Gerald Underwood v. Andrew M. Saul ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 10, 2020*
Decided March 3, 2020
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 19-1920
GERALD K. UNDERWOOD, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District of Wisconsin.
v. No. 18-cv-326-slc
ANDREW M. SAUL, Stephen L. Crocker,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
Gerald Underwood, who suffers from obesity, diabetes, and vertigo, applied for
disability benefits alleging an onset date of December 2008. An administrative law
judge concluded that his impairments were severe but not disabling, and the district
court upheld that determination. We affirm.
* We agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1920 Page 2
Underwood, now 58, previously held jobs as a golf instructor, a car salesman,
and most recently—in 2007—a personal-care worker for a woman with cerebral palsy.
Underwood married this woman soon after he began working for her, and he did not
work another job after that.
Underwood asserts that he became disabled in December 2008. Because his date
last insured was June 2009, the only evidence relevant to this case is that which bears on
his medical condition between December 2008 and June 2009.
Underwood has a history of anxiety and depression. In 2006 psychologist James
Black, Ph.D., noted that Underwood had a diagnosis of generalized anxiety disorder.
He said that it affected Underwood’s concentration and motivation, and depending on
how well he managed his symptoms, the disorder could affect his ability to keep a job.
That same year a counselor for the Department of Vocational Rehabilitation interviewed
Underwood, noting that his generalized anxiety disorder led to difficulties making
decisions, setting goals, and concentrating. There is evidence that Underwood’s mental
condition worsened over time: In 2012 Dr. Black wrote a one-page clinical summary
noting that Underwood’s impairments were more significant now than in the past. He
commented that Underwood now suffered from anxiety, depression, and panic attacks,
and that he had a Global Assessment of Function1 score of 55. Despite these concerns,
Dr. Black deemed it “less likely than not” that Underwood’s symptoms prevented him
from working.
The record also contains some evidence of physical impairment. In 2009 for the
first (and only) time, Underwood saw ear, nose, and throat specialist Dr. David Rowe
for vertigo. Dr. Rowe prescribed medication to treat dizziness and vertigo and opined
in a “To Whom It May Concern” letter that Underwood’s vertigo left him “feel[ing]
unstable from time to time,” and that his condition “limits his effectiveness in the
workplace.” In 2013 Dr. Jason D. Welch commented on a generic “medical form” that
Underwood might be able to perform part-time sedentary work, but his deep-vein
thrombosis, panic attacks, vertigo, and back and leg pain had prevented him from
working full time since 2006.
1 The Global Assessment of Functioning scale rates social, occupational, and
psychological functioning on a scale from 0 to 100; a score of 55 denotes moderate
symptoms or moderate difficulty functioning. This scale “no longer is widely used by
psychiatrists and psychologists.” Winsted v. Berryhill, 923 F.3d 472, 474 n.1 (7th Cir.
2019).
No. 19-1920 Page 3
Several state-agency doctors examined Underwood, but each explained that
there was not enough evidence in the record to conclude that Underwood had any
severe impairments or disabling symptoms. Medical doctors Sunita Patel and R. James
Mabry, as well as psychologists Thomas Conger, Ph.D., and Sanford Golin, Ph.D., all
evaluated Underwood’s medical records initially in 2011 and then again on
reconsideration in 2012. At both stages they found “insufficient evidence” to conclude
that Underwood had any severe impairments or disabling symptoms.
There is also evidence about the extent of Underwood’s impairments in the form
of a third-party functional report completed in 2012 by Randall Ebben, one of
Underwood’s longtime friends. Ebben reported that Underwood took care of his wife
(suffering from cerebral palsy) and their dogs, did all kinds of household chores, drove,
shopped, attended live-music events, and played golf three to five times a week.
The legal proceedings in this case have been protracted. Underwood filed for
disability-insurance benefits and supplemental-security income in 2011 alleging that he
had been disabled since December 2008. The agency denied Underwood’s disability-
insurance-benefits claim initially and on reconsideration. (The agency also rejected his
supplemental-security-income claim because his assets exceeded the statutory limit; he
did not appeal that decision.) After a hearing an ALJ denied his claim in 2013.
Underwood sought judicial review, and in 2015 the parties stipulated to a remand so
that Underwood could present additional evidence at a new administrative hearing.
