Tutwiler v. Kijakazi, No. 22-2808 (7th Cir. 2023)

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Justia Opinion Summary

This is a dispute regarding a claim for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act, brought by the plaintiff-appellant, Heather Tutwiler. The United States Court of Appeals for the Seventh Circuit affirmed the lower court's ruling that Ms. Tutwiler was not disabled within the meaning of the Social Security Act. The court found that the plaintiff had not engaged in substantial gainful employment since the onset date of her condition, and that her impairments significantly limited her ability to perform basic work activities. However, these impairments did not meet or equal the severity of any impairments listed in the Social Security regulations that lead to automatic findings of disability. The court noted that Ms. Tutwiler had the residual functional capacity to perform sedentary work with some additional restrictions. The court also found that jobs within Ms. Tutwiler’s abilities existed in the economy in such numbers that she was not disabled under the Social Security Act. The court held that the ALJ's decision was supported by substantial evidence and was not otherwise contrary to law.

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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2808 HEATHER TUTWILER, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:21-cv-00291-WCL — William C. Lee, Judge. ____________________ ARGUED SEPTEMBER 12, 2023 — DECIDED DECEMBER 7, 2023 ____________________ Before EASTERBROOK, HAMILTON, and PRYOR, Circuit Judges. HAMILTON, Circuit Judge. Alleging that numerous health problems prevented her from holding a job, plainti -appellant Heather Tutwiler applied under the Social Security Act for Disability Insurance Bene ts and Supplemental Security Income. After an evidentiary hearing, an administrative law judge found that Tutwiler could not perform her prior jobs 2 No. 22-2808 but was still able to perform some forms of sedentary work, with some additional restrictions. The ALJ found that jobs within Tutwiler’s abilities existed in the economy in such numbers that she was not disabled under the Social Security Act. On judicial review in the Northern District of Indiana, Judge Lee a rmed the denial of bene ts. On appeal, we agree that the ALJ’s decision was supported by substantial evidence and was not otherwise contrary to law. We a rm the judgment of the district court. I. Factual and Procedural Background Heather Tutwiler was diagnosed with endometrial cancer in May 2014 at the age of 41. Radiation treatment caused her signi cant gastrointestinal problems, including frequent vomiting, nausea, and diarrhea. Her gastrointestinal symptoms persisted in the following years. She had her gallbladder removed, had surgery for a hernia reduction and repair, and experienced signi cant weight loss, depression, asthma, and nicotine dependence. Tutwiler’s gastrointestinal problems caused her signi cant issues in her housekeeping and laundry jobs. She frequently vomited at work or had to take time o due to other gastrointestinal symptoms. As her symptoms got progressively worse, her employers cut her hours from full-time to part-time and then to working only “as needed.” Eventually, Tutwiler was red from her last job. In May 2019, Tutwiler applied for Disability Insurance Bene ts under Title II of the Social Security Act, 42 U.S.C. §§ 401–433, and for Supplemental Security Income under Title XVI of the Act, 42 U.S.C. §§ 1381–1383f. After the state agency denied Tutwiler’s application initially and on No. 22-2808 3 reconsideration, she requested a hearing before an ALJ. Tutwiler appeared at her hearing with counsel. A vocational expert also testi ed. In October 2021, the ALJ concluded that Tutwiler was not disabled within the meaning of the Social Security Act. He applied the ve-step test set forth in Social Security Administration regulations, 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Tutwiler had not engaged in substantial gainful employment since her onset date of January 1, 2018. At step two, the ALJ determined that Tutwiler’s hernia surgeries, gastrointestinal symptoms, asthma, and depression constituted severe impairments that signi cantly limited her ability to perform basic work activities. The ALJ also noted that Tutwiler’s history of endometrial cancer, as well as her marijuana, methamphetamine, and alcohol use disorders, were nonsevere impairments—conditions that were abnormal but restricted only minimally her ability to work. At step three, the ALJ found that Tutwiler’s impairments, alone or in combination, did not meet or equal the severity of any impairments listed in the Social Security regulations that lead to automatic ndings of disability. At step four, the ALJ determined Tutwiler had the residual functional capacity to perform sedentary work with some additional restrictions: she could climb stairs or kneel or crouch only occasionally, and she could never climb ladders or ropes. The ALJ also found that Tutwiler needed to avoid concentrated exposure to extreme temperatures and that she could not perform fastpaced assembly-line work. Considering this residual functional capacity, as well as Tutwiler’s age, education, and work experience, the ALJ found at step ve that Tutwiler could work as an information clerk, table worker inspector, 4 No. 22-2808 sorter, document preparer, and address clerk. Because these jobs existed in signi cant numbers in the national economy, the ALJ determined that Tutwiler was not disabled for purposes of the Social Security Act. Tutwiler sought judicial review of the ALJ’s decision. The district court a rmed, nding that the ALJ’s decision was supported by substantial evidence. Tutwiler has appealed. II. Standard of Review When reviewing a district court’s decision on an ALJ’s decision, we review the district court’s decision de novo, but the law requires us to apply the same deferential standard of review to the ALJ’s decision that the district court applies. Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021). We will reverse an ALJ’s decision only if it is the result of an error of law or if it is unsupported by substantial evidence. Id. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021); see also 42 U.S.C. §405(g) (“The ndings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ….”); Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). An ALJ must provide an adequate “logical bridge” connecting the evidence and her conclusions, but an ALJ’s opinion need not speci cally address every single piece of evidence. O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). We will reverse the ALJ’s decision “only if the record compels a contrary result.” Gedatus, 994 F.3d at 900. III. Analysis Tutwiler focuses her challenge on the ALJ’s residual functional capacity determination at step four of the analysis. She No. 22-2808 5 argues on appeal that the ALJ failed to consider all her limitations in his analysis and that he “cherry-picked” the record for facts that were unfavorable to Tutwiler. But in the district court, Tutwiler set forth only one argument: that the ALJ failed to consider adequately how Tutwiler’s gastrointestinal symptoms prevented her from working. Tutwiler has forfeited any argument unrelated to her gastrointestinal symptoms. As to the merits of that argument, we conclude that the ALJ’s decision was supported by substantial evidence and is free from legal error. A. Forfeiture Tutwiler argues that the ALJ should have considered her signi cant weight loss, her limited drug use, and her mental limitations when calculating her residual functional capacity. Tutwiler did not raise any of these issues in the district court. She contends, however, that she preserved these new arguments for appeal because she discussed broadly the ALJ’s residual functional capacity determination in the district court and argued that the ALJ did not incorporate all her limitations—including these three—in his analysis. The argument section of Tutwiler’s district court brief, however, did not mention weight loss, drug use, or mental limitations. It discussed only the e ects of her gastrointestinal issues on her ability to work. Tutwiler thus forfeited arguments resting on any other limitations by failing to discuss them in her district court brief. E.g., United States v. Sheth, 924 F.3d 425, 435 (7th Cir. 2019). Tutwiler resists this conclusion, citing Arnett v. Astrue, 676 F.3d 586 (7th Cir. 2012), for the proposition that it is “su cient” for an appellant to have raised “the ALJ’s [residual 6 No. 22-2808 functional capacity] determination overall in the district court.” Id. at 593. The quoted language must be considered within the context of that case. The Arnett claimant’s district and appellate court arguments were not nearly as di erent as Tutwiler’s. In the district court, the Arnett claimant had argued that the ALJ should have given greater consideration to her inability to sit or stand for a sustained time. On appeal, she shifted her argument slightly, arguing that “the ALJ failed to formulate [a residual functional capacity] that is su ciently speci c as to how often she must be able to sit and stand.” Id. at 593. Although the Arnett claimant’s argument changed slightly, her appellate brief still referred to the same factors that she had discussed in her district court brief. This context clari es our holding in Arnett as standing for the proposition that a litigant su ciently preserves an issue for appeal when the similarity between trial and appellate arguments resembles that of the Arnett claimant’s. Cf. Milhem v. Kijakazi, 52 F.4th 688, 693 (7th Cir. 2022) (distinguishing Arnett and nding waiver where claimant argued for rst time on appeal that Commissioner should be required to de ne by regulation how many jobs are “signi cant” for step- ve calculation). This case is very di erent, and Tutwiler asks us to adopt a standard that would be much more disruptive to orderly litigation. She invites this appellate court to reverse a district court’s judgment based on matters never brought to the district court’s attention. While the plain-error standard (applied more often in criminal cases) sometimes allows such reversals, it should not be freely extended to Social Security disability litigation. Tutwiler’s district court brief did not mention the speci c factors—her weight loss, drug use, or mental limitations—that she now highlights on appeal. She asserted only generally that the ALJ must consider all limiting e ects in his No. 22-2808 7 residual functional capacity determination. Her position would allow claimants to raise any issue relating to their residual functional capacity so long as they raised a single issue related to it in the district court. That approach would run contrary to the limited role of reviewing courts. It also would contradict this court’s general practice of treating arguments raised in “a perfunctory or general manner” in the district court as forfeited on appeal. E.g., Sheth, 924 F.3d at 435; see also Persinger v. Southwest Credit Systems, L.P., 20 F.4th 1184, 1195 n.5 (7th Cir. 2021) (applying same forfeiture standard in civil case). We decline to adopt a standard that would allow an appellant to present a case on appeal that the district court would no longer recognize. B. Gastrointestinal Symptoms Tutwiler argues that the ALJ erred by “cherry-picking” the record for evidence that minimized the disabling e ects of her gastrointestinal symptoms, by discounting her own testimony, and by ignoring other evidence in the record that supported her testimony. After reviewing the ALJ’s decision and the evidentiary record underlying it, we conclude that the ALJ’s credibility determination was not patently wrong and that Tutwiler did not identify any objective evidence that would compel a contrary result. 