Judy K. Powers v. Kenneth S. Apfel, Commissioner of the Social Security Administration

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2513
Judy K. Powers,
Plaintiff-Appellant,
v.
Kenneth S. Apfel, Commissioner
of the Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. NA 98-134-C H/G--David F. Hamilton, Judge.
Argued January 6, 2000--Decided March 20, 2000
Before Coffey, Flaum and Kanne, Circuit Judges.
Kanne, Circuit Judge. Judy K. Powers suffers
pain from several physical ailments, which forced
her to quit her job in housekeeping at an Indiana
state-operated mental health facility. However,
her application for Social Security disability
benefits was denied because the evidence of her
disability and her suitability to work was not
clear cut. Based on a determination by an
administrative law judge ("ALJ" or "hearing
officer"), the Social Security Administration
(the "Agency") denied her claim for disability
benefits under the Social Security Act, 42 U.S.C.
sec.sec. 416(i), 423(d) (the "Act"). She appeals
that decision on the ground that the hearing
officer’s decision was not supported by
substantial evidence. After reviewing the
evidence presented at the hearing, we affirm.
I. History
Powers worked for eighteen years as an aide and
housekeeper at Muscatatuck State Hospital. She
quit her job on February 20, 1995. At the time,
Powers was 46 years old and had a GED but no
vocational training or other work experience. Her
work was characterized as "unskilled, medium
work" with no transferrable skills. She suffered
from a variety of health conditions that made it

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difficult and painful for her to work.
Her symptoms included feeling tired all the
time despite sleeping thirteen hours a day with
two two-hour naps; hip, back and leg pain;
breathing problems and shortness of breath. She
could only sit or stand in the same position for
ten minutes at a time, could walk only a short
distance before becoming short of breath and
could lift a gallon of milk once, but not
repetitively. She could not stoop, squat, bend at
the waist, climb, push or pull without pain. She
took painkillers and other medications, which
afforded her partial relief. She engaged in very
few activities, including driving to the grocery
store twice a week and to a shopping mall once a
month, watching television, doing crossword
puzzles and reading. She did some light work
around the house, such as washing dishes, laundry
and cooking. However, her mother did most of the
housework, and Powers said she felt like doing
nothing most of the time. She stopped driving
because of concentration and memory problems.
Her condition stemmed from several physical
disorders for which she received treatment prior
to February 1995. Powers had been diagnosed in
1993 with diabetes mellitus, which was controlled
by medication. She had surgery for carpal tunnel
syndrome in July 1994, and later that year, she
was re-diagnosed with chronic obstructive
pulmonary disease, which her physician, Dr. James
Sublett, characterized as in stable condition.
Dr. Thomas Eckert, her family doctor, treated her
for acute sciatic pain in 1992, 1993 and 1994,
and in June 1994, Dr. Larry Olson diagnosed
Powers as having degenerative disc disease of the
cervical spine. She underwent physical therapy,
which relieved the pain. In July 1994, Dr.
Marlene Aldo-Benson, a rheumatology specialist,
diagnosed fibromyalgia, a condition characterized
by pain and stiffness in the muscles, tendons and
soft tissue. In September 1994, Aldo-Benson
diagnosed Powers with trochanteric bursitis, an
inflammation affecting the femur, and noted a
flare-up of her fibromyalgia.
In February 1995, Eckert recommended that Powers
not work for one month due to the fibromyalgia,
but that period lengthened when she showed no
improvement. By October 1995, Powers continued to
complain of fatigue and general malaise and
believed she could not work. Eckert noted that
she had gained weight and emphasized to her the
relationship between her diet and her other
conditions. In January 1996, Eckert classified
Powers as permanently disabled due to the
fibromyalgia and pulmonary problems. Eckert
recommended a pain clinic, but Powers did not go
regularly because it was too far away. In March

