Nary Kheng v. Michael Astrue ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2270
D ENISE P ARKER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-C-0003—Rudolph T. Randa, Judge.
No. 09-2722
N ARY K HENG,
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 3786—Susan E. Cox, Magistrate Judge.
A RGUED JANUARY 26, 2010—D ECIDED M ARCH 12, 2010
2 Nos. 09-2270, 09-2722
Before B AUER, P OSNER, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. We have consolidated for deci-
sion the appeals in these two social security disability
cases, argued to this panel on the same day, because
the opinions of the administrative law judges present
similar problems that require reversal. Although judicial
review of the decisions of administrative agencies is
deferential, it is not abject, Scott v. Barnhart, 297 F.3d 589,
593 (7th Cir. 2002); Scott ex rel. Scott v. Astrue, 529 F.3d
818, 821 (8th Cir. 2008); of particular relevance to these
appeals, we cannot uphold an administrative decision
that fails to mention highly pertinent evidence, Myles v.
Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (per curiam), or
that because of contradictions or missing premises fails
to build a logical bridge between the facts of the case
and the outcome. Terry v. Astrue, 580 F.3d 471, 475 (7th
Cir. 2009); Giles v. Astrue, 483 F.3d 483, 486 (7th Cir. 2007).
Denise Parker, aged 48, suffers from chronic pelvic
pain, incontinence, and asthma. Over the past decade
she has consulted more than a dozen medical pro-
fessionals and has undergone a series of operations de-
signed to relieve her pain, including a hysterectomy
and a separate operation to remove her ovaries. The
operations discovered uterine fibroids, vaginal adhesions,
and cysts. All were removed but the pain persisted. She
takes Percocet, a narcotic painkiller, and Advil, both
daily, yet still the pain persists. The professionals who
have examined her were unanimous that she has
severe, nearly constant, debilitating physical pain, and
two of them advised that she can barely walk. Nevertheless
Nos. 09-2270, 09-2722 3
the administrative law judge found that the claimant
can stand and sit for six hours during a workday, and
on that basis decided that she would be capable of
working as a counter attendant, assembler, sorter, or
packager.
The administrative law judge’s opinion states that
“after considering the evidence of record, the under-
signed finds that the claimant’s medically determinable
impairments would reasonably be expected to produce
the alleged symptoms, but that the claimant’s state-
ments concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible.” This
is a piece of boilerplate that appears in virtually
identical language in both these cases as well as in a
third social security disability case argued to us the
same day. It is not only boilerplate; it is meaningless
boilerplate. The statement by a trier of fact that a wit-
ness’s testimony is “not entirely credible” yields no clue
to what weight the trier of fact gave the testimony.
Immediately following this boilerplate the opinion
states that “there is little objective evidence to support
the claimant’s allegations of extreme pain.” By “objec-
tive evidence” it is apparent from what follows that the
administrative law judge meant verifiable medical evi-
dence, such as an x-ray or blood test or other medical
procedure that would establish the etiology (cause) of
a patient’s symptoms with something approaching cer-
tainty. The opinion describes the procedures that
the plaintiff had undergone and concludes that “the
medical record shows that her doctors do not know
4 Nos. 09-2270, 09-2722
what is causing her reported extreme pain” and that “the
claimant’s pain is well out of proportion to any objec-
tive findings.”
As countless cases explain, the etiology of extreme
pain often is unknown, and so one can’t infer from the
inability of a person’s doctors to determine what is
causing her pain that she is faking it. E.g., Villano v.
Astrue, 556 F.3d 558, 562 (7th Cir. 2009) (per curiam);
Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (per
curiam); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.
2006); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The
administrative law judge followed up the passage we
just quoted by saying “one would expect that the claim-
ant’s hysterectomy or oophorectomy [the surgical
removal of the ovaries, or one of them] would have
given her some relief but those procedures did not . . . . The
claimant’s alleged pain remains.” The fact that a medical
procedure fails is weak evidence that the patient is a
malingerer; and since the judge said merely that she
didn’t find the plaintiff’s testimony “entirely” credible,
we can’t tell whether she thought her a malingerer.
The judge was troubled by the fact that the
plaintiff admitted “that she never followed up with a
pain clinic after only one visit.” But the judge made no
effort to elicit an explanation. There are many possible
explanations; one is that after visiting the clinic, the
plaintiff didn’t think it would cure her pain. Absurdly,
the administrative law judge thought it suspicious that
the plaintiff uses a cane, when no physician had
prescribed a cane. A cane does not require a prescription;
Nos. 09-2270, 09-2722 5
it had been suggested to the plaintiff by an occupational
therapist.
