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

WEITZENKAMP v. UNUM LIFE INSURANCE COMPANY (September 20, 2011)

Time Warner Cable employed Susie Weitzenkamp as a sales representative. Weitzenkamp participated in the company's employee benefits Plan, which included long-term disability benefits. The disability Plan provided for 24 months of benefits if a participant could not perform the duties of her regular position. Benefits could continue after 24 months if a participant could not perform the duties of any occupation. The Plan excluded benefits after 24 months if the participant's disability was based on self-reported symptoms. The self-reported symptom exclusion was not mentioned in the Plan’s summary plan description, however. After Weitzenkamp came down with a viral illness, she received 24 months of disability benefits. The Plan invoked the self-reported symptoms exclusion and terminated her benefits after 24 months. Weitzenkamp applied for and received Social Security benefits, as well. The Plan requested reimbursement of approximately $9,000 in overpayments as a result of the retroactive Social Security benefits. Weitzenkamp filed suit. The Plan counterclaimed for the overpayments. Judge Griesbach (E.D. Wis.) granted summary judgment to the Plan, approving its reliance on the self-reported symptoms exclusion. The district court also awarded the Plan the overpayments. On appeal, the Seventh Circuit reversed (opinion and intheiropinion) the benefits denial, holding that the Plan's failure to include the exclusion in the summary plan description estopped it from relying on it as a defense. The Court affirmed the recovery of the overpayments. The Court later granted a petition for rehearing and withdrew its opinion.

In their opinion after rehearing, Seventh Circuit Judges Rovner and Hamilton and District Judge Lefkow again reversed in part and affirmed in part, although its reversal rested on different grounds. The Court conceded that its review was under the arbitrary and capricious standard, which gives great deference to the Plan. Here, the district court concluded that the benefits denial was not arbitrary and capricious because of the self-reported symptoms exclusion. The Court looked to the Plan's language to decide whether it applied to all illnesses where symptoms are self-reported (as the Plan contends) or only to illnesses where the diagnosis is based primarily on self-reported symptoms (as Weitzenkamp contends). The Court conceded that a literal interpretation supported the Plan’s view – but it rejected that interpretation. Since most illnesses and diseases manifest themselves through pain or weakness or fatigue (i.e., symptoms are self-reported), they would be included within the exclusion under the Plan's view. That result would not be reasonable and therefore makes the Plan's interpretation arbitrary and capricious. Instead, the Court concluded that the exclusion applies only to illnesses that are diagnosed primarily on the basis of self-reported symptoms. Here, Weitzenkamp's fibromyalgia was diagnosed with the "trigger test," an accepted clinical test for the illness. The self-reported symptoms exclusion therefore does not apply and Weitzenkamp was improperly denied benefits. Because the record supports a disability finding, the Court ordered reinstatement of benefits rather than a remand. With respect to the request for benefits reimbursement, the Court agreed that the Plan could not levy or garnish Weitzenkamp’s Social Security benefits under the statute but that also concluded that the statute does not preclude a claim for reimbursement. The Plan was entitled to reimbursement.

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PUNZIO v. ASTRUE (January 21, 2011)

Patricia Punzio's life has been difficult -- alcoholic parents, sexual abuse, attempted suicide, dyslexia, depression, and alcohol abuse all by the time she was 26. Although she stopped drinking at that time, she still had few job skills and had trouble maintaining employment. In 1998, at the age of 40, she sought psychiatric treatment. For the next several years, she participated in treatment and took medication. She was diagnosed with depression and bipolar disorder. Her condition and symptoms improved at times and, at other times, regressed. Her therapist, who saw her in weekly sessions in 2005 and 2006, concluded that she was incapable of holding down a job as a result of her mental illness. Punzio applied for disability benefits in 2005. At an ALJ hearing in 2007, she testified that her condition had improved with treatment but that she still had days when she could not leave the house, that she was still troubled by dyslexia and poor memory, that she mixes up numbers, that she has trouble remembering directions, and that she spends most of her time at home. In response to a question from the ALJ proposing certain limitations on Punzio's capacity to work, a vocational expert testified that Punzio could return to her prior work and would also be able to do factory work. Punzio's lawyer added additional restrictions to the question, including an inability to stay on task and to understand instructions and a likelihood to miss work three days a month. The vocational expert testified that any of those restrictions would eliminate any potential employment. The ALJ commented that the record did not support those added restrictions and asked for supplemental evidence. Punzio solicited an opinion from her treating psychiatrist. The psychiatrist submitted a report that supported the conditions suggested by Punzio's lawyer. The ALJ denied benefits, assigning no weight to the psychiatrist assessment because it was solicited by her attorney for purposes of the hearing and because it was inconsistent with other treatment notes. He also rejected the therapist’s opinion and Punzio's own testimony (as "not entirely credible"). Judge Darrah (N.D. Ill.) affirmed. Punzio appeals.

