Keller v. Sullivan, No. 89-2359

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY and EASTERBROOK, Circuit Judges, and FAIRCHILD; FAIRCHILD
Citation928 F.2d 227
Parties, Unempl.Ins.Rep. CCH 15966A Shirley KELLER, Special Administrator of the Estate of Gilbert W. Keller, deceased, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
Decision Date26 March 1991
Docket NumberNo. 89-2359

Page 227

928 F.2d 227
32 Soc.Sec.Rep.Ser. 605, Unempl.Ins.Rep. CCH 15966A
Shirley KELLER, Special Administrator of the Estate of
Gilbert W. Keller, deceased, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, M.D., Secretary of Health and Human
Services, Defendant-Appellee.
No. 89-2359.
United States Court of Appeals,
Seventh Circuit.
Argued June 8, 1990.
Decided March 26, 1991.

Page 228

Daniel E. Goldberg, Hope K. Olson, Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, Milwaukee, Wis., for plaintiff-appellant.

Stephen J. Liccione, Asst. U.S. Atty., Milwaukee, Wis., Michael C. Messer, Dept. of Health and Human Services, Chicago, Ill., for defendant-appellee.

Before CUDAHY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Gilbert Keller applied for social security disability benefits. After a hearing, the ALJ found him disabled, although he reserved for later investigation a suggestion that Keller might actually be engaging in substantial gainful activity. The Appeals Council remanded and directed the ALJ to obtain certain investigative reports and to resolve all issues. The ALJ obtained the material referred to, supplying copies to Keller's counsel for comment, but did not hold a second hearing, deeming the hearing waived. He found that Mr. Keller had been working as a bartender and operator of a tavern and was not disabled. The Appeals Council denied review, and the district court affirmed. Mr. Keller died before the notice of appeal was filed, and his surviving spouse, Shirley Keller, who was appointed as special administrator of his estate, was substituted as the plaintiff-appellant in this case. Mrs. Keller appealed.

The issues are (1) whether the investigative reports constitute substantial evidence supporting the ALJ's finding of substantial gainful activity and (2) whether Mr. Keller's counsel waived a second hearing.

BACKGROUND

Mr. Keller suffered a right hamstring injury on June 12, 1984, when he was sixty years old. He returned to work on August 15, 1984, but reinjured his leg on October 1, 1984, and never returned to his job. Mr. Keller had been a grocery warehouse laborer for twenty-two years prior to his injury.

On September 6, 1985, Mr. Keller filed his application for disability benefits. At the hearing, on March 24, 1986, Mr. and Mrs. Keller and a vocational expert testified. Reports from two doctors were included in the record considered by the ALJ. In January, 1985, Dr. Stewart examined Mr. Keller in connection with his worker's compensation claim. Dr. Stewart concluded that although Mr. Keller's injuries may have aggravated his pre-existing arthritis, he had recovered sufficiently to return to work immediately. Dr. Shovers was Mr. Keller's treating physician and treated him for his injury from June, 1984, to August, 1985. Dr. Shovers frequently noted that Mr. Keller was not yet able to return to work and in his final report said that Mr. Keller's condition had plateaued and that his arthritis had worsened significantly as a result of his injuries at work. The ALJ relied on Dr. Shovers' reports in making his

Page 229

initial determination that Mr. Keller was disabled.

Dr. Shovers' report also contains a notation from July 18, 1985, that his analysis might have differed if investigative reports which had been called to his attention were true:

Telephone call from GAB Insurance. They have had a private investigator watching him since March who reports that he works well in his tavern and he does not limp. He has been followed to the clinic and limps when he comes in and when he goes out and then stops limping. Discussed the situation with the adjustor and I would have to say, if this is true and he has been exaggerating his symptoms in front of me, that he plateaued at least in April of 1985 and is presently subject only to the underlying arthritis in his knee which does not require treatment at this time.

Administrative Record at 111. This notation was the only reference before the ALJ to Mr. Keller's work at the tavern. On the basis of this notation, the ALJ asked Mr. Keller about his work at the tavern. Mr. Keller explained that although he spent up to eight hours a day at his wife's tavern, he worked only when his wife was not available and he did none of the bookkeeping, banking, or handling of the money. The ALJ did not find this testimony to be credible:

The self-serving testimony of the claimant and his wife that the claimant does essentially no work that could be construed as substantial gainful activity in the tavern business was not persuasive. The undersigned finds it difficult to believe that the claimant sits in the tavern for eight hours every day and does essentially nothing to help his wife in the business other than conversing with the customers and occasionally ringing something up on the cash register. However, the record contains insufficient evidence at this time to show whether or not the claimant is engaging in substantial gainful activity in his wife's business.

