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

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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NELMS V. ASTRUE (January 28, 2009)

Theodis Nelms was admitted to the hospital in May 2002. He was diagnosed with several health problems, including pneumonia, respiratory failure and inflammation of the heart. He had open-heart surgery and was released in June. Nelms applied for social security benefits. He listed as his impairments his recovery from surgery, asthma and pneumonia. The Social Security Administration twice denied him benefits. In late 2002 and again in early 2003, Nelms was seen by an agency physician. Each doctor concluded that Nelms could perform light duties. Nelms was granted a hearing on his request in 2005. Nelms did not have a lawyer. The hearing lasted twenty minutes. Nelms listed his impairments in order of severity – heart, back, legs and asthma. He described his conditions and his pain, specifically noting that his asthma strikes when he is exposed to dust, pollen, hot or cold. The ALJ concluded that Nelms was not disabled, concluding that he was able to do light work. He relied on his smooth recovery from surgery, his only sporadic pain, his slight asthma, and his capacity to do light work. The Appeals Council denied review and the district court affirmed. Nelms appeals.

In their opinion, Judges Ripple, Evans and Tinder reversed and remanded. The Court first addressed Nelms’ position that the ALJ did not adequately develop the record. Although a benefits claimant has the burden of proving disability, the ALJ has a duty, particularly when claimant is without counsel, to make sure there is a fully developed record. The ALJ must supplement the record, if necessary. The ALJ has quite a bit of leeway in a determination of the completeness of the record. Here, the Court noted, the record was almost silent on Nelms’ medical progress from 2003 – 2005. Nelms filed an appendix of medical records from those years which had not been before the ALJ. The documents describe a fairly serious deterioration of Nelms’ health in several respects. In the Court’s view, they support a conclusion that the ALJ would have found Nelms disabled had he seen the records. The absence of the records and the ALJ’s failure to probe Nelms about his more recent treatment led to the conclusion that the decision was not supported by substantial evidence. The Court rejected Nelms’ alternative arguments that the ALJ failed to consider the combined effect of his impairments and that the ALJ was required to enlist the aid of a vocational expert.

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OVERMAN v. ASTRUE  (October 7, 2008)

Gerald Overman is a 58-year old high school graduate. For years, he worked as an unskilled maintenance worker and repairman at a golf course. He was able to work, even though he suffered from diabetes, hypertension, and some fairly serious vision problems. He began to experience more serious problems. He became tired and overheated very easily and lost quite a bit of weight. He was diagnosed with Graves’ disease and anemia. Overman began radioactive iodine therapy for the Graves' disease. The treatment was somewhat successful but his physician had a difficult time finding the correct dosage.  Overman's vision was also worsening.  His physician's conclusion was that “any” visual task would be difficult for Overman and that his eyesight was continuing to deteriorate.  Overman applied for social security benefits.  An ALJ conducted a hearing in 2005. Overman testified regarding his condition and disabilities. He said he tired easily, could not see well, could not be in extreme temperatures, and could not lift much weight. The agency medical consultant testified that Overman could not perform work that required reading or fine visual determination, or that involved extreme temperatures or heavy lifting. A Vocational Expert (“VE”) also testified. He testified that Overman could not continue in his prior field of work, primarily because of the temperature extremes. He did testify, however, that he could perform two jobs: a material packaging job and a keg-filling job. The VE also testified that his testimony was consistent with the Dictionary of Occupational Titles (“DOT”). On cross-examination, the VE admitted that both jobs he said Overman could perform would be eliminated if Overman was not capable of fine visual discrimination or reading. The ALJ found that Overman could do either of the two jobs identified by the VE. He gave great weight to the VE’s testimony on direct. The ALJ believed the testimony on cross-examination merely confirmed the VE’s conclusion about other jobs he had eliminated. Overman sought review in the district court . The court upheld the ALJ’s decision. Overman appeals.

In their opinion, Judges Posner, Sykes, and Tinder (in a per curiam opinion) reversed. The Court observed that the VE’s testimony about the two available jobs did, in fact, conflict with the DOT. Both jobs require a degree of visual acuity and reading ability that Overman does not have. The Commissioner concedes as much but argues that remand is unnecessary. The Court pointed out that a Social Security Ruling requires the ALJ to confirm that the VE’s testimony is consistent with the DOT and further requires a ALJ to inquire further if an apparent conflict exists. Overman’s counsel did not bring the conflicts to the attention of the ALJ. Therefore, the Court stated, the conflicts must be obvious enough to cause the ALJ to notice them without assistance. The Court found that the conflicts with respect to vision and reading capabilities should have been apparent to the ALJ. The Court also held that the ALJ’s ruling was not supported by substantial evidence because of the flawed VE testimony.  

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