In their opinion, Judges Posner, Rovner, and Tinder reversed and remanded for the award of benefits. The Court first noted that the ALJ's failure to give any reason whatsoever for the belief that Punzio's testimony was not credible was grounds for reversal itself. The Court has commented several times recently on this unacceptable but frequent practice. (See Martinez, Spiva, and Parker). But another, more serious problem attracted the Court's attention. A treating physician's opinion is entitled to "controlling weight" if it is supported by competent evidence and not inconsistent with other evidence. Here, the ALJ rejected the treating physician's opinion, citing both that it contradicted her treatment notes and that it was solicited by her lawyer. The Court rejected both reasons. It found no contradiction between her diagnosis and her notes, when viewed as a whole, and criticized the ALJ’s “cherry-picking” the record to find an arguable, fleeting contradiction. As for the opinion being requested by the lawyer, the Court noted that the practice was endorsed by the agency's regulations and even encouraged on the agency's website. The Court recognized that sometimes treating physicians are not objective, but noted that the concern is addressed by the regulations. Given the treating physician's opinion and supporting evidence and the vocational expert's testimony that no jobs are available to someone with Punzio's mental condition, the Court concluded that a remand for further consideration was unnecessary. Instead, it remanded for an award of benefits.

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MARTINEZ v. ASTRUE (January 19, 2011)

Anita Martinez and her five children live in her mother's basement. Martinez suffers from depression, bipolar disorder, and severe arthritis. She is on medication for both her mental and physical complaints. An ALJ denied her claim for disability benefits. Francis Rider is 61 years old, extremely obese, has severe arthritis in her right knee, and suffers from back pain. An ALJ denied her request for disability benefits. Christine Pound is 60 years old and suffers from coronary artery disease, cartoid artery disease, back pain, and restless leg syndrome. But Pound only had Social Security coverage through the end of 2003. At that time, her conditions were under control and she used only mild medication to treat her pain. An ALJ denied her request for disability benefits. Martinez, Rider, and Pound appeal.

In their opinion, Judges Posner, Ripple, and Rovner consolidated the three appeals and reversed and remanded in Martinez and Rider and affirmed in Pound. In these consolidated appeals, the Court again (as in Spiva (opinion and intheiropinion) and Parker (opinion), both opinions also written by Judge Posner) took the opportunity to criticize the Social Security Administration and its handling of benefit claims. It specifically disapproved of the common ALJ practice of concluding a claimant's statements are not credible without explanation and also noted many ALJs’ apparent lack of familiarity with mental illness. On the merits of the appeals, the Court: a) reversed and remanded the benefits denial in Martinez because the ALJ's superficial opinion discounted Martinez' testimony as "not entirely credible" without explanation, ignored much of the evidence, overlooked the fact that she stopped taking her medication at times because of her condition, and never considered the cumulative impact of her various problems, b) reversed and remanded the benefits denial in Rider because the ALJ ignored the treating doctor's opinion that she was not capable of prolonged standing or walking, relied on contrary opinions of non-treating physicians, made findings inconsistent with the evidence, ignored the uncontroverted testimony that Rider could not afford a knee replacement, and failed to consider the impact of her obesity on her physical condition, and c) affirmed the benefits denial in Pound because, although her condition deteriorated rapidly after 2004, the ALJ conducted a thorough analysis and denied benefits in a thorough opinion that concluded that Pound could perform sedentary work (and was therefore not disabled) when her coverage expired. 

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ALLORD v. ASTRUE (January 13, 2001)

Gary Smith served as a Marine in Vietnam. He now suffers from post-traumatic stress disorder. He applied for disability benefits in October of 1996. He asserted that he suffered from the disability since his retirement from the Marine Corps in 1987. Since he was last eligible for Social Security benefits in December of 1992, he had to show that he was disabled at that time. He is entering his fifteenth year of trying to do just that. A local agency denied his claim, an ALJ denied his claim, the agency stipulated on review to a remand for consideration of additional evidence, a different ALJ denied his claim, a district court affirmed the denial, the Seventh Circuit reversed and remanded to the Agency, a third ALJ denied his claim, and a district court has reversed and remanded. Judge Crabb (W.D. Ill.) identified two errors in the last ALJ decision. First, he failed to follow the directions from the Seventh Circuit in assessing a witness's credibility. Second, he did not adequately explain his reasons for discounting a treating physician's opinion and adopting the opinion of another. Nevertheless, the district court declined Smith's request to remand with instructions to award benefits. Smith appeals.

