Keith Roberts v. Nancy Berryhill ( 2018 )

NONPRECEDENTIAL DISPOSITION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 January 16, 2018 *
Decided January 22, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-1533
KEITH A. ROBERTS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 15-CV-1232
NANCY BERRYHILL,
Acting Commissioner of Social Security, William C. Griesbach,
Defendant-Appellee. Chief Judge.
ORDER
In this Social Security appeal, the administrative law judge concluded that
claimant Keith Roberts was not suffering from severe impairments as of September 30,
1982, and therefore was not disabled as of his date last insured. The district court agreed.
We affirm, because substantial evidence in the record—or more accurately, the lack of
evidence for Roberts’s claim—supports the judge’s decision.
*
We have 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. 17-1533 Page 2
Roberts (having been previously granted Supplemental Security Income) applied
for Disability Insurance Benefits in March 2002 alleging that he became disabled in 1981
from coronary artery disease and post-traumatic stress disorder. Roberts served from
1968 to 1971 in the United States Navy, primarily as an enlisted airman at a non-combat
facility in Italy. The basis of his claim of PTSD is an incident that he told doctors he
witnessed in 1969: Airman Gary Holland, whom Roberts later described as a close friend,
was killed when a plane he was working on collapsed. Roberts reported becoming angry
and depressed after Holland’s death. He submitted Navy records to the Social Security
Administration that show that in December 1969, he was restrained in a straitjacket and
given Thorazine (an anti-psychotic drug) when he became combative after a night of
drinking. Then, in January 1970, Dr. James Bethel, a psychiatrist, evaluated Roberts and
concluded that, although he showed signs of anger and immaturity, “no formal
psychiatric diagnosis” was warranted. And twice in the summer of 1970, Roberts was
prescribed Librium, a sedative that can treat anxiety.
After he left the Navy, Roberts worked intermittently, but stopped working by
1982. His earnings record shows (and Robert does not contest) that he was last insured
for benefits purposes on September 30, 1982. See 42 U.S.C. § 423(a)(1)(A), (c). Yet besides
his sporadic treatment for anxiety while in the Navy, the record contains no significant
medical or psychiatric treatment notes from before that date. The only other record from
before Roberts’s date last insured is a treatment note from February 1982, explaining that
Roberts was having urinary problems, which are not relevant now.
The record does show, however, that after September 1982, Roberts’s mental and
physical health declined. In January 1987, he had a heart attack and pulmonary
embolism. In March 1991, he discussed Holland’s death with Dr. James Hastings, whom
he saw at a Department of Veterans Affairs medical center for a psychiatric exam. Dr.
Hastings did not diagnose Roberts with PTSD but said anger was Roberts’s “major
problem” and diagnosed dysthymia and mixed personality disorder. In November 1992,
Roberts saw Dr. K. Sherry, who agreed and added that Roberts suffered from alcohol
abuse disorder. Dr. Sherry also noted that Roberts had been taking Prozac, which had
helped his anger and depression. Also in November 1992, Dr. Jonathan Thomas of Bay
Psychiatric Clinic noted that Roberts had sought treatment there since November 1989
for major depression, but that Prozac was helping his anger and anxiety. In March 1993,
Roberts again saw Dr. Hastings, who again diagnosed dysthymia and mixed personality
disorder without discussing the possibility of PTSD. That month, the Department of
Veterans Affairs granted Roberts disability benefits retroactively to November 1990
based in part on his “dysthymia with history of major depressive disorder and mixed
personality disorder.”
No. 17-1533 Page 3
The first medical diagnosis of post-traumatic stress disorder in the record is from
March 1998, when Dr. Michael Daly examined Roberts at a Veterans Affairs medical
center and concluded that he met the criteria for the disorder. Dr. Daly noted that in 1995
Roberts had received a score in the “positive range” for PTSD on a diagnostic test, which
is not in the record. The Department of Veterans Affairs then granted Roberts additional
disability benefits. In April 1999, Dr. Michael Marcy diagnosed PTSD, and the
Department increased Roberts’s benefits again. Since then, some clinicians, including an
expert Roberts consulted for his Disability Insurance Benefits claim (Dr. Donald
Derozier), a Veterans Affairs psychiatrist (Dr. Chandra Bommakanti), and a consulting
agency doctor (Dr. Timothy Lynch) have opined that there may be support for a PTSD
diagnosis dating back to Roberts’s time in the Navy. But Dr. Hastings, who saw Roberts
in 1991 and 1993, said in 2003 that he did not believe Roberts met the criteria for the
disorder at their first two meetings, much less before 1982.
