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.

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.

Howard v. Barnhart, No. 03-7094, __ F.3d __ (10th Cir. July 29, 2004)

The Tenth Circuit, in an opinion by Judge Paul J. Kelly, Jr., provides an object lesson in harmless error analysis. Which is to say, if the ALJ's errors don't appear to change the outcome, you lose:

We agree that the lack of analysis accompanying the ALJ's RFC determination is troubling; we have urged ALJs to include reasoning in their decisions to make appellate review not only possible but meaningful. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). However, our careful review of the record on appeal in light of the deferential appellate standard leads us to conclude that substantial evidence in the record supports the ALJ's RFC determination in this particular case.

The Court also provides a reminder about the burden of proof at step 5 of the SEP:

We disagree with claimant's implicit argument that the agency, not the claimant, has the burden to provide evidence of claimant's functional limitations. As a recent Social Security final rule makes clear, the agency's burden at step five does not include the burden to provide medical evidence in support of an RFC assessment, unless the ALJ's duty to further develop the record is triggered. 68 F.R. 51153, 51155 (2003); cf. Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997) (discussing development of the record).

Forte v. Barnhart, No. 03-2111, __ F.3d __ (8th Cir. July 29, 2004)

The Eighth Circuit, in an opinion by Judge Theodore McMillian, affirms an ALJ decision in which appellant had argued that the ALJ (1) improperly discounted allegations of disabling pain, (2) failed to give appropriate weight to the treating physician's opinion (3) did not consider his obesity in assessing his residual functional capacity (RFC) and (4) failed to correctly frame a hypothetical question to the VE:

This court has stated that “‘[a]n arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case.’” Id. (quoting Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)).

Seems like the ALJ made enough of an effort to explain himself to pass muster, and the Court was unconvinced that had error occurred, it would have affected the outcome. For example, the ALJ "reviewed the progress notes and pointed out, among other things, that in June and August 1999, Dr. Ketcham had reported that Forte was walking six to eight miles a week, had denied that pain was radiating down his legs, and had not displayed chronic pain behavior."

Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004)

An interesting decision authored by Judge Carlos F. Lucero in which the ALJ erroneously applied the grids at Step 5 without discussing VE testimony which might have been enough to deny the claim. This is another in a series of disability cases which refuse to coutenance post-hoc rationalizations offered by agency counsel. Thus, the lead paragraph states:

Affirming this post hoc effort to salvage the ALJ’s decision would require us to overstep our institutional role and usurp essential functions committed in the first instance to the administrative process. Because the ALJ’s decision cannot stand on its own erroneous rationale, we reverse and remand the case for further proceedings before the agency.

The Court also discussed the harmless error defense and said:

. . . to the extent a harmless-error determination rests on legal or evidentiary matters not considered by the ALJ, it risks violating the general rule against post hoc justification of administrative action recognized in SEC v. Chenery Corp., 318 U.S. 80 (1943) and its progeny.

The Court nevertheless considered application of harmless error principles to the case but concluded that "[a]ny attempt to save the decision, by finding that the one job Allen concededly can do constitutes significant work, usurps the ALJ’s primary responsibility to determine that question in light of the various case-specific considerations outlined in Trimiar [Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992)]."

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).

Butler v. Barnhart, 353 F.3d 992 (D.C. Cir. 2004)

A lengthy opinion authored by Circuit Judge Karen LeCraft Henderson which focuses on the ALJ's duty to explain his reasons for his conclusions:

In sum, we cannot discern from the record the ALJ’s basis for rejecting Lightfoote’s opinions regarding these limitations nor from his mere references to the other physicians’ reports. The ALJ’s reasoning is not simply "spare"—as the district court described it—in crucial particulars it is missing. Nor did he "note[ ] the contradictory evidence in the record, which record supplie[d] the reason" for his decision. Williams v. Shalala, 997 F.2d 1494, 1499 (D.C. Cir. 1993). This simply will not do. "The judiciary can scarcely perform its assigned review function, limited though it is, without some indication not only of what evidence was credited, but also whether other evidence was rejected rather than simply ignored." Brown, 794 F.2d at 708.

P. 16

The Court also rejects post-hoc rationalizations by agency counsel:

The Commissioner contends that the ALJ must have interpreted Lightfoote’s opinion that Butler should never stoop to mean that she should stoop "very little" or "only occasionally." Appellee’s Br. at 22. While this interpretation may have some intuitive appeal, the ALJ did not articulate this view in his decision [FN. 5] and Lightfoote’s multiple opinions are not easily susceptible of such an interpretation.

Pp. 15-16.

Judge Henderson's opinion correctly focuses on the process unification rulings of 1996 to establish the standards for evaluating credibility, pain and the treating physcian's opinion evidence.

And, in the spirit of Howard Bashman, a typographical error occurs in the 6th line from the bottom of page 15: "inexplicitly" should read "inexplicably."

Threet v. Barnhart, 353 F.3d 1185 (10th Cir. 2003)

New decision from the Tenth Circuit authored by Judge Stephanie K. Seymour which addresses the ALJ's duty of explanation. Judge Seymour wrote:

" . . . [W]hile [the ALJ] is not required to discuss every piece of evidence in the record, he "must discuss the uncontroverted evidence he chooses not to rely on, as well as significantly probative evidence he rejects." Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). Without the benefit of the ALJ's findings supported by the weighing of this relevant evidence, we cannot determine whether his conclusion that Ms. Threet's disability began on March 11, 1997, is itself supported by substantial evidence. We therefore remand for the ALJ to articulate specific findings and his reasons for ignoring this evidence."

The Court, unfortunately, did not discuss this duty as described in SSR 96-7p, for example, but instead relied on its own common law to conclude that remand was necessary. Still, a good reminder for adjudicators that substantial evidence cannot support a decision in the absence of a reasoned explanation for its conclusions.

Also, dictum discusses (1) proper analysis of medical improvement in the context of a closed period of disability and (2) the appropriate treatment of new evidence submitted at the Appeals Council (relying on Wilkins v. Secretary, 953 F.2d 93, 96 (4th Cir. 1991)).

Duty of Explanation/Articulation Case--10th Circuit

There's a good discussion of the treatment of treating physician opinions, including the duty to articulate reasons for the weight given such opinions, in Watkins v. Barnhart350 F.3d 1297 (10th Cir. 2003). Judge Baldock, for the Court, discusses Social Security Ruling 96-2p:

The agency ruling contemplates that the ALJ will make a finding as to whether a treating source opinion is entitled to controlling weight. In this case, the ALJ obviously did not give Dr. Rowland's opinion controlling weight, but he did not articulate a reason. A finding at this stage (as to whether the opinion is either unsupported or inconsistent with other substantial evidence) is necessary so that we can properly review the ALJ's determination on appeal.

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.