NONPRECEDENTIAL DISPOSITION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
Argued July 6, 2018
Decided August 9, 2018
Before
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 17‐3189
BRYAN D. COLLINS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 16‐CV‐1044
NANCY A. BERRYHILL, David E. Jones,
Acting Commissioner of Social Security, Magistrate Judge.
Defendant‐Appellee.
O R D E R
Bryan Collins applied for supplemental security income from the Social Security
Administration based on back pain, deep vein thrombosis, depression, and anxiety. An
administrative law judge (“ALJ”) found that Collins was exaggerating his symptoms,
that the medical evidence did not support his claim, and that he could perform
sedentary work with some restrictions. Because substantial evidence supports the ALJ’s
decision, we affirm the judgment.
Collins applied for benefits at age 42, alleging an onset date in April 2012. He had
completed one year of college, and his only full‐time employment was a year spent as
an iron metalworker from 2006 to 2007. He identified several impairments that
No. 17‐3189 Page 2
prevented him from working: back pain resulting from an old gunshot wound; pain in
his feet, left leg, and right hip, all of which he associated with a history of blood clots;
depression; and anxiety. (Because Collins does not dispute the ALJ’s conclusions
regarding his psychological conditions, we recount only the medical evidence relating
to his physical conditions.)
In July 2012, Dr. Mohammad Fareed performed a consultative exam at the
request of the state agency and found few limitations. Collins reported severe back pain
stemming from being assaulted and shot sometime in the early 1990s. Dr. Fareed found
tenderness in Collins’s spine and limited range of motion, though he wrote that Collins
appeared “comfortable without any acute distress.” X‐rays showed degenerative disc
disease in Collins’s spine.
A year later Collins was seen by an internist, Dr. Christopher Weber who, after
one examination, opined that Collins had extreme functional limitations. Dr. Weber
diagnosed depression, chronic pain, “AC separation” (Collins’s shoulder dislocation
following a car accident), and sciatica. He concluded that Collins could walk less than a
block, sit for only 20 minutes, stand for only 45 minutes, would need “constant”
unscheduled breaks during a workday, and could never lift even 10 pounds. Dr. Weber
did not support his opinion with any explanation, test results, or treatment notes.
In March 2014, Collins sought treatment for leg pain from another internist,
Michael Weinstein who diagnosed a clot and prescribed a blood thinner. X‐rays of
Collins’s spine and hip taken two months later showed degenerative disc disease and
mild loss of disc space in Collins’s spine.
Several months later Collins sought treatment from family‐medicine practitioner
Umar Shad for his leg and back pain. Dr. Shad advised Collins to continue taking blood
thinners, and to rest and apply ice and heat to his back. Dr. Shad also referred Collins to
orthopedic and pain‐management specialists.
In 2013 and 2014, Collins frequently visited emergency rooms, his primary
method of treatment and his source for painkiller and blood‐thinner prescriptions.
None of the medical examiners ever found that he had severe mobility issues, though
he occasionally had swelling and pitting (indentation caused by fluid buildup) in his
legs.
No. 17‐3189 Page 3
At a hearing before an ALJ in early 2015, Collins, represented by counsel,
testified to extreme functional limitations. He said his back pain was constant and his
leg hurt when he walked. Collins twice tried to work but was unable to do so because of
his back pain. He explained that he could walk only three or four blocks, sit and stand
only five to ten minutes each, and lift about eight pounds. He lived with his mother but
was unable to help much around the house. When asked to identify his primary‐care
physician, Collins said he saw Dr. Weber every two weeks.
A vocational expert (“VE”) testified that Collins could find work in the national
economy despite having some limitations. When asked if there were jobs for someone
who could perform only sedentary work and who needed to change from sitting to
standing at will, the VE replied such a person could work as a food preparer, lobby
attendant, assembly worker, or office helper. The VE clarified that lobby attendant is
considered light work but could be done either sitting or standing and with no lifting.
The ALJ asked the VE whether her opinion was otherwise consistent with the
Dictionary of Occupational Titles (“DOT”), and the VE said that it was, except that the
DOT did not cover a worker’s need to change between sitting and standing. The VE
based her testimony that a lobby attendant could change positions on published
research and 30 years’ experience placing people with disabilities in jobs.
The ALJ applied the familiar five‐step analysis, see 20 C.F.R. § 416.920(a), and
concluded that Collins was not disabled. Collins does not dispute the results of the first
three steps. He takes issue with the ALJ’s conclusion at step four that he could perform
unskilled, sedentary work with some further restrictions, including the need to change
from sitting to standing at will. The ALJ gave little weight to Dr. Weber’s opinion that
Collins had extreme functional limitations. The ALJ found the opinion conclusory, that
Dr. Weber wrote it after only his first visit with Collins, and that it was inconsistent
with the mild abnormalities revealed by objective imaging and other physical exams
performed by the consultative examiner, the hospital physicians, and Drs. Shad and
Weinstein. The ALJ also found that Collins’s testimony regarding the extent of his pain
was inconsistent with the conservative course of treatment he received, as well as the
findings by objective medical tests and physical examiners. Nonetheless, because of
Collins’ pain and reduced range of motion, the ALJ restricted him to sedentary work.
At step five, the ALJ determined that a significant number of jobs existed that
Collins could perform; the ALJ relied on the VE’s testimony that Collins could find
sedentary work as a food preparer, lobby attendant, assembler, or office helper. The ALJ
noted that the DOT does not match the VE’s testimony that “lobby attendant” is
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sedentary work and that all four jobs allow for change between sitting and standing
positions at will. But the ALJ credited the VE’s conclusions based on her stated reliance
on published research and her 30 years’ experience.
The Appeals Council denied review, and so the ALJ’s decision stands as the final
decision of the agency. Scrogham v. Colvin, 765 F.3d 685, 695 (7th Cir. 2014).