The judge brushed aside the doctors’ statements that
the plaintiff had disabling pain on the ground that the
statements “seem[ed] to be based solely on the
claimant’s subjective complaints.” That is correct, but the
only thing that cast doubt on her complaints were
reports by two nonexamining physicians that the ad-
ministrative law judge did not see fit even to mention.
The Social Security Administration’s lawyer relied
heavily on those reports in her brief and at argument
in urging us to uphold the denial of disability benefits.
But in doing so she violated the Chenery doctrine (see
SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943)), which
forbids an agency’s lawyers to defend the agency’s deci-
sion on grounds that the agency itself had not embraced.
E.g., Stewart v. Astrue, 561 F.3d 679, 684 (7th Cir. 2009) (per
curiam); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir.
2006).
We do not suggest that the absence of verifiable
medical evidence of pain is an inadmissible considera-
tion in a disability proceeding. In some cases, pain does
have an objectively verifiable source, and if so the admin-
istrative law judge may certainly treat this as evidence
that the claimant is disabled. And if the presence of
objective indicators thus makes a claim more plausible,
their absence makes it less so. It would be a mistake to
say “there is no objective medical confirmation of the
claimant’s pain; therefore the claimant is not in pain.” But
it would be entirely sensible to say “there is no objective
6 Nos. 09-2270, 09-2722
medical confirmation, and this reduces my estimate of
the probability that the claim is true.” The administra-
tive law judge said the first, not the second.
She refused to give any weight to the plaintiff’s
asthma and incontinence. She said that neither condi-
tion was disabling, and that is correct. But she failed to
consider their effect in exacerbating the problems created
by chronic severe pain. Difficulty in breathing and abnor-
mal frequency of urination requiring constant trips to
the bathroom are likely to place great strain on a person
who is in constant pain and cannot walk without the
aid of a cane (and sometimes a walker). The judge’s
failure to consider the cumulative effect of impairments
not totally disabling in themselves was an elementary
error. Terry v. Astrue, supra, 580 F.3d at 477; Villano v.
Astrue, supra, 556 F.3d at 563; Golembiewski v. Barnhart,
322 F.3d 912, 918 (7th Cir. 2003) (per curiam).
We turn to our second case. Nary Kheng is a Cambodian
refugee who came to the United States in 1981 and
claims to be totally disabled by a combination of diabetes,
hepatitis B, depression, and post-traumatic stress disorder
(PTSD), though only the two mental ailments provide
a possible basis for her claim. She had survived five
years under the Pol Pot regime, but her parents and two
of her siblings had been killed by the Khmer Rouge and
she (13 or 14 at the time) had been tortured. The details
of her personal history are not contested.
She and her husband own two video stores and she
managed one of them until 2001 or 2002, when the store
she managed had to be closed because her nightmares
Nos. 09-2270, 09-2722 7
prevented her from sleeping at night and invaded her
mind during the day, preventing her from working. In
December 2002 she complained to the doctor who was
treating her for diabetes and hepatitis that she was ner-
vous, had poor concentration, and was forgetful; the
doctor thought these were symptoms of anxiety. The
doctor’s notes from her next visit, which was the
following month, indicated that she feared traveling by
herself but had not experienced recent memory lapses.
It was not until April 2004 (when the plaintiff was 42)
that the doctor, on the basis of the plaintiff’s complaints
of often feeling overwhelmed and fearful, afraid of
falling and of being alone, and suffering from constant
fatigue, added to the plaintiff’s “client problem list”
depression and PTSD. In August the plaintiff was
reported by a medical-benefits interviewer to have very
poor memory and difficulty answering questions, to
have had to take drugs to get through the interview, to
have broken out in uncontrollable sweats, and to have
lost her ability to concentrate.
Her further visits to her doctor were uneventful until
October 2004, when she told him that her brother had
committed suicide two days earlier. She was distraught,
but it wasn’t until the beginning of the following year
that she again reported memory lapses, together with
talking in her sleep, night sweats, sleeplessness, and
flashbacks that made it difficult for her to distinguish
between what was real and what was a memory, and
bouts of crying and screaming. And for the last two years
she also had been scratching herself compulsively with a
8 Nos. 09-2270, 09-2722
coin. A psychiatrist diagnosed her with PTSD and pre-
scribed Lexapro, an anti-depressant drug. She felt better
but continued to report anxiety, nightmares, depression,
and fatigue. (The therapist testified that a better drug
for the plaintiff would have been Zoloft, but that the
plaintiff refused to take it because her brother had been
taking it when he committed suicide.) The plaintiff’s
testimony at the hearing before the administrative
law judge added a few details, such as that she takes her
eight-year-old daughter with her when she goes grocery
shopping in case she has a memory lapse.
