Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

O'CONNOR-SPINNER v. ASTRUE (November 29, 2010)

Louquetta O’Connor-Spinner filed an application for Social Security benefits in early 2004. She cited a long history of severe mental and physical impairments and claimed to be unable to perform any work. The evidence indicated treatment for both the physical and mental ailments as early as 2002. Two state psychologists examined O'Connor-Spinner. They both diagnosed her with depression. One indicated that the depression would not prevent her from performing moderately complex tasks but noted a limitation on receiving and responding to instructions appropriately The Social Security Administration denied O'Connor-Spinner's claim. O'Connor-Spinner requested and received a hearing before an ALJ. At the hearing, the ALJ presented the Vocational Expert (“VE”) with increasingly restrictive hypotheticals. Even the most restrictive hypothetical, however, contained no limitations on concentration, persistence, and pace (which the ALJ's assessment of her residual functional capacity established) or on receiving and responding to instructions appropriately (as the one psychologist noted). The VE testified that O'Connor-Spinner could not perform her past jobs but identified several that she could perform. The ALJ therefore concluded that she was not disabled. Then-Judge Hamilton (S.D. Ind.) upheld the ALJ decision. O'Connor-Spinner appeals.

In their opinion, Seventh Circuit Judges Bauer, Ripple, and Kanne reversed and remanded. The Court first addressed the argument that the ALJ's finding of limitations on concentration, persistence, and pace required the ALJ to include those limitations in the hypotheticals. The general rule is that an ALJ must inform the VE all of the claimant's limitations. There is no per se rule that those limitations be included in a hypothetical. But here, where the ALJ focused on increasingly restrictive hypotheticals, where there is no evidence that the VE reviewed the medical history, and where the ALJ did not use other words to describe the same limitation, a remand is required. The Court also agreed that with the claimant that the ALJ should have been more clear with respect to the claimant’s limitation on receiving and responding to instructions. The ALJ neither mentioned nor included that limitation in a hypothetical. The Court noted that this shortcoming may not have, by itself, required a remand. Since the case was going to be remanded anyway, the Court encouraged the ALJ to clarify his position on this limitation in the record.

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OVERMAN v. ASTRUE  (October 7, 2008)

Gerald Overman is a 58-year old high school graduate. For years, he worked as an unskilled maintenance worker and repairman at a golf course. He was able to work, even though he suffered from diabetes, hypertension, and some fairly serious vision problems. He began to experience more serious problems. He became tired and overheated very easily and lost quite a bit of weight. He was diagnosed with Graves’ disease and anemia. Overman began radioactive iodine therapy for the Graves' disease. The treatment was somewhat successful but his physician had a difficult time finding the correct dosage.  Overman's vision was also worsening.  His physician's conclusion was that “any” visual task would be difficult for Overman and that his eyesight was continuing to deteriorate.  Overman applied for social security benefits.  An ALJ conducted a hearing in 2005. Overman testified regarding his condition and disabilities. He said he tired easily, could not see well, could not be in extreme temperatures, and could not lift much weight. The agency medical consultant testified that Overman could not perform work that required reading or fine visual determination, or that involved extreme temperatures or heavy lifting. A Vocational Expert (“VE”) also testified. He testified that Overman could not continue in his prior field of work, primarily because of the temperature extremes. He did testify, however, that he could perform two jobs: a material packaging job and a keg-filling job. The VE also testified that his testimony was consistent with the Dictionary of Occupational Titles (“DOT”). On cross-examination, the VE admitted that both jobs he said Overman could perform would be eliminated if Overman was not capable of fine visual discrimination or reading. The ALJ found that Overman could do either of the two jobs identified by the VE. He gave great weight to the VE’s testimony on direct. The ALJ believed the testimony on cross-examination merely confirmed the VE’s conclusion about other jobs he had eliminated. Overman sought review in the district court . The court upheld the ALJ’s decision. Overman appeals.

In their opinion, Judges Posner, Sykes, and Tinder (in a per curiam opinion) reversed. The Court observed that the VE’s testimony about the two available jobs did, in fact, conflict with the DOT. Both jobs require a degree of visual acuity and reading ability that Overman does not have. The Commissioner concedes as much but argues that remand is unnecessary. The Court pointed out that a Social Security Ruling requires the ALJ to confirm that the VE’s testimony is consistent with the DOT and further requires a ALJ to inquire further if an apparent conflict exists. Overman’s counsel did not bring the conflicts to the attention of the ALJ. Therefore, the Court stated, the conflicts must be obvious enough to cause the ALJ to notice them without assistance. The Court found that the conflicts with respect to vision and reading capabilities should have been apparent to the ALJ. The Court also held that the ALJ’s ruling was not supported by substantial evidence because of the flawed VE testimony.  

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