Roberts’s application for Disability Insurance Benefits has been winding its way
through the Social Security Administration and the courts for over a decade. He has been
both granted and denied benefits in administrative decisions that, but for the most recent
one, have all been vacated and remanded for further proceedings. The most recent
decision—the one at issue in this appeal—was entered in 2014 after a hearing before an
administrative law judge at which Roberts, his wife, and a vocational expert testified. The
judge found that Roberts showed symptoms of PTSD and anxiety (but not any heart
conditions) before his date last insured of September 30, 1982. But, the judge concluded,
neither condition was severe before that date. Thus Roberts was ineligible for Disability
Insurance Benefits. The Appeals Council denied review, so the judge’s decision is the
final word of the Commissioner. See Engstrand v. Colvin, 788 F.3d 655, 660 (7th Cir. 2015).
The district court affirmed the decision.
Substantial evidence supports the administrative law judge’s conclusion that
Roberts was not severely impaired by any of his conditions before September 30, 1982. If
a claimant is not disabled at the time he last has social security insurance coverage, he is
not eligible for Disability Insurance Benefits even if he later becomes disabled. Martinez
v. Astrue, 630 F.3d 693, 699 (7th Cir. 2011). As for Roberts’s heart condition—about which
even Roberts does not say much on appeal—the judge correctly pointed out that no
evidence showed that Roberts had any problems before his 1987 heart attack. And
regarding Roberts’s mental health, it is unclear whether Roberts met the criteria for post-
traumatic stress disorder before 1990. The judge correctly noted that no evidence showed
Roberts suffered from any functional limitations from PTSD or anxiety before his date
last insured. The only clinician to examine Roberts before then—Dr. Bethel in
1970—concluded that no formal diagnosis was warranted and that Roberts could
No. 17-1533 Page 4
successfully complete his enlistment. 1 The sources who opined that Roberts may have
had PTSD earlier than the 1990s—Dr. Derozier, Dr. Bommakanti, and Dr. Lynch—did not
evaluate him until much later, and their opinions do not address or even imply the
presence of functional limitations as far back as September 1982. The judge’s conclusion
that Roberts’s conditions were not severe enough to cause disabling limitations as of his
date last insured was therefore reasonable. See Martinez, 630 F.3d at 699.
Roberts contends, however, that the administrative law judge gave short shrift to
the opinions of clinicians who treated him. See 20 C.F.R. § 404.1527(c)(2). But the only
opinion he refers to that is in the administrative record is from a psychologist,
Dr. Derozier, who examined him for purposes of helping him obtain benefits, making
him a “nontreating” source. See § 404.1527(a)(2) (“treating source” excludes those without
ongoing treatment relationship and those consulted “solely” for support for disability
claim); Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009) (same). More important, our
review of the record reveals that the judge thoroughly evaluated all the opinions from
treating and nontreating sources alike and carefully explained his reasons for accepting
or rejecting them. See 20 C.F.R. § 404.1527(c)(2) (explaining how to evaluate opinions by
treating sources). The judge did not clearly err in evaluating the medical opinions, none
of which describe functional limitations earlier than September 1982 anyway. See Stepp
v. Colvin, 795 F.3d 711, 718–19 (7th Cir. 2015).
Roberts responds, however, that the administrative law judge impermissibly
“played doctor.” See Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (independently
analyzing medical evidence is “a clear no-no”). First, he says, the judge should have
consulted a medical expert about Roberts’s PTSD diagnosis. This contention is meritless.
Consulting a new expert, who could have done little more than evaluate a cold record
more than thirty years after Roberts’s date last insured, was unlikely to yield any
information not already contemplated by the other clinicians who had reviewed
Roberts’s medical records. We therefore will not disturb the judge’s discretionary
1 We have not seen it noted in the record, and Roberts has not pointed out, that
PTSD did not exist as a diagnosable condition in 1970. It did not enter the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders until the
third volume, published in 1980. Even then, the diagnosis was “controversial.” See
Matthew J. Friedman, PTSD History and Overview, U.S. DEPARTMENT OF VETERANS AFFAIRS
(Feb. 23, 2016), https://www.ptsd.va.gov/professional/PTSD-overview/ptsd-
overview.asp. We do not think this point of interest affects the result here, though,
because the DSM-III was published before Roberts’s date last insured and because of the
absence of evidence that Roberts had any functional limitations as of 1982.
