Michael Garcia v. Carolyn Colvin
Filing
Filed opinion of the court by Judge Posner. The judgment of the district court is REVERSED and the case returned to the Social Security Administration for further proceedings consistent with the opinion. Richard A. Posner, Circuit Judge; Diane S. Sykes, Circuit Judge and David F. Hamilton, Circuit Judge. [6539990-1] [6539990] [13-2120]
Case: 13-2120
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2120
MICHAEL E. GARCIA,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12‐cv‐00027‐APR — Andrew P. Rodovich, Magistrate Judge.
____________________
ARGUED NOVEMBER 19, 2013 — DECIDED DECEMBER 20, 2013
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff applied for social se‐
curity disability benefits in 2010, when he was 40 years old.
He claimed to be disabled from full‐time employment be‐
cause of abdominal pain caused by cirrhosis of the liver, se‐
vere thrombocytopenia (low platelet count), hepatitis C, and
an umbilical hernia—ailments that had been diagnosed by
several physicians that year. All of his ailments had been ei‐
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ther caused or exacerbated by alcoholism. But he stopped
drinking in 2010 and so far as appears his alcoholism is no
longer a “contributing factor” barring him from obtaining
disability benefits. 42 U.S.C. § 423(d)(2)(C); Parra v. Astrue,
481 F.3d 742, 746–47 (9th Cir. 2007); Fastner v. Barnhart, 324
F.3d 981, 984 (8th Cir. 2003). An administrative law judge
ruled that Garcia is capable of doing sedentary work (albeit
with some limitations on the type of sedentary work that he
is able to do) and so is not disabled. Garcia sued to set aside
the denial of his claim, lost in the district court, and appeals.
Two doctors who examined Garcia, one of them appoint‐
ed by Indiana’s disability agency, which works with the So‐
cial Security Administration, agreed that he can’t engage in
substantial gainful activity. If that’s correct, he’s disabled.
The agency doctor noted that Garcia’s cirrhosis made him a
candidate for a liver transplant. See Mayo Clinic, “Cirrhosis:
Treatment,” www.mayoclinic.org/cirrhosis/treatment.html
(visited Dec. 19, 2013, as were the other websites cited in this
opinion). At the oral argument Garcia’s lawyer told us that
his client had been placed on the waiting list for a transplant
but had to be taken off it because he was too sick to have the
surgery. His platelet count was too low to enable him even
to have a liver biopsy—commonly performed both before
and after a liver transplant, Sanjiv Chopra, “Patient Infor‐
mation: Liver Biopsy (Beyond the Basics),” UpToDate, June
12, 2013, www.uptodate.com/contents/liver‐biopsy‐beyond‐
the‐basics—without grave risk. The abdominal pain from
Garcia’s cirrhosis and umbilical hernia is so severe that he
has been repeatedly hospitalized for it and even treated with
morphine and other opium derivatives, yet with only lim‐
ited success. And he has other ailments besides cirrhosis,
hernia, and hepatitis, including lupus, anemia, colitis, anxie‐
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ty and other psychological problems, and chronic fatigue.
One physician ominously described Garcia’s condition as
“chronic and terminal” and Garcia himself as “disabled and
unable to perform any functions,” because of pain and fa‐
tigue. Another advised him that even surgery to repair his
umbilical hernia would involve a high risk of severe compli‐
cations because of his low platelet count. Unsurprisingly
Garcia is not only virtually house‐bound but also unable
even to perform household chores other than babysitting an
11‐year‐old.
A construction worker, Garcia quit work in 2008—the
date of onset of his claimed disability—because his employer
went out of business. He testified that although his health
was already very bad, he could have continued working for
that employer—but only because the employer valued Gar‐
cia’s specialized experience sufficiently to allow him to take
two or three days a week off from work because of his ail‐
ments. The vocational expert testified at the disability hear‐
ing that a worker who misses work more than one day a
month (beyond sick days, vacation days, and other author‐
ized leave) would “have difficulty sustaining competitive
employment.”
Garcia is, and has been since he applied for disability
benefits, in awful shape. We are astonished that the adminis‐
trative law judge, seconded by the district court, should
have thought him capable of full‐time employment (40 hours
a week). The administrative law judge’s opinion is riddled
with errors. For example, he said that Garcia “essentially
admits that he was not disabled” as of 2008 because he was
working then. But that overlooks his uncontradicted testi‐
mony that he was employed only because he had experience
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in construction that his employer valued highly. One can be
employed full time without being capable of substantial
gainful activity, paradox though that may seem. Gentle v.
