In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2233
PAUL D. DIMMETT,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:14‐cv‐00095‐RLY‐WGH — Richard L. Young, Chief Judge.
____________________
SUBMITTED FEBRUARY 11, 2016— DECIDED MARCH 14, 2016
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. The plaintiff, who is now 62 years
old, applied in 2011 to the Social Security Administration for
disability benefits. He claimed to be disabled from any gain‐
ful employment by a combination of ailments including
asthma, chronic obstructive pulmonary disease (COPD), as‐
bestosis, and a heel spur in his right foot. Turned down by
2 No. 15‐2233
the administrative law judge who heard his case, and then
by the Social Security Appeals Council (which declined to
review the administrative law judge’s decision), he appealed
to the district court, also without success; for on the recom‐
mendation of the magistrate judge to whom the district
judge had referred the case, the district judge affirmed the
denial of benefits without discussion, precipitating this ap‐
peal, which highlights several important recurring issues in
the disability program.
For 33 years before the June day in 2011 on which, short‐
ly after suffering a possible heart attack, he quit his job and
simultaneously applied for benefits, the plaintiff had been a
sheet metal journeyman, work that is conceded to be
“heavy” and beyond his physical capacity to do any longer.
In fact for several years prior to his onset date he had been
given accommodations at work to compensate for his dimin‐
ishing abilities, and as a result was effectively performing
“light” rather than “heavy” work in 2011.
In 2001, while still employed, he’d suspected that he was
being exposed to asbestos on the job. A doctor whom he
consulted concluded from X‐rays of the plaintiff’s lungs, and
from breathing tests, that the plaintiff’s lungs indeed had
scarring “consistent with asbestos exposure.” The doctor al‐
so inferred from the tests a “possibility of decreased lung
volume.” As far as we can tell, the plaintiff hadn’t taken the
doctor’s advice to consult an expert in asbestos‐related dis‐
eases, but around the time of his possible heart attack he had
consulted a doctor about shortness of breath and chest pain
and the doctor had diagnosed COPD and encouraged the
plaintiff to stop smoking. Earlier he had also been diagnosed
No. 15‐2233 3
and treated for asthma. He used an inhaler to alleviate his
pulmonary distress.
The administrative law judge determined that the plain‐
tiff’s asthma and chronic obstructive pulmonary disease
were “severe impairments,” but noted that the plaintiff had
not been diagnosed with asbestosis and ruled that his heel
spur was not a significant impediment to working. The
plaintiff disagrees with the latter two findings, but his ap‐
peal primarily challenges the administrative law judge’s fur‐
ther finding that the plaintiff’s asthma and chronic obstruc‐
tive pulmonary disease, although they preclude his return‐
ing to his old job as a sheet metal worker, do not disable him
from full‐time employment in jobs involving unskilled me‐
dium work provided that the work doesn’t expose him to
extreme temperatures, humidity, or airborne pollutants.
For asthma to be disabling, the Social Security Admin‐
istration’s regulations require that “attacks … , in spite of
prescribed treatment and requiring physician intervention,
[must occur] at least once every 2 months or at least six times
a year.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 3.03(B). The ad‐
ministrative law judge ruled that the plaintiff’s asthma
didn’t reach that level. That may be correct, but he failed to
consider the effect of the asthma—which remember he
acknowledged was a “severe” impairment—on the plain‐
tiff’s other impairments, notably his other breathing im‐
pairment: chronic obstructive pulmonary disease. Worse, he
failed even to mention the regulations’ test for determining
whether a claimant’s COPD is presumptively disabling. The
test requires assessment of the patient’s FEV1—forced expir‐
atory volume in one second, id. § 3.02(A)—the volume of air
that a person of a given height can breathe out in one second
4 No. 15‐2233
after taking a deep breath. The higher the volume, the
healthier the person’s lungs. A pulmonary function test
found that the plaintiff’s FEV1 was only 51 percent of normal
for a person of his height. The administrative law judge did
not discuss whether this implied a low enough FEV1 score to
be presumptively disabling, and also did not discuss how
this low score affected the plaintiff’s residual functional ca‐
pacity for work.
In fact the administrative law judge ignored the plain‐
tiff’s COPD almost entirely when determining what work he
could still perform, and as a result there is no evidentiary
basis for the finding that he’s capable of engaging in medi‐
um work. One might think that even though he can’t do me‐
dium work he can do light or sedentary work. But his age
makes the distinction between medium and light work criti‐
cal: a person of his age who has no skills transferable to light
or sedentary work is presumptively disabled. See 20 C.F.R.
Pt. 404, Subpt. P, App. 2, Table No. 1, Rule 201.06; id., Table
No. 2, Rule 202.06.
