It was a busy month in the Seventh Circuit. The Court issued three affirmations and one remand order in March 2023. Pertinent to last month’s column chronicling recent circuit judge appointments, Dzafic (affirmed) is the second Social Security decision in which Judge Pryor has participated since joining the Court.

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

Fetting v. Kijakazi (affirmed, published)

Judges Flaum, Scudder, and St. Eve

Mar. 9, 2023

A vocational expert cited three DOT codes comprising 440,000 jobs in response to a hypothetical question matching Fetting’s RFC limitations. Fetting challenged whether this testimony, and its underlying methodology, was sufficient to support an adverse Step Five finding. Fetting filed a prehearing brief stating he did not believe a proper foundation would be established for the VE to provide job numbers. In that brief and at the hearing, Fetting reserved the right to object to specific testimony if needed. He cross-examined the VE to determine the source of the numbers, which the VE said came from the Bureau of Labor Statistics and applying his 30-year knowledge of the labor market to determine the “grouping” of each occupation withing the BLS’ data without “a hard and fast scientific type formula.”

The Court found that Fetting forfeited any objection to the VE’s methodology but that the methodology was sufficient in any event. A “general objection or vague[ly] ask[ing] the VE about his methodology” is inadequate, and although Fetting reserved to right to object, he never did. The VE could have explained his methodology more clearly, but the Court found his testimony “sufficiently cogent enough for the ALJ to rely on it.” The VE did not have to provide every detail of his calculations or use a market study, computer program, or publication to make them.

Bakke v. Kijakazi (affirmed, published)

Judges Ripple, Scudder, and St. Eve

Mar. 13, 2023

Bakke, a beef farmer, sought disability benefits due to severe back pain. He underwent a spinal fusion but has residual pain. Bakke argued that an ALJ erred in rejecting his treating doctor’s opinion in favor of two state agency record reviewers’ opinions and erred in rejecting his subjective symptoms. Bakke suggested that a post-surgical CT myelogram rendered the state agency opinions outdated, but the Court noted that two other doctors who reviewed this imaging had “mild reactions” to it. Therefore, it did not show a new, significant diagnosis that reasonably could have changed the state agency opinions, and the ALJ properly explained why he relied on them. The ALJ also properly explained why he rejected a treating doctor’s opinion where it was inconsistent with a note describing “reasonably good control” of pain and where the doctor did not “explain the link between the medical evidence she listed and the recommended work restrictions.” As for Bakke’s subjective symptoms, the ALJ acted properly where he “clearly note[d] all evidence—that which supports his conclusion and that which undermines it.”

Cieszynski v. Kijakazi (remanded, unpublished)

Judges Easterbrook, Wood, and St. Eve

Mar. 15, 2023

Cieszynski applied for DIB at age 48 due to impairments that include cervical and lumbar spine problems. The Court agreed with Cieszynski that an ALJ improperly rejected opinions from (1) the agency’s examining physician, who opined that she could not tolerate prolonged sitting, standing, or heavy lifting repetitively, and (2) a treating doctor who was the only physician to review MRI findings that include severe neural foraminal narrowing.

As for Cieszynski’s doctor, the treating physician rule still applied and the ALJ’s minimal explanation did not address all relevant factors or provide a “good reason” to reject the opinion. The ALJ cited “some benefit” from treatment but did not grapple with evidence that the benefits were temporary, “even though he partially acknowledged the temporary nature of the relief elsewhere in his decision.” And although Cieszynski stopped pain management treatment after she could no longer obtain opioids, there was no evidence that she had other options for effective pain relief and the ALJ did not inquire about later treatment gaps.

Rejecting the agency’s examiner was “a closer call” but still improper. The ALJ needed to provide a “good explanation” for discounting the agency’s own examiner. And the ALJ should have recontacted the examiner if he was concerned that the examiner did not provide specific limitations or explain the rationale for his conclusions.

Dzafic v. Kijakazi (affirmed, unpublished)

Judges Sykes, Wood, and Pryor

Mar. 16, 2023

Dzafic, a hotel housekeeper in her 40s, injured her back while making a bed at work. Imaging showed disc bulges at two levels and a significant amount of facet arthrosis. One neurosurgeon recommended a discectomy. Various physicians opined that Dzafic could either not return to work or could return to full or light-duty. An ALJ assessed a light RFC and issued a Step Four denial based on the housekeeping job as generally performed.

Dzafic argued that the ALJ should have better analyzed Listing 1.04, credited certain treating physician opinions, and assigned more RFC limitations. The Court disagreed with each point. First, the Court found that Dzafic’s arguments would not satisfy the listing in any event. Second, in claims filed after March 2017, 20 C.F.R. §404.1520c allows an ALJ to favor state agency consultants over treating physician opinions unless the ALJ’s analysis is “either illogical or unsupported.” Third, Dzafic’s arguments for more RFC limitations were either addressed reasonably by the ALJ or need not have been because there was no evidence to support them. Finally, the Court noted that the magistrate judge below erroneously stated that there were no disabling opinions, but this did not warrant remand because the Seventh Circuit reviews ALJ decisions directly without deferring to district courts.

Thanks for reading!

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