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1996, Powers complained of severe left hip pain,
for which Aldo-Benson recommended a physical
therapist. Powers claimed she could not see the
physical therapist, however, because of the
distance she would need to travel to get there.
Dr. Michael Cronen, an osteopath, examined her
for the first time in March 1996. Cronen found no
sensory or motor deficits in Powers’ upper or
lower extremities, and a magnetic resonance image
of her lumbar spine revealed no disc disruptions.
Cronen recommended nerve blocks, but Powers
reported no improvement in April 1996. A pain
clinic she attended that year provided her some
relief.
Powers also suffered from depression, which
Eckert diagnosed in 1992 but for which she
received no care. As part of her application for
Social Security disability benefits, Powers was
examined by psychologist R. Karkut, Ph.D., who
confirmed the diagnosis of "major depression,
single episode-mild." In June 1995, Dr. Greer
prescribed Prozac, and Powers reported that it
helped her depression. At the hearing, Powers
testified that she had crying spells two or three
times a day, but also said she was not totally
forthright with Karkut about the extent of her
depression because she did not want to appear
"crazy."
The administrative law judge addressed three
conditions that could be considered disabilities
under the regulations: chronic obstructive
pulmonary disease, fibromyalgia and depression.
Because her depression was diagnosed as
relatively minor and did not affect her ability
to perform basic work functions, it was ruled not
to qualify as a severe impairment. Powers failed
only one test for pulmonary sufficiency. That
test did not comply with some regulations
connected to the administration of the test and
therefore was not counted. Finally, under the
regulatory definition of a musculoskeletal
condition, Powers’ fibromyalgia failed to qualify
as an impairment.
The ALJ then determined Powers’ residual
functional capacity. Based on her testimony and
that of her doctors, the ALJ determined that 1)
Powers could lift up to ten pounds frequently, 2)
Powers needed to be able to switch between
sitting and standing on the job (a sit/stand
option), and 3) Powers’ pain and depression had
no impact on her concentration, persistence or
pace of work. The hearing officer further
determined that Powers’ testimony about her
ability to work was not fully credible because of
the following:
[I]nconsistencies in the claimant’s testimony

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regarding her activities of daily living, the
fact that her symptoms cannot be reasonably
expected given the objective medical evidence,
especially her problems with concentration, and
the fact that the claimant is taking no
medications for severe pain and that she can sit
for much longer periods than she alleges.
The hearing officer partly based this credibility
determination on his observation that Powers sat
for much longer than ten minutes during the
hearing itself and had sufficient concentration
ability to read and watch television for long
periods of time.
Despite this, the ALJ determined that Powers
suffered from pain, shortness of breath and
depression that made it impossible for her to
work at her old job. The ALJ then shifted the
burden to the Commissioner to show that work
appropriate for her physical ability and
vocational qualifications existed in significant
numbers in the national economy. The ALJ
consulted with Timothy Janikowski, a Ph.D. and
vocational expert, who based his opinion on
published and unpublished research and data
collected from state and federal databases, labor
market surveys, interviews and labor economists.
Janikowski testified that for a hypothetical
worker of Powers’ age, education and work
background who is capable of lifting ten pounds
and required a sit/stand option, there were about
42,000 jobs in the regional economy, including
watchman/security guard (7,100 jobs regionally),
assembly (5,000-6,000 jobs) and cashier (30,000
jobs). Adding to the hypothetical the factor of
mild to moderate pain which had no impact on
concentration, persistence or pace, Janikowski
testified that all the listed jobs would
accommodate such a person. Based on the medical
testimony, credibility determination and
Janikowski’s opinion, the ALJ found Powers
capable of performing work that exists in
significant numbers in the national economy and
therefore not disabled within the meaning of the
Act.
After exhausting administrative appeals, Powers
filed suit under 42 U.S.C. sec. 405(g) in the
United States District Court for the Southern
District of Indiana. District Judge David
Hamilton affirmed the ALJ’s decision, and Powers
appealed.
II. Analysis
Powers contends on appeal that the ALJ’s
decision regarding her credibility and the ALJ’s
reliance on the vocational expert’s opinion were
not supported by substantial evidence. The

