Disability Law Blog

Briscoe ex rel. Taylor v. Barnhart, No. 04-2251 (7th Cir. Sept. 23, 2005)

Another significant decision out of the Seventh Circuit involving inference of an onset date when contemporaneous medical evidence isn't available.  Circuit Judge Diane P. Wood, writing for the Court, finds that the ALJ did not properly apply SSR 83-20  when he failed to explore alternative sources of evidence to determine the onset date when the medical evidence itself was not conclusive.  Quoting from SSR 83-20, the Court wrote:

Where no reasonable inference is possible based on the available evidence and additional medical evidence is not available, “it may be necessary to explore other sources of documentation . . . from family members, friends, and former employees to ascertain why medical evidence is not available for the pertinent period and to furnish additional evidence regarding the course of the individual’s condition.”

The case also presents an interesting procedural history. This reached the Court on the Commissioner's appeal of a District Court's decision to reverse and remand for an award of benefits. The Court held that although the ALJ's decision was not supported by substantial evidence, an award of benefits was not appropriate merely because the agency displayed "obduracy" in the case. "Obduracy is not a ground on which to award benefits; the evidence properly in the record must demonstrate disability." The case was therefore remanded to allow additional lay evidence to be taken. (The Court did not mention whether the District Court abused its discretion in remanding for payment of benefits. In fact, it said nothing about the standard of review.)

The Court's decision also touches on the ALJ's duty to explain his reasons for his RFC assessment pursuant to SSR 96-8p, the duty to develop the record and the proper approach to lay witness testimony.

A meaty decision well worth an hour of your time.

An MP3 of oral argument is available here, and the briefs are here.

Haynes v. Barnhart, No. 04-1211, __F.3d__ (7th Cir. July 26, 2005)

The Seventh Circuit, in an opinion by Circuit Judge Joel M. Flaum, affirms a denial of concurrent benefits at step 5. The Court rejects Haynes's contention that because he couldn't perform the full range of light work but could perform the full range of sedentary work, the sedentary rules corresponding to his age, education and vocational factors direct a finding of disabled. The Court held that when a claimant's RFC falls between the sedentary and light ranges of work, the grids are not "mandated" and VE testimony is appropriate to determine whether jobs exist in significant numbers that the claimant can perform, citing SSR 83-10, 83-12 and 83-14:

"In light of these regulations, policy statements, and our caselaw interpreting same, we reject Haynes’s argument that the ALJ was required to apply the grids. The grids were not mandated—Haynes’s RFC did not coincide with the full range of either sedentary or light work, and he suffered from a combination of exertional and nonexertional limitations. See Lee v. Sullivan, 988 F.2d 789, 793 (7th Cir. 1993) (“[The grids] are only to be applied when they accurately describe a claimant’s abilities and limitations.”). The regulations and abundant caselaw clearly indicate that in such situations it is appropriate to consult with a vocational expert, which is precisely what the ALJ did."

The Court also found that the ALJ properly disregarded an ME's testimony that Haynes would miss up to the 3 workdays per month due to his impairments, stating that the ALJ concluded there was no medical evidence to support this opinion. The Court fudged the requirement that the ALJ "build a logical bridge from the evidence to the conclusion," instead conducting its own survey of the record to find evidence to support the ALJ's conclusion.

An MP3 recording of a very short oral argument is found here.

Seventh Circuit Affirms Step 5 Denial of Disability Benefits

The Seventh Circuit, in an opinion by Circuit Judge William J. Bauer, affirms a step 5 denial of a concurrent claim for disability benefits. In its decision, the court takes some pains to discuss strategies for effective appellate advocacy. Here's one hint:

At the outset, we note that White made identical arguments before the magistrate judge, which were all rejected, and he has made no effort to distinguish the magistrate's reasoning and conclusions. It is true that we owe no deference to the district court in the social security context, and that White is not necessarily obliged to address its analysis. Groves v. Apel, 148 F.3d 809, 811 (7th Cir. 1998). But it is a risky tactic, especially where, as here, the magistrate or district judge has issued a thorough and persuasive opinion.

The Seventh Circuit makes mp3 recordings of oral argument available, a really commendable and useful feature of its website. Oral argument in this case is available here.

