Gentle v. Barnhart

• Decision Date: 07 December 2005
• Docket Number: No. 05-1089.,05-1089.
• Citation: Gentle v. Barnhart, 430 F.3d 865 (7th Cir. 2005)
• Parties: Nicole GENTLE, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.3d 865

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

No. 05-1089.

United States Court of Appeals, Seventh Circuit.

Argued October 18, 2005.

Decided December 7, 2005.

Barry A. Schultz (argued), Evanston, IL, for Plaintiff-Appellant.

Kristin N. Wuerffel (argued), Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before POSNER, KANNE, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The administrative law judge denied Nicole Gentle's application for social security disability benefits on the ground that although she has a severe impairment, she is capable of doing her former work, as a supermarket delicatessen worker and school lunchroom attendant, which she left in 2001 when she became pregnant with her second child. That child was 11 months old at the time of the hearing, and Gentle, who is not married, takes care of the child at home; her other child, a four year old, is at preschool. Her severe impairment is pain, which makes it difficult for her to stand, walk, sit, or lift her 25-pound 11-month old. The cause of the pain is spinal disk disease. She also has rather serious allergies and is a "slow learner" with difficulty concentrating. The administrative law judge asked a vocational expert who had reviewed Gentle's file and listened to her testimony to assume that she was unable to lift more than 10 pounds frequently or 20 pounds occasionally, to perform "postural movements" such as bending and turning, more than occasionally, to concentrate on complex tasks, or to work in the presence of pulmonary irritants and extremes of temperature or humidity. The vocational expert opined that a person with these disabilities could nevertheless perform Gentle's former work as a delicatessen worker or lunchroom attendant, though she acknowledged that someone who missed work a couple of days every month or had to rest two hours during every workday would not be capable of doing Gentle's former work, or indeed capable of any full-time gainful employment.

The administrative law judge's analysis of the evidence was deficient. To begin with, in supposing Gentle capable of full-time work in a job that is not sedentary but requires standing much or most of the time, he attached great significance to the fact that "she is able to care for her personal needs and those of her two small children," "is able to perform all the activities of daily living necessary to feed, shelter and clothe herself and her children," and is not prevented by her condition "from performing an extensive range of daily activities including taking care of two small children, cooking, cleaning, and shopping." Uncontested evidence not mentioned by the administrative law judge reveals that she performs these chores with difficulty, and with the aid of her sister, a neighbor, and another woman.

The administrative law judge's casual equating of household work to work in the labor market cannot stand. Gentle must take care of her children, or else abandon them to foster care or perhaps her sister, and the choice may impel her to heroic efforts. A person can be totally disabled for purposes of entitlement to social security benefits even if, because of an indulgent employer or circumstances of desperation, he is in fact working. Henderson v. Barnhart, 349 F.3d 434, 435 (7th Cir.2003); Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir.1998); Weigel v. Target Stores, 122 F.3d 461, 467 (7th Cir.1997); Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.1998).

Granted, there is tension between these cases and a regulation (which the cases do not discuss) that states that "if you are working and the work you are doing is substantial gainful activity, we will find that you are not disabled regardless of your medical condition or your age, education, and work experience." 20 C.F.R. §§ 404.1520(i)(5), 416.920(i)(5). The regulation is not strictly applicable here, because Gentle is no longer working; her work in the household is not "substantial gainful activity" within the meaning of the regulation, in which "working" signifies holding a job in the labor market. But the regulation implies that someone engaged in "substantial gainful activity," regardless of circumstances, is not disabled. In the case of the indulgent employer, the work may not be "substantial gainful activity"; but in the case of the desperate employee, it would be. The regulation may simply reflect a commonsense presumption that to work implies a capacity to continue working, and the presumption fails if the applicant is no longer working.

A more important point is that taking care of an infant, although demanding, has a degree of flexibility that work in the workplace does not. You can park the infant in a playpen for much of the day and anyway it will sleep much of the day (on average about 2 to 4 hours, Elizabeth Pantley, "Regular Naps Improve Nighttime Sleep," Pediatrics for Parents, Feb. 2004, http://findarticles. com/p/art...