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Agency’s findings "as to any fact, if supported
by substantial evidence, shall be conclusive." 42
U.S.C. sec. 405(g). "Although a mere scintilla of
proof will not suffice to uphold the SSA’s
findings, the standard of substantial evidence
requires no more than ’such relevant evidence as
a reasonable mind might accept as adequate to
support a conclusion.’" Diaz v. Chater, 55 F.3d
300, 305 (7th Cir. 1995) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Because the
Commissioner is responsible for weighing the
evidence, resolving conflicts and making
independent findings of fact, see Perales, 402
U.S. at 399-400, this Court may not decide the
facts anew, re-weigh the evidence or substitute
its own judgment for that of the Commissioner to
decide whether a claimant is or is not disabled.
See Butera v. Apfel, 173 F.3d 1049, 1055 (7th
Cir. 1999).
A. Powers’ Credibility
Because hearing officers are in the best
position to see and hear the witnesses and assess
their forthrightness, we afford their credibility
determinations special deference. See Nelson v.
Apfel, 131 F.3d 1228, 1237 (7th Cir. 1997). We
will reverse an ALJ’s credibility determination
only if the claimant can show it was "patently
wrong." Herr v. Sullivan, 912 F.2d 178, 181 (7th
Cir. 1990).
In this case, the ALJ based his credibility
determination on a variety of facts and
observations. First, the ALJ found that Powers
did indeed suffer some pain from her medical
conditions, but that the medical evidence did not
support the extent of pain to which she
complained. Drs. Aldo-Benson and Sublett
supported her complaints of fibromyalgia and
pulmonary insufficiency, but did not indicate any
work restrictions related to those conditions.
Moreover, Sublett characterized her pulmonary
condition as "stable." This was enough evidence
to support the claim that Powers’ ability to
lift, carry and walk were limited, but not to the
completely debilitating extent Powers alleged. As
such, the discrepancy between the minimal
impairment expected from her conditions and her
testimony of debilitating pain casts doubt on her
credibility.
Second, the ALJ also found Powers’ testimony
about her daily activities to be inconsistent
with her reports of her daily activities made to
Karkut and on Agency forms. He also found her
claim of concentration problems inconsistent with
the medical evidence and with her testimony that
she can read, watch television for hours and play
cards. While we are skeptical that the ability to

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watch television for several hours indicates a
long attention span, we agree that reading and
playing cards do suggest such a trait. In her
discussion with Karkut, Powers reported that she
sometimes helped cook meals, usually set the
table and once in a while did laundry. She
reported on her forms to the Agency that she did
grocery shopping, went to the mall, dined out,
visited with friends and played cards. At the
hearing, she testified that she performed no
daily activities and that her mother and husband
did the cooking, washing and other household
chores. This testimony is not wildly
inconsistent, but represents a minor variation in
her account of her daily life. The many
interviews and forms required to apply for
disability benefits should not be viewed as traps
for slightly varied accounts of daily activities,
but in this case, the minor discrepancy combined
with the hearing officer’s observations of the
witness during testimony does provide some small
support for a finding of incredibility. As the
reviewing court, we are looking only to determine
if the credibility determination was patently
wrong, and the hearing officer’s assessment of
her mildly inconsistent testimony combined with
the other evidence discussed here, defeats this
strict standard for reversal.
The ALJ found her complaints of severe pain to
be inconsistent with the medical testimony and
the absence of drugs prescribed for severe pain.
While a hearing officer may not reject subjective
complaints of pain solely because they are not
fully supported by medical testimony, the officer
may consider that as probative of the claimant’s
credibility. See Knight v. Chater, 55 F.3d 309,
314 (7th Cir. 1995). The doctors who examined
Powers diagnosed specific medical conditions
which do cause pain, but only Eckert ever
considered her to be suffering from disabling
pain. The hearing officer was within his
discretion to reject that opinion as conclusory
and unsupported by the evidence. Furthermore,
Powers had been prescribed Valium, Darvocet and
Relafen, none of which are intended to treat
severe pain. The discrepancy between the degree
of pain attested to by the witness and that
suggested by the medical evidence is probative
that the witness may be exaggerating her
condition. For the hearing officer to rely on
this as evidence of a lack of complete candor
cannot be deemed patently wrong.
Finally, the hearing officer considered Powers’
statement that she could not sit for more than
ten minutes without severe pain to be
inconsistent with his observation of her during
the hearing, at which she sat for far longer than
ten minutes, apparently without signs of