Underwood had a second hearing the following year before a different ALJ, who
denied his claim. The Appeals Council, however, acknowledged a need for further
evaluation of Underwood’s mental impairments, diabetes, and vertigo, and vacated the
decision, remanding the matter once again.
A third hearing was held in 2017 before another ALJ, who also denied
Underwood’s claim, finding him not disabled. The ALJ concluded that Underwood had
three severe impairments (vertigo, diabetes, and obesity); that despite these
impairments, Underwood retained the residual functional capacity to perform
sedentary work, subject to additional limitations (unskilled work; only occasional
decision-making; no heights, hazards, machinery, or climbing; and only occasional
stooping, crouching, or ascending ramps or stairs); and that there were several jobs in
the national economy that he would be able to perform (including sorter, order clerk,
and office helper). Of particular relevance to this appeal, the ALJ considered the
No. 19-1920 Page 4
opinions of Dr. Black, discussed the Global Assessment of Functioning score he
assigned, and noted that Dr. Black had treated Underwood only intermittently. The ALJ
also discussed (and assigned either “some” or “little” weight to) the opinions of the
state-agency physicians and gave weight (the ALJ did not say how much) to Ebben’s
third-party report.
The district court upheld the ALJ’s decision. The court noted that most of
Underwood’s submissions were irrelevant to his appeal: his brief was a duplicate of the
brief he filed in 2015, and most of his other documents involved treatment or events
that occurred well beyond the limited six-month period at issue. But the court was able
to discern seven arguments germane to the third ALJ’s decision and rejected each of
them. Only one of those seven is relevant to this appeal: the court found no evidence to
support Underwood’s argument that Ebben’s functional report was inaccurate and
should not have been considered.
On appeal before this court, Underwood asserts generally that the ALJ “focus[ed]
on several alleged inconsistencies in the record in an overall misguided attempt to
discredit the plaintiff.” Yet Underwood points only to Ebben’s third-party functional
report, which he says the ALJ should have disregarded because “Underwood’s family
life was simply irrelevant.”
This underdeveloped argument is without merit. The Social Security rules
explicitly permit an ALJ to consider “non-medical sources such as family and friends”
when evaluating a claimant’s statements about “the intensity, persistence, and limiting
effects of [his] symptoms.” SSR 16-3p, 81 Fed. Reg. 14166-01, 14169 (Mar. 16, 2016); see
also 20 C.F.R. § 404.1527(f)(2). Underwood points to no other “inconsistencies” or
attempts “to discredit” him, nor do we see any.
Next, Underwood argues for the first time that the ALJ “ignored and
mischaracterized medical evidence in the record.” Underwood’s lone example is that,
according to him, the ALJ ignored Dr. Black’s July 2012 letter assigning him a Global
Assessment of Function score of 55.
There are multiple problems with this argument, the foremost being that he
waived this argument by failing to raise it in the district court. See Winsted v. Berryhill,
923 F.3d 472, 478 (7th Cir. 2019). But waived or not, his assertion that the ALJ ignored
that score is untrue: the ALJ discussed Dr. Black’s 2012 medical report several times,
including the Global Assessment of Functioning score. The ALJ gave this report “some”
No. 19-1920 Page 5
weight but noted that in that report, Dr. Black himself opined that Underwood could
probably maintain employment despite his mental-health status. In any event, Dr.
Black’s 2012 report described only Underwood’s current condition at the time, and this
report would not necessarily provide insight into his condition during the relevant
2008–2009 period.
Finally, Underwood argues, also for the first time, that the ALJ cherry-picked the
record and relied solely on the opinions of the state-agency physicians; he argues that
those opinions “cannot alone constitute substantial evidence that justifies the rejection
of the opinion of a treating physician.” This argument, too, is waived, see id., and
anyway, the assertion that the ALJ overrelied on the opinions of the state-agency
physicians is without basis. The ALJ explained that “[a]lthough considered,” he
accorded those opinions less weight because of “the additional evidence subsequently
submitted for the period in question” (an apparent reference to Dr. Black’s 2012 letter,
Dr. Welch’s 2013 medical form, and Ebben’s functional report).
Insofar as Underwood’s appeal attempts to raise other arguments, those
arguments are too undeveloped to address. We AFFIRM the decision of the district
court.