Anita Martinez v. Michael Astrue

Filing

Filed opinion of the court by Judge Posner. We have consolidated for decision three challenges which are similar. In Nos. 10-1957 and 10-2603 the district courts denial of relief is REVERSED and the cases REMANDED with instructions to return the matters to the Social Security Administration for further proceedings consistent with this opinion. In No. 10-2080 we AFFIRM. Richard A. Posner, Circuit Judge; Kenneth F. Ripple, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6280136-3] [6280136] [10-1957, 10-2080, 10-2603]

Case: 10-1957

Document: 22

Filed: 01/19/2011

Pages: 14

In the

United States Court of Appeals
For the Seventh Circuit
No. 10-1957
A NITA M ARTINEZ,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 3037—Michael T. Mason, Magistrate Judge.

No. 10-2603
F RANCIS L. R IDER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09–cv–575–bbc—Barbara B. Crabb, Judge.

Case: 10-1957

Document: 22

2

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

No. 10-2080
C HRISTINE B. P OUND,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 08-cv-0721-MJR—Michael J. Reagan, Judge.

A RGUED D ECEMBER 14, 2010—D ECIDED JANUARY 19, 2011

Before P OSNER, R IPPLE, and R OVNER, Circuit Judges.
P OSNER, Circuit Judge. We have consolidated for decision three challenges, argued the same day, to district
court decisions affirming denials by the Social Security
Administration of disability benefits and (for persons
who lack social security insurance) supplemental
security income benefits, which are similar. Recently, in
Spiva v. Astrue, 2010 WL 4923563 (7th Cir. Dec. 6, 2010),
and Parker v. Astrue, 597 F.3d 920 (7th Cir. 2010), we
criticized the Social Security Administration’s handling
of disability claims in several respects summarized
in Spiva:
(1) opinions of administrative law judges denying
benefits routinely state (with some variations in

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

3

wording) that although “the claimant’s medically
determinable impairments could reasonably be expected to produce the alleged symptoms, . . . the
claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms
are not entirely credible,” yet fail to indicate which
statements are not credible and what exactly “not
entirely” is meant to signify; (2) many of the Social
Security Administration’s administrative law judges
seem poorly informed about mental illness; and
(3) in defiance of the principle of SEC v. Chenery Corp.,
318 U.S. 80, 87-88 (1943), the Justice Department’s
lawyers who defend denials of disability benefits
often rely heavily on evidence not (so far as appears)
relied on by the administrative law judge, and defend
the tactic by invoking an overbroad conception
of harmless error.
2010 WL 4923563, at *1. We noted that similar criticisms
could be found in a number of other court of appeals
opinions, in this and other circuits. Id. In two of the
cases before us, infirmities similar to those that we
found in Spiva and Parker require us to reverse; in the
third, the administrative law judge’s opinion was
thorough and well supported.
We are mindful of the difficulties that the Social
Security Administration’s administrative law judges
labor under. They have a very heavy caseload—the
median annual number of disability hearings conducted
by an administrative law judge is almost 400 (the
average is 434). Social Security Advisory Board, “Im-

Case: 10-1957

4

Document: 22

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

proving the Social Security Administration’s Hearing
Process” 11-12 (Sept. 2006), www.ssab.gov/documents/
HearingProcess.pdf (visited Dec. 30, 2010, as were all the
websites cited in this opinion); Social Security Advisory
Board, “Disability Decision Making: Data and Materials”
75 (May 2006), www.ssab.gov/documents/chartbook.pdf;
“Social Security Disability: Management of Disability
Claims Workload Will Require Comprehensive Planning”
6 (General Accounting Office, Rep. No. 10-667T,
Apr. 2010). Staff support is inadequate. “Improving the
Social Security Administration’s Hearing Process,” supra,
at 14. The large number of administrative law judges
(more than 1400), combined with limited administrative
appellate capacity, has resulted in great uncorrected
variance in denial rates across administrative law
judges. See “ALJ Disposition Data FY 2011,” Social
Security Online, www.ssa.gov/appeals/DataSets/03_ALJ_
Disposition_Data.pdf; “Improving the Social Security
Administration’s Hearing Process,” supra, at 4-5. This in
turn implies frequent inconsistency, id. at 6-7, 25; “Social
Security Administration: More Effort Needed to
Assess Consistency of Disability Decisions” (General
Accounting Office, Rep. No. GAO-04-656, July 2004), and
quality problems generally. The Lewin Group, Inc., et al.,
Evaluation of SSA’s Disability Quality Assurance (QA)
Processes and Development of QA Options That Will Support
the Long-Term Management of the Disability Program 16-24
(Final Report, Mar. 16, 2001) , www.lewin.com/content/
publications/1325.pdf. There thus are ominous parallels
to the much-remarked inadequacies in the administration of the immigration laws by immigration judges, see,

