Fisher v. Bowen, 88-1941

• Decision Date: 24 February 1989
• Docket Number: No. 88-1941,88-1941
• Citation: 869 F.2d 1055
• Parties: , Unempl.Ins.Rep. CCH 14583A Robert FISHER, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1055

869 F.2d 1055

25 Soc.Sec.Rep.Ser. 104, Unempl.Ins.Rep. CCH 14583A

Robert FISHER, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services Defendant-Appellee.

No. 88-1941.

United States Court of Appeals Seventh Circuit.

Argued Jan. 24, 1989.

Decided Feb. 24, 1989.

Daniel Galatzer, Chicago, Ill., for plaintiff-appellant.

Donna L. Calvert, Asst. Reg. Counsel, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before POSNER, FLAUM, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The Social Security Administration denied Robert Fisher's application for disability benefits and the district court upheld the denial. A person whose IQ is between 60 and 69 is deemed to be totally disabled, regardless of his ability to do whatever work he has done in the past, if in addition to the low IQ he has "a physical or other mental [other than the low IQ, that is] impairment imposing additional and significant work-related limitation of function." 29 C.F.R. pt. 404, subpt. P, app. 1, Sec. 12.05(c); cf. Nelson v. Bowen, 855 F.2d 503, 504 n. 2 (7th Cir.1988). Fisher's IQ has been found to be 62; the dispute is over whether he has another impairment--either alcoholism or psychosis--which imposes an "additional and significant work-related limitation of function." The administrative law judge thought not, and went on to ask whether Fisher retains the capacity to perform his last job, which was as a janitor, and concluded that he did. This conclusion is not contested, so Fisher must persuade us that the finding that he does not have another impairment which imposes an "additional and significant work-related limitation of function" is unsupported.

Robert Fisher was 30 at the time of his hearing before the administrative law judge. He was the eighth of eleven siblings, only six of whom are still living; two were murdered. One of his siblings is in prison for attempted murder. At the age of nine Fisher saw a person killed. Fisher's father picked on Fisher, and it was Fisher who years later discovered his father's body when the father died. Not surprisingly in view of his low IQ, Fisher was a slow student, although he did not drop out of high school until the eleventh grade. He married at the age of 17, but the marriage soon broke up, although not before he had a son, who visits him occasionally. Fisher has not worked since being fired from his janitorial job more than a decade ago for having alcohol on his breath. He lives with his mother, and helps her a bit about the house, but for the most part lives an idle and, by his own admission, an aimless life. He has no car, and socializes little. Although he has a girl friend he sees her only intermittently. He watches television (but not the news, because it makes him sad), listens to popular music, and reads comic books, as well as the newspaper comics and horoscope. He sleeps a great deal. He does some panhandling, and some shoplifting for which he is occasionally arrested. But he has never been in serious criminal trouble and he is polite, clean, well-dressed--even (at least at his interviews with the psychologists in the case) stylish. He drinks beer almost every day--about a quart but sometimes as much as 48 ounces (one and a half quarts). He testified that drinking 48 ounces does not make him drunk, although occasionally he is high. He used to drink cheap wine by the quart--enough to make him sick, which drove him to spend several days at a detoxification center. But by the time of the hearing, his drinking was, by his own testimony, under control. A psychologist who examined Fisher in 1984, two years before the hearing, said in his report, "He appears to live to drink," but it appears that Fisher's drinking problem was much less serious at the time of his disability hearing (1986) than it had been two years earlier. Neither of the other psychological reports submitted at the hearing indicates a current drinking problem, and the administrative law judge was entitled to conclude that the problem, if any, did not impose an additional significant limitation on Fisher's ability to work.

Dr. Snyder, a clinical psychologist retained by Fisher in connection with the application for disability benefits, opined that "Fisher does display quite severe and significant pathology at the present time. He displays psychotic thought replete with hallucinatory, delusional and major affective symptoms as well as a heightened state of anxiety." This conclusion is based on the following passage in Snyder's report. "When asked about any hallucinatory or delusional phenomenon he states he sometimes hears a voice call his name ... [and ask] 'What is you doing?' He claims there is a strange voice in my ear over and over. When asked how does it make you feel he states 'like in hell, like I'm paying for something someone else done, like haunted, like I'm not supposed to live to be this age.' When asked if he had ever seen something that may not have been there he stated that once on the way home from a movie he had talked to someone, turned away briefly and turned back to find out that he had disappeared.... When asked about feelings of persecution, he states that with some people they figure I know something I don't really, I feel strange around them so I leave. He claims to have felt this way since he was little, 'like a force always messing with me.' He states that he has always had problems and once ran down the street in his pajamas."

The Social Security Administration retained a psychiatrist, Dr. Ang, to advise it on Fisher's mental state. Her evaluation differed from Dr. Snyder's. Ang said Fisher "denies any history of perceptual disturbances or disturbances in content or form of thought.... His general attitude toward the examination was cordial and polite. He fell asleep a couple of times. His affect reflected no anxiety, sadness or flatness." His...