Rohan v. Chater, 96-1803

• Decision Date: 22 October 1996
• Docket Number: No. 96-1803,96-1803
• Citation: 98 F.3d 966
• Parties: , Unempl.Ins.Rep. (CCH) P 15601B Donald ROHAN, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 966

98 F.3d 966

52 Soc.Sec.Rep.Ser. 3, Unempl.Ins.Rep. (CCH) P 15601B

Donald ROHAN, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellee.

No. 96-1803.

United States Court of Appeals Seventh Circuit.

Argued Sept. 10, 1996.

Decided Oct. 22, 1996.

Frederick J. Daley, Marcie E. Goldbloom, Eric Schnaufer (argued), Chicago, IL, for Plaintiff-Appellant.

Thomas P. Walsh, Office of the United States Attorney, Civil Division, Chicago, IL, Julie A. Flanagan (argued), Department of Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before CUMMINGS, FLAUM and EASTERBROOK, Circuit Judges.

CUMMINGS, Circuit Judge.

Plaintiff Donald Rohan sought judicial review of the defendant Commissioner's predecessor's finding that plaintiff was not entitled to disability insurance benefits under the Social Security Act (42 U.S.C. §§ 416(i), 423(d)). ¹ In January 1996, the district court granted the Commissioner's motion for summary judgment, resulting in this appeal.

In September 1990, plaintiff applied for disability insurance benefits on the ground that he had been disabled since June 30, 1989, because of a back condition. This application was ultimately denied in April 1991. Plaintiff reapplied for disability insurance benefits in August 1992, claiming depression and again a back condition. This application was also ultimately denied, and plaintiff requested an administrative hearing.

In February 1994, plaintiff testified at a hearing before Administrative Law Judge James A. Horn. His wife also testified. In June 1994, the ALJ reopened the agency's denial of plaintiff's original application. He decided that plaintiff was not entitled to a period of disability or disability insurance benefits under the Social Security Act. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. As a result, in January 1995 plaintiff brought this suit seeking review of the adverse decision of the Commissioner. We reverse and remand.

Facts

When the ALJ issued his decision, plaintiff was 46 years old. He had a high school education and some vocational training and worked as a carpenter until he injured his back at work in June 1989. He had previously worked as a maintenance man.

As to his physical condition, a month after plaintiff injured his back, magnetic resonance imaging revealed a large herniated disk, a left extra foraminal disk protrusion and degeneration. In December 1989, Dr. Scott Mox, his treating physician, reported that Rohan's back condition had not improved significantly, so that he could not return to work as a carpenter and might need surgery.

In January 1990, Dr. Thomas McNeill examined plaintiff and found that his straight leg raising test was positive on the right, he had difficulty dressing and had a herniated disk. Work hardening was recommended. Subsequently, plaintiff enrolled in a work hardening program and was considered capable of exertionally light work although his back was termed mechanically unsound.

In September 1992, Dr. Samuel Goldman examined plaintiff and found that his ability to bend his back was significantly restricted and that his low back pain was secondary to a herniated disk.

As to his mental condition, plaintiff visited psychiatrist Dr. Michael Shapiro in March 1992 and complained of depression due to his back injuries. Plaintiff said that therefore he could not find a job and could neither stand nor sit very long. He also complained of sleep problems and dreams about Viet Nam. Dr. Shapiro diagnosed a major depressive disorder and ordered objective tests. In April 1992, Dr. Shapiro prescribed Prozac for plaintiff's depression. Dr. Shapiro's monthly notes recorded plaintiff's anger, difficulties relating to others including his wife In September 1992, Dr. Shapiro reported that plaintiff's daily activities were very limited, he had a constricted field of interest, was withdrawn and was more irritable with his wife. However, the psychiatrist stated that plaintiff's anti-depressant therapy resulted in mild improvement but that still he had a major depressive disorder.

physical complaints, sleep disturbance and financial concerns but noted that he was engaging in the repair and sale of lawn mowers.

In December 1992, Dr. Shapiro completed a Psychiatric Review Technique Form revealing that plaintiff had signs of depression, anxiety and personality disorder. This form also reported that plaintiff's daily activities and social functioning were markedly restricted and that he had deficiency in concentration, persistence or pace, with repeated episodes of deterioration or decompensation at work or in a work-related setting. On the Mental Residual Functional Capacity Evaluation, the doctor indicated that plaintiff's abilities to meet various cognitive, psychological and social demands of work were moderately to markedly restricted, that he could not handle pressure, and that he becomes angry and explosive.