1. Credibility Determination The ALJ discounted Tutwiler’s subjective reporting of her gastrointestinal symptoms, nding that multiple factors impaired Tutwiler’s credibility. First, the ALJ reasoned that the intensity, persistence, and limiting e ects of the symptoms that Tutwiler described in her testimony did not parallel her medical records, which showed that her symptoms were 8 No. 22-2808 sometimes debilitating but other times were not. Second, the ALJ thought that Tutwiler’s inability to maintain full-time employment was likely due to reasons other than her impairments. Third, the ALJ found that Tutwiler’s ability to care for herself at home—which included the ability to bathe herself, to care for a pet, and to do chores—stood in tension with her assertion that she could not work due to her symptoms. Finally, the ALJ recognized that the evidentiary record showed that Tutwiler had previously used marijuana and methamphetamine, even though she testi ed at her hearing that she had never used drugs. Reviewing these factors, we conclude that the ALJ’s credibility determination was not “patently wrong,” as it would need to be for this court to reverse on that basis. E.g., Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008). Although the ALJ might have erred in his analysis of some factors, enough of them had adequate supporting evidence for this court to uphold his credibility determination. See Bates v. Colvin, 736 F.3d 1093, 1098 (7th Cir. 2013) (upholding ALJ’s credibility determination despite disagreeing with some underlying reasons for that decision). For example, Tutwiler testi ed at her hearing that she had never used any illicit substances, but the evidentiary record plainly shows that she had used marijuana and methamphetamine before. 1 Also, despite Tutwiler’s assertions at her hearing that her gastrointestinal symptoms 1 We have noted before that a claimant might be afraid to admit to a government official that she committed a crime by using drugs. McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010) (finding ALJ’s analysis of credibility was inadequate). Nevertheless, as McClesky recognized, an ALJ is still entitled to weigh such lies or errors in testimony in weighing overall credibility. Id. No. 22-2808 9 were constant and untreatable, Tutwiler had herself reported some improvement in prior years. Because the ALJ made his credibility determination based on the totality of these factors and enough of them withstand scrutiny to support his decision, his determination does not amount to a reversible error. 2. Objective Medical Evidence Tutwiler also contends that the ALJ ignored objective medical evidence that tended to prove she was disabled. She argues that medical records from 2014 through 2020 show that her gastrointestinal symptoms were persistent and debilitating. She also argues that those symptoms would have caused her to miss more than one day of work per month and to be “o -task” for more than ten percent of a workday. According to the vocational expert, either of those e ects would have caused Tutwiler to lose almost any job she might have found. But the evidentiary record does not uniformly support Tutwiler’s assertions. Evidence indicates that her symptoms were abating toward the end of her claimed disability period. Notes from two of Tutwiler’s 2020 doctor appointments report that she was not experiencing gastrointestinal symptoms at those times. Another note from October 2019 reported that Tutwiler’s diarrhea had “improved” since she started taking medication. Taken as a whole, the medical evidence presented an ambiguous picture as to the severity and persistence of Tutwiler’s symptoms. The ALJ considered some evidence that could have supported a more restrictive residual functional capacity than the ALJ found here, but other substantial evidence supports the ALJ’s decision. 10 No. 22-2808 Reasonable minds could disagree with the ALJ’s appraisal of this con icting evidence. Yet judicial review is not designed for appellate judges looking at a transcript to re-weigh con icting evidence. Instead we ask whether the ALJ’s decision “re ects an adequate logical bridge from the evidence to the conclusions.” Gedatus, 994 F.3d at 900. The ALJ’s decision met this standard. He weighed the competing evidence, assessed testimony from Tutwiler and the vocational expert, and considered the opinions of treating physicians and other physicians who had examined Tutwiler. The ALJ’s careful consideration is shown by the fact that he departed from the residual functional capacity recommended by the state agency physicians who evaluated Tutwiler. They found that she could perform work at the light exertional level (with some additional restrictions). The ALJ found that Tutwiler could perform no more than sedentary work (with those additional restrictions) based on his independent review of the full evidentiary record. Also, Tutwiler did not provide any opinion from a doctor who would have imposed greater restrictions than those the ALJ found in his decision. See Gedatus, 994 F.3d at 904. The lack of an opposing medical opinion makes it di cult for us to nd that the ALJ misjudged the evidence so signi cantly as to warrant reversal. Doing so would essentially put ourselves in the ALJ’s shoes to re-weigh the evidence, a role that we try to avoid. In sum, the ALJ supported his opinion with substantial evidence, and Tutwiler has not identi ed anything in the record that compels a contrary result. Deborah M. v. Saul, 994 F.3d 785, 788 (7th Cir. 2021). The judgment of the district court is AFFIRMED.

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