility for benefits. If dissatisfied with that determination, the applicant may seek reconsideration. If dissatisfied with the reconsideration determination, the applicant may request a
de novo
hearing before an administrative law judge. Finally, the applicant may appeal the administrative law judge's determination to the Appeals Council, which has the discretion to deny review.
See
Presumably, a reference to the injury Purdy's treating physician called a fracture of the "left femur." See 8, infra .
The ALJ determined that Purdy's alleged mental impairments resulted in only mild or moderate difficulties and did not entitle her to benefits at Step 3. Add. 22-23. Purdy does not challenge those determinations here.
Pursuant to SSA regulations, State agencies may (and often do) make the initial disability determination.
The ALJ's residual functional capacity determination, as reflected in the hypothetical she posed to the VE, differed from Dr. Kessler's in two key respects. First, whereas Dr. Kessler indicated that Purdy could not frequently lift or carry weight, the ALJ determined that she could carry up to 10 pounds with frequency. The ALJ's determination in that regard was consistent with that of the agency's non-examining physicians. Second, whereas Dr. Kessler indicated that Purdy could stand or walk for less than two hours in an eight-hour workday, the ALJ indicated that Purdy could stand or walk for two hours in an eight-hour workday. These differences were material to the VE, who testified that if Dr. Kessler's opinion were accepted and accurate, there would be no jobs available for Purdy to perform.
The agency has eliminated the treating-physician rule for purposes of claims filed on or after March 27, 2017. The agency no longer "defer[s] or give[s] any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [an applicant's] medical sources."
The appellant also takes the ALJ to task for suggesting that Dr. Kessler's unsupported opinion reflected personal sympathy for his patient. It is true, as the Commissioner concedes, that this was error, in the sense that the governing regulations do not list suspicions of sympathy as grounds for discounting a physician's opinion. But the error was insignificant in the context of this case: sympathy or no sympathy, the doctor's records just described do not support his findings as to Purdy's physical limitations.
The DOT, which has not been updated since 1991, has been criticized by some courts as "obsolete."
Herrmann
v.
Colvin
,
Ultimately, the Second Circuit in
Brault
declined to resolve the extent to which an ALJ must ever test a VE's testimony, simply noting its agreement with the Seventh Circuit to the extent that "evidence cannot be substantial if it is 'conjured out of whole cloth.' "
Nor do we foreclose the possibility that an applicant could demonstrate the methodology employed by Job Browser Pro (or any other software) to be so unreliable that it cannot constitute substantial evidence. No such attempt was made here.
Purdy also contends that the ALJ mischaracterized the statements of a physician who examined her in 2012 and improperly credited the opinions of the State agency non-examining physicians. Purdy did not adequately present these arguments in her objections to the magistrate judge's recommended decision. They are therefore waived.
See
Keating
v.
Sec'y of Health & Human Servs.
,
Reference
- Full Case Name
- Rita PURDY, Plaintiff, Appellant, v. Nancy A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant, Appellee.
- Cited By
- 366 cases
- Status
- Published