7th Circuit upholds denial of disability benefits based on expert testimony

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An administrative law judge’s reliance on expert testimony in denying a claim for disability benefits was proper because the claimant suffered from both exertional and nonexertional limits, the 7th Circuit Court of Appeals has ruled.

The case of Mike Butler v. Kilolo Kijakazi, 20-3187, involves plaintiff-appellant Mike Butler’s request for disability insurance benefits based on such exertional and nonexertional limits. An administrative law judge denied Butler’s claim, and the appeals council declined review.

The denial centered on step five of the five-step analysis of a person’s eligibility for disability benefits: whether “the claimant is unable to perform any work existing in significant numbers in the national economy.” The ALJ heard testimony from a vocational expert who identified three unskilled light work occupations that Butler could still perform despite his limitations. At the time of the expert’s testimony, about 3,050 such jobs — furniture rental consultant, usher and information clerk — existed in Indiana, plus 136,000 nationally.

Butler, however, argued on appeal that the ALJ should have applied the Medical Vocational Guidelines, or “the grids,” to his case, rather than hearing testimony from a vocational expert. Specifically, he argued that the ALJ failed to consider that Butler was “closely approaching advanced age,” an adverse vocational factor.

“But that argument is belied by the record,” Judge Ilana Rovner wrote in a Wednesday opinion. “The ALJ quite clearly recognized that Butler was in the category of persons closely approaching advanced age, and in eliciting the testimony from the VE as to jobs that Butler could perform, the ALJ incorporated Butler’s age as one of the characteristics to be considered in making that decision, asking the VE ‘whether jobs exist in the national economy for an individual within the claimant’s age, education, work experience, and residual functional capacity.’”

Butler also argued that the ALJ cut off cross-examination as to how much the unskilled light occupational job base would be eroded based on his limits to only occasional reaching, handling and fingering with the left upper extremity. But the appellate panel also found that argument unconvincing, concluding that “the ALJ followed the procedures that are appropriate to a case such as this one in which exertional and nonexertional impairments impede the claimant’s ability to perform some jobs within a category.”

Butler relied on the case of DeFrancesco v. Bowen, 867 F.2d 1040 (7th Cir. 1989), but Rovner said that case actually supported the ALJ’s decision.

“Unlike in DeFrancesco, the ALJ here consulted a vocational expert to obtain an assessment. The ALJ thus followed the procedure that was lacking in DeFrancesco, consulting with a vocational expert and denying benefits only after the expert identified light work jobs that Butler could perform, which existed in sufficient numbers to conclude that Butler’s condition was not medically disabling,” the judge wrote.

“… Along the same lines, in numerous other cases we have upheld the resort to vocational experts in cases involving both exertional and nonexertional limitations, as are present here, because the grids do not reflect nonexertional limitations,” she continued.

“… Therefore, where the exertional impairments alone do not dictate a finding of disabled, and where the impact of the nonexertional limitations on the ability to perform jobs is not obvious, we have required resort to a vocational expert to assess how the confluence of the exertional and nonexertional limitations impacted the number of jobs that the claimant could perform within a given occupational base. That is precisely what the ALJ did here.”

Finally, the panel rejected Butler’s argument that the ALJ failed to state that work existed in significant numbers in Butler’s region of the country, noting that the expert testified about the number of jobs that Butler could perform specifically in Indiana.

“Here, Butler argues only that the ALJ failed to recite in the decision the undisputed testimony of the vocational expert. The alleged error, then, would be eliminated if the ALJ merely reissued the same opinion, including sentences that set forth that additional testimony by the vocational expert,” Rovner wrote. “… Because he alleges merely the pro forma error of failing to recite in the decision the uncontested testimony of the VE, we can predict with great confidence what the result of remand will be, and accordingly any alleged error would be harmless.”

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