Mitze v. Colvin, 14–2599.

• Citation: 782 F.3d 879
• Decision Date: 09 April 2015
• Docket Number: No. 14–2599.,14–2599.
• Parties: Brenda MITZE, Plaintiff–Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

782 F.3d 879

Brenda MITZE, Plaintiff–Appellant

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 14–2599.

United States Court of Appeals, Seventh Circuit.

Submitted March 12, 2015.

Decided April 9, 2015.

Brenda Mitze, New London, WI, pro se.

James B. Geren, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, Jonathan H. Koenig, Attorney, Office of the U.S. Attorney, Milwaukee, WI, for Defendant–Appellee.

Before POSNER, EASTERBROOK, and TINDER, Circuit Judges.

Opinion

POSNER, Circuit Judge.

The plaintiff applied for social security disability benefits in 2009, at the age of 43, claiming to be disabled by a cyst (a liquid-filled sphere) in her pineal gland, a small endocrine gland in the brain that produces melatonin, which regulates sleep. After a hearing before an administrative law judge in November 2011, her application was rejected, and the rejection upheld by the district court, precipitating this appeal.

Pineal cysts are usually quite harmless, but not always; the plaintiff's cyst caused her to experience vertigo, blurred vision, and headaches. She argues that in combination these symptoms disable her from full-time gainful employment. She has a high-school education, is married and has children, but has never held a full-time job.

In 2010 she underwent brain surgery to remove the cyst. Although an MRI following the operation showed that the cyst had been removed and the site of the operation in the brain was healing normally, and her vertigo and vision problems had been resolved, within weeks she was complaining about pain and numbness in her head. Her surgeon referred her to a physician with expertise in anesthesiology, who prescribed drugs, and also referred her to two pain specialists. One suggested a treatment that she rejected—an “occipital nerve injection,” which is an injection of a steroid at the back of the head to relieve pain, and is a standard procedure. She declined to consult the other pain specialist. Her primary physician then referred her to a third specialist, who recommended that she seek ongoing “tertiary” care (a higher level of specialty care) at a hospital in Madison, Wisconsin. She declined, saying she'd be unable to travel to Madison (a two-hour drive from her home) on a regular basis.

Though continuing to complain about pain, she did long-distance running in preparation for participating in a marathon. She didn't participate in the marathon after all, but she did run in a 5,000–meter race, and she runs for an hour daily. (She also traveled to Australia for a month.) Later an MRI showed a possible pinched nerve in her neck and a narrowing of some nerve passageways.

In support of her application for disability benefits she submitted documents from two chiropractors. One said that on the basis of what the plaintiff had told him he thought that if employed she would need 15–minute breaks every 30 minutes and would miss work more than four times a month—which if true would preclude full-time gainful employment and thus render her totally disabled within the meaning of the Social Security Act. (Vocational experts, who testify at all Social Security disability hearings, invariably testify that missing work more than three days a month precludes full-time gainful employment, and the administrative law judges seem always to credit that testimony. See, e.g., Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir.2013) ; Pepper v. Colvin, 712 F.3d 351, 361 (7th Cir.2013) ; Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090, 1096 (9th Cir.2014).) The chiropractor may, however, have thought (or so at least the administrative law judge may have suspected he thought) that she might be exaggerating her symptoms. For he referred to her “dramatic presentation” of them and also reported that she'd told him that she runs an hour a day and was preparing for another foot race.

It's true that in medical jargon “dramatic presentation” refers to a sudden, intense cascade of symptoms observed by the doctor. In popular discourse, however, it might connote “dramatization” in the sense of exaggeration for effect, as in many operas. We don't know in what sense the chiropractor was using the term to describe the plaintiff's account of her symptoms, but as it is more commonly used as a medical term than in colloquial speech, and given that when asked whether she is a malingerer the chiropractor said “no,” we'll assume he was not accusing her of exaggerating.

The report of one of the chiropractors states that the plaintiff can walk three to four city...