In April 1993, Dr. Shapiro wrote a letter to a Palatine, Illinois, law firm stating that plaintiff's condition was debilitating and limiting and that his inability to function, chronic pain and lack of alternative life style contributed to his depressed state. He concluded that plaintiff was totally disabled by a combination of his physical and psychiatric condition. In January 1994, he reported to the Illinois Department of Public Aid that plaintiff could not function without his wife's assistance, had thoughts of suicide and had a major depressive disorder. He also characterized plaintiff's condition as "severe."

At his hearing before the ALJ, plaintiff testified that he was very depressed because of his inability to work caused by his back condition. He added that pain and depression made it difficult for him to remember and concentrate and that he was easily upset. He disposed of his guns because his wife was concerned that he might kill himself. He added that he was frequently aggravated and had difficulty concentrating and did not go to a Veterans Administration hospital because he did not think he would be treated there. He said his sessions with Dr. Shapiro were paid for by Public Aid. His wife testified that he was irritable and very depressed with mood swings and difficulty in concentrating, sleeping and relating to others.

Administrative Law Judge's decision

As noted, in June 1994 the ALJ rendered a decision adverse to plaintiff. The ALJ noted plaintiff's physical disabilities but decided they were not of listing level. He also found that plaintiff's mental impairment was not of listing level of severity because his complaints only centered "around family and financial concerns." He concluded that plaintiff could perform light work and retained "the mental ability to understand, remember, and carry out simple instructions, to respond appropriately to supervision and co-workers and to tolerate routine work pressures in a work setting."

The ALJ placed significance on plaintiff's lack of treatment for his impairments since he was allegedly disabled in June 1989. He noted that Mr. Rohan never had any in-patient treatment and no physical therapy since September 1989. He refused to believe plaintiff's testimony about his physical condition because he had no treatment for it since December 1989, although he could afford medical treatment through an $85,000 workmen's compensation claim settlement. The ALJ also stated that in July 1990, plaintiff was capable of work at the light exertional level and that one of his doctors reported that he was able to perform light work in March 1991. Further, the ALJ interpreted reports from 1989 and 1990 by Doctors Mox and McNeill as only precluding plaintiff from working "at strenuous activity or doing heavy work," causing the ALJ to conclude that Rohan could perform light work. ²

The ALJ devoted most of his opinion to Mr. Rohan's alleged mental impairment and concluded that it did not preclude unskilled work activity. The ALJ observed that plaintiff's treating psychiatrist, Dr. Michael Shapiro, found that Mr. Rohan had some depression "largely caused by family and financial concerns." The ALJ added that "given the situational aspect of the claimant's depression," he was unconvinced that it was "of such severity that it would prevent the performance of the mental features of unskilled work." Further, the ALJ's report stated that Dr. Shapiro "never did a mental status examination on the claimant; he simply reported the claimant's alleged symptoms." The ALJ also noted that Dr. Shapiro's notes revealed that in 1992 and 1993 the plaintiff was engaging in an ongoing business "buying lawn mowers, snowmobiles, tractors, and motorcycles, repairing those objects and then selling them."

In refusing to believe that plaintiff's activities were markedly restricted, the ALJ cited plaintiff's ongoing lawn mower repair and sales business in 1992 and 1993. The ALJ also discounted any disabling pain of plaintiff since he did not take any prescription medication until the eve of the hearing despite his complaints of disabling pain. The ALJ also concluded that Mrs. Rohan's testimony was inconsistent with the record and therefore entitled to little weight. In sum, he found that plaintiff was not disabled.

The ALJ added that he disregarded Dr. Shapiro's opinions on the ground that only the Commissioner can determine the issue of whether a claimant is legally disabled and entitled to benefits. He added that Dr. Shapiro's opinions were "unreasoned and undocumented" and "based only upon subjectively reported symptoms."

The ALJ concluded his opinion with the following findings:

1. The claimant has not attained retirement age.

2. The claimant satisfied the disability insured status requirements of the Social Security Act on June 30, 1989, and he continues to satisfy those requirements at least through the date of this...