Fast v. Barnhart, No. 03-3615, __F.3d__ (7th Cir. Feb.2, 2005)

In a decision by Circuit Judge Diane P. Wood, the Seventh Circuit affirms a step 5 denial of benefits to a claimant who alleged disability due to stress and psychosis.

The claimant argued that the ALJ erred because he failed to use the grids as a framework in determining disability at step 5 . The framework argument, as formulated by the court, is that "the ALJ should have compared the number of jobs available to a person considered disabled under the grids with the number of jobs that the VE testified she could perform." The Court rejected this argument, at least with respect to claims alleging solely non-exertional impairments. The Court found that neither § 200.00(e) of the introduction to the grids nor SSR 85-15 requires the grids to be used as a framework when the only impairment is non-exertional. Both speak in terms of situations in which the claimant has both exertional and non-exertional impairments.  (Does this leave the door open for the framework argument when a claimant has both kinds of impairments?)

In dicta, the Court also found that the POMS are not entitled to Chevron deference when contradicted by a ruling or a regulation.

The Court concluded: "Fast's rather odd argument that the grids must somehow be used as a framework has no support, and it conflicts with the common-sense rule that where the grids do not address a particular problem, the ALJ is entitled to rely on the expert testimony of a VE."

NB: You can download or play an audio file of the oral argument in this case here.

Article III Groupie Interviews Judge Robert W. Gettleman, District Court Judge in the Seventh Circuit

Sometimes the 3-5 readers of this blog (excluding Mom) send us interesting stories or links about life outside our little backwater of the Internet. Here is a missive we recently received from Article III Groupie who writes Underneath Their Robes, a blog that contains--as Article III Groupie describes it -- "news, gossip, and colorful commentary about the federal judiciary."  (Be forewarned: A3G is a mistress of understatement.)

"I was just writing to bring to your attention my recent interview with Judge Robert Gettleman (N.D. Ill.), which some of your readers may find interesting. Judge Gettleman, who overcame polio as a child, had some very thoughtful remarks about how that experience led him to become involved in disability rights issues as a lawyer and how it has affected his work as a judge. He also has some critical remarks about the Supreme Court's ADA precedents."

So particularly for the folks in Illinois who toil away at Social Security appellate work, here is Article III's interview with Judge Gettleman. It's an excellent read. Enjoy!

Skarbek v. Barnhart, No. 03-3745 (7th Cir. Dec. 2, 2004)

The Seventh Circuit, in a per curiam opinion, affirms a step 5 denial of disability benefits. The ALJ determined that Skarbek's arthritic knees did not prevent him from performing a limited range of medium work. The Court found that the ALJ did not err in failing to give controlling weight to the treating physician's opinion since it was inconsistent with the medical evidence. The ALJ's failure to discuss Skarbek's obesity did not warrant remand since obesity was "factored indirectly into the ALJ's decision as part of the doctor's opinions." Finally, the ALJ's credibility determinations were not "patently wrong" and were sufficiently supported by the evidence.

(Note:   This opinion was originally issued June 23, 2004 as an unpublished decision. The Court granted the defendant's request to publish on December 2, 2004.)

Smith v. Barnhart, No. 03-3498, __F.3d__ (7th Cir. Oct. 26, 2004)

The Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, finds that the ALJ erred at step four of the sequential evaluation process when he equated the claimant's past relevant work to sedentary work, without determining whether the claimant could perform the specific duties of the specific jobs she held. The Court further explained:

"The issue is not whether the applicant for benefits can return to the precise job he held, which is hardly likely to have been kept open for him, but whether he can return to a “job” he held that exists at other employers. However, the job must not be described so broadly as to encompass a range of physical and mental abilities some of which the applicant may not have; and that is the case if the job is described merely as “sedentary work.” See also Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001). Picking out the line in an individual case is of course a task for the agency, subject to light judicial review; hence the need for a remand."