No. 17-1533 Page 5
decision not to consult an additional expert to interpret the medical records. See Nelms v.
Astrue, 553 F.3d 1093, 1098 (7th Cir. 2009) (“This court generally upholds the reasoned
judgment of the Commissioner on how much evidence to gather, even when the claimant
lacks representation.”). Roberts also contends that the judge assumed without medical
evidence that one cannot suffer from PTSD without experiencing combat. But Roberts
misreads the judge’s opinion. The judge merely noted that Roberts had not seen combat,
most likely to provide background and to clarify what stressors Roberts identified as
causes of his PTSD.
Roberts next argues that the administrative law judge should have followed earlier
administrative decisions that were favorable to him. He points to both the decisions from
the Department of Veterans Affairs granting him disability benefits and earlier opinions
by a Social Security administrative law judge granting him Disability Insurance Benefits
(the latter of which have since been vacated). Roberts is wrong on both counts. First,
administrative law judges must consider, but not necessarily give controlling weight to,
decisions by other agencies such as the Department of Veterans Affairs. 20 C.F.R. §
404.1504; Bird v. Berryhill, 847 F.3d 911, 913 (7th Cir. 2017). The Department of Veterans
Affairs found Roberts disabled beginning, at the earliest, in 1990—eight years after his
date last insured. The administrative law judge reasonably discounted these opinions.
See Martinez, 630 F.3d at 699. Second, the judge was correct not to rely on earlier decisions
by the Social Security Administration about Roberts’s application for Disability Insurance
Benefits. Those decisions were properly vacated and remanded by the Appeals Council,
and thus could not be binding at a later point in the case. See Aguiniga v. Colvin, 833 F.3d
896, 900–01 (8th Cir. 2016) (vacated administrative decisions have no binding effect on
later decisions).
Roberts’s next argument is that these proceedings have been “tainted” by
“allegations of fraud” against him, which he says caused the administrative law judge to
be biased against him. He refers to his Veterans Affairs file, which is not in the record,
but which he says contains requests from the Department of Veterans Affairs for Social
Security records that are stamped “Please Expedite Fraud Case.” We are aware, however,
that what Roberts refers to as “allegations” actually resulted in his conviction in 2005 for
fraudulently obtaining disability benefits from the Department, as described in United
States v. Roberts, 534 F.3d 560 (7th Cir. 2008) (affirming 48-month prison sentence). The
district court correctly recognized that this conviction could not be used as a basis for
affirming the administrative law judge’s decision in this case because it does not appear
in the administrative record. See 42 U.S.C. § 405(g). We therefore will not address
Roberts’s objection further, except to clarify one issue: If, as Roberts seems to believe, the
judge became aware of the fraud “allegations” during the pendency of his application,
No. 17-1533 Page 6
the judge would have been obligated to address them. See 42 U.S.C. § 405(u)(1)(A) (“The
Commissioner of Social Security shall immediately redetermine the entitlement of
individuals to monthly insurance benefits … if there is reason to believe that fraud or
similar fault was involved in the application. … ”). That the judge did not speaks more
to Roberts’s luck than to any bias on the judge’s part.
Still, Roberts contends that the district court should have remanded the case for
consideration of other new evidence, including a 2015 psychiatric evaluation, Navy
records, a competence evaluation from his 2005 federal criminal case, a 2010 opinion from
the U.S. Court of Appeals for Veterans Claims, and the transcript of an agency hearing
from 1994. A remand may be required “upon a showing that there is new evidence which
is material and that there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding.” 42 U.S.C. § 405(g). All but the 2015 opinion were
available to Roberts before his 2013 hearing, so he should have submitted them then. And
the 2015 opinion of Dr. Robert Marcellino is not relevant or material. Dr. Marcellino
merely opined, as other clinicians have, that Roberts now suffers from, or shows
symptoms of, PTSD and that it might have begun after his time in the Navy. This opinion
sheds no additional light on the key issue: whether Roberts had disabling limitations
before September 30, 1982. It likely would not change the outcome in the event of a
remand. See id.; Simila, 573 F.3d at 522.
We have considered Roberts’s other arguments and none has merit. Accordingly,
we AFFIRM the district court’s judgment upholding the denial of Roberts’s application
for Disability Insurance Benefits.