Barnhart, 430 F.3d 865, 867 (7th Cir. 2005); Hawkins v. First
Union Corp. Long‐Term Disability Plan, 326 F.3d 914, 915–16,
918 (7th Cir. 2003); Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir.
1998); Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998). The
reasons given in the cases we’ve just cited are a desperate
employee or a lenient or altruistic employer. But another
reason why a disabled employee might be treated by his
employer as a full‐time employee, as by being paid a full‐
time employee’s wages for what was actually part‐time
work, might be that he possessed skills of such value to his
employer that the employer was willing to overlook his ina‐
bility to work full time—which appears to have been Gar‐
cia’s situation.
The administrative law judge gave “no weight” to the
opinion of Garcia’s treating physician that his patient was
“disabled and unable to perform any functions.” The judge‘s
ground was that determining disability is reserved to the
Commissioner of Social Security (by which the administra‐
tive law judge meant reserved to him). That isn’t true. What
is true is that whether the applicant is sufficiently disabled to
qualify for social security disability benefits is a question of
law that can’t be answered by a physician. But the answer to
the question depends on the applicant’s physical and mental
ability to work full time, and that is something to which
medical testimony is relevant and if presented can’t be ig‐
nored. See Bjornson v. Astrue, 671 F.3d 640, 647–48 (7th Cir.
2012); Ferguson v. Commissioner of Social Security, 628 F.3d
269, 272–73 (6th Cir. 2010). Though not bound by the state‐
ment in the doctor’s letter that “Mr. Garcia will be unable to
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return to any form of employment,” because a doctor may
not be acquainted with the full range of jobs that a person
with Garcia’s ailments could fill, the administrative law
judge, if he thought this a possibility, should have asked the
doctor to specify more exactly what “functions” Garcia is
incapable of performing. It appears from the doctor’s report
and testimony that the functions Garcia can’t perform in‐
clude virtually everything he’d need in order to be capable
of full‐time employment.
With two doctors—one of them an agency doctor unlike‐
ly therefore to exaggerate an applicant’s disability, Bjornson
v. Astrue, supra, 671 F.3d at 647, as the applicant is not his pa‐
tient and favoritism with applicants would not go down
well with the agency—opining that Garcia can’t work full
time and basing their opinions on extensive medical records
and their own medical exams of the applicant, and no con‐
trary evidence, we can’t understand on what rational basis
the administrative law judge could reject the application. But
we can understand how he was led to that result by his er‐
rors, such as his misquoting the agency doctor—who had
diagnosed Garcia as having abdominal pain—as having di‐
agnosed him as having no abdominal pain (what he did not
have, the doctor had opined, was nausea or vomiting). Nor
was that doctor’s the only diagnosis of abdominal pain.
Besides the medical evidence, there was testimony by
Garcia’s fiancée that Garcia sometimes wakes up at night
“moaning and crying from the pain.” The administrative law
judge gave her testimony only “some weight, recognizing
the potential for bias” attributable to their relationship. The
implication is that if a plaintiff or a defendant (or a relative
of either—or a fiancée) testifies in a case, the testimony must
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automatically be discounted for bias. British and American
courts used not to permit parties to a lawsuit (or their spous‐
es) to testify at all, because of bias. The rule “preempted the
jury’s lie‐detecting function by declaring certain witnesses to
be likely liars as a matter of law.” George Fisher, “The Jury’s
Rise as Lie Detector,” 107 Yale L.J. 575, 624–25 (1997). When
the rule was discarded, it wasn’t replaced by a rule that the
testimony of the parties or of other presumptively biased
witness be given only half or a quarter or two‐thirds the
weight given the testimony of disinterested witnesses. The
administrative law judge should have made clear whether
he believed the fiancée’s testimony or not, or which part he
believed, or whether he had no idea how much of what she
said was worthy of belief.
The report of the agency doctor notes that Garcia can
walk with a steady gait, rise without apparent difficulty
from a sitting to a standing position, stoop, squat, and even
walk heel to toe. The administrative law judge thought these
competences “inconsistent with a finding of disability.”