Rice v. Barnhart, No. 03-3830, __ F.3d __ (7th Cir. Sept. 14, 2004)

The Seventh Circuit, in an opinion by Circuit Judge Michael S. Kanne, affirmed the ALJ's denial of benefits. The claimant was 53 on her onset date, 55 less than 2 years later. The ALJ denied her claim at step 5, finding that she retained the RFC for medium work, apparently relying on the opinions of Drs. Bilinsky and Graham, state agency physicians:

The ALJ's residual functional capacity determination was consistent with the opinions of Drs. Bilinsky and Graham. The ALJ was entitled to rely upon their opinions. 20 C.F.R. § 404.1527(f)(2)(i); Scheck v. Barnhart, 357 F.3d 697, 700 (7th Cir. 2004). More importantly, there is no doctor's opinion contained in the record which indicated greater limitations than those found by the ALJ. Dr. Patel's oblique note that Rice could not "lift" and that sitting and walking for more than one-half hour worsened her pain is the only opinion arguably more restrictive than the ALJ's residual functional capacity conclusion.

But, as Circuit Judge Rovner's concurring opinion points out, the state agency doctors specifically limited the range of medium work the claimant could do:

The agency doctors opined that Rice could only occasionally climb, balance, stoop, kneel, crouch and crawl. For medium work, a person must be capable of frequent stooping and crouching. Nonetheless, the agency doctors concluded, contrary to the agency’s own regulations, that Rice was capable of medium work, and the ALJ adopted this unsupported conclusion.

Despite this obvious error, Judge Rovner concurred in the judgment because of the claimant's Circuit Rule 30 violation (i.e. failure to include the ALJ's decision in the appellant's brief)! Lots of language exculpating the ALJ's failure to articulate good reasons for rejecting probative evidence. No mention of Social Security Rulings that place a higher burden on the ALJ regarding articulation, although those rulings were argued in the appellant's brief. Assuming her DLI was okay, this claimant might have gotten benefits with an RFC of light at 55. And Judge Rovner's concurrence suggests that there was enough in the decision to merit remand.

Golembiewski v. Barnhart, No. 03-3382, __ F.3d __ (7th Cir. Aug. 31, 2004)

The Seventh Circuit, in an opinion by Senior Circuit Judge William J. Bauer, finds that he District Court judge abused his discretion in denying an application for attorney fees under the Equal Access to Justice Act (EAJA):

Strong language against the government’s position in an opinion discussing the merits of a key issue is evidence in support of an award of EAJA fees. . . .  We did not reject any issue raised by the plaintiff on appeal nor did we adopt or affirm any position taken by the Commissioner. This is exactly the “strong language against the government’s position” in a merits opinion which should establish lack of substantial justification in the ALJ’s decision and in the Commissioner’s defense of that position.

Barnett v. Barnhart, No. 03-4076, __ F.3d __ (7th Cir. Aug. 25, 2004)

The Seventh Circuit, in an opinion by Circuit Judge Ilana Diamond Rovner, reverses the District Court's judgment affirming a denial of disability benefits and remands for further proceedings. The claimant suffered from non-convulsive epileptic seizures.

The Court found that the ALJ improperly discredited the claimant's testimony, her husband's testimony and the opinion of her treating physician. The Court criticized the ALJ's handling of listing 11.03 in that he failed to carefully consider medical records predating her alleged onset of disability. And the Court, citing SSR 96-2p and 96-5p, also determined that the ALJ should have recontacted the treating physician "to flesh out an opinion for which the medical support is not readily discernable."

A good opinion, despite some loose language about the listings establishing "presumptive disability" and a dubious suggestion that seizures occurring with less than listing frequency might nevertheless equal the listing.

Scheck v. Barnhart, 357 F.3d 697 (7th Cir. 2004)

An opinion by Circuit Judge William J. Bauer affirming a defective ALJ decision with respect to crediblity analysis. Leaving aside its treatment of SSR 83-20, the Court fails to quote SSR 96-7p regarding assessment of a claimant's credibility:

"It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision."

Ignoring this language, and focusing on Polaski, an 8th Circuit decision (?) which lists factors to be considered in assessing credibility, the Court concluded that the "ALJ was aware of these requirements and followed them in making her decision." (Page 10) How an awareness of the factors is morphed into a "well-reasoned" decision is not apparent from the Court's opinion. Presumably, if the ALJ indicates in her decision that she considered a Ruling, she must have applied that Ruling in the correct manner.

One other oddity: The Court refers to "residual functioning capacity" not "residual functional capacity" in describing RFC. Is there something in 7th Circuit caselaw that describes RFC that way?

