Martinez v. Astrue

• Decision Date: 19 January 2011
• Docket Number: Nos. 10–1957,10–2603,10–2080.,s. 10–1957
• Citation: Martinez v. Astrue, 630 F.3d 693 (7th Cir. 2011)
• Parties: Anita MARTINEZ, Plaintiff–Appellant,v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.Francis L. Rider, Plaintiff–Appellant,v.Michael J. Astrue, Commissioner of Social Security, Defendant–Appellee.Christine B. Pound, Plaintiff–Appellant,v.Michael J. Astrue, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

630 F.3d 693

162 Soc.Sec.Rep.Serv. 393

Anita MARTINEZ, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.Francis L. Rider, Plaintiff–Appellant,

v.Michael J. Astrue, Commissioner of Social Security, Defendant–Appellee.Christine B. Pound, Plaintiff–Appellant,

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

Nos. 10–1957

10–2603

10–2080.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 2010.Decided Jan. 19, 2011.

Barry A. Schultz, Attorney (argued), Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff–Appellant, Anita Martinez.Dana W. Duncan, Attorney (argued), Schmidt, Grace & Duncan, Wisconsin Rapids, WI, for Plaintiff–Appellant, Francis L. Rider.Steve Wolf, Attorney (argued), The Law Office of Steve Wolf, LC, St. Louis, MO, for Plaintiff–Appellant, Christine B. Pound.Catherine A. Seagle, Attorney (argued), Russell J. Cohen, Attorney (argued), Deborah H. Lee, Attorney (argued), Social Security Administration, Office of the Regional Chief Counsel, Region V, Chicago, IL, for Defendant–Appellee.Before POSNER, RIPPLE, and ROVNER, Circuit Judges.POSNER, Circuit Judge.

We have consolidated for decision three challenges, argued the same day, to district court decisions affirming denials by the Social Security Administration of disability benefits and (for persons who lack social security insurance) supplemental security income benefits, which are similar. Recently, in Spiva v. Astrue, 628 F.3d 346 (7th Cir.2010), and Parker v. Astrue, 597 F.3d 920 (7th Cir.2010), we criticized the Social Security Administration's handling of disability claims in several respects summarized in Spiva:

(1) opinions of administrative law judges denying benefits routinely state (with some variations in wording) that although “the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, ... the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible,” yet fail to indicate which statements are not credible and what exactly “not entirely” is meant to signify; (2) many of the Social Security Administration's administrative law judges seem poorly informed about mental illness; and (3) in defiance of the principle of SEC v. Chenery Corp., 318 U.S. 80, 87–88, 63 S.Ct. 454, 87 L.Ed. 626 (1943), the Justice Department's lawyers who defend denials of disability benefits often rely heavily on evidence not (so far as appears) relied on by the administrative law judge, and defend the tactic by invoking an overbroad conception of harmless error.

628 F.3d at 348. We noted that similar criticisms could be found in a number of other court of appeals opinions, in this and other circuits. Id. In two of the cases before us, infirmities similar to those that we found in Spiva and Parker require us to reverse; in the third, the administrative law judge's opinion was thorough and well supported.

We are mindful of the difficulties that the Social Security Administration's administrative law judges labor under. They have a very heavy caseload—the median annual number of disability hearings conducted by an administrative law judge is almost 400 (the average is 434). Social Security Advisory Board, “Improving the Social Security Administration's Hearing Process” 11–12 (Sept.2006), www. ssab. gov/ documents/ Hearing Process. pdf (visited Dec. 30, 2010, as were all the websites cited in this opinion); Social Security Advisory Board, “Disability Decision Making: Data and Materials” 75 (May 2006), www. ssab. gov/ documents/ chartbook. pdf; “Social Security Disability: Management of Disability Claims Workload Will Require Comprehensive Planning” 6 (General Accounting Office, Rep. No. 10–667T, Apr. 2010). Staff support is inadequate. “Improving the Social Security Administration's Hearing Process,” supra, at 14. The large number of administrative law judges (more than 1400), combined with limited administrative appellate capacity, has resulted in great uncorrected variance in denial rates across administrative law judges. See “ALJ Disposition Data FY 2011,” Social Security Online, www. ssa. gov/ appeals/ Data Sets/ 03_ ALJ_ Disposition_ Data. pdf; “Improving the Social Security Administration's Hearing Process,” supra, at 4–5. This in turn implies frequent inconsistency, id. at 6–7, 25; “Social Security Administration: More Effort Needed to Assess Consistency of Disability Decisions” (General Accounting Office, Rep. No. GAO–04–656, July 2004), and quality problems generally. The Lewin Group, Inc., et al., Evaluation of SSA's Disability Quality Assurance (QA) Processes and Development of QA Options That Will Support the Long–Term Management of the Disability Program 16–24 (Final Report, Mar. 16, 2001), www. lewin. com/ content/ publications/ 1325. pdf. There thus are ominous parallels to the much-remarked inadequacies in the administration of the immigration laws by immigration judges, see, e.g., Benslimane v. Gonzales, 430 F.3d 828, 829–30 (7th Cir.2005), a type of administrative law judge.