Having determined to his satisfaction the scope and lim‐
its of the plaintiff’s impairments, the administrative law
judge asked the vocational expert assigned to the case
whether there were jobs that the plaintiff could perform giv‐
en his impairments. The administrative law judge explained
that those impairments ruled out jobs in which the plaintiff
would be exposed to temperature extremes and humidity as
well as to such lung irritants as odors, fumes, dust, and
chemicals. Testifying by phone at the end of the hearing and
thus unfamiliar with the medical testimony, the vocational
expert listed three types of job that he thought the plaintiff
could perform: “order filler,” “self‐service laundry and dry
No. 15‐2233 5
cleaning attendant,” and “dining room attendant.” Order
filler covers a variety of jobs and tasks, such as: “conveys
materials and items from receiving or production areas to
storage or to other designated areas by hand, handtruck, or
electric handtruck. Sorts and places materials or items on
racks, shelves, or in bins according to predetermined se‐
quence, such as size, type, style, color, or product code. Sorts
and stores perishable goods in refrigerated rooms. Fills req‐
uisitions, work orders, or requests for materials, tools, or
other stock items and distributes items to production work‐
ers or assembly line. … May use computer to enter records.
May compile worksheets or tickets from customer specifica‐
tions. May drive vehicle to transport stored items from
warehouse to plant or to pick up items from several loca‐
tions for shipment.” U.S. Department of Labor, Dictionary of
Occupational Titles, “Laborer, Stores,” www.occupationalinfo
.org/92/922687058.html (visited March 11, 2016, as were the
other websites cited in this opinion). Neither the vocational
expert nor the administrative law judge discussed whether
the plaintiff, given his pulmonary problems, can move
heavy items, or, given his age, education, and work history,
track work orders and use order‐management software.
The other two jobs mentioned by the vocational expert
should have caused alarm bells to ring in the administrative
law judge’s ears given that he’d instructed the vocational
expert that the plaintiff is incapable of performing jobs that
would expose him to temperature extremes, humidity, and
airborne pollutants. A laundry or dry‐cleaning attendant
will routinely inhale odors, fumes, dust, and chemicals, as
these are jobs that require the employee to perform such
chores as dampening clothes with cleaning solvent and
bleach. And a dining room attendant, among other duties,
6 No. 15‐2233
carries dirty dishes to the restaurant’s kitchen, where he is
likely to inhale fumes, steam, and odors and be exposed to
heat.
And so we have in this case still another example of fatal‐
ly 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 obso‐
lescence of the Dictionary of Occupational Titles, hasn’t en‐
dorsed the O*NET and in fact is developing its own parallel
classification system. See Social Security Administration, Oc‐
cupational 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
No. 15‐2233 7
wholly unsuitable for Dimmett. As for a dining‐room at‐
tendant, 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.
So: the administrative law judge ignored key medical ev‐
idence and the vocational expert ignored the limitations that
the administrative law judge placed on the type of job that
the plaintiff is able to perform. But there is more to criticize
in the handling of this case—there is the rubber stamping of
the vocational expert’s testimony by the magistrate judge
and by the district judge, who upheld the denial of disability
benefits—the district judge without an explanation.
8 No. 15‐2233
Here is the critical portion of the magistrate judge’s opin‐
ion (omitting citations):
First, Dimmett argues that the ALJ’s determination that
he is capable of working as a “dining room attendant” or
“self‐service laundry/dry cleaning attendant” is incon‐
sistent with the ALJ’s finding that Dimmett cannot work
with “concentrated exposure to temperature extremes,
humidity, odors, fumes, dusts, chemicals, and other res‐
piratory irritants.” Dimmett’s point is well‐taken but does
not require remand.
I agree that the ALJ’s conclusions make strange bedfel‐
lows. A “dining room attendant” is what might commonly
be called a “waiter” or “bus boy”—a person who trans‐
ports food or beverages from a kitchen to a dining area or
dirty dishes from a dining area to a kitchen. And, of
course, it is easy to imagine such work presenting concen‐
trated exposure to temperature extremes and odors. More
intuitively, a “self service laundry/dry cleaning attendant”
is a person who works in a laundromat or dry cleaning fa‐
cility. It is easy to imagine such work presenting concen‐
trated exposure to temperature extremes, humidity, odors,
fumes, and chemicals.
Even so, these seemingly inconsistent conclusions do
not warrant remand. The ALJ based his conclusion … on
testimony from a vocational expert whom he informed of
Dimmett’s limitations. Accordingly, the ALJ based his con‐
clusion on substantial evidence. …
Meanwhile, Dimmett has presented only conjecture—
not evidence—supporting his contention that this work is
incompatible with his RFC [residual functional capacity].
Because Dimmett has not called our attention to any evi‐
dence, I cannot find that the ALJ erred by ignoring evi‐
dence contrary to his conclusion.
No. 15‐2233 9
This is not a reasoned analysis of the plaintiff’s claim
(notice for example the blind reliance on the vocational ex‐
pert’s hamstrung testimony)—and the district judge, in ac‐
cepting the magistrate judge’s recommendation, offered no
analysis at all. Neither judge’s opinion did justice to the
plaintiff’s claim.
The judgment of the district court is reversed with in‐
structions to remand the case to the Social Security Admin‐
istration.
REVERSED AND REMANDED