Gentle, Nicole v. Barnhart, Jo Anne ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1089
NICOLE GENTLE,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART, Commissioner
of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 1766—Sidney I. Schenkier, Magistrate Judge.
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ARGUED OCTOBER 18, 2005—DECIDED DECEMBER 7, 2005
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Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The administrative law judge
denied Nicole Gentle’s application for social security
disability benefits on the ground that although she has a
severe impairment, she is capable of doing her former work,
as a supermarket delicatessen worker and school lunchroom
attendant, which she left in 2001 when she became pregnant
with her second child. That child was 11 months old at the
time of the hearing, and Gentle, who is not married, takes
care of the child at home; her other child, a four year old, is
2 No. 05-1089
at preschool. Her severe impairment is pain, which makes
it difficult for her to stand, walk, sit, or lift her 25-pound 11-
month old. The cause of the pain is spinal disk disease. She
also has rather serious allergies and is a “slow learner” with
difficulty concentrating. The administrative law judge asked
a vocational expert who had reviewed Gentle’s file and
listened to her testimony to assume that she was unable to
lift more than 10 pounds frequently or 20 pounds occasion-
ally, to perform “postural movements” such as bending and
turning, more than occasionally, to concentrate on complex
tasks, or to work in the presence of pulmonary irritants and
extremes of temperature or humidity. The vocational expert
opined that a person with these disabilities could neverthe-
less perform Gentle’s former work as a delicatessen worker
or lunchroom attendant, though she acknowledged that
someone who missed work a couple of days every month or
had to rest two hours during every workday would not be
capable of doing Gentle’s former work, or indeed capable of
any full-time gainful employment.
The administrative law judge’s analysis of the evidence
was deficient. To begin with, in supposing Gentle capable
of full-time work in a job that is not sedentary but requires
standing much or most of the time, he attached great
significance to the fact that “she is able to care for her
personal needs and those of her two small children,” “is
able to perform all the activities of daily living necessary
to feed, shelter and clothe herself and her children,” and
is not prevented by her condition “from performing
an extensive range of daily activities including taking
care of two small children, cooking, cleaning, and shop-
ping.” Uncontested evidence not mentioned by the adminis-
trative law judge reveals that she performs these chores
with difficulty, and with the aid of her sister, a neighbor,
and another woman.
No. 05-1089 3
The administrative law judge’s casual equating of house-
hold work to work in the labor market cannot stand. Gentle
must take care of her children, or else abandon them to
foster care or perhaps her sister, and the choice may impel
her to heroic efforts. A person can be totally disabled for
purposes of entitlement to social security benefits even if,
because of an indulgent employer or circumstances of
desperation, he is in fact working. Henderson v. Barnhart, 349
F.3d 434, 435 (7th Cir. 2003); Wilder v. Apfel, 153 F.3d 799,
801 (7th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461, 467
(7th Cir. 1997); Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
1998).
Granted, there is tension between these cases and a
regulation (which the cases do not discuss) that states
that “if you are working and the work you are doing
is substantial gainful activity, we will find that you are
not disabled regardless of your medical condition or
your age, education, and work experience.” 20 C.F.R.
§§ 404.1520(i)(5), 416.920(i)(5). The regulation is not
strictly applicable here, because Gentle is no longer work-
ing; her work in the household is not “substantial gainful
activity” within the meaning of the regulation, in which
“working” signifies holding a job in the labor market. But
the regulation implies that someone engaged in “substantial
gainful activity,” regardless of circumstances, is
not disabled. In the case of the indulgent employer, the
work may not be “substantial gainful activity”; but in the
case of the desperate employee, it would be. The regula-
tion may simply reflect a commonsense presumption that to
work implies a capacity to continue working, and the
presumption fails if the applicant is no longer working.
