Jeannine Tumminaro v. Michael Astru , 671 F.3d 629 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1846
JEANNIE A. T UMMINARO ,
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, Western Division.
No. 09 C 50116—Philip G. Reinhard, Judge.
A RGUED O CTOBER 4, 2011—D ECIDED N OVEMBER 1, 2011
Before C UDAHY, F LAUM, and T INDER, Circuit Judges.
P ER C URIAM. An Administrative Law Judge (“ALJ”)
found that Jeannine Tumminaro had been disabled by
chronic back pain but after four years showed “medical
improvement” and returned to full-time work. A period
of disability ends if the claimant shows medical improve-
ment or engages in substantial gainful activity, but
Tumminaro argues that the ALJ’s finding of medical
improvement is not supported by substantial evidence.
2 No. 11-1846
Tumminaro further argues that her renewed employment
(which appears to be ongoing) was not an independent
basis for declaring that her disability had ended because
the ALJ never evaluated whether that work constituted an
authorized (and encouraged) “trial work period” and
thus could not be labeled as substantial gainful activity.
We agree. Accordingly, we reverse the judgment and
remand with instructions that the case be returned to
the Social Security Administration for additional pro-
ceedings to address Tumminaro’s trial work period.
I.
Tumminaro underwent three back surgeries after she
was twice hit by cars in unrelated incidents. The first
time, in June 2002, she was struck by a coworker’s
pickup truck while working as a construction flagger.
She continued working the day she was hit but later
reported severe back pain. By January 2004, pain
medicine and physical therapy had not alleviated
Tumminaro’s pain, so she underwent a spinal fusion,
and doctors inserted a metal fusion cage in her lower
back. She sought treatment in September 2004 from
Dr. James Wilson, a pain specialist, who prescribed
four different pain medications. Tumminaro’s back pain
continued, however, and in January 2005 she had
another operation to remove the cage from her back.
She returned to her job as a flagger in April 2005, ap-
parently without complications with her back. But
that July, while en route to work, she was in a second car
accident, which required a third back surgery. A year
No. 11-1846 3
after this surgery, Dr. Wilson began treating Tumminaro’s
back pain with steroid injections. She reported to
Dr. Wilson that the injections provided her “40-50%
relief,” so he continued giving her these injections every
few months.
Tumminaro first applied for Disability Insurance
Benefits and Supplemental Security Income in Octo-
ber 2003, but information about that application is not in
the record. She applied for benefits again in March 2005
and asserted that she had been disabled since being
struck by the pickup in 2002. Her claim was denied, and
she did not seek reconsideration. Tumminaro applied
once more for benefits in September 2006, this time main-
taining that she had been disabled since January 2004.
After her initial claim and request for reconsideration
were denied, Tumminaro requested a hearing before
an ALJ.
In the meantime Dr. Wilson continued treating
Tumminaro’s chronic back pain with medicine and
steroid injections, which brought her “significant re-
lief” between 2007 and 2008. For example, she told
Dr. Wilson that an injection in April 2008 had provided
“80% relief.” During an appointment in July 2008, how-
ever, Tumminaro complained of constant, sharp back
pain that rated 9 in severity on a scale of 1 to 10. Dr. Wilson
noted that Tumminaro’s medication had improved her
“daily living activities,” refilled her prescriptions, and
asked her to return in a month. At that next visit, in
August 2008, Tumminaro again described her back
pain as “constant, sharp and stabbing,” but Dr. Wilson
4 No. 11-1846
simply continued the medication and prescribed home
exercises. When she returned in September for another
injection, she rated her pain as a 10 and reported no
improvement since her last visit. Dr. Wilson instructed
her to return in a couple weeks, continue “activity as
tolerated,” and perform stretching and strengthening
exercises.
The ALJ conducted a hearing in October 2008.
Tumminaro testified that she still experienced “major
back problems and hip problems” and was taking four
pain medications that occasionally made her tired. The
steroid injections, she acknowledged, helped “to some
extent,” but she insisted that her back pain had not im-
proved since her first surgery in 2004. Tumminaro none-
theless conceded that, although she previously had
needed help taking care of herself and her home, by 2006
she no longer needed assistance. She also had resumed
driving in 2006. And despite her chronic back pain she
had returned to work full time in February 2008, initially
as a forklift driver and then in a clerical position with
the same company. Tumminaro also worked about once
a week in her former position as a construction flagger
and was performing both jobs at the time of hearing.
Working made her back pain worse, she explained, but
she needed the money.
The ALJ concluded that Tumminaro’s chronic back
pain had rendered her disabled from January 2004 until
her return to full-time work in February 2008. The ALJ
asserted that Tumminaro had “testified to, and medical
records show, improvement and her returning to work.”
No. 11-1846 5
The ALJ did not mention the medical evidence or
Tumminaro’s testimony pertaining to the period after
February 2008 but apparently inferred from her return
to work that she had “experienced medical improve-
ment and is engaged in substantial gainful activity and,
therefore, no longer disabled.”
