Dragan Kaplarevic v. Andrew Saul ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2432
DRAGAN KAPLAREVIC,
Plaintiff-Appellant,
v.
ANDREW SAUL, Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 19-cv-3283 — Susan E. Cox, Magistrate Judge.
____________________
ARGUED JANUARY 20, 2021 — DECIDED JULY 1, 2021
____________________
Before EASTERBROOK, WOOD, and BRENNAN, Circuit Judges.
WOOD, Circuit Judge. Dragan Kaplarevic filed for disability
insurance benefits in December 2012, alleging that he became
disabled on August 1, 2012. His “date last insured” was De-
cember 31, 2014, meaning that if his disability arose any later
than that, he would not be eligible for benefits. The state
agency that reviewed his application on behalf of the Com-
missioner of Social Security denied his application initially
and upon reconsideration, see 20 C.F.R. § 404.1503, and he
2 No. 20-2432
ultimately was no more successful before an administrative
law judge (ALJ), the Appeals Council, or the district court. Ka-
plarevic has now appealed to this court for relief, but he can-
not overcome the deferential standard of review that applies.
Substantial evidence supported the agency’s decision, and so
we affirm the district court’s judgment.
Kaplarevic’s quest for benefits has been a long one. After
the state agency’s initial decision, he requested and received
a hearing before an ALJ. Aided by counsel, Kaplarevic testi-
fied before the ALJ on June 30, 2014, and the judge solicited
information from an impartial vocational expert. On that rec-
ord, the ALJ denied Kaplarevic’s application. The Appeals
Council denied his request for review, rendering the ALJ’s de-
cision final. See 20 C.F.R. §§ 404.955, 404.981. Kaplarevic then
turned to the district court, which in March 2017 remanded
the matter to the Social Security Administration for further
proceedings. See 42 U.S.C. § 405(g). After a second hearing
before a different ALJ on January 26, 2018, during which Ka-
plarevic was again represented by counsel, his application
was rejected. The Appeals Council upheld that decision, and
so Kaplarevic again sought judicial review. A magistrate
judge, proceeding with the consent of both parties as permit-
ted by 28 U.S.C. § 636(c), found that the new ALJ’s decision
was supported by substantial evidence. This appeal followed.
We affirm the district court’s decision for the reasons dis-
cussed in its order of July 16, 2020, with the following addi-
tional comments.
In a social security appeal, we look through the district
court’s opinion and, applying a deferential standard of re-
view, we ask whether the ALJ’s decision is supported by sub-
stantial evidence. Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir.
No. 20-2432 3
2007); see Richardson v. Perales, 402 U.S. 389, 401 (1971) (defin-
ing substantial evidence as “such relevant evidence as a rea-
sonable mind might accept as adequate to support a conclu-
sion”).
Kaplarevic contends that the second ALJ erred because he
improperly took into account his own observations of Kaplar-
evic’s physical condition and ability to perform certain phys-
ical tasks at the hearing on January 26, 2018. This was error,
Kaplarevic urges, because the relevant period under consid-
eration was the time between the alleged onset of his disabil-
ity (August 1, 2012) and his date last insured (December 31,
2014). But this makes no sense, given Kaplarevic’s own appli-
cation. If he had been seeking benefits only for the closed pe-
riod between August 1, 2012, and December 31, 2014, he
might have a point. But Kaplarevic sought an open-ended pe-
riod of disability. In light of that fact, the status of his physical
condition on the day of the second hearing is relevant. He
needed to show that he became disabled before his date last
insured, but in order to obtain a continuing flow of benefits,
he had to convince the ALJ that he was still disabled as of the
date of the hearing. It is a routine, common-sense practice for
an ALJ to observe claimants. We see no reason to criticize the
ALJ for his partial reliance on his own observations in his de-
termination of disability. Indeed, if there were error at all, it
was harmless: we could disregard these comments and easily
affirm on the basis of the remainder of the ALJ’s 15-page opin-
ion, which evaluated extensive medical and behavioral evi-
dence.
Kaplarevic also complains about the ALJ’s observation
that there were no new treatment records or indications that
he had requested treatment since before the first ALJ hearing
4 No. 20-2432
held in June 2014. But this was at most a passing comment,
and it related more to the evidentiary record than to the mer-
its. The ALJ noted that Kaplarevic “did not submit any medi-
cal evidence since December 2013.” It was Kaplarevic’s bur-
den to show disability, and if he wanted to do so, he should
have accepted the ALJ’s invitation “to identify the portions of
the medical records that he believed supported various of
[his] allegations.” Vague references to the “totality of the evi-
dence” are not helpful.
Moreover, we do not read the ALJ’s opinion as relying on
the failure to seek treatment as a factor demonstrating lack of
disability. That would be troublesome: there are a number of
legitimate reasons why a person may not continue treatment,
particularly if he is uninsured and forced to pay out-of-
pocket. But, with respect to back pain, the ALJ noted both lack
of treatment and a later treatment record showing that he de-
nied any pain. With respect to Kaplarevic’s heart condition,
the ALJ asked counsel to provide citations to the medical rec-
ord, and counsel never did so. This is therefore not a case in
which an ALJ made a simple assumption that people who do
not regularly visit doctors can’t have a serious problem. In-
stead, the record before the ALJ showed that Kaplarevic did
not comply with prescribed therapy, that his pain complaints
were not consistent with objective medical findings, and that
the record did not support the alleged intensity of other prob-
lems. Substantial evidence supported all of these findings.
We AFFIRM the judgment of the district court upholding
the Social Security Administration’s denial of Kaplarevic’s ap-
plication for disability benefits.