In their opinion, Seventh Circuit Judges Kanne, Williams, and Tinder affirmed. The only issue on appeal is whether the record below requires a finding that Smith was disabled in December 1992. The Court first noted that it would apply an abuse of discretion standard rather than the de novo review typically applied in a Social Security benefits case. That is because it is the claimant appealing the district court's refusal to remand for the award of benefits. The Court found no abuse of discretion. First, although Smith is correct that the ALJ erred in not adequately describing why he discounted the treating physician's testimony, the record does not support the conclusion that he could not do so. In fact, the district court itself noted that contradictory inferences could be drawn from the testimony and Smith does not challenge that reasoning. Second, the Court rejected Smith's argument that the agency’s "obduracy" is sufficient reason to award benefits. The record must provide the reason to award benefits. Third, the Court rejected Smith's argument that a remand would be futile. He expressed confidence that the agency would not continue to ignore its directions and those of the district court.

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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.

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CAMPBELL v. ASTRUE (December 6, 2010)

Curtis Campbell applied for Social Security benefits in January of 2004, based principally on his mental impairments. The agency arranged for Campbell to be seen by Dr. Mason, who concluded that his problems were mostly related to his substance abuse. Another agency psychologist, Dr. Boyenga, reviewed Campbell's record and concluded that he was capable of performing simple and detailed tasks. Another mental health assessment was conducted in May of 2004. A therapist recommended evaluation, medication, and therapy and a psychiatrist diagnosed Campbell with major depression and substance abuse. In October, Campbell began a regular course of treatment with Dr. Powell. Powell saw Campbell almost 20 times over the following 15 months. Throughout that time, she assessed his Global Assessment of Functioning Scale score between 45-50, an indication of severe social impairment. Early on, she noted his excessive use of alcohol. She diagnosed Major Depressive Disorder with psychotic features. She also noted that he was not a malingerer. In mid-2005, Powell diagnosed Campbell with Bipolar Disorder, but continued to question the effect of his excessive alcohol use. Later in 2005, Campbell reported that he was no longer using alcohol. Powell’s treatment notes from that point on mention alcohol use only in the sense of her continued support of his abstinence. Her clinical assessment remained much the same. The agency conducted a hearing in January of 2006. The agency's medical expert testified that Campbell had a history of substance abuse, that he was currently using alcohol, and that he was capable of simple, repetitive work. The expert was unaware of Powell's Bipolar Disorder diagnosis. Campbell testified that he had not used alcohol for six or seven months. The ALJ found that Campbell was not disabled, siding more with the testifying expert and the other agency consultants then with Dr. Powell. Judge Darrah (N.D. Ill.) affirmed. Campbell appeals.

In their opinion, Seventh Circuit Judges Wood, Evans, and Tinder reversed and remanded. Normally, the treating doctor's opinion is entitled to controlling weight if it is adequately supported. The ALJ rejected the treating doctor's opinion for two reasons -- the absence of any significant abnormal findings in a December 2005 evaluation and Powell’s failure to determine the effect of alcohol on Campbell's symptoms. The Court found both reasons wanting. First, with respect to the December report, the Court determined that the ALJ focused on one aspect of the report and ignored other aspects of the same report as well as Powell's other reports. That, an ALJ may not do. With respect to the alcohol use, the Court noted that Powell's treatment notes suggested she had ruled out alcohol abuse. The fact that she began recommending "continued abstinence" in September and noted that his symptoms persisted makes it clear that she thought something other than alcohol abuse was the cause of his symptoms. The Court then stated that, even if the ALJ was correct in discounting the treating doctor's opinion, she is required to apply the Larson factors to determine the proper weight to give the opinion. Here, the ALJ did not address those factors -- several of which support Powell. Finally, the Court noted that the opinions the ALJ gave the greatest weight to were, on the one hand, opinions of doctors given prior to the 15 month course of treatment and, on the other hand, the opinion of the expert whose own testimony showed that he was unfamiliar with the medical records.

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O'CONNOR-SPINNER v. ASTRUE (November 29, 2010)

Louquetta O’Connor-Spinner filed an application for Social Security benefits in early 2004. She cited a long history of severe mental and physical impairments and claimed to be unable to perform any work. The evidence indicated treatment for both the physical and mental ailments as early as 2002. Two state psychologists examined O'Connor-Spinner. They both diagnosed her with depression. One indicated that the depression would not prevent her from performing moderately complex tasks but noted a limitation on receiving and responding to instructions appropriately The Social Security Administration denied O'Connor-Spinner's claim. O'Connor-Spinner requested and received a hearing before an ALJ. At the hearing, the ALJ presented the Vocational Expert (“VE”) with increasingly restrictive hypotheticals. Even the most restrictive hypothetical, however, contained no limitations on concentration, persistence, and pace (which the ALJ's assessment of her residual functional capacity established) or on receiving and responding to instructions appropriately (as the one psychologist noted). The VE testified that O'Connor-Spinner could not perform her past jobs but identified several that she could perform. The ALJ therefore concluded that she was not disabled. Then-Judge Hamilton (S.D. Ind.) upheld the ALJ decision. O'Connor-Spinner appeals.

