Allord v. Barnhart

• Decision Date: 04 August 2006
• Docket Number: No. 05-3773.,05-3773.
• Citation: 455 F.3d 818
• Parties: Gary ALLORD, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

455 F.3d 818

Gary ALLORD, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 05-3773.

United States Court of Appeals, Seventh Circuit.

Argued July 11, 2006.

Decided August 4, 2006.

Emily M. Feinstein, Quarles & Brady, Madison, WI, Walter Bruce Shirk (argued), for Plaintiff-Appellant.

Mary Thorson (argued), Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before BAUER, POSNER, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

Gary Allord is embarked on a quest, thus far unsuccessful, for social security disability benefits. He is a decorated Vietnam combat veteran conceded to be suffering from severe post-traumatic stress disorder, but because he lost social security coverage in 1992 he cannot obtain benefits unless he proves that his PTSD was disabling then, as it is now.

He was honorably discharged from the Marine Corps in 1987 and had difficulty adjusting to civilian life; he was also getting divorced. A woman who had known him since 1982, Melissa Chappell-White, observed his condition and suggested that he consult a psychologist whom she knew, Dr. Foster Hutchinson, and he did so; this was in 1987, shortly after his discharge. Dr. Hutchinson, in his notes of the consultation, described Allord as pleasant, controlled, and articulate, though sad, and diagnosed him as suffering from an "adjustment disorder with depressed mood" and "compulsive personality disorder" and recommended that he undergo weekly therapy; Allord declined. But in 1993 — four months after his social security coverage lapsed—he consulted a psychologist at a veterans' medical center, Aphrodite Matsakis. A specialist in PTSD, she diagnosed Allord's condition as severe and chronic PTSD. Again he declined treatment, this time until 1996. But between then and 1999 he received 200 hours of therapy from Dr. Matsakis.

In 1997, the Department of Veterans Affairs determined that Allord was 100 percent disabled by PTSD. Determinations of disability by other agencies do not bind the Social Security Administration, however, 20 C.F.R. § 416.904, and anyway the Department of Veterans Affairs requires less proof of disability than the Social Security Administration does. Compare Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir.2001), with Jones ex rel. Jones v. Chater, 101 F.3d 509, 512 (7th Cir.1996). We have said that SSA should give the VA's determination of disability "some weight." Davel v. Sullivan, 902 F.2d 559, 560-61 n. 1 (7th Cir.1990). The Ninth Circuit says "great weight," McCartey v. Massanari, 298 F.3d 1072, 1075-76 (9th Cir.2002), but this disregards the substantial difference between the criteria used in the two programs. The administrative law judge gave the VA's determination that Allord was disabled no weight because the determination had been made almost four years after Allord had lost coverage. The judge should have given the VA's determination some weight, in light of the evidence we discuss below that Allord's PTSD was of long standing.

At Allord's hearing before the administrative law judge, Dr. Matsakis opined that Allord had begun having symptoms of PTSD in the early 1970s, and that by 1987 (six years before his coverage expired) he was totally disabled from gainful employment. She described his condition as follows:

[I]f you run down the criteria for post traumatic stress, they are all there. The hyper alertness, the constant vigilance. The fact that he was startled and almost ready to assault an old lady who he cherished.... He's triggered by everything. The fact that he's dissociating, memory problems.... The fears he has about being with people. The anger, the distrust, the state of paranoia, the withdrawal. If he's successful at anything, at the teeniest hint, which he doesn't even dream of that, even if he was he would be frightened because of triggers, which we don't have time to go into which would take probably a year to explain. But basically anything that anyone does will set him off. Being in a closed room will set him off, being in open spaces. Noise sets him off. Silence sets him off. Kindness sets him off. Hostility sets him off and sends him off into either no man's land where he can't think or you see that angry look in his eye and he's doing everything to control it. If the scratches and bruises I've seen on him a couple times are evidence that he sometimes can't control himself.... The only work he does is staying alive, which is amazing that he's even here. No he can't do anything.

Another psychologist specializing in PTSD, also employed by the Department of Veterans Affairs, Jonathan Shay, seconded Matsakis's testimony on the basis of an evaluation of Allord that Dr. Shay conducted in 1997.

Chappell-White testified that she had observed Allord's mental deterioration during the 1980s; that he could not communicate, could not carry out instructions (he did some handyman work for her), and failed to show up for work on a regular basis. Her testimony was important because neither Dr. Matsakis nor Dr. Shay had observed Allord in the critical period, that is, before his coverage lapsed. Not that Chappell-White's testimony by itself established that Allord was totally disabled; but it supported the psychologists' belief that Allord's disabling PTSD was of long standing.

The administrative law judge disbelieved Chappell-White's testimony, however, and ordinarily a trier of fact's credibility finding is binding on an appellate tribunal. But not if the finding is based on errors of fact or logic. E.g., Hanaj v. Gonzales, 446 F.3d 694, 700 (7th Cir.2006); Georgis v. Ashcroft, 328 F.3d 962, 970 (7th Cir.2003); Cao He Lin v. U.S. Dept. of Justice, 428 F.3d 391, 403 (2d Cir.2005). The administrative law judge said that a lay witness's testimony about the mental illness of an acquaintance cannot be believed unless the witness acted on her observation, as by referring the acquaintance for a psychiatric examination. The premise is dubious, to say the least, but in any event Chappell-White did act on her observation—she referred Allord to Dr. Hutchinson. The administrative law judge also reasoned that if Chappell-White had thought Allord unable to work, she wouldn't have recommended him to people who needed the kind of work he did. But her unchallenged testimony was that she made no such recommendations....