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

5

e.g., Benslimane v. Gonzales, 430 F.3d 828, 829-30 (7th Cir.
2005), a type of administrative law judge.
A study found that the district courts (the first-line
reviewers of denials of social security benefits) reversed
6.15 percent of denials outright and ordered benefits
awarded in those cases, and remanded 48 percent of the
denials, and 60 percent of the remands eventuated
in a grant of benefits. This means that a total of 34.95
percent (.48 x .60 = .288 + 6.15) of all appeals to the
district courts from denials of benefits resulted in their
eventual grant. Paul R. Verkuil & Jeffrey S. Lubbers,
“Alternative Approaches to Review of Social Security
Disability Cases,” 55 Admin. L. Rev. 731, 761-62 (2003). (In
2004, the 60 percent figure rose to 67 percent. Disability
Decision Making: Data and Materials, supra, at 89.) And
that is apart from reversals by the courts of appeals of
district courts’ affirmances of denials of benefits, as in
two of the three cases we decide today.
Since we don’t see cases in which social security disability benefits are granted in error, because the government cannot appeal from a grant at the final administrative level, we cannot (quite apart from the nonnegligible
possibility of judicial error) conclude that administrative
law judges have a 35 percent error rate. Moreover, the
high reversal rate may simply reflect caution on the part
of claimants’ lawyers, since they are unlikely to obtain
a significant (perhaps any) fee if the appeal fails; their
clients invariably are impecunious. But approximately
20 percent of denials at the highest administrative level
(computed from Verkuil & Lubbers, supra, at 760,

Case: 10-1957

6

Document: 22

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

reporting statistics from 2000), are appealed, which is a
high appeal rate; and the higher an appeal rate, the
lower the expected reversal rate if the tribunal appealed from is doing a good job.
So much for background; on to the cases, beginning
with Martinez (No. 10-1957). Anita Martinez, age 35 at
the time of her hearing before the administrative law
judge, lives in the basement of her mother’s home with
her five children. She suffers from severe depression,
has symptoms of bipolar disorder (often associated with
depression), and has severe arthritic joint and bone pain
throughout her body and a swelling of the hands that
makes it very difficult for her to carry things, open packages, wash dishes, or write. Physicians have observed
worsening signs and symptoms of severe musculoskeletal pain, and have treated her by prescribing
ever more potent drugs (plus splints to wear on her
wrists), but with mixed results. She also takes drugs for
her mental conditions. Unsurprisingly she has difficulty
concentrating. Her mother and her three eldest children
help her with most household tasks, as she has to rest
frequently throughout the day. Daily she thinks about
committing suicide, and the children are instructed
to summon their grandmother if their mother seems
unusually depressed or suicidal.
The administrative law judge found that Martinez
indeed has severe arthritis and severe depression, but
also found that she can “use her hands for fine and
gross manipulations,” has only “moderate difficulties”
with “concentration, persistence, or pace,” and is not

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

7

disabled, because she is capable of doing her former
work (she last worked in 2003) as a car-wash attendant
or fast-food cashier, and could also work as a “hand
assembler.”
The administrative law judge’s opinion is perfunctory.
The analysis portion begins with the boilerplate recital
that “the claimant’s medically determinable impairments could reasonably be expected to produce some
symptoms, but . . . the claimant’s statements concerning
the intensity, persistence and limiting effects of these
symptoms are not entirely credible.” There is no explanation of which of Martinez’s statements are not entirely
credible or how credible or noncredible any of them
are. The next sentence is that “the claimant’s longitudinal
medical history is not necessarily consistent with his
[sic] allegations of disability.” We don’t understand the
significance of “necessarily.” Did the administrative
law judge think Martinez’s medical history consistent
or inconsistent with her claims?
With regard to pain, all the opinion states is that a
rheumatologist “indicates that he detected very subtle
evidence of an inflammatory process. He describes it
as not well developed, and that [t]he laboratory tests
and physical examinations were normal. He suggested
that she take a long acting anti-inflammatory.” In fact
the suggestion for such a drug came from Martinez,
who wanted a long-acting drug because she was
afraid to have a large quantity of strong drugs on hand
given her depression and suicidal thoughts. And the
rheumatologist, while stating that the results of a general