In their opinion, Seventh Circuit Judges Bauer, Ripple, and Kanne reversed and remanded. The Court first addressed the argument that the ALJ's finding of limitations on concentration, persistence, and pace required the ALJ to include those limitations in the hypotheticals. The general rule is that an ALJ must inform the VE all of the claimant's limitations. There is no per se rule that those limitations be included in a hypothetical. But here, where the ALJ focused on increasingly restrictive hypotheticals, where there is no evidence that the VE reviewed the medical history, and where the ALJ did not use other words to describe the same limitation, a remand is required. The Court also agreed that with the claimant that the ALJ should have been more clear with respect to the claimant’s limitation on receiving and responding to instructions. The ALJ neither mentioned nor included that limitation in a hypothetical. The Court noted that this shortcoming may not have, by itself, required a remand. Since the case was going to be remanded anyway, the Court encouraged the ALJ to clarify his position on this limitation in the record.

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JONES v. ASTRUE (October 22, 2010)

Jacklin Jones was injured in a car accident in 2001. Over the course of the next several years, she sought medical treatment as her condition worsened. She complained of lower back pain and numbness in her hands. The objective medical evidence, including the results of multiple MRIs, identified the principal problem as a mild, lower- back disc bulge. Her orthopedic surgeon advised her to discontinue the strong pain medication and instead to lose weight and begin physical therapy. She quit her job in November of 2003 because of her pain. She continued to see the orthopedic surgeon, who continued to tell her to lose weight and get into better condition. Jones sought disability benefits. At her hearing, she testified that she was in substantial pain, that she could not sit or stand for long periods, that her pain medication made her drowsy and nauseous, and that she had trouble holding onto objects. A vocational expert, responding to the ALJ's hypotheticals, testified that there were over 3000 jobs available for a person with Jones' conditions. The ALJ concluded that Jones was not disabled, finding that she could perform simple, routine, sedentary work. In reaching that conclusion, the ALJ found Jones' testimony about the intensity of her pain not credible. Judge Randa (E.D. Wis.) concluded that substantial evidence supported the decision and affirmed. Jones appeals.

In their opinion, Chief Judge Easterbrook and Circuit Judge Flaum and District Judge Hibbler affirmed. Jones' principal argument was that the ALJ's credibility determination was flawed. The Court noted that that determination is entitled to significant deference and would be overturned only if "patently wrong." Here, the ALJ credited a significant amount of Jones' testimony, there was substantial objective medical evidence in the record inconsistent with Jones' testimony regarding the extent of her pain, and Jones' treating physicians did not consider her disabled. An ALJ may not ignore subjective statements of pain simply because they are not supported by medical evidence. An ALJ may, however, consider subjective statements of pain as exaggerations when they are inconsistent with objective medical evidence. Here, the Court found that her testimony was inconsistent with objective medical evidence and concluded that substantial evidence supported the ALJ's findings.

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CASTILE v. ASTRUE (August 13, 2010)

Barbara Castile filed her application for Social Security disability benefits in 2002. She asserted that her disability began in 2001 and was a result of the combined effects of fibromyalgia, arthritis, chronic fatigue, obesity, and a host of other maladies. Her application was denied, denied again after reconsideration, denied again after an administrative hearing, and denied again after a supplemental evidentiary hearing. The denial was affirmed by the Appeals Council. Castile filed suit for judicial review and then-District Judge Hamilton (S.D. Ind.) affirmed. Castile appeals.

In their opinion, Chief Judge Easterbrook and Judges Posner and Kanne affirmed. The Court first addressed Castile's argument that the ALJ erred in not considering her chronic fatigue syndrome as a severe impairment. It found not only the presence of substantial evidence to support that finding, but also noted that any error would have been of no consequence. The ALJ did find other severe impairments and was required to (and did) consider the cumulative effect of all impairments, severe and non-severe. His severity finding with respect to chronic fatigue did not matter. Next, the Court concluded that the Castile did not carry her burden in proving the combination of impairments rendered her disabled because of absenteeism. She failed to present any medical evidence on that issue. Next, the Court noted that the record did not support Castile's claim that the ALJ failed to properly consider her obesity. The Court noted the ALJ's careful consideration and thorough discussion of the evidence. Similarly, the Court concluded that the ALJ's assessment of her credibility was amply supported by the record and the result of careful consideration.

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