Barrett v. Barnhart, 355 F.3d 1065 (7th Cir. 2004)

Decision from Judge Posner which points out the need to cross-ex VEs regarding the basis for numbers in response to hypothetical questions. Also notes the need for connecting the evidence to a finding that the claimant is not disabled:

A vocational expert can testify to the number of light jobs in Wisconsin, since “light” work is a defined term. But here he was asked to determine the number of jobs in a subclass of light work, namely the jobs that don’t require standing for more than two hours at a stretch, or normal hearing. For him to offer the number 24,500 with no indication of how he adjusted the numbers in the dictionary to reflect Barrett’s diminished capacity leaves us in the dark about the actual basis of his testimony, as in Ragsdale v. Shalala, 53 F.3d 816, 821 (7th Cir. 1995). However, because Barrett’s lawyer did not question the basis for the vocational expert’s testimony, purely conclusional though that testimony was, any objection to it is forfeited. Donahue v. Barnhart, supra, 279 F.3d at 446; compare Morrison v. Apfel, 146 F.3d 625, 628-29 (8th Cir. 1998).

The duty of explanation is summed up here:

The cumulative effect of the administrative law judge’s errors and omissions was to fail to build a rational bridge from the evidence to the finding that Barrett was not totally disabled. E.g., Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003) (per curiam); Steele v. Barnhart, supra, 290 F.3d at 941; Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001); Green v. Apfel, supra, 204 F.3d at 781; Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001); see generally Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990); Bill Branch Coal Corp. v. Sparks, 213 F.3d 186, 191 (4th Cir. 2000).

Acquiescence Ruling 03-1(7): Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003) and 12.05/112.05

SSA has published an Acquiescence Ruling in the case of Blakes v. Barnhart, 331 F.3d 565 (7th Cir. 2003). In Blakes, the Court held that the revised version of listing 112.05 (published August 21, 2000 and effective September 20, 2000) required that the claimant's impariment satisfy the diagnostic description of the introductory paragraph to the listing but that the earlier version of the listing did not. SSA's interpretation differs:

Our interpretation of the pre-September 20, 2000, version of Listings 12.05 and 112.05 is the same as our interpretation of the current listings. The diagnostic description of mental retardation contained in the introductory paragraph of these Listings, or "capsule definition,'' is an integral part of their criteria, as in all of the mental disorders listings.

Other bases for disagreement are included in the AR. The new ruling applies only to cases in Indiana, Illinois and Wisconsin.

Available in text and pdf formats.

68 FR 74279-74280 (Dec. 23, 2003)

20 Questions for 7th Circuit Judge Posner at How Appealing

Howard Bashman over at How Appealing has posted December's 20 Questions for Seventh Circuit Judge Richard A. Posner.

For recent Social Security disability decisions authored by Judge Posner, see Henderson v. Barnhart, No. 03-1828, __F.3d __ (7th Cir. November 12, 2003) and Keys v. Barnhart, No. 02-4219, __ F.3d __ (7th Cir. October 29, 2003).

If you'd like more from Judge Posner, try Law, Pragmatism and Democracy at Amazon.

7th Circuit--ALJ's Duty to Explain Credibility Finding

Excellent discussion regarding the ALJ's duty to explain his crediblity assessment, and some sensible, quotable language from the Court regarding post-hoc rationalizations. The case is Golembiewski v. Barnhart, 322 F.3d 912 (7th Cir. 2003). Agency argued that the body of the ALJ's decision implicitly supplied reasons for rejecting the claimant's testimony. The Court didn't buy it:

The Commissioner’s response is problematic for two reasons. First, nothing in Social Security Ruling 96-7p suggests that the reasons for a credibility finding may be implied. Indeed, the cases make clear that the ALJ must specify the reasons for his finding so that the applicant and subsequent reviewers will have a fair sense of the weight given to the applicant’s testimony. Steele, 290 F.3d at 942; Briggs v. Massanari, 248 F.3d 1235, 1239 (10th Cir. 2001); Schaudeck, 181 F.3d at 433-34.

Second, regardless of the requirements of Social Security Ruling 96-7p, general principles of administrative law preclude the Commissioner’s lawyers from advancing grounds in support of the agency’s decision that were not given by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943); Steele, 290 F.3d at 941; Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); Fargnoli v. Massanari, 247 F.3d 34, 44 n.7 (3d Cir. 2001). So the Commissioner’s effort to pinpoint parts of the ALJ’s decision that support the credibility finding is unhelpful.