Administrative Record at 24.

After the Appeals Council remanded the case to the ALJ, the ALJ subpoenaed the insurance company's records referred to in Dr. Shovers' notation. The records contain investigative reports which report that Mr. Keller frequently worked in his wife's tavern. The reports cover two periods. During the first period, March 19 to April 1, 1985, one investigator visited the tavern four times, and Mr. Keller was bartending during each visit. The visits lasted from one-and-a-half to three hours. The investigator also observed Mr. Keller bowling for two hours. The investigator never saw Mr. Keller demonstrate any pain, discomfort, or obstruction of movement other than that which was clearly linked to his obesity.

During the second period, May 21 to June 7, 1985, two investigators visited the tavern a total of six times, and Mr. Keller was bartending during five of these visits. Each visit was approximately two hours long, and on only one occasion did Mr. Keller seem to be in any pain. On that occasion Mr. Keller was initially walking normally, but he started limping when an employee of Mr. Keller's former employer came into the tavern. Shortly after the employee left, Mr. Keller started walking normally again. One of the investigators also observed Mr. Keller during a visit to the clinic, and he did not limp or use a cane when he was leaving the clinic.

The investigators' reports are presented objectively. A typical entry says,

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40 practice notes
  • Jenkins v. Nelson, No. 97-1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 22, 1998
    ...overlook a party's failure to argue harmlessness. United States v. Jewel, 947 F.2d 224, 228-29 n. 5 (7th Cir.1991) (citing Giovannetti, 928 F.2d at 227). In determining whether to exercise this discretion, we must consider "the length and complexity of the record, whether the harmlessness o......
  • U.S. v. McLaughlin, No. 96-1982
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 11, 1997
    ...and whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court. Giovannetti, 928 F.2d at 227. Here the record is complex, and "[t]he certainty of harmlessness does not appear with such clarity from an unguided search of the record that we s......
  • Atkins v. Hooper, No. 19-30018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 3, 2020
    ...has not been properly raised avoids reversals and retrials when the violation did not affect the initial proceedings. See Giovannetti , 928 F.2d at 227. A more general loosening of the tight AEDPA rules for review of a conviction is for Congress. We now examine the harm from this potential ......
  • Belcher v. State, No. 72325
    • United States
    • Nevada Supreme Court of Nevada
    • June 4, 2020
    ..., 126 F.3d 130, 135 (3d Cir. 1997), abrogated on other grounds by United States v. Fiorelli, 133 F.3d 218 (3d Cir. 1998) ; Giovannetti, 928 F.2d at 227. But see Rose , 104 F.3d at 1415 (rejecting test and considering "the balancing of many elements"). Of those factors, the second one—the co......
  • Request a trial to view additional results
33 cases
  • Jenkins v. Nelson, No. 97-1890
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 22, 1998
    ...overlook a party's failure to argue harmlessness. United States v. Jewel, 947 F.2d 224, 228-29 n. 5 (7th Cir.1991) (citing Giovannetti, 928 F.2d at 227). In determining whether to exercise this discretion, we must consider "the length and complexity of the record, whether the harmlessness o......
  • U.S. v. McLaughlin, No. 96-1982
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 11, 1997
    ...and whether a reversal will result in protracted, costly, and ultimately futile proceedings in the district court. Giovannetti, 928 F.2d at 227. Here the record is complex, and "[t]he certainty of harmlessness does not appear with such clarity from an unguided search of the record that we s......
  • Atkins v. Hooper, No. 19-30018
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 3, 2020
    ...has not been properly raised avoids reversals and retrials when the violation did not affect the initial proceedings. See Giovannetti , 928 F.2d at 227. A more general loosening of the tight AEDPA rules for review of a conviction is for Congress. We now examine the harm from this potential ......
  • Belcher v. State, No. 72325
    • United States
    • Nevada Supreme Court of Nevada
    • June 4, 2020
    ..., 126 F.3d 130, 135 (3d Cir. 1997), abrogated on other grounds by United States v. Fiorelli, 133 F.3d 218 (3d Cir. 1998) ; Giovannetti, 928 F.2d at 227. But see Rose , 104 F.3d at 1415 (rejecting test and considering "the balancing of many elements"). Of those factors, the second one—the co......
  • Request a trial to view additional results

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