Jamie Adaire v. Carolyn Colvin , 778 F.3d 685 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1116
JAMIE L. ADAIRE,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:11-cv-03149-SEM-BGC — Sue E. Myerscough, Judge.
____________________
SUBMITTED JANUARY 20, 2015 — DECIDED FEBRUARY 18, 2015
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. This is an appeal by an applicant
for social security disability benefits. The district court up-
held the Social Security Administration’s denial of the bene-
fits sought.
When the applicant was 15 years old, rods (called “Har-
rington rods”) were inserted into his spine to correct a
2 No. 14-1116
57-degree curvature of the spine caused by scoliosis. Any
curvature greater than 50 degrees is considered severe. The
rods were partially effective. Although they greatly reduced
the curvature of his spine (to 15 degrees), he developed—
whether despite or because of the rods—chronic back pains.
He turned out also to have cognitive difficulties, though they
would not have been related to his scoliosis.
At age 20 he was determined to be eligible for social se-
curity disability benefits, but shortly afterward he obtained a
job at a nonprofit organization called SPARC, Inc., which
serves people with intellectual and developmental disabili-
ties. He drove clients of the organization to and from ap-
pointments, helped them with cooking and cleaning, and
performed clerical tasks. On the basis of this employment
the Social Security Administration determined in 1999 (when
the applicant was 32) that he was not disabled—indeed had
not been disabled for the past eight years. The Social Securi-
ty Administration tried to recover the $65,000 that it had
paid him in benefits for those years; their attempt led him to
declare bankruptcy.
Three years after he was found not to be disabled,
SPARC fired him because he couldn’t keep up with the de-
mands of the job, and two years after that he reapplied for
social security disability benefits. Several physicians and
mental-health professionals examined him and diagnosed a
variety of ailments: chronic back pain; cubital tunnel syn-
drome (also known as ulnar neuropathy) caused by in-
creased pressure on the ulnar nerve, which passes close to
the skin’s surface near the elbow (the pressure causes severe
pain); further pain caused by corrective surgery on the af-
flicted elbow; a somatoform disorder (a mental condition
No. 14-1116 3
that causes pain that has no known physical cause); plus de-
pression, anxiety, panic attacks, agoraphobia, low intelli-
gence, dizziness, migraine headaches, and deficient short-
term memory. The applicant and his father testified to addi-
tional medical and psychiatric problems that afflict the ap-
plicant, such as sleeplessness, loss of balance, blurred vision,
and abdominal pain.
Nevertheless the administrative law judge (Barbara J.
Welsch) concluded that the applicant was capable of doing
unskilled light work of a routine and repetitive character
and therefore was not disabled. She based this surprising
conclusion—surprising in light of the array of medical prob-
lems that we just enumerated—in part on written statements
by one physician that the applicant had exhibited “near
normal function when observed after he left our office” and
by another that during the examination the applicant was
seen to be able to move around “with ease and had a normal
gait” and that he might be “having an exaggerated pain re-
sponse.” The administrative law judge discounted the opin-
ions of both a physician and a therapist that the applicant
suffers from panic attacks, because they had based these
opinions on the applicant’s say so; they had not “witnessed
[his] panic attacks.” She discounted another physician’s
opinions because “they are not supported by medical find-
ings but appear to depend almost exclusively on the claim-
ant’s subjective statements and subjective presentation ra-
ther than on objective medi[c]al findings” and also because
the physician was “apparently sympathetic” to the appli-
cant. And finally she reasoned that if the applicant’s account
of his ailments were true he “would be seeking treatment for
his extreme symptoms” and also would not have been “able
4 No. 14-1116
to take care of his children.” (His girlfriend, the children’s
mother, works; he stays home.)
The administrative law judge’s opinion is riddled with
errors. Indeed, no criticism that she made of the evidence
presented by the applicant and the numerous professionals
who had evaluated him was supported by the record. Her
principal error, which alone would compel reversal, was the
recurrent error made by the Social Security Administration’s
administrative law judges, and noted in many of our cases,
of discounting pain testimony that can’t be attributed to “ob-
jective” injuries or illnesses—the kind of injuries and illness-
es revealed by x-rays. See Pierce v. Colvin, 739 F.3d 1046,
1049–50 (7th Cir. 2014); Myles v. Astrue, 582 F.3d 672, 676–77
(7th Cir. 2009); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.
2006); Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
The Administration’s own regulation states that “an indi-
vidual’s statements about the intensity and persistence of
pain or other symptoms or about the effect the symptoms
have on his or her ability to work may not be disregarded
solely because they are not substantiated by objective medi-
cal evidence.” SSR 96–7p(4).
Not realizing that pain can be real and intense yet its
cause not be discernible by medical tests or examinations,
the administrative law judge repeatedly intoned the distinc-
tion between “subjective” and “objective” evidence of pain,
the former being testimony of the applicant. What makes the
error in this case well-nigh incomprehensible is that there
was “objective” evidence of pain—plenty of objective evi-
dence: the damaged ulnar nerve, loss of forearm muscle, and
the pain caused by the corrective elbow surgery, all on his
right arm (and all the result of his cubital tunnel syndrome),
No. 14-1116 5
and the severe back pains caused by his scoliosis and quite
possibly by the Harrington rods as well, which are no longer
an approved method of treating scoliosis because they can
cause a painful back condition—which could be the source
of Adaire’s back pains—called “flatback syndrome.” Virgin-
ia Spine Institute, “Flat Back Syndrome,” www.spinemd.
com/symptoms-conditions/flat-back-syndrome (visited Feb.
15, 2015). After Adaire’s elbow surgery, the surgeon who
had performed it wrote that
the diagnosis of severe cubital tunnel syndrome was
confirmed. The segment of the right ulnar nerve con-
tained beneath the space between the medial condyle
and the olecranon of the right elbow, was very com-
pressed, thin. This was crossed by very fibrous, thick,
hard fascia covering the groove of the ulnar nerve at
the elbow. The segment of the ulnar nerve that was
markedly compressed measured approximately 1 1/2
inch in length. Proximal to the cubital tunnel, the
right ulnar nerve was slightly enlarged, was thicker
than normal due to chronic edema and fibrosis … .
No surprise that Adaire has severe pain in his right arm.
As for the administrative law judge’s other findings ad-
verse to the applicant:
She said: “The claimant did not present himself with
such extreme limitations when he did not know he was be-
ing observed. … [A doctor] noted ‘near normal function
when observed after he left our office.’” The doctor’s report
does not state that the applicant didn’t know he was being
observed. And the quotation from the report is very puz-
zling. Are we to assume that the doctor or one of his staff
6 No. 14-1116
followed the applicant out of the office in order to conduct
as it were a supplemental examination? That doesn’t seem
remotely plausible. Anyway, far from suggesting that
Adaire was faking his pain this doctor diagnosed him as suf-
fering from cervical stenosis (a narrowing of the spinal canal
that pinches the spinal cord) or a herniated disc, either being
a likely cause of pain.
The administrative law judge said that Adaire was seen
to be able to move around “with ease and had a normal
gait.” In other words, he does not limp. She didn’t explain
why, if the applicant’s evidence of pain were truthful, it
would imply that he limps.
She thought that the doctor who reported that Adair
might be “having an exaggerated pain response” was accus-
ing him of malingering. Not so. The quoted expression is
medical jargon for a patient’s experiencing more pain than
his purely physical problems (spine and right arm and hand,
in Adaire’s case) would be expected to cause.
She remarked that a psychologist and a therapist who
testified that the applicant suffers from panic attacks had not
“witnessed [his] panic attacks.” That was no basis for disbe-
lieving that he experiences panic attacks. He said he did, the
psychologist and the therapist believed him, and the admin-
istrative law judge had no basis for disbelieving them. The
logic of her remark is that nothing an applicant says should
be believed; disability determinations should be based en-
tirely on the results of medical tests. Such a rule would flout
the Social Security Administration’s regulation that we
quoted earlier.
No. 14-1116 7
One examining physician’s opinions were to be disbe-
lieved, the administrative law judge wrote, because “they
are not supported by medical findings but appear to depend
almost exclusively on the claimant’s subjective statements
and subjective presentation rather than on objective
medi[c]al findings” and also because this physician was
“apparently sympathetic” to the applicant. The first quoted
passage repeats the fundamental error that “subjective”
statements are to be given zero weight and the second pas-
sage is radically incomplete, since the administrative law
judge neither explained why she thought the physician was
“apparently sympathetic” nor why she thought that, if so, he
must have given false evidence.
She said that if Adaire’s account of his ailments were
true, he “would be seeking treatment for his extreme symp-
toms” and would not have been “able to take care of his
children.” In fact he sought and received treatment almost
continuously and testified without contradiction that he is
incapable of taking more than limited, occasional care of his
children. He lives with his father, who apparently does most
of the child care during the day while the applicant’s girl-
friend is at work.
The judgment of the district court is reversed and the
case remanded with directions to vacate the decision of the
Social Security Administration and remand the matter to the
Administration.
REVERSED AND REMANDED, WITH DIRECTIONS.