Donahue v. Barnhart

• Decision Date: 25 January 2002
• Docket Number: No. 01-2044.,01-2044.
• Citation: 279 F.3d 441
• Parties: Patrick W. DONAHUE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

279 F.3d 441

Patrick W. DONAHUE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 01-2044.

United States Court of Appeals, Seventh Circuit.

Argued November 14, 2001.

Decided January 25, 2002.

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Frederick J. Daley (argued), Chicago, IL, for plaintiff-appellant.

Malinda Hamann (argued), Social Sec. Admin., Office of the General Counsel, Region V, Chicago, IL, for defendant-appellee.

Before COFFEY, EASTERBROOK, and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Patrick Donahue, who last was employed (as a truck driver) in 1986, seeks an award of supplemental security income on the basis of disability. The substantive standards for supplemental security income are materially the same as those for Social Security disability benefits, though the monthly payment is lower. Donahue had a laminectomy in 1977 and continues to suffer back pain. He is illiterate and suffers from some personality problems as a result of organic brain damage. But after hearing the testimony of a vocational expert, the administrative law judge concluded that Donahue could perform lowstress tasks with moderate exertional requirements, such as janitorial work, and therefore is not disabled — for supplemental security income is not a form of unemployment insurance and is unavailable if any do-able work exists in the national economy, even if other persons with better skills are likely to be hired instead. The district court concluded that substantial evidence supports the administrative conclusion.

Donahue's lead argument is that the ALJ improperly discounted his contention that back pain hampers his ability to work. It is not clear to us that the ALJ'S credibility finding made any difference. Donahue's own estimate is that his pain reaches a level of 3 on a scale of 0 to 10, and this does not sound disabling. What the ALJ found is not that the pain should have been rated a 2, but that it is not bad enough to prevent Donahue from performing jobs such as janitor. In making this determination the ALJ did not limit herself to an observation that the severity of pain cannot be demonstrated by objective medical evidence. If the ALJ had made such a finding, it would have been a legal error, for both regulations and interpretive guides provide that the agency will consider all evidence. See 20 C.F.R. § 416.929(c)(2); Social Security Ruling 96-7p; Zurawski v. Halter, 245 F.3d 881, 887-88 (7th Cir.2001). What the ALJ actually did, however, is compatible with all legal requirements. The ALJ observed that Donahue continued working for a decade after his back operation (and was fired for refusing to participate in counseling, a reason unrelated to back pain), implying that the pain could not be disabling unless things had gotten worse since 1986. Then the ALJ noted that Donahue relied for pain control on over-the-counter analgesics and reported that these gave him good relief, from which the ALJ inferred that the level of pain could not be severe. A physician concluded that Donahue can lift 50 pounds and stand for 6 hours in an 8-hour period, which again implies that the level of pain he must endure is not disabling. There was more; but what we have recited supplies substantial evidence for the ALJ's decision. Donahue puts a different spin on the evidence; he contends, for example, that he settled for over-the-counter analgesics because an unnamed physician once told him that there was not much else to do. At oral argument his lawyer stated that Donahue could not afford more powerful painkillers, a position never communicated to the ALJ. In either event the fact remains that he reported good pain control with what he used, and the resolution of competing arguments based on the record is for the ALJ, not the court. See, e.g., Brewer v. Chater, 103 F.3d 1384, 1392 (7th Cir.1997); Stephens v. Heckler, 766 F.2d 284 (7th Cir.1985).

Asked what jobs could be performed by an illiterate person who has some back pain and difficulty interacting with others, can lift 25 pounds frequently and 50 pounds occasionally, and can stand or walk for 6 hours during a working day but needs to sit when back pain and dizzy spells occur, the vocational expert replied that the Milwaukee area alone offers some 5,000 janitorial jobs, 3,000 assembly jobs, and 1,500 hand-packing jobs that satisfy these limitations. The ALJ accepted this testimony, which doomed Donahue's application. He now raises two objections: first, that the ALJ did not include in the list of problems his personality disorder and shortcomings in concentration; second that the ALJ contradicted the Department of Labor's Dictionary of Occupational Titles (4th ed. 1991), when testifying that an illiterate person could perform these jobs. The first of these contentions seems to us picayune. The ALJ specified that Donahue had difficulty interacting with others and would need to sit, on his own schedule, to accommodate back pain and dizziness. The vocational expert did not name jobs in which steady concentration or sociability is essential. Donahue does not contend that he has deteriorated in these respects since the years he worked as a truck driver; it is only because of his testimony about dizzy spells that the ALJ concluded that he could not return to his former occupation and the dizziness limitation was stated for the vocational expert's consideration.

The conflict between the vocational expert's testimony and the Dictionary of Occupational Titles is not so easy to deal with. It turns out that whoever wrote the Dictionary believes that basic literacy (defined as a vocabulary of 2,500 words, the ability to read about 100 words a minute, and the ability to print simple sentences) is essential for every job in the economy, and that janitors require a higher level (the ability to read about 200 words per minute). See Dictionary at classifications 382, 358.687-010, 381.687-014, 381.687-018, 382.664-101 (discussing various janitorial classifications), and Appendix C pp. 1010-11 (literacy for all jobs). The vocational expert obviously did not agree — nor did Donahue's former employer, for he was no more literate during the 23 years he drove a garbage truck than he is today. Illiteracy is not a progressive disease.

Courts disagree about the appropriate interaction between the Dictionary and a vocational expert. The eighth circuit held at one point that an ALJ always must prefer the Dictionary over the view of a vocational expert. See Smith v. Shalala, 46 F.3d 45, 47 (8th Cir.1995). If this is so, then Donahue (and every other illiterate person in the United States) must be deemed "disabled," even though illiteracy is not a listed impairment leading to an automatic finding of disability under the Commissioner's regulations. On the other hand, three circuits hold that an ALJ always may prefer the testimony of a vocational expert over the conclusions in the Dictionary. See Jones v. Apfel, 190 F.3d 1224 (11th Cir.1999); Conn v. Secretary of Health and Human Services, 51 F.3d 607 (6th Cir.1995); Carey v. Apfel, 230 F.3d 131 (5th Cir.2000). Three more circuits allow the ALJ to accept a vocational expert's position, but only after providing an explanation (with record support) for doing this; in these circuits a vocational expert's bare conclusion is not enough. See Haddock v. Apfel, 196 F.3d 1084 (10th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir.1995); Mimms v. Heckler, 750 F.2d 180 (2d Cir.1984). We have yet to face the issue squarely, on occasion remanding for a better explanation and on occasion affirming, but never articulating a rule of decision for cases of this kind. Compare Young v. Secretary of Health and...