Lynn Buttles v. Kilolo Kijakazi, No. 22-2844 (7th Cir. 2023)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted August 1, 2023 * Decided August 15, 2023 Before DIANE P. WOOD, Circuit Judge DAVID F. HAMILTON, Circuit Judge THOMAS L. KIRSCH II, Circuit Judge No. 22-2844 LYNN JEAN BUTTLES, Plaintiff-Appellant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Eastern District of Wisconsin. No. 21-CV-463-SCD Stephen C. Dries, Magistrate Judge. ORDER Lynn Buttles has struggled for years from serious restrictions in her ability to use her arms, and she also has difficulty concentrating. Contending that she was unable to work, she applied for Social Security disability insurance benefits, but after extensive administrative proceedings her application was denied. Buttles now argues that she should get one more chance to make her case, because the administrative law judge The court granted Buttles’s unopposed motion to waive oral argument. This appeal is therefore submitted on the briefs and record. See FED. R. APP. P. 34(a)(2). * No. 22-2844 Page 2 failed to discuss one doctor’s report. We conclude, however, that this omission was harmless. Because the agency’s decision was otherwise supported by substantial evidence, we affirm. I In 2000, Buttles (then 35) was involved in an accident while working at a grocery store. A heavy crate of cucumbers fell on top of her, seriously damaging her left shoulder. The next year, she underwent a surgical procedure to remove a portion of her collar bone. But even after surgery, physical therapy, and cortisone shots, she continues regularly to experience pain, weakness, and a reduced range of motion in that shoulder. In 2005, a functional capacity exam showed that her left arm was still impaired: she could not lift moderate to heavy weights and could not do repeated overhead activities without discomfort. The same exam showed that she could do some light lifting, but repetitive use caused pain. Buttles eventually started a new job at a fiberglass manufacturer, but there, unable to rely on her left arm, she relied almost exclusively on her right side and eventually developed pain there from overuse. To rest her right arm and attempt to mitigate her pain, she took a few weeks off work in 2008. But when she tried to return, she learned that she no longer had a job. She has not worked since. Buttles originally applied for benefits in 2009. Fourteen years later, this protracted matter has gone through three hearings before different administrative law judges. On February 7, 2013, after the first hearing, the ALJ denied benefits, determining that despite her physical limitations and pain there were jobs in the national economy that she could perform. Buttles did not seek judicial review of that decision, which meant that any future application could not claim an onset date earlier than February 8, 2013. In April 2014, she filed another application, seeking benefits beginning as of that new onset date. She alleged disability based on chronic pain in her neck, shoulder, arms, hips, and legs; fatigue; depression; crying spells; and anxiety. These conditions caused difficulty with activities such as walking, standing, sitting, kneeling, using her hands, completing tasks, concentrating, following instructions, handling stress, and getting along with others. A different ALJ held a hearing in 2017 and denied Buttles’s new application. In concluding that there were jobs that Buttles could perform, the ALJ gave great weight to the opinions of state-agency doctors who evaluated her medical condition and reported that she could still perform “light work.” The ALJ also considered testimony from No. 22-2844 Page 3 psychologists who found some limitations (mild restrictions in daily activities and social functioning, and moderate difficulties with concentration), but who thought that she could still perform “unskilled work.” Buttles sought judicial review of this second denial and won a remand from the district court on the ground that the ALJ had failed to apprise the vocational expert of Buttles’s difficulties concentrating. This omission, the court concluded, was serious enough to require a new assessment of her ability to work. Around this time Buttles, who was experiencing a decline in cognition (possibly related to chronic pain), saw neuropsychologist Dr. Julie Bobholz. After examining Buttles in August 2018, Bobholz opined that she had ADHD, learning problems, depression and anxiety, and that her condition had deteriorated in the last five years. Bobholz concluded that overall Buttles was “very very limited,” was likely unable to work, and that disability benefits would be appropriate. In 2020, Buttles had a third hearing before yet another ALJ. She testified that after