Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

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SPIVA v. ASTRUE (December 6, 2010)

David Spiva had a very unfortunate childhood. His father was shot to death, his mother beat him, he attempted suicide in his teens, he served time in prison, and he experienced urges to hurt himself and others. At the age of 28, he was working as a stock shelver at a WalMart store in Mississippi. He checked himself into a psychiatric clinic because he continued to have thoughts of harming himself and others. He was diagnosed as having a psychotic disorder, a mood disorder, and a personality disorder. He was released after several days with a prescription for antidepressant. Within months, he returned because "evil spirits" were after him. Again, he was released after several days with prescriptions for antipsychotic and antidepressant medications. The clinic psychiatrist believed that he could maintain steady employment if he continued to take the drugs and received treatment. Spiva never returned to his job. Instead, he moved to Milwaukee in 2006 and has since lived with various relatives. He was hospitalized again in 2006 and 2007, still complaining about evil spirits. He filed for Social Security benefits. Two state mental health professionals evaluated his condition. One concluded that he could probably perform routine tasks and interact with coworkers. The other thought that he could work but that he had difficulty concentrating and interacting with other people. Spiva was the only witness at his hearing. He testified that he was unable to work because of his "evil thoughts" and "doing bad." He also testified that he sometimes babysat for his daughter, helped out at a day-care facility, and had recently attended two parties hosted by a relative. The ALJ determined that Spiva suffered from schizophrenia, depression, and attention deficit disorder but concluded that he was not totally disabled because he could still perform his last job (at Wal-Mart). Judge Stadtmueller (E.D. Wis.) affirmed. Spiva appeals.

In their opinion, Seventh Circuit Judges Posner, Tinder, and Hamilton reversed and remanded. The Court was very critical of both the ALJ and the Justice Department's lawyers. With respect to the ALJ, the Court found the opinion totally lacking in an analysis of Spiva's ability to work at WalMart. The Court wondered how a "psychotic person busy trying to cope with evil spirits" could interact with the number of customers found in a typical WalMart store. Because the ALJ found that he could continue in his old job, she made no finding with respect to any other employment he was capable of and whether such employment was available in the area. The Court also criticized her vague references to Spiva's lack of credibility. That conclusion is simply unsupported by the record. Finally, the Court questioned the ALJ's understanding of mental illness, giving her remarks about Spiva's failure to take his medication. The Court stated that keeping mental patients on medication is one of the most serious treatment problems. In short, the ALJ's opinion was unsatisfactory. Next, with respect to the Justice Department lawyers, the Court believed they overstepped their role under Chenery. That doctrine requires the court to review the product of the authorized agency, not the Justice Department lawyers' later justification for such product. Here, the lawyers argued many points from the record that were not part of the ALJ's analysis or consideration. The harmless error doctrine will allow the affirmance of an agency decision if it is overwhelmingly supported by the record even if the agency failed to adequately state its opinion with appropriate record references. The doctrine does not, however, allow affirmance simply because the agency's lawyers have cited enough record evidence to lead to the conclusion that the agency might reached the same decision on remand. The best the Justice Department lawyers can do here is the latter.