Case: 10-1957

8

Document: 22

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

physical examination of Martinez were normal, observed
“definite evidence of a true inflammatory process” and
diagnosed her with inflammatory polyarthritis—an
inflammation of more than one joint. And his report was
only part of the evidence of the severity of Martinez’s
joint and bone pain, having been issued years before
another physician treated her musculoskeletal pain, and
also symptoms of carpal tunnel syndrome in both hands,
with strong drugs and the wrist splints.
The administrative law judge discussed so little of the
evidence that her conclusion that Martinez’s complaints
of severe pain and fatigue “are out of proportion to the
objective physical findings” is suspended over air. She
did not so much as mention the difficulty that Martinez
has in using her hands, which makes the suggestion
that she could be a “hand assembler” amount to a bad
joke. Ignored was the requirement that administrative
law judges carefully evaluate all evidence bearing
on the severity of pain and give specific reasons for discounting a claimant’s testimony about it. Social Security
Adm inistration, “How We Evaluate Symptoms,
Including Pain,” 20 C.F.R. § 404.1529; “Policy Interpretation Ruling Titles II and XVI: Evaluation of Symptoms
in Disability Claims: Assessing the Credibility of an Individual’s Statements,” Social Security Ruling 96-7p; Lopez
v. Barnhart, 336 F.3d 535 (7th Cir. 2003) (per curiam);
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-38 (9th Cir.
2007); Patrice Rusconi et al., “Taking into Account the
Observers’ Uncertainty: A Graduated Approach to the
Credibility of the Patient’s Evaluation,” 33 J. Behav. Med.
60, 68 (2010). “The etiology of pain is not so well under-

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

9

stood, or people’s pain thresholds so uniform, that the
severity of pain experienced by a given individual can be
‘read off’ from a medical report.” Johnson v. Barnhart,
449 F.3d 804, 806 (7th Cir. 2006).
The administrative law judge found that Martinez’s
severe depression is well controlled by drugs—when
she takes them—but ignored the fact that during manic
spells Martinez had stopped taking her medications
(a common consequence of mania). As we noted in Spiva
v. Astrue, supra, at *4, antidepressant drugs often
produce serious side effects that make patients reluctant
to take them. George I. Papakostas, “Limitations of Contemporary Antidepressants: Tolerability,” 68 J. Clin.
Psychiatry 11 (2007); M. Robin DiMatteo et al., “Depression
Is a Risk Factor for Noncompliance with Medical Treatment: Meta-analysis of the Effects of Anxiety and Depression on Patient Adherence,” 160 Archives of Internal
Med. 2101 (2000); see also Gary D. Tollefson, “Antidepressant Treatment and Side Effect Considerations,” 52
J. Clin. Psychiatry 4 (1991); Vivek Kusumakar, “Antidepressants and Antipsychotics in the Long-Term Treatment of
Bipolar Disorder,” 63 id. 23 (2002). Anyway people with
serious psychiatric problems are often incapable of
taking their prescribed medications consistently. The administrative law judge said that Martinez “has not required the services of a psychiatrist or outpatient psychotherapy for many years”—ignoring the fact that at the
time of the hearing Martinez was on a waiting list for
a consultation with a psychiatrist.
Absurdly, the administrative law judge found that
Martinez “is able to maintain a very active lifestyle in

Case: 10-1957

10

Document: 22

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

the process of caring for her five children,” and concluded from this that she can work—ignoring the fact
that Martinez’s mother plus three of the children are
caring for her. She would not receive that care at a car
wash.
Having concluded that Martinez was able to do her
past work (plus assemble products by hand), the administrative law judge asked a vocational expert how many
jobs there were in Illinois that she could fill—plenty,
of course, if she is able to do the work she has done in
the past, before her physical and mental conditions worsened. The vocational expert was not asked to consider
how many jobs a person with Martinez’s handicaps
could perform. Nor did the administrative law judge
ever consider the interaction of Martinez’s many
physical and mental problems. Even if each problem
assessed separately were less serious than the evidence
indicates, the combination of them might well be totally
disabling. See, e.g., Parker v. Astrue, supra, 597 F.3d at
923; Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009);
Gentle v. Barnhart, 430 F.3d 865, 868 (7th Cir. 2005);
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir.
2003); see also Matthew J. Bair, et al., “Depression and Pain
Comorbidity: A Literature Review,” 163 Archives of
Internal Med. 2433 (2003); Bruce A. Arrow et al., “Comorbid
Depression, Chronic Pain, and Disability in Primary
Care,” 68 Psychosomatic Med. 262 (2006).
As in previous cases, the lawyers for the Social Security
Administration, in defending the denial of benefits to
Martinez in their brief in this court, milked the record

