Barrett, Linda P. v. Barnhart, Jo Anne

In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-1063
LINDA P. BARRETT,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 02-C-303-S—John C. Shabaz, Judge.
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ARGUED NOVEMBER 13, 2003—DECIDED JANUARY 22, 2004
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Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. Linda Barrett appeals from the
district court’s affirmance of the denial by an administra-
tive law judge of her application for social security disabil-
ity benefits. Barrett, who was 39 years old at the time of
her hearing before the administrative law judge and has
a high school education, is extremely obese, weighing
more than 300 pounds even though she is only 5 feet 1 inch
tall. She also has a severe hearing loss in both ears,
osteoarthritis in both knees, and numbness and pain in an
arm and hand that may be due to carpal tunnel syndrome,
2 No. 03-1063
although the administrative law judge did not think this
a severe impairment; for that matter, he dismissed the
significance of Barrett’s arthritic knees on the ground that
her arthritis was “not so significant as to warrant sur-
gery and is mainly exacerbated by her weight.” He rejected
a report by a physical therapist who had examined Barrett
and had concluded that she was incapable of full-time work;
the administrative law judge thought that Barrett had
exaggerated her condition to the therapist. He determined
that although Barrett cannot return to her previous work,
which was straightening the tails of mink pelts on a mink
ranch—apparently a strenuous job—she can do a wide
range of other “light” work (not to be confused with
sedentary work, see 20 C.F.R. §§ 404.1567(a), (b)), includ-
ing factory work, provided she doesn’t have to stand for
more than two hours at a time or sit for more than six
hours at a time or lift more than 20 pounds frequently.
The two-hour limitation on consecutive standing that
the administrative law judge imposed was not based, di-
rectly anyway, on medical evidence. The only physician
who specified limitations had advised that Barrett could
stand for up to six hours at a time, but he had not known
about the problem with her knees.
A vocational expert, whose function in a social security
disability hearing is to determine which jobs the appli-
cant for disability benefits can do and how many such jobs
exist in the applicant’s state, 20 C.F.R. §§ 404.1566(b), (e);
Donahue v. Barnhart, 279 F.3d 441, 446 (7th Cir. 2002);
Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001);
Vaughan v. Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (per
curiam), opined that there are 24,500 jobs in Wisconsin
that a person can do who is subject to the restrictions on
standing, sitting, and lifting that the administrative law
judge had specified. Of course as a practical matter Barrett
is unemployable, but that is not the test for entitlement
No. 03-1063 3
to social security benefits; the test is whether she is so dis-
abled that there are no jobs in reasonable proximity to
where she lives that she is physically able to do.
A vocational expert can testify to the number of light
jobs in Wisconsin, since “light” work is a defined term. But
here he was asked to determine the number of jobs in
a subclass of light work, namely the jobs that don’t re-
quire standing for more than two hours at a stretch, or
normal hearing. For him to offer the number 24,500 with
no indication of how he adjusted the numbers in the
dictionary to reflect Barrett’s diminished capacity leaves us
in the dark about the actual basis of his testimony, as in
Ragsdale v. Shalala, 53 F.3d 816, 821 (7th Cir. 1995). However,
because Barrett’s lawyer did not question the basis for the
vocational expert’s testimony, purely conclusional though
that testimony was, any objection to it is forfeited. Donahue
v. Barnhart, supra, 279 F.3d at 446; compare Morrison v.
Apfel, 146 F.3d 625, 628-29 (8th Cir. 1998). But the validity
of the testimony still depends on whether the administra-
tive law judge accurately described Barrett’s condition to
him; for the testimony was perfunctory and “nothing in the
record reflects that [he] independently knew of all the
limitations related to” Barrett’s condition. Steele v. Barn-
hart, 290 F.3d 936, 942 (7th Cir. 2002); compare Ehrhart v.
Secretary of Health & Human Services, 969 F.2d 534, 540 (7th
Cir. 1992); Diaz v. Secretary of Health & Human Services, 898
F.2d 774, 777 (10th Cir. 1990). The administrative law
judge’s analysis of Barrett’s condition was so flawed that
the case must be returned to the Social Security Administra-
tion for a fresh analysis of the evidence.
First, to give no weight at all to the physical therapist’s
report because Barrett had exaggerated her condition to
the therapist (and we accept the administrative law judge’s
finding on that score, a well-nigh unreviewable determina-
4 No. 03-1063
tion of credibility) was arbitrary, since the therapist based
her evaluation on physical tests and observation, not just
on what Barrett told her. Although Barrett is wrong to ar-
gue that a physical therapist’s report should be given
controlling weight, such reports are entitled to consider-
ation. Lauer v. Apfel, 169 F.3d 489, 494 (7th Cir. 1999); Frankl
v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); see also Rankin
v. Apfel, 195 F.3d 427, 429-30 (8th Cir. 1999); Craig v. Chater,
76 F.3d 585, 590 (4th Cir. 1996). Orthopedists tend to be
consulted for acute conditions, often requiring surgery or
other aggressive intervention; physical therapists tend to
be consulted for chronic problems, where the problem of
obtaining relief that will enable a person to work is urgent
and a focus of attention. If a person breaks a leg, he knows
that he can return to work when the break mends. But if
he has a chronic condition like arthritis or obesity (“chron-
ic” implying not fully responsive to medical treatment),
the question of ability to work becomes foremost and it
is a question concerning which physical therapists have
significant expertise.