A more important point is that taking care of an infant,
although demanding, has a degree of flexibility that work in
4 No. 05-1089
the workplace does not. You can park the infant in a
playpen for much of the day, and anyway it will sleep much
of the day (on average about 2 to 4 hours, Elizabeth Pantley,
“Regular Naps Improve Nighttime Sleep,” Pediatrics for
Parents, Feb. 2004, http://findarticles.
com/p/articles/mi_m0816/is_2_21/ai_n6182552; see also
Suzanne Dixon, “Your Baby’s Sleep Patterns,” http:// us.
pampers.com/en_US/content/type/101/contentId.2363.
do), and so the caretaker will have numerous breaks
in which to rest.
Besides overlooking the differences between household
and labor-market work, the administrative law judge
failed to consider Gentle’s disabilities in combination, as the
cases require. E.g., Barrett v. Barnhart, 355 F.3d 1065, 1068
(7th Cir. 2004); Clifford v. Apfel, 227 F.3d 863, 873 (7th Cir.
2000); Raney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005);
Loza v. Apfel, 219 F.3d 378, 393, (5th Cir. 2000). Gentle suffers
from depression and anxiety, which are conditions distinct
from her poor concentration. In addition, she is obese—she
weighs 275 pounds, though she is only 5 feet 11 inches tall.
Conditions must not be confused with disabilities. The
social security disability benefits program is not con-
cerned with health as such, but rather with ability to engage
in full-time gainful employment. A person can be de-
pressed, anxious, and obese yet still perform full-time work.
This point is obscured by the tendency in some cases to
describe obesity as an impairment, limitation, or disability.
E.g., Sienkiewicz v. Barnhart, 409 F.3d 798, 803 (7th Cir. 2005)
(per curiam). It is none of these things from the standpoint
of the disability program. It can be the cause of a disability,
but once its causal efficacy is determined, it drops out of the
picture. If the claimant for social security disability benefits
is so obese as to be unable to bend, the issue is the effect of
No. 05-1089 5
that inability on the claimant’s capacity for work. E.g.,
Skarbek v. Barnhart, 390 F.3d 500, 504 (7th Cir. 2004) (per
curiam).
Sometimes, as in the present case, obesity or some other
health condition merely aggravates a disability caused by
something else; it still must be considered for its incremental
effect on the disability, as the administrative law
judge failed to do. The main cause of Gentle’s disability
is disk disease, which causes her pain in sitting, standing,
etc. Compare two women with disk disease of identical
severity, and both women are 5 feet 11 inches tall but one
weighs 150 pounds and the other 275 pounds. The effect of
the disk disease on ability to stand, sit, etc., for protracted
periods is likely to be different in the two cases by virtue
of the difference in weight. So in considering the credibil-
ity of the obese woman’s narrative of her ability to stand, sit,
etc., the administrative law judge would have to determine
the effect of her obesity on that ability. Thus, as we said in
an analogous case, though it involved arthritis rather than
disk disease, “Even if Barrett’s arthritis was not particularly
serious in itself, it would interact with her obesity to make
standing for two hours at a time more painful than it would
be for a person who was either as obese as she or as arthritic
as she but not both.” Barrett v. Barnhart, supra, 355 F.3d at
1068; see also Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir.
2003).
Gentle’s psychiatric problems similarly required the
administrative law judge’s consideration, not because they
are disabilities, but because they can make Gentle’s underly-
ing disability—restricted mobility as a result of spinal disk
disease—more serious. Snell v. Apfel, 177 F.3d 128, 136 (2d
Cir. 1999). Given her disk disease as aggravated by
her obesity, her problems of concentration, and her allergies,
6 No. 05-1089
work in the supermarket or lunchroom would be difficult
and stressful for her. Now add to that depression and
anxiety, and how likely is that she could work full time, day
after day, week after week? That is not for us to decide but,
in the first instance at least, for the administrative law judge
to decide; as with obesity, he has not done so.
The judgment is reversed and the case remanded to the
Social Security Administration for further proceedings
consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-05