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

11

for other evidence that might support the denial,
besides evidence discussed by the administrative law
judge. The evidence they found and the arguments
they make (such as that a 12-year-old child is too young
to assist her mother with household tasks) are unconvincing, and in places desperate.
Rider (No. 10-2603). Francis Rider, who is 61, has not
worked since 2001, shortly after she injured her right
knee and leg. She seeks disability benefits on the basis of
a combination of arthritic knees, back pain, and obesity.
She is only 5 feet 1 inch tall, but her weight varies
between 205 and 220 pounds. That is an average of 212.5
pounds, which translates to a body mass index of 40.1. A
person with a BMI of 30 is deemed obese, and a person
with a BMI of 40 is deemed extremely obese. “Policy
Interpretation Ruling Titles II and XVI: Evaluation of
Obesity,” Social Security Ruling 02-1p. Dr. John Cragg, an
orthopedic surgeon, examined Rider, noticed that she
was limping, examined x-rays of her right knee, diagnosed arthritic bone degeneration, and concluded that
the knee was “well beyond” minimally invasive surgery
and “heading for” knee replacement. His evaluation of
the severity of her knee problem was corroborated by
Dr. Eric Carlsen, the only state-agency physician who
examined Rider; he reported that she was incapable of
prolonged standing or walking. The administrative law
judge, perhaps forgetting that he was required to give
“good reasons” for not giving the well-supported opinion of a treating physician “controlling weight,” 20
C.F.R. § 416.927(d)(2); Campbell v. Astrue, 627 F.3d 299,
306 (7th Cir. 2010), relied without explanation on the

Case: 10-1957

Document: 22

12

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

contrary views of two physicians who did not examine
Rider though they consulted her medical records. He
attached considerable weight to the fact that Rider had
not undergone knee replacement, disregarding her uncontradicted testimony that she could not afford it. He also
found that having decided not to have the knee replacement she underwent physical therapy that greatly improved her condition, but the finding is not consistent
with the evidence. He remarked inconsequently that
she enjoyed watching her grandchildren, from which the
Social Security Administration’s counsel at the argument in our court inferred that she must be highly
mobile, because the grandchildren must run around a
lot, so that she would have to be in continual motion to
watch them.
The gravest error in an opinion with a number of contenders for that distinction is the failure to consider the
bearing of Rider’s extreme obesity. The administrative
law judge mentioned in passing that it is a severe impairment but did not consider its significance in relation
to Rider’s knee. It is one thing to have a bad knee; it is
another thing to have a bad knee supporting a body mass
index in excess of 40. We repeat our earlier reminder
that an applicant’s disabilities must be considered in the
aggregate.
Enough said.
Pound (No. 10-2080). The applicant, a 60-year-old woman,
suffers from a variety of chronic illnesses, including
coronary artery disease, and has neurological symptoms,
such as vertigo, blurred vision, and pulsation in the

Case: 10-1957

Document: 22

Nos. 10-1957, 10-2603, 10-2080

Filed: 01/19/2011

Pages: 14

13

ears, caused by carotid artery disease. She has experienced a transient ischemic attack (a “warning stroke”) as
a result of the latter disease, and a variety of symptoms
from the former, such as chest pains, palpitations, and
shortness of breath. She has back pain resulting from
spinal disk disease, and a mysterious ailment called
“restless leg syndrome,” which refers to experiencing
a series of muscular jerks at the moment of falling asleep.
Pound had social security disability coverage only
until the end of 2003; if she was not disabled by then, she
cannot obtain benefits even if she is disabled now,
42 U.S.C. § 423(c); 20 C.F.R. § 404.140—as she appears to
be. Unfortunately for her claim, the symptoms of her
coronary artery disease and carotid artery disease had,
as a result of excellent medical treatment, largely disappeared by the time she applied for benefits. She applied
in 2004 and went downhill rapidly thereafter. Until
that happened she had, by her own account, been doing
a lot of farm work. She reported experiencing pain
from 2000 to 2003 but relied on mild pain medication
to deal with it. The only medical opinion she submitted
to the Social Security Administration was a 2005 report from her physician that relied primarily on examinations after 2003. The administrative law judge conducted a thorough analysis and concluded that as of
the date on which Pound last had social security insurance coverage, the combination of her conditions merely
limited her to performing sedentary work, which was
the kind of work she had performed before she had
first become seriously ill. (She had been an accounting
manager.) In the brief but critical window (because of

Case: 10-1957

14

Document: 22

Filed: 01/19/2011

Pages: 14

Nos. 10-1957, 10-2603, 10-2080

the expiration of her insurance coverage) between the
time before her diseases were brought under control and
the time that they flared up again, she was not disabled.
To summarize, in Nos. 10-1957 and 10-2603 the district
courts’ denial of relief is reversed and the cases
remanded with instructions to return the matters to the
Social Security Administration for further proceedings
consistent with this opinion. In No. 10-2080 we affirm.

1-19-11