Collins, represented by different counsel, appealed to the district court and
submitted new medical evidence, arguing that the ALJ had failed to develop the record
by not ordering further medical records from Dr. Weber’s practice. To show prejudice,
Collins submitted records from Dr. Weber’s practice covering four visits that he had
with three providers between May and December 2013. Without these records, Collins
maintained, the ALJ could not have properly considered the factors established by
20 C.F.R. § 416.927(c) for evaluating a treating physician’s opinion.* The magistrate
judge, presiding with the parties’ consent, rejected Collins’s argument, concluding that
no evidentiary gap needed to be filled and the missing records did not demonstrate
symptoms or findings more severe than those found by the ALJ.
On appeal, Collins maintains that the ALJ failed in his duty to develop the record
because he did not collect other medical records from Dr. Weber’s office. He cites Nelms
v. Astrue, 553 F.3d 1093, 1098–99 (7th Cir. 2009), in which this court concluded that an
ALJ’s failure to fairly and fully develop the record is error, as long as the applicant can
show prejudice. Collins argues he was prejudiced by the ALJ’s failure to collect these
other medical records because they were necessary to properly evaluate the opinion of
his treating physician, Dr. Weber, in accordance with the factors listed by 20 C.F.R.
§ 416.927(c), including the length of the treatment relationship and frequency of
examination. Collins contends the ALJ should have known this evidence existed
because he listed Dr. Weber and another provider from Dr. Weber’s practice on a form
statement of recent medical treatments and testified at his hearing that he saw
Dr. Weber, his primary care physician, every two weeks.
An ALJ has an independent duty to develop the record fully and fairly.
See 20 C.F.R. § 416.912(b); Thomas v. Colvin, 745 F.3d 802, 807 (7th Cir. 2014). This duty is
not eliminated when a claimant has counsel, as the Commissioner concedes. See Smith
* Collins also included medical records from other providers, some of which are already
in the record and some of which postdate the ALJ’s decision.
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v. Apfel, 231 F.3d 433, 437 (7th Cir. 2000). But see Nelms, 553 F.3d at 1098 (“This duty is
enhanced when a claimant appears without counsel….”).
Even if we assume that the ALJ breached this duty, we agree with the
Commissioner that the failure to collect the supplemental records from Dr. Weber’s
practice did not prejudice Collins. In weighing a treating physician’s opinion, an ALJ
must consider the factors found in 20 C.F.R. § 416.927(c), but need only “minimally
articulate” his reasoning; the ALJ need not explicitly discuss and weigh each factor.
Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). The ALJ satisfied this standard in this
case by considering the length of the treatment relationship and frequency of
examination; the supportability of Dr. Weber’s opinion; and the consistency of the
opinion with other medical evidence in the record. See 20 C.F.R. § 416.927(c)(2)(i),
(3)–(4), (d). Nothing in the supplemental records undercuts the ALJ’s consideration of
those factors. Dr. Weber acknowledged in his opinion that he had examined Collins
only one time. That he later saw Collins once more, or that Collins occasionally saw
other physicians in the practice, does not affect the weight that the ALJ should have
given an opinion based on only one examination. Moreover, the findings in the
supplemental records are all consistent with the other medical evidence in the record:
subjective reports of pain, and only insignificant objective findings. The ALJ reviewed
other medical records—including ones that predated and postdated Dr. Weber’s
opinion—and these contained remarkably similar findings. For these reasons, these
supplemental records simply do not constitute a significant omission.
Collins next argues that the ALJ did not properly resolve the “apparent” conflicts
between the VE’s testimony and the DOT as required by SSR 00–4p, 2000 WL 1898704,
at *4. See Overman v. Astrue, 546 F.3d 456, 464 (7th Cir. 2008). Collins contends that the
four sedentary jobs identified by the VE are listed as light work in the DOT and that the
DOT does not specify that any of them can be performed while changing positions at
will.
We agree with Collins that there is an “apparent” and unresolved conflict
between the VE’s testimony that Collins could find sedentary work as a food preparer,
lobby attendant, assembler, or office helper, versus the DOT, which classifies food
preparer and office helper as light work. See U.S. DEP’T. OF LABOR, DICTIONARY OF
OCCUPATIONAL TITLES, 65038A, 239.567‐010, https://occupationalinfo.org/. Although the
conflict was not identified at the hearing, it would have been obvious had the ALJ
checked the DOT and it was incumbent on the ALJ to resolve it. See Pearson v. Colvin,
810 F.3d 204, 205–06, 210–11 (4th Cir. 2015) (conflict was “apparent,” even though not
No. 17‐3189 Page 6
identified at hearing, when VE testified claimant could perform job despite not being
able to reach but DOT classified job as requiring reaching).
But this oversight is not fatal because the DOT lists assembler positions that are
sedentary, see, e.g., DOT 739.687‐066, 715.687‐114, 739.684‐094, and the VE estimated
that 55,000 of these jobs allow changing position at will. (A.R. 83.) That is a significant
number of jobs in the national economy, so any error would be harmless. See Brown
v. Colvin, 845 F.3d 247, 255 (7th Cir. 2016) (failure to resolve apparent conflict not fatal
when at least 5303 other appropriate jobs exist in the national economy).
Finally, Collins challenges the VE’s testimony by questioning whether those
sedentary assembler jobs in fact allow a worker to change from sitting to standing at
will. But Collins forfeited that challenge by not objecting at the hearing which, in any
event, is not in “apparent” conflict with the DOT. See Brown, 845 F.3d at 254. Because
the DOT does not specify whether jobs allow changing from sitting to standing, the
VE’s testimony supplemented the DOT and did not conflict with it. See id.
AFFIRMED