Then there is the administrative law judge’s handling of
Barrett’s arthritis. The fact that her arthritis is exacerbated
by her obesity does not make the arthritis a less serious
condition, but on the contrary a more serious one. But
by treating obesity as an aggravating factor, the admin-
istrative law judge may have been hinting that Barrett
should lose weight, that obesity is like refusing to wear
glasses or a hearing aid—essentially a self-inflicted dis-
ability that does not entitle one to benefits or boost one’s
entitlement by aggravating another medical condition.
E.g., 20 C.F.R. §§ 404.1530(a), (b); Shramek v. Apfel, 226 F.3d
809, 812 (7th Cir. 2000); Wilder v. Chater, 64 F.3d 335, 336
(7th Cir. 1995); Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir.
2001). Barrett’s obesity, however, is due not to gluttony
No. 03-1063 5
but to a medical condition, hypothyroidism, and although
she takes medication for that condition it has not enabled
her to lose weight. The applicable regulations of the So-
cial Security Administration do not treat obesity as per se
a self-imposed disability for which benefits cannot be
awarded. Social Security Ruling (SSR), 67 Fed. Reg. 57859
(Sept. 12, 2002); Celaya v. Halter, 332 F.3d 1177, 1181 n. 1 (9th
Cir. 2003). Granted, if an applicant’s obesity is in fact
remediable, then it is no more a basis for an award of
benefits than any other remediable condition would be,
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). But as
in Dodrill, and such other cases as Brown v. Sullivan, 902
F.2d 1292, 1296 (8th Cir. 1990); McCall v. Bowen, 846 F.2d
1317, 1319 (11th Cir. 1988), and Lovelace v. Bowen, 813
F.2d 55, 59 (5th Cir. 1987), Barrett’s obesity has not been
shown to be remediable.
Maybe the administrative law judge thought that since
he had already ruled that Barrett’s obesity was a severe
impairment of her ability to work, though not totally
disabling in itself (that is, not a “listed” impairment, in
social security disability lingo), conditions caused or
aggravated by obesity were irrelevant. That of course
would be wrong. The problem is that we don’t know what
he thought. And in particular (this is the third serious
flaw in his analysis) we do not know on what basis he
decided that Barrett can stand for two hours at a time. No
physician said that. A great many people who are not
grossly obese and do not have arthritic knees find it dis-
tinctly uncomfortable to stand for two hours at a time. To
suppose that Barrett could do so day after day on a factory
floor borders on the fantastic, but in any event has no
evidentiary basis that we can find.
And finally and all too characteristically, the admin-
istrative law judge failed to consider the applicant’s med-
6 No. 03-1063
ical situation as a whole, as he is required to do. E.g., 20
C.F.R. § 404.1523; Golembiewski v. Barnhart, 322 F.3d 912,
918 (7th Cir. 2003) (per curiam); Clifford v. Apfel, 227 F.3d
863, 873 (7th Cir. 2000); Green v. Apfel, 204 F.3d 780, 782 (7th
Cir. 2000); Johnson v. Sullivan, 922 F.2d 346, 350-52 (7th Cir.
1991) (en banc); Cunningham v. Apfel, 222 F.3d 496, 501 (8th
Cir. 2000). 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. Similarly, the numb-
ness and pain in her arm may not be severe, but they are
additive to the acute discomfort that she must experience
in prolonged standing while all the time straining to hear,
since factories are often noisy and hearing aids at best do
not provide perfect correction for hearing problems and
certainly not in a noisy environment. W. Andrew Dean &
Meredith Davison, “Hearing Loss in Adults,” Clinician
Reviews, Aug. 15, 2002, www.medscape.com/viewarticle/
439298_print (Dec. 5, 2003); “World of Silence: How Phar-
macists Can Help the Deaf,” Chemist & Druggist, Aug. 11,
2001, p. 21; Anil K. Alwani and James B. Snow, Jr., “Disor-
ders of the Smell, Taste and Hearing: Treatment,” in Harri-
son’s Principles of Internal Medicine 186 (15th ed., Eugene
Braunwald et al. eds. 2001).
The cumulative effect of the administrative law judge’s
errors and omissions was to fail to build a rational
bridge from the evidence to the finding that Barrett was
not totally disabled. E.g., Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 539 (7th Cir. 2003) (per curiam); Steele v. Barnhart,
supra, 290 F.3d at 941; Zurawski v. Halter, 245 F.3d 881, 887
(7th Cir. 2001); Green v. Apfel, supra, 204 F.3d at 781;
Fargnoli v. Massanari, 247 F.3d 34, 41-42 (3d Cir. 2001); see
generally Pension Benefit Guaranty Corp. v. LTV Corp., 496
U.S. 633, 654 (1990); Bill Branch Coal Corp. v. Sparks, 213 F.3d
No. 03-1063 7
186, 191 (4th Cir. 2000). The matter must therefore be re-
turned to the Social Security Administration for fur-
ther proceedings consistent with this opinion.
REVERSED AND REMANDED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-04