Allord v. Astrue

• Decision Date: 13 January 2011
• Docket Number: No. 10–2006.,10–2006.
• Parties: Gary ALLORD, Plaintiff–Appellant,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

631 F.3d 411

163 Soc.Sec.Rep.Serv. 27

Gary ALLORD, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.

No. 10–2006.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 2010.Decided Jan. 13, 2011.

Walter B. Shirk, Attorney, Sheppard, Mullin, Richter & Hampton, LLP, Washington, DC, for Plaintiff–Appellant.Danielle A. Pedderson, Attorney (argued), Social Security Administration, Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant–Appellee.

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

Gary Allord applied for disability benefits from the Social Security Administration in 1996. His application has since languished in a cycle of administrative review and litigation. Prior to this appeal, it was considered by three Administrative Law Judges (ALJs), three federal district courts, and this court. After our initial remand of Allord's case to the Social Security Administration in 2006, a new ALJ determined that Allord was ineligible for disability benefits, and the agency adopted his determination as its final decision. Allord again sought relief in the district court, and the district court remanded the case for further proceedings. It found that aspects of the final decision did not comport with this court's earlier opinion, but that the record did not support a judicial award of benefits. Allord then appealed, asking this court instead to order the Commissioner to award him benefits. Because the record does not compel a finding that Allord was disabled as of the date he was last insured, we affirm.

I. Background

Allord currently suffers from severe post-traumatic stress disorder (PTSD). Allord retired as a field-grade officer from the United States Marine Corps (USMC) in 1987. As a junior officer, he served as a reconnaissance platoon leader and then as a company commander during consecutive tours of duty in Vietnam. During those tours, Allord endured gruesome and traumatic events that gave rise to the disability he now suffers.

Allord applied for disability insurance benefits from the Social Security Administration on October 1, 1996, claiming to have been disabled by PTSD since the date of his USMC retirement. The parties agree that his history of Social Security contributions made Allord last eligible for disability insurance benefits on December 31, 1992 (his “date last insured”). Accordingly, Allord had to show that he was disabled under the Social Security Act and its implementing regulations as of that date in order to begin receiving disability benefits.

A. Procedural History

Rather than detail the seemingly interminable procedural history of Allord's case, we will summarize the steps leading to this appeal. After a local disability agency denied his claim, Allord received a hearing before ALJ Christine Benagh, who denied his claim. Allord sought review in the United States District Court for the District of Columbia, and the Commissioner of the Social Security Administration stipulated to a remand for further proceedings, including the consideration of new medical evidence and expert testimony. ALJ Guy Arthur next considered and denied Allord's application. Allord again sought federal court review, and the District Court for the Western District of Wisconsin granted the Commissioner's motion for summary judgment. Allord appealed that judgment to this court in 2006. We reversed the judgment and remanded the case to the Social Security Administration for further proceedings consistent with our opinion. Allord v. Barnhart, 455 F.3d 818 (7th Cir.2006).

Allord's application was next considered by ALJ John Pleuss, who denied it once again. As in each previous iteration, the Social Security Administration's Appeals Council declined to review the ALJ's determination, thus making it the Social Security Administration's final decision. Allord again sought review in the Western District of Wisconsin, asking the court to reverse the administrative decision and order the Commissioner to award him disability benefits. On March 25, 2010—4,923 days after Allord initially applied for benefits—the district court remanded the case to the Social Security Administration, declining to instruct the Commissioner to calculate and award benefits based on the record before it. It is that judgment we consider in this appeal.

B. Most Recent Proceedings Below

In his 2008 decision, ALJ Pleuss acknowledged the infirmities that our 2006 opinion identified in ALJ Arthur's decision. He noted that ALJ Arthur had erred by improperly discrediting the testimony of Allord's acquaintance, Melissa Chappell–White. He also noted that the law did not require contemporaneous medical evidence for an award of benefits and that Chappell–White's testimony could nevertheless have supplemented the opinion of Dr. Aphrodite Matsakis, who treated Allord shortly after his date last insured. He also gave some weight to the finding of the Department of Veterans Affairs that Allord was wholly disabled as of 1996. ALJ Pleuss then adopted the findings and conclusions of ALJ Arthur's decision, though ostensibly only to the extent they were consistent with our 2006 opinion.

