June was a busy month in the Seventh Circuit. The Court decided five Social Security cases, three of which were published, but only one produced a remand. Of note, three cases addressed VE methodology at Step Five, and all were affirmed.

Without further ado, here are last month’s Seventh Circuit cases:

Martinez v. Kijakazi (remanded, published)

Judges Flaum, Rovner, and St. Eve

June 29, 2023

In preparing Martinez’ administrative record for review in federal court, the Commissioner removed medical records that belonged to another person from one exhibit. The exhibit contained some pages relevant to Martinez, which were not omitted, and other pages that were not hers. Because the exhibit was cited in the ALJ’s decision, Martinez moved to compel production of the missing pages. That was denied, and the district court affirmed the ALJ. The Seventh Circuit could not determine harmless error and remanded for the ALJ to evaluate Martinez’ claim based on the correct evidence. The ALJ cited the exhibit as a whole five times, and the Court could only determine that two citations were harmless based on the context.

Although the Court only remanded to address the record problem, it highlighted three other issues that “give us pause,” which have the potential to be useful:

• The ALJ rejected third-party statements for suspect reasons. Per the Court: “neither being Martinez’s friend nor [the friend’s] lack of medical experience are proper grounds to disregard his statements.”
• The ALJ found Martinez “not fully compliant with treatment recommendations” because he smokes and a doctor suggested he quit. The ALJ’s decision did “not explain the relevance of Martinez’s inability to kick the habit,” and using smoking to discount Martinez’ subjective symptoms would be improper under the Court’s precedent.
• The ALJ discredited a doctor’s statements about Martinez’ panic attacks, anxiety, and ability to function because Martinez did not receive inpatient psychiatric treatment. The Court reminded the Commissioner that a lack of inpatient treatment does not necessarily indicate that a person is capable of gainful employment.

Hohman v. Kijakazi (affirmed, published)

Judges Scudder, St. Eve, and Kirsch

June 28, 2023

An ALJ denied Hohman’s disability claim based on fibromyalgia and mental health conditions with a light RFC at Step Five. The ALJ relied on VE testimony about three DOT codes comprising 130,000 jobs nationally. The VE claimed to reach these jobs numbers through the Bureau of Labor Statistics’ Occupational Employment Statistics. The VE testified that based on 25 years of placement and labor market surveys he did not use the equal distribution method to extrapolate the number of jobs for each DOT code but modified his calculation based on job titles that his experience suggested should not receive equal weight, such as those eliminated by technology. Hohman objected. The ALJ found the testimony reliable.

Hohman first argued that the ALJ should have credited her testimony and found her limited to sedentary work because of fibromyalgia. The Court disagreed, noting that the ALJ did not run afoul of fibromyalgia caselaw or agency policy by relying solely on objective evidence. Hohman walked her dog, did “other household activities,” worked for five years after her diagnosis, and had conservative treatment, which the Court found sufficient.

Hohman also challenged the VE’s job number estimates. The Court characterized two prior cases as the “bookends on the substantial evidence standard” for this issue: Brace v. Saul (2020), where it was insufficient that the VE testified to an “allocation based on weighting or reweighting,” and Fetting v. Kijakazi (2023), where it was sufficient that the VE’s expertise from 30 years of job placements informed his adjustments to BLS data. The Court explained that “where a VE reasonably connects their ‘weighting’ to their knowledge and experience . . . an ALJ can more readily see the logical bridge underlying the estimate.” The Court chided the Commissioner for not updating reliance on the DOT as was promised in 2008, but affirmed.

Leisgang v. Kijakazi (affirmed, published)

Judges Scudder, St. Eve, and Lee

June 26, 2023

A VE estimated that over 2 million jobs were available under Leisgang’s RFC, and an ALJ accepted that testimony to deny his claim at Step Five. Leisgang’s attorney asked the VE about the source of his estimates. The VE testified that he uses Occupational Employment Quarterly, that it applies the equal distribution method to estimate job numbers, and when asked if the VE believed that method was reliable, that it was the only method the VE had available. Leisgang asked no more questions and did not state an objection.

The Court held that Leisgang waived any objection by not make it before the ALJ. While an ALJ “still cannot accept testimony from a VE that is facially implausible or incoherent” and survive review in court, “nothing about the VE’s testimony in this case indicated, by itself, that the ALJ could not put some ‘modicum of confidence’ in the VE’s job-number estimates.”

Leisgang also sought review of the ALJ’s handling of a treating doctor’s opinion. The ALJ found it persuasive but did not include in the RFC the “precise wording” about “some difficulty following a schedule, working without being districted by others and handling a normal workweek without symptoms.” The Court found the doctor’s language vague and allowed the ALJ to “agree[ ] with the thrust of” the opinion in crafting his own RFC language. The Court also noted in passing that the ALJ’s “summarized treatment history” supported his opinion assessment.

Desotelle v. Kijakazi (affirmed, unpublished)

Judges Brennan, Scudder, and Kirsch

June 23, 2023

An ALJ rejected the opinion of Desotelle’s treating doctor that she needed unscheduled breaks and the ability to change positions, and the ALJ denied her claim at Step Five based on VE testimony. The Court found discounting the opinion reasonable where it appeared to rely primarily on unsupported subjective complaints and was inconsistent with other opinions.

Desotelle also argued that the ALJ erred at Step Five and that questioning the VE about the methodology of job numbers constituted an objection. The Court disagreed. The estimates were not challenged, and the two questions asked at the hearing did not reveal any shortcomings in the VE’s data or reasoning for the ALJ to address. And the fact that the VE relied on a publication that employs the equal distribution method does not trigger the ALJ’s duty to inquire.

Richardson v. Kijakazi (affirmed, unpublished)

Judges Rovner, Hamilton, and Scudder

June 21, 2023

Richardson challenged an ALJ’s light RFC based on his symptoms of dizziness and headaches. The ALJ claimed no medical source opined he needed to lie down to relieve his symptoms, but an emergency room doctor suggested he lie flat whenever he felt the dizziness coming on. The Court held that this was not a medical opinion that Richardson needed to nap but only the doctor offering “an option for relief.” The Court found Richardson’s other arguments, including that the magistrate judge and ALJ were biased against him based on prior adverse rulings, without merit.

Thanks for reading!

Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL