Two Seventh Circuit Court of Appeals cases of note:
In Hughes v. Astrue, (7th Cir. 2013) the Seventh Circuit Appellate Court found that an ALJ was wrong to deny benefits to the 57 year old woman suffering from a frozen shoulder and chronic obstructive pulmonary disease. The claimant last work was as a hotel night clerk.
The court found that the ALJ made several glaring errors:
• ALJ ignored the findings of an examining physician, stating that the doctor’s report was not consistent with the medical evidence. However, the ALJ did not explain what evidence medical was inconsistent with the doctor’s report;
• ALJ incorrectly assumed that an uninsured and impoverished claimant who cold not afford medical care could get free get medical care at hospital emergency room;
• The ALJ found she could return to her work as a hotel clerk, but ignored that part of her duties involved lifting a 20 pound coffee urn although the evidence showed she cold only lift ten pounds;
• The ALJ held it against her that she did chores but failed to understand that household chores do not equate to employment activities. Employment requires a minimum standard of performance overseen by the employer, as opposed to chores that can be done slowly over a longer period of time or with the help of friends or family; and
• The ALJ ignored her testimony that she quit smoking 30 years before the hearing.
The court noted that”[r]eally, the Social Security Administration and the Justice Department should have been able to do better than they did in this case,” and remanded the case back for a new hearing.
In Kastner v. Astrue, (7th Cir. 2012), the Seventh Circuit Appellate Court, the claimant was a 48 year old former truck driver who suffered from back pain. He had surgery in 2006 to remove a severely herniated disc in his cervical spine. After the surgery he had numbness in his left arm and he could not raise it. He also had chronic nerve damage in his left shoulder confirmed by an EMG test. He had low back pain as well, and numbness and weakness in his legs. He had a second surgery and after a brief pain-free period, his nerve pain returned.
The ALJ found that the claimant did not meet the Listing of Impairments for disorders of the spine, and denied him benefits because the ALJ found he could do sedentary work.
The Seventh Circuit found that the ALJ did not provide adequate reasons in her decision to support her conclusion that the clamant did not meet the Listing. Further, the ALJ ignored medical evidence from his treating doctors that supported the claimant’s claim. The court remanded the case back for a new hearing.
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A case decided July 24, 2015 by the Seventh Circuit Court of Appeals noted the important distinction between “substantial gainful employment,” meaning competitive work and work around the home. In Price v. Colvin, the court noted that “it’s easier … to work in one’s own home, at one’s own pace, at one’s own choice of tasks, than to work by the clock under supervision in a place of business.” No. 15-1444, page 8. The ALJ was incorrect to infer that because the claimant could “perform simple household chores, such as cooking food in a microwave oven and mowing the lawn, that he could be gainfully employed. Page 7-8. The court remanded the case for a new hearing.
In a different case also decided on July 24, 2015, the Seventh Circuit Court noted that the hypothetical question posed to the vocation expert was flawed. Vocational experts (VEs) are used by administrative law judges at hearing to determine if there are jobs that exist in the economy that a claimant could perform. The ALJ posed a question that did not include the claimant’s “moderate limitations in concentration, persistence and pace” and thus committed an error that required reversible and remand. Varga v. Colvin, 14-2122 at page 9.
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January 28, 2017
A change in the way Disability judges address treating physician opinions was published on January 27, 2017 and become effective on March 27, 2017. On all claims filed on or after March 27, 2017, the ALJs are not required to give treating physician opinions controlling weight. This ruling rescinded SSR 96-2p, which required ALJs to give controlling weight to a treating physician’s opinion if supported by medically acceptable clinical and diagnostic techniques, so long as the opinion was consistent with other substantial evidence in the record. 82 Fed. Reg. 15263 (Jan. 27, 2017)
On January 18, 2017, Final Rules on Evaluation of Medical Evidence was published, which stated that no special weight will be given to treating physician opinions; all opinions will be treated equally and will be evaluated for based on consistency and support in the record. In addition, Physician Assistants (PAs) and Advance Practical Nurses (APNs) were added to the list of Acceptable Medical Sources. Chiropractors and other nurses (LCSW and RNs) are not acceptable. 82 Fed. Reg 5844 (Jan. 18, 2017).