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discomfort. Many courts have condemned the "sit
and squirm" test, and we are uncomfortable with
it as well. See, e.g., Miller v. Sullivan, 953
F.2d 417 (8th Cir. 1992); Myers v. Sullivan, 916
F.2d 659 (11th Cir. 1990); Jenkins v. Sullivan,
906 F.2d 107 (4th Cir. 1990); Lovelace v. Bowen,
813 F.2d 55 (5th Cir. 1987). We doubt the
probative value of any evidence that can be so
easily manipulated as watching whether someone
acts like they are in discomfort. However, we
note that even those courts cited by Powers as
opposing the "sit and squirm" test endorse the
validity of a hearing officer’s observations of
the claimant. See Marbury v. Sullivan, 957 F.2d
837, 839 (11th Cir. 1992); Miller, 953 F.2d at
422; Lovejoy v. Heckler, 790 F.2d 1114, 1116 (4th
Cir. 1986); Lovelace, 813 F.2d at 60. Likewise,
we have repeatedly endorsed the role of
observation in determining credibility and refuse
to make an exception in this situation. See,
e.g., Dray v. Railroad Retirement Bd., 10 F.3d
1306, 1314 (7th Cir. 1993); Erhart v. Secretary
of Health and Human Servs., 969 F.2d 534, 541
(7th Cir. 1992); Strunk v. Heckler, 732 F.2d
1357, 1362 (7th Cir. 1984). The hearing officer
had an opportunity to observe Powers for an
extended period of time and could gauge whether
her demeanor, behavior, attitude and other
characteristics suggested frankness and honesty
and were consistent with the general bearing of
someone who is experiencing severe pain. Also,
because the witness showed no signs of pain,
there is no danger that she attempted to
manipulate the hearing officer by squirming. As
one of several factors that contributed to the
hearing officer’s credibility determination, we
cannot say this rendered that judgment "patently
wrong." Therefore, we will uphold the hearing
officer’s credibility determination as supported
by substantial evidence.
B. Vocational Evidence
The Agency has the burden of providing evidence
of a significant number of jobs in the national
economy that the claimant could perform. See
Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987);
Knight, 55 F.3d at 312. Powers claims that the
hearing officer erred in relying on Janikowski’s
expert testimony in finding that there were more
than 40,000 jobs in the regional economy that
someone could perform with Powers’ vocational and
physical profile. Powers contends that
Janikowski’s testimony was unclear as to whether
the 40,000 jobs included a sit/stand option and
whether they matched Powers’ skill level.
However, a review of the expert’s testimony shows
that Janikowski was asked expressly for jobs that
included a sit/stand option and matched Powers’
skill level. To argue now that the expert’s

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testimony was "unclear" ignores the express
limitation in the hearing officer’s questions to
the expert that clearly stated the conditions
under which the opinion was to be expressed.
Powers relies heavily on Social Security Ruling
83-12, which states that "unskilled types of jobs
are particularly structured so that a person
cannot ordinarily sit or stand at will." Yet
Janikowski was asked the number of jobs that did
have a sit/stand option, so this Agency
description of what the case is "ordinarily" does
not refute, by itself, the opinion of an expert
in response to a specific question. Even if
Janikowski’s testimony were considered to
contradict the description of sedentary work in
the Dictionary of Occupational Titles, which we
do not believe it does, a hearing officer is
entitled to rely on expert testimony that
contradicts such authorities. See Young v.
Secretary of Health and Human Servs., 957 F.2d
386, 391-92 (7th Cir. 1992). Therefore,
substantial evidence supported the finding that
a significant number of jobs existed that could
accommodate Powers’ skill level and physical
needs.
III. Conclusion
The hearing officer’s finding that Powers’
testimony was not entirely credible was supported
by substantial evidence and not patently wrong.
Furthermore, a review of the record shows that
sufficient competent evidence supported the
hearing officer’s finding that jobs matching
Powers’ needs existed. We affirm the Agency’s
denial of disability benefits.

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