A study found that the district courts (the first-line reviewers of denials of social security benefits) reversed 6.15 percent of denials outright and ordered benefits awarded in those cases, and remanded 48 percent of the denials, and 60 percent of the remands eventuated in a grant of benefits. This means that a total of 34.95 percent (.48 x .60 = .288 + 6.15) of all appeals to the district courts from denials of benefits resulted in their eventual grant. Paul R. Verkuil & Jeffrey S. Lubbers, “Alternative Approaches to Review of Social Security Disability Cases,” 55 Admin. L.Rev. 731, 761–62 (2003). (In 2004, the 60 percent figure rose to 67 percent. “Disability Decision Making: Data and Materials”, supra, at 89.) And that is apart from reversals by the courts of appeals of district courts' affirmances of denials of benefits, as in two of the three cases we decide today.

Since we don't see cases in which social security disability benefits are granted in error, because the government cannot appeal from a grant at the final administrative level, we cannot (quite apart from the nonnegligible possibility of judicial error) conclude that administrative law judges have a 35 percent error rate. Moreover, the high reversal rate may simply reflect caution on the part of claimants' lawyers, since they are unlikely to obtain a significant (perhaps any) fee if the appeal fails; their clients invariably are impecunious. But approximately 20 percent of denials at the highest administrative level (computed from Verkuil & Lubbers, supra, at 760, reporting statistics from 2000), are appealed, which is a high appeal rate; and the higher an appeal rate, the lower the expected reversal rate if the tribunal appealed from is doing a good job.

So much for background; on to the cases, beginning with Martinez (No. 10–1957). Anita Martinez, age 35 at the time of her hearing before the administrative law judge, lives in the basement of her mother's home with her five children. She suffers from severe depression, has symptoms of bipolar disorder (often associated with depression), and has severe arthritic joint and bone pain throughout her body and a swelling of the hands that makes it very difficult for her to carry things, open packages, wash dishes, or write. Physicians have observed worsening signs and symptoms of severe musculoskeletal pain, and have treated her by prescribing ever more potent drugs (plus splints to wear on her wrists), but with mixed results. She also takes drugs for her mental conditions. Unsurprisingly she has difficulty concentrating. Her mother and her three eldest children help her with most household tasks, as she has to rest frequently throughout the day. Daily she thinks about committing suicide, and the children are instructed to summon their grandmother if their mother seems unusually depressed or suicidal.

The administrative law judge found that Martinez indeed has severe arthritis and severe depression, but also found that she can “use her hands for fine and gross manipulations,” has only “moderate difficulties” with “concentration, persistence, or pace,” and is not disabled, because she is capable of doing her former work (she last worked in 2003) as a car-wash attendant or fast-food cashier, and could also work as a “hand assembler.”

The administrative law judge's opinion is perfunctory. The analysis portion begins with the boilerplate recital that “the claimant's medically determinable impairments could reasonably be expected to produce some symptoms, but ... the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.” There is no explanation of which of Martinez's statements are not entirely credible or how credible or noncredible any of them are. The next sentence is that “the claimant's longitudinal medical history is not necessarily consistent with his [ sic ] allegations of disability.” We don't understand the significance of “necessarily.” Did the administrative law judge think Martinez's medical history consistent or inconsistent with her claims?

With regard to pain, all the opinion states is that a rheumatologist “indicates that he detected very subtle evidence of an inflammatory process. He describes it as not well developed, and that [t]he laboratory tests and physical examinations were normal. He suggested that she take a long acting anti-inflammatory.” In fact the suggestion for such a drug came from Martinez, who wanted a long-acting drug because she was afraid to have a large quantity of strong drugs on hand given her depression and suicidal thoughts. And the rheumatologist, while stating that the results of a general physical examination of Martinez were normal, observed “definite evidence of a true inflammatory process” and diagnosed her with...