A fascinating new ruling from the 7th U.S. Circuit Court of Appeals on the issue of Social Security disability points out many of the difficulties inherent in assessing disability.
In Martinez v. Astrue, 2011 U.S.App.LEXIS 960 (7th Cir. 2011), the court issued an opinion incorporating its ruling on three cases all argued on the same day. Two were reversed; one was affirmed. The court used Martinez to focus on three issues that have repeatedly come before the appeals court: 1) administrative law judge findings that while the medically determinable impairments could reasonably be expected to produce the alleged symptoms, the claimant’s statements as to intensity, persistence and limited effects of such symptoms are collectively deemed “not entirely credible” without any specification of which symptoms fit that characterization and failing to state what “not entirely” signifies; 2) disability determinations that seem to reveal a lack of understanding of mental illness; and 3) arguments that violate the principle of SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S. Ct. 454, 87 L. Ed. 626 (1943) and make arguments based on evidence not cited by the administrative law judge.
The court acknowledged the massive workload faced by Social Security administrative law judges (ALJs) who each conduct more than 400 hearings a year with inadequate staff support, which the court remarked has “ominous parallels” to the work of immigration judges as well. However, the errors identified by the court are fundamental and should not have occurred in a paternalistic program designed to provide support for individuals suffering from disabilities.
In the first case, the Martinez appeal, the plaintiff suffered from severe arthritis as well as depression. Although the evidence showed marked limitations as to the claimant’s ability to use her hands, the ALJ shockingly found she could work as a “hand assembler.” The court deemed the ALJ’s opinion “perfunctory” and found no basis for a finding that the plaintiff’s complaints were “not entirely credible” since there was no specification of which “statements are not entirely credible or how credible any of them are.” The court further determined the ALJ’s findings that the claimant’s allegations of pain and fatigue were disproportionate to the medical evidence was “suspended over air” since there was no rationale given for that conclusion. Despite specific guidance given by the Social Security Administration as to how pain is assessed that requires careful consideration of all evidence and furnishing “specific reasons for discounting a claimant’s testimony,” the ALJ failed to comply. The court also cited from a prior ruling holding: “The etiology of pain is not so well understood, 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 court was also critical of the ALJ for finding that Martinez’s psychiatric symptoms are well controlled by drugs when she takes them because the finding ignored that psychiatric patients frequently do not take their prescribed medications either as a consequence of their illness or because the side effects from such medications are often so serious that patients are often reluctant to take the medications. The court was equally troubled by the ALJ’s finding that the claimant had not received psychiatric treatment when the record showed she was on a waiting list for a psychiatric consultation. The court further found the ALJ’s conclusion that Martinez led an active lifestyle in caring for her children absurd since the evidence showed she herself was being taken care of by her mother and three of her children. Finally, the court was bothered by the ALJ’s apparent failure to consider the comorbidity of her physical and mental problems, noting, “Even if each problem assessed separately were less serious than the evidence indicates, the combination of them might well be totally disabling.” The court also took the government lawyers defending the case to task for “milking the record for other evidence that might support the denial” beyond the rationale given by the ALJ. The court deemed the government’s arguments “unconvincing and, in places, desperate.”
In the second case considered, a 61- year-old claimant with severe arthritis in her knees along with morbid obesity was denied benefits despite an orthopedic surgeon’s report that the claimant was “heading for” knee replacement and the opinion of a doctor who examined her on behalf of Social Security finding her incapable of prolonged standing or walking. Instead of following Social Security guidelines requiring the ALJ to furnish “good reasons” for not giving “controlling weight” to well-supported opinions provided by the treating doctor, the ALJ relied instead on two non-examining physicians. But the biggest problem found with the ALJ’s decision was the disregard of the claimant’s severe obesity. The court remarked, “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.”
In the third case, the issue was whether the claimant was disabled prior to the expiration of her coverage for Social Security disability in 2003. Unfortunately for the claimant, there was no contemporaneous evidence supporting her disability during the crucial window and, although her condition seemed to have rapidly worsened after she applied for benefits in 2004, the only supporting evidence was a 2005 medical report that relied on examinations occurring after 2003. The court found that the ALJ performed a “thorough analysis” and properly found the claimant not disabled during the critical period.
There are a number of valuable findings in the Martinez decision that are universally applicable to all disability determinations. Clearly, the most important conclusion was the need for disability evaluators to assess impairments in combination with one another. Isolating specific impairments without giving consideration to the comorbidity of all of the diagnosed conditions will usually lead to a deficient analysis.
Of at least equal importance, though, is the court’s careful consideration of collateral facts corroborative of the claimant’s complaints. As the court noted, the medical records themselves hardly tell the full story of whether someone’s pain or even psychiatric symptoms are debilitating. But other facts, such as the need for assistance in self-care, are of critical importance. Nor can the absence of treatment be cited as the basis for assessing credibility when the lack of treatment is due, as it was here, either to lack of funds to pay for treatment or limited available services necessitating a wait for access to psychiatric treatment. The court’s ruling also pointed out that vocational findings should not be taken at face value when they fail to consider all relevant facts and circumstances. But the major import of this ruling is that it sends a message to disability evaluators that conclusions need to be rooted in the evidence. A deficient assessment cannot be papered over with a finding that the claimant was not “entirely credible,” nor does the court have the time to assert a post hoc rationale in an effort to rehabilitate a defective conclusion.
The 7th Circuit has frequently pointed out the need to build a “logical bridge” from the evidence to the conclusion reached. Martinez reiterates that nothing less will suffice.
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This article was initially published in the Chicago Daily Law Bulletin.