overusing her right arm at her fast-paced fiberglass-manufacturer job, she was no longer able to work because of her chronic pain and difficulties lifting, carrying, and reaching. She related that after she lost that job, she mostly stayed at home, though pain hindered her ability to do typical household tasks and she often needed her husband’s help. A vocational expert also testified, opining that someone with Buttles’s age, education, work background, and similar restrictions would be able to perform light work involving simple instructions, without fast paced production quotas, with low stress. Such a person would be able to concentrate for only two-hour intervals over an eight-hour day, with routine breaks. The expert added that if this hypothetical person could do only sedentary work with limited use of their left and right arms, that person would not be employable. The ALJ applied the required five-step analysis for assessing disability and concluded that Buttles had not shown that she was disabled as of December 31, 2013, her date last insured. See 20 C.F.R. § 404.1520(a)(4). The ALJ determined that Buttles had not engaged in substantial gainful activity (step 1); that she had severe impairments including serious nerve damage in her left shoulder and arm that caused persistent pain and reduced range of motion, tendonitis and a pinched or compressed nerve in the right arm and hand that also caused persistent pain, and depression (step 2); and that her impairments did not meet the criteria for any listed impairment but she had moderate limitations in the areas of concentration, persistence, and pace (step 3). Between steps 3 and 4, the ALJ assessed Buttles’s residual functional capacity (RFC) and concluded that she was limited to light work with some additional restrictions: simple No. 22-2844 Page 4 instructions, no fast-paced production quotas, and no more than two-hour periods of concentration over an eight-hour day with routine breaks. Next, the ALJ concluded that given Buttles’s RFC and the vocational expert’s testimony, Buttles could not perform her past jobs (step 4). Finally, the ALJ concluded that as of the date last insured Buttles was still able to perform jobs such as garment or laundry sorter, or routing clerk, that existed in significant numbers in the national economy (step 5). The step 5 finding dictated a finding of no disability and thus no benefits. The Appeals Council denied Buttles’s request for review. Buttles sought judicial review, see 42 U.S.C. § 405(g), arguing that the ALJ did not address several medical opinions, including the 2018 report from Bobholz that described her decline in mental health. Buttles added that the ALJ failed to assess other relevant evidence beyond the period between February and December 2013, did not adequately account for her pain and her mental health difficulties, and overemphasized her ability to perform some daily activities. A magistrate judge, presiding by consent pursuant to 28 U.S.C. § 636(c), upheld the ALJ’s determination. The court agreed that the ALJ erred by failing to consider Bobholz’s report. But it found this error to be harmless, given the ALJ’s explanation that she gave greater weight to the medical evidence closer in time to the relevant period. The court otherwise rejected Buttles’s contention that evidence was ignored or not assigned proper weight, and it found that the ALJ did not impermissibly equate Buttles’s daily activities with the demands of fulltime employment. II On appeal, Buttles makes two arguments. First, with respect to her concentration problems, she contends that the ALJ erred by failing to consider Bobholz’s report. More broadly, she asserts that substantial evidence did not support the ALJ’s conclusion that she was able to concentrate for two-hour blocks of time through a full workday. Second, Buttles accuses the ALJ of ignoring or misrepresenting evidence concerning her physical restrictions. A Buttles first contends that the failure to consider Bobholz’s 2018 examination tainted the ALJ’s assessment of her ability to concentrate and violated the duty to consider all the medical opinions in the record. Buttles urges that the ALJ should have discussed this examination, which concluded that her cognition had declined in the past five years and that her ability to work was very limited. No. 22-2844 Page 5 Buttles is correct insofar as she contends that the ALJ should have addressed Bobholz’s report. Under the (now superseded) Social Security regulations that govern her case, the ALJ was required to evaluate every medical opinion received. 