Wrong again. Garcia’s ailments are unrelated to his muscu‐
loskeletal system and sense of balance. A person able to do
all the things the administrative law judge listed would still
be deemed totally disabled per se if he had a medical condi‐
tion that appears in the Listing of Impairments. See “Adult
Listings,” Social Security Administration, Disability Evalua‐
tion Under Social Security 2013, www.ssa.gov/disability/
professionals/bluebook/AdultListings.htm. And the list in‐
cludes schizophrenia, deafness, epilepsy, metastasized oral
cancer, Crohn’s disease, heart disease, asthma, sickle‐cell
anemia, renal failure, early‐onset Alzheimer’s (normal onset
would be at post‐retirement age), and severe abdominal pain
owing to (possibly terminal) untreatable liver disease.
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The administrative law judge thought Garcia must have
been exaggerating his symptoms because while claiming
that the onset of his disability was in 2008 and rating his
pain as 8 on a 10‐point scale he had sought no medical
treatment until 2010. But an administrative law judge is not
allowed to infer from an applicant’s failure to have sought
medical care that he’s a malingerer without asking him why
he didn’t seek care—and specifically whether he had health
insurance. Social Security Ruling 96–7p, 1996 WL 374186, at
*7–8; Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012); Craft
v. Astrue, 539 F.3d 668, 678–79 (7th Cir. 2008); Blakeman v.
Astrue, 509 F.3d 878, 888 (8th Cir. 2007); Orn v. Astrue, 495
F.3d 625, 638 (9th Cir. 2007). Persons who don’t have health
insurance often delay in seeking medical care even for seri‐
ous conditions. They can’t afford hospital bills and don’t
want to have to declare bankruptcy. (Most personal bank‐
ruptcies are the result of inability to pay medical bills, often
even if the patient is insured. David U. Himmelstein et al.,
“Medical Bankruptcy in the United States, 2007: Results of a
National Study,” 122 Am. J. Med. 741, 743 (2009).) Garcia tes‐
tified at his disability hearing, without contradiction, that he
had no health insurance.
The administrative law judge questioned Garcia’s claim
to be disabled on the ground that though he testified that
he’d quit working in 2008, he admitted having worked spo‐
radically thereafter until sometime in 2010. But none of this
was paid work. The administrative law judge said that Gar‐
cia “was lifting and carrying heavy things while working
construction as recently as June of 2010.” His uncontradicted
testimony was that he was “helping a friend build a house.”
Remember that his musculoskeletal structure is not im‐
paired. So he could lift and carry things: but what things he
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could lift, how large, how heavy, for how long—none of this
was explored. And the administrative law judge didn’t ques‐
tion Garcia’s testimony—which was consistent with his be‐
ing able to do only sporadic work after 2008—that he had
been unable to work two or three days a week in his “regu‐
lar” job, which had ended that year. Remember the voca‐
tional expert’s testimony that missing even one day a month
could get a full‐time employee fired. Yet if missing one day a
month jeopardizes full‐time employment, missing 10 days a
month (an average of 2.5 days a week for four weeks) must
doom it.
We can’t figure out what the administrative law judge
was thinking when he found that Garcia could do construc‐
tion work as late as 2010. His recitation of the boilerplate
cart‐before‐the‐horse credibility formula that we have been
ridiculing since well before the opinion in the present case,
Bjornson v. Astrue, supra, 671 F.3d at 645–46; see also Parker v.
Astrue, 597 F.3d 920, 921–22 (7th Cir. 2010), only deepens our
puzzlement.
At the disability hearing the administrative law judge
asked the vocational expert about other limitations on ability
to work full time that the evidence indicated that Garcia
might have, including psychological problems that would
preclude his exercising judgment more than occasionally.
The vocational expert replied that even simple jobs require a
more than occasional exercise of judgment. But having
placed such emphasis on Garcia’s ability to stand up, walk
in a straight line, etc., the administrative law judge conclud‐
ed that he was fully capable of doing sedentary work as long
as it was simple and repetitive. No evidence supports this
conclusion. No physician testified—no medical records re‐
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vealed—that Garcia has the residual functional capacity as‐
cribed to him by the administrative law judge, who had
acknowledged at the disability hearing that a person with
the limits described in the medical assessment form that
Garcia’s physician had filled out would be unable to per‐
form any paid work on a full‐time basis, let alone work actu‐
ally available in the economy.
Garcia is one of the most seriously disabled applicants
for social security disability benefits whom we’ve encoun‐
tered in many years of adjudicating appeals from benefits
denials. We are surprised that the Justice Department would
defend such a denial.
The judgment of the district court is reversed and the
case returned to the Social Security Administration for fur‐
ther proceedings consistent with this opinion.
REVERSED AND REMANDED.
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