ALJ Pleuss found that Allord was severely impaired by depression and PTSD as of his date last insured, but that neither condition met or equaled impairments listed in Social Security Administration regulations such that Allord would qualify as disabled at that stage. So ALJ Pleuss proceeded to determine whether Allord was capable of performing past relevant work or other work for which jobs existed in significant numbers in Wisconsin. He described Allord's residual functional capacity and vocational factors as of his date last insured to a vocational expert, William Dingess. He then asked Dingess hypothetical questions incorporating Allord's work capacities. Dingess testified that such an individual would be able to perform several thousand jobs in the Wisconsin area, including working as a janitor, hand packer, assembler, or industrial inspector. ALJ Pleuss decided that a conclusion of “not disabled” was required under the law because Allord was capable of performing other work that existed in significant numbers in the regional and national economies as of his date last insured.

Allord appealed the decision under 42 U.S.C. § 405(g), and the district court reviewed the Social Security Administration's reasoning to determine whether substantial evidence supported the denial. The district court found two infirmities in the Social Security Administration's final decision. First, ALJ Pleuss had failed to follow this court's instructions on remand regarding the assessment of Chappell–White's credibility. Second, ALJ Pleuss failed to explain convincingly why he had discounted Dr. Matsakis's opinion and testimony while adopting the opinion of another physician, Dr. Allen Hauer, who had not treated Allord and who was not an expert in PTSD. These infirmities led the district court to reverse the administrative decision and remand the case for further proceedings. Although the district court recognized that “the case has been pending far too long,” it declined to enter a judgment instructing the Commissioner to calculate and award benefits to Allord. It noted that some factual issues needed resolution, such that the record did not exclusively support a finding of disability as of Allord's date last insured.

Allord timely appealed the district court's decision.

II. Analysis

Allord asks this court to reverse the district court's judgment (remanding the case to the Social Security Administration for further proceedings) and then remand this case to the Social Security Administration ourselves with an order to the Commissioner directing him to award Allord disability benefits. The Commissioner, in turn, does not dispute the propriety of the district court's remand order.¹ The Commissioner instead argues that a judicially ordered award of benefits would be inappropriate given the record in this case and that the district court's order should be affirmed. The only issue we consider, therefore, is whether the record compelled a finding that Allord was disabled at the time his insured status expired in December 1992.

Judicial review of Administration decisions under the Social Security Act is governed by 42 U.S.C. § 405(g). Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.2010). When, as here, an ALJ's decision constitutes the final action of the Social Security Administration, the reviewing district court examines the ALJ's decision to determine whether substantial evidence supports it and whether the ALJ applied the proper legal criteria. Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir.2005). Courts have the statutory power to affirm, reverse, or modify the Social Security Administration's decision, with or without remanding the case for further proceedings. 42 U.S.C. § 405(g). This power includes the courts' ability to remand with instructions for the Commissioner to calculate and award benefits to the applicant. See Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir.1993). An award of benefits is appropriate, however, only if all factual issues involved in the entitlement determination have been resolved and the resulting record supports only one conclusion—that the applicant qualifies for disability benefits. Briscoe, 425 F.3d at 355.

We ordinarily review the district court's judgment de novo, meaning we review the Administration's final decision denying Social Security benefits directly to determine if the decision was supported by substantial evidence. O'Connor–Spinner v. Astrue, 627 F.3d 614, 618–19 (7th Cir.2010). Both Allord and the Commissioner contend that this is the appropriate standard of review here. Yet the procedural posture of this case is atypical. Allord appeals the district court's decision not to order an award of benefits on remand.² This is neither a case...