20 C.F.R. § 404.1527(c) (applicable to claims filed before March 27, 2017). But the error was harmless. An ALJ’s error is harmless if a remand would predictably result in the same outcome. Karr v. Saul, 989 F.3d 508, 513 (7th Cir. 2021). That is the case here. The ALJ explained that she considered the records closest in time to 2013 to be most relevant. She permissibly discredited other mental health reports (generated by Buttles’s first disability application) largely because they predated the relevant period by three years. Bobholz’s report had the opposite problem: it postdated the relevant period by five years and even noted that Buttles’s condition had deteriorated in the intervening time. Buttles relatedly argues that substantial evidence does not support the ALJ’s conclusion about her ability to concentrate on the job. She insists that the record, if it included as it should have done Bobholz’s report, contradicts the ALJ’s finding that she could maintain concentration for two hours at a time. We are satisfied, however, that substantial evidence supports the ALJ’s finding on this point. The ALJ relied on treatment notes from 2013 that described Buttles’s issues with memory but concluded that her thought processes and judgment were intact. In addition, the ALJ cited a psychiatrist’s examination from 2010 noting that her faculties were “grossly intact.” Buttles also relies on DeCamp v. Berryhill, 916 F.3d 671, 675–76 (7th Cir. 2019), in which we held that an ALJ’s hypothetical question to a vocational expert did not accurately describe the claimant’s abilities because it omitted her moderate limitations in concentration, persistence, or pace. Buttles insists that the ALJ here similarly failed to acknowledge her concentration issues in the hypotheticals posed to the vocational expert. But in this case, unlike in DeCamp, the ALJ specifically asked the vocational expert to consider jobs available to a hypothetical employee who could concentrate for only two hours at a time. DeCamp thus does not undermine the result. B Throughout her brief Buttles challenges the ALJ’s conclusion that, even with her physical restrictions, she could nevertheless perform light work. She argues, for instance, that the ALJ ignored two pieces of favorable evidence: first, a doctor’s 2010 recommendations that she not use her right arm and hand for grasping, manipulation, extension, nor should she use either arm to lift over five pounds or reach up; and second, another 2010 exam with the same assessment. She also argues that the ALJ No. 22-2844 Page 6 ignored the results of her 2005 residual functional capacity exam, which found that she struggled to use her left arm and that repeated light lifting was painful. But the ALJ discussed this evidence and justified why she gave it less weight than other evidence. The ALJ acknowledged that the limitations described in the first 2010 exam records were “work preclusive” but determined that this opinion was outweighed by evidence more contemporaneous with the relevant period. The ALJ, for example, pointed to a 2013 exam finding that Buttles had “no gross motor deficits,” and a 2011 report noting that she had functional grasp. In fact, the ALJ did not need to discuss the second 2010 exam because it simply copied the “assessment” section from the first 2010 exam verbatim. The ALJ also explicitly acknowledged the 2005 exam but afforded its results little weight because it predated the relevant period by eight years. Buttles also makes the more global argument that substantial evidence does not support the ALJ’s light-work finding. Given the deferential standard of review that binds us, we do not see the record that way. The ALJ appropriately relied on the 2011 report, the 2013 physical, and the consistent recommendations of the state agency doctors—evidence she found more persuasive because it was closer in time to the governing onset date and Buttles’s date last insured. In essence, Buttles is asking us to reweigh the evidence, but that is not our role. Milhem v. Kijakazi, 52 F.4th 688, 694 (7th Cir. 2022). Buttles also complains that the ALJ misrepresented her daily activities and overrelied on them to conclude she was not disabled. But the ALJ’s characterization of Buttles’s activities was consistent with her testimony at the hearing, and nothing in the decision suggests that the ALJ equated these “activities of daily living with those of a full-time job.” Cf. Hill v. Colvin, 807 F.3d 862, 869 (7th Cir. 2015). Finally, Buttles argues that the ALJ fixated on the “relevant time period” and ignored all other evidence. But this contention is contradicted by the record. As the district court noted, the ALJ repeatedly referred to medical reports and events outside that period. We AFFIRM the judgment of the district court, which in turn affirmed the decision of the Social Security Administration.
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