Tumminaro requested review by the Appeals Council.
She argued that the evidence does not support the
ALJ’s finding of medical improvement, and that the ALJ
should have viewed her return to work as a “trial work
period.” Claimants found to be disabled may test their
ability to resume working by accepting employment for
up to nine months without forfeiting their determination
of disability or their benefits. 20 C.F.R. § 404.1592(a).
Tumminaro contended that her award of benefits
should have been ongoing and not limited to a closed
period. The Appeals Council denied Tumminaro’s request
for review, and when she sought review in the district
court, see 42 U.S.C. § 405(g), the case was referred to a
magistrate judge. In moving for summary judgment,
Tumminaro reasserted the same contentions made to
the Appeals Council.
The magistrate judge reasoned, much like the ALJ,
that Tumminaro must have experienced medical im-
provement by February 2008 because she returned to full-
time work. And once Tumminaro demonstrated medical
improvement, the magistrate judge continued, her trial
work period became irrelevant. Thus the magistrate
judge issued a Report and Recommendation proposing
that the district court uphold the ALJ’s limited award.
6 No. 11-1846
The magistrate judge informed Tumminaro that she had
14 days to file objections to the report, but Tumminaro
did not do so. The district court adopted the magistrate
judge’s recommendation and upheld the ALJ’s award
of benefits for the closed period from January 2004 to
February 2008.
II.
Because the Appeals Council declined review, we
review the ALJ’s decision as the final decision of the
Commissioner. Getch v. Astrue, 539 F.3d 473, 480 (7th Cir.
2008). We confine our review to the rationale offered by
the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93-95
(1943); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010).
The parties agree that Tumminaro was disabled be-
tween January 2004 and February 2008. The issue here is
whether she was disabled for any period after that
point. Tumminaro maintains that the ALJ should have
considered her return to work in February 2008 as part
of a trial work period and argues that the ALJ’s finding
of medical improvement lacks evidentiary support.
The Commissioner first contends that Tumminaro
waived her right to challenge on appeal the issues ad-
dressed in the magistrate judge’s Report and Recom-
mendation because she did not file any objections.
We disagree. It is true that a party normally waives the
right to contest a magistrate judge’s conclusions, both
factual and legal, by not presenting an objection to the
district court. 28 U.S.C. § 636(b)(1)(B), (C); Estate of Sims
No. 11-1846 7
ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 516 (7th Cir.
2007); Snyder v. Nolen, 380 F.3d 279, 284 (7th Cir. 2004).
For waiver to apply, however, a magistrate judge must
inform the party about both the timeframe for filing
objections and that waiver will follow from inaction.
Ashkin v. Time Warner Cable Corp., 52 F.3d 140, 142 (7th
Cir. 1995); Provident Bank v. Manor Steel Corp., 882 F.2d
258, 261 (7th Cir. 1989). In this case the magistrate
judge explained that Tumminaro had 14 days to file
objections but did not warn her explicitly that any objec-
tion not made by that deadline would be waived. The
omission of that essential warning means that Tum-
minaro did not waive her right to challenge on appeal
the magistrate judge’s conclusions.
Tumminaro argues that the ALJ ignored her entitlement
to a trial work period when he limited the award
of benefits to the period before she resumed full-time
employment in February 2008. Before limiting benefits
to a closed period, an ALJ must conclude either that a
claimant experienced “medical improvement” as evi-
denced by changes in the symptoms, signs, or test
results associated with her impairments, or else that an
exception to this rule applies. See 20 C.F.R. § 404.1594(a),
(b)(1); Veino v. Barnhart, 312 F.3d 578, 586-87 (2d Cir.
2002); Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002);
Johnson v. Apfel, 191 F.3d 770, 773 (7th Cir. 1999). That
determination is informed by an eight-step evaluation
that begins with a principal exception to the need for
medical improvement: Has the claimant engaged in
substantial gainful activity after the completion of a trial
work period? 20 C.F.R. § 404.1594(f).
8 No. 11-1846
Individuals entitled to receive disability benefits are
entitled, absent certain disqualifying factors not present
here, to a trial work period. 20 C.F.R. § 404.1592(d)(1), (2);
see B ARBARA S AMUELS, S OCIAL S ECURITY D ISABILITY
C LAIMS § 29:11. Social Security regulations authorize
this trial period to encourage benefit recipients to
assess their ability to return to work without the implica-
tion that their disability has ended. SOCIAL S ECURITY
L AW AND P RACTICE § 44:123; SOCIAL S ECURITY AND
M EDICARE A NSWER B OOK 4:75. Work performed after a
claimant becomes entitled to benefits will be char-
acterized as part of a trial period until such time as the
claimant has tallied 9 months of “service” (whether
consecutive or not) over a 60-month period. 20 C.F.R.
§ 404.1592(e). During this “rolling” trial period, an ALJ
cannot consider the work being performed as evidence
that the claimant is no longer disabled but may rely on
other evidence to reach that conclusion. 20 C.F.R.
§ 404.1592(a), (e); see POMS DI 13010.035(D)(2). Once the
trial period is over, however, the ALJ may look back at
the work performed during that time in assessing
whether the disability ended at some point “after the trial
work period.” 20 C.F.R. § 404.1592(a) (emphasis added);
see Lingenfelter v. Astrue, 504 F.3d 1028, 1039 (9th Cir.
2007); Newton v. Chater, 92 F.3d 688, 692-93 (8th Cir. 1996).
Completion of nine months of service does not by itself
mark the end of a claimant’s disability. Rather, a
claimant’s disability ceases the first month she engages
in substantial gainful activity after the end of a trial
period. 20 C.F.R. § 404.1592a(a)(1). Disability benefits
continue, however, for that month and the two that
follow. 20 C.F.R. § 404.1592a(a)(2)(i).
No. 11-1846 9
Tumminaro’s trial work period began in January 2004,
when she became entitled to disability insurance bene-
fits. She should have been allowed nine months of “ser-
vice” without jeopardizing her entitlement to benefits.
The ALJ never mentioned the possibility of a trial
work period, however, and instead concluded that
Tumminaro’s entitlement to benefits ended in Feb-
ruary 2008 when she returned to work.
But as of February 2008 Tumminaro’s trial period could
not have ended. Work qualifies as “service” under a trial
period based on a claimant’s monthly earnings. 20 C.F.R.
§ 404.1594(b)(1)(ii). In 2005 through 2007, a claimant
had to earn monthly wages of at least $590, $620, and
$640 before work could constitute “service” countable
against a trial period. 20 C.F.R. § 404.1594(b)(1)(ii)(B).
Tumminaro did not provide a monthly breakdown of
her earnings for that time period, but we can readily see
from her annual earnings that she did not complete
nine months of service during that time. Tumminaro
earned $2,765 in 2005, $1,687 in 2006, and $622 in 2007. She
may have earned more than the qualifying wage during
her four-month return to work in 2005, but her annual
income in 2006 supports, at most, two months of service,
and her income in 2007 cannot count as even one month.
In February 2008, therefore, Tumminaro could have
completed a maximum of six months of service, so her
trial period had not ended. Thus, the ALJ improperly
considered her return to work as evidence that her dis-
ability had ended. See 20 C.F.R. § 404.1592(a); Lingenfelter,
504 F.3d at 1039; Newton, 92 F.3d at 692-93.
10 No. 11-1846
It is impossible to discern from the record exactly
when Tumminaro completed her ninth month of service.
She testified at the hearing in October 2008 that she had
been working continuously in the eight months since
February. It is thus possible that Tumminaro had ex-
hausted her trial period at some point before the
hearing, but without seeing her monthly wages for
2008 that conclusion cannot be fairly drawn. And if
Tumminaro continued to work after her trial period
ended (and thus she could be said to have resumed
substantial gainful activity), she still would be entitled
to benefits for the three months following her return
to work. 20 C.F.R. § 404.1592a(a)(2)(i). More informa-
tion and analysis was necessary before the ALJ could
properly decide if—and when—Tumminaro’s ability to
work rendered her no longer disabled, so a remand is
necessary.
The Commissioner asserts that even if Tumminaro’s
trial work period had not ended, a remand is unneces-
sary because substantial evidence supports the ALJ’s
conclusion that she had experienced medical improve-
ment by February 2008 and thus was no longer disabled.
An ALJ may rely on medical or other evidence during
a trial period to conclude that a disability ended. 20
C.F.R. § 404.1592(e)(3). But the ALJ in this case inferred
medical improvement solely from Tumminaro’s return to
work, not her medical records. The ALJ provided no
analysis of the medical evidence after February 2008 and
simply remarked that Tumminaro “testified to, and her
medical records show, improvement.” Tumminaro testi-
fied, however, that her back pain had not improved since
No. 11-1846 11
2004 and that her return to work had aggravated her
condition. The ALJ’s conclusory statement to the contrary
does not support a finding of medical improvement.
See Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008);
Dixon v. Barnhart, 324 F.3d 997, 1001-02 (8th Cir. 2003).
On remand the ALJ must address Tumminaro’s entitle-
ment to a trial work period. The ALJ should determine,
based on Tumminaro’s monthly wages, whether—and
when—she exhausted all nine months of her trial work
period. If she completed the trial period, the ALJ must
assess whether she is capable of substantial gainful
activity before terminating her benefits. If Tumminaro
regained that ability, she still is entitled to benefits
for three months after the end of her trial period. In
the alternative, the ALJ may terminate Tumminaro’s
benefits if he concludes, relying on evidence other than
Tumminaro’s work during her trial period, that she
experienced medical improvement.
We V ACATE the judgment of the district court and
R EMAND with instructions that the case be returned to
the Social Security Administration for additional pro-
ceedings consistent with this opinion.
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