Disability Benefits

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7th Circuit Court of Appeals

Case Name: Paul D. Dimmett v. Carolyn W. Colvin

Case No.: 15-2233

Officials: WOOD, Chief Judge, and POSNER and WILLIAMS, Circuit Judges

Focus: Disability Benefits

Court reliance on testimony and acceptance of magistrate judge recommendation without analysis was improper.

“And so we have in this case still another example of fatally weak testimony by a vocational expert. See, e.g., Alaura v. Colvin, 797 F.3d 503, 507–08 (7th Cir. 2015); Browning v. Col‐ vin, 766 F.3d 702, 708–12 (7th Cir. 2014); Hermann v. Social Security Administration, 772 F.3d 1110, 1112–14 (7th Cir. 2014). Compounding the weakness, both the administrative law judge, in uncritically accepting the vocational expert’s testimony, and the vocational expert, in failing to under‐ stand the requirements of the jobs he mistakenly thought the plaintiff capable of performing, appear to have ignored the most current manual of job descriptions—the O*NET (see O*NET, www.onetcenter.org/overview.html). It’s true that the Social Security Administration, while aware of the obsolescence of the Dictionary of Occupational Titles, hasn’t endorsed the O*NET and in fact is developing its own parallel classification system. See Social Security Administration, Occupational Information System Project, www.ssa.gov/disability research/occupational_info_systems. html. But this system is not expected to be rolled out for at least three more years, leaving a vacuum that the O*NET may fill. And so we point out that the O*NET entry for “laundry and dry‐cleaning workers” explains that the worker must “apply bleaching powders to spots and spray them with steam to remove stains,” “spray steam, water, or air over spots to flush out chemicals,” “mix bleaching agents with hot water in vats,” “mix and add detergents, dyes, bleaches, starches and other solutions and chemicals,” and “sprinkle chemical solvents over stains.” O*NET, Laundry and Dry‐Cleaning Workers, www.onetonline.org/link/summary/51‐6011.00. So the job is wholly unsuitable for Dimmett. As for a dining‐room attendant, O*NET lists “stamina” as required (and surely it’s required by a laundry or dry‐cleaning worker as well—the most disagreeable of the three jobs for someone with serious respiratory problems), defining it as “the ability to exert yourself over long periods of time without getting winded or out of breath.” O*NET, Dining Room and Cafeteria Attend‐ ants and Bartender Helpers, www.onetonline.org/link/ summary/35‐9011.00. And “order filler” may require techno‐ logical skills that the plaintiff does not have. Id., Order Fillers, Wholesale and Retail Sales, www.onetonline.org/link/sum mary/43‐5081.04. And affecting all these jobs, though the plaintiff’s heel spur is not disabling in itself the pain it causes would, by further impairing his stamina, further limit his ability to perform any of them. The administrative law judge said that the pain wasn’t recurring and wouldn’t interfere with the plaintiff’s working, but in saying this he ignored uncontradicted evidence that orthotic shoe inserts would not give the plaintiff sufficient relief from his pain. And he did not explain why he found only partially credible the plain‐ tiff’s testimony that the heel spur caused pain that impedes his daily functioning.”

Reversed and Remanded

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.