Her symptoms are consistent with PTSD. American
Psychiatric Association, Diagnostic and Statistical Manual
of Mental Disorders, Text Revision (DSM-IV-TR) 463-68 (4th
ed. 2000); Mayo Clinic Staff, Post-Traumatic Stress Dis-
order (PTSD): Symptoms, www.mayoclinic.com/health/post-
traumatic-stress-disorder/ds00246/dsection=symptoms
(visited Feb. 2, 2010). And PTSD is a psychiatric illness that
can, though it does not always, render a person incapable
of working full time. 20 C.F.R., Part 404, Subpart P, App. 1,
Rule 12.06. But even if by 2005 she was totally disabled,
she had to prove that she was totally disabled by
March 2004, because after that date (the “date last in-
sured,” as it is called) she was no longer eligible for social
security disability benefits; she had not been working for
several years and as a result had exhausted her earned
“quarters of coverage.” 42 U.S.C. § 423(c); 20 C.F.R.
§ 404.140.
It is far from clear that her mental problems, stemming
from depression and post-traumatic stress disorder,
Nos. 09-2270, 09-2722 9
though apparently they had begun in 1983, had by
March 2004 progressed far enough to render her totally
unable to work. Her case thus is not a strong one, but it
is not so weak that we can deem it frivolous and ignore
the grave deficiencies in the administrative law judge’s
opinion on grounds of harmless error, which is
applicable to judicial review of administrative decisions
and is thus an exception to the Chenery doctrine. Patton v.
MFS/Sun Life Financial Distributors, Inc., 480 F.3d 478, 484
n. 2 (7th Cir. 2007); Mengistu v. Ashcroft, 355 F.3d 1044, 1047
(7th Cir. 2004); Illinois v. ICC, 722 F.2d 1341, 1348-49 (7th
Cir. 1983); Ngarurih v. Ashcroft, 371 F.3d 182, 191 n. 8 (4th
Cir. 2004).
The judge begins his discussion of the plaintiff’s claim
by stating that as of the date last insured she was
suffering from depression and post-traumatic stress
disorder. He then inserts the same (with some immaterial
variation) boilerplate paragraph as in the Parker case: that
“after considering the evidence of record, I find that the
claimant’s medically determinable impairments could
have been reasonably expected to produce the alleged
symptoms, but that the claimant’s statements concerning
the intensity, persistence and limiting effects of these
symptoms are not entirely credible, in light of the objec-
tive medical evidence which does not fully support the
claimant’s subjective complaints.” He follows with this
bombshell: “the claimant’s psychiatric impairments and
treatment all surfaced after” the last date on which she
was insured (emphasis added)—thus contradicting his
earlier statement that she had depression and PTSD on
that date. He makes no attempt to explain the contradic-
10 Nos. 09-2270, 09-2722
tion, but notes that her symptoms had worsened, and
her only psychiatric medication, Lexapro, had been
prescribed, after the insured date. Yet he lists her earlier
“complaints of allergies, fatigue, depression, complaints
of feeling overwhelmed, and tearful often,” plus “sadness
and nightmares and, for two years, had been scratching
herself with a coin” and despite the boilerplate para-
graph he indicates no disbelief in the truthfulness of
her complaints. But he makes no attempt to evaluate
their gravity and their impact on her ability to work full
time, and instead repeats that “the claimant’s psychi-
atric problems and treatment all surfaced after the”
last date on which she was insured.
And that’s it, so far as any analysis is concerned. (Again
violating the Chenery doctrine, as in Parker’s case, the brief
for the Social Security Administration points to evidence,
not mentioned by the administrative law judge, by a
psychiatrist who thought that the plaintiff’s condition
was not disabling.) It is not enough. The administrative
law judge should have determined whether the plain-
tiff’s ailments are at present totally disabling, and, if so
(see Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per
curiam)), he should have retained a medical expert to
estimate how grave her condition was in March 2004.
Social Security Ruling 83-20 (1983); Henderson ex rel.
Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir. 1999);
Grebenick v. Chater, 121 F.3d 1193, 1200-01 (8th Cir. 1997);
see also Eichstadt v. Astrue, 534 F.3d 663, 666-67 (7th Cir.
2008); Allord v. Barnhart, 455 F.3d 818, 822 (7th Cir. 2006).
The decisions by the district courts upholding the
denial of benefits to Parker and Kheng are reversed and
Nos. 09-2270, 09-2722 11
the cases returned to the Social Security Administration
for proceedings consistent with this opinion.
3-12-10