Henry Green v. Kenneth S. Apfel, Commissioner of Social Security

204 F.3d 780, 2000 U.S. App. LEXIS 2521, 2000 WL 198213
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 22, 2000
Docket99-1878
StatusPublished
Cited by121 cases

This text of 204 F.3d 780 (Henry Green v. Kenneth S. Apfel, Commissioner of Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henry Green v. Kenneth S. Apfel, Commissioner of Social Security, 204 F.3d 780, 2000 U.S. App. LEXIS 2521, 2000 WL 198213 (7th Cir. 2000).

Opinion

POSNER, Chief Judge.

This is an appeal from a district court decision refusing to set aside the denial by the Social Security Administration of disability benefits sought by Henry Green. Mr. Green, 51 years old at the time of his hearing before an administrative law judge, is a functionally illiterate former factory worker who claims to have become totally disabled in 1993; it is conceded that Green must have become totally disabled by the end of that year in order to qualify for the benefits that he is seeking.

Green has long suffered from emphysema, and in 1993 underwent a major operation on his lungs to remove large emphyse-matous bullae (growths) in them. He claims to be so short of breath that he cannot walk more than a block without panting and to suffer from severe chest pain resulting from the 1993 operation. He claims that his right leg swells up occasionally to the point where he has to walk with crutches, that he has difficulty lifting things, and that he basically just lies around the house. He also has arthritis.

The administrative law judge, seconded by the Appeals Council, held that Green is not disabled from doing “medium work,” which requires frequently lifting 25 pounds and occasionally 50 pounds. The administrative law judge refused to believe Green’s “complaints of debilitating pain and limitations” because they were “disproportionate to the objective medical findings in the record.” No medical expert testified, although the procedure for adjudicating social security disability claims departs from the adversary model to the extent of requiring the administrative law judge to summon a medical expert if that is necessary to provide an informed basis for determining whether the claimant is disabled. See, e.g., 20 C.F.R. § 416.927(a)(3); Manso-Pizarro v. Secretary of Health & Human Services, 76 F.3d 15, 17, 19 (1st Cir.1996) (per curiam); Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir.1995); Naber v. Shalala, 22 F.3d 186, 189 (8th Cir.1994); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir.1988); cf. Pugh v. Bowen, 870 F.2d 1271, 1278 n. 9 (7th Cir.1989). Instead of doing that the administrative law judge played doctor, Rohan v. Chater, 98 F.3d 966, 970 (7th Cir.1996); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir.1990); see also Easter v. Bowen, 867 F.2d 1128, 1131 (8th Cir.1989), focusing on chest pain and shortness of breath and with regard to the former relying, in his words, on “clinic records [that] show reasonably good pain control through the use of medications such as Tylenol ES [extra strength] and Motrin,” and on the lack of any “clinical evidence of angina or arthritic problems which would account for the pain.” With regard to shortness of breath the administrative law judge relied on the fact that Green’s “pulmonary function studies and arterial blood gas studies were essentially normal by November, 1993.”

The administrative law judge’s analysis of the evidence does not provide a rational basis for the denial of benefits. He failed to build a bridge from the evidence to his conclusion. Hickman v. Apfel, 187 F.3d 683, 689 (7th Cir.1999); Groves v. Apfel, 148 F.3d 809, 811 (7th Cir.1998); Schaudeck v. Commissioner of Social Security Administration, 181 F.3d 429, 433 (3d Cir. *782 1999). One of the grounds he gave for not crediting Green’s testimony about severe chest pain is a non sequitur: that Green does not have angina or arthritic problems serious enough to account for the pain. There are, of course, other causes of severe pain. One of them is the kind of chest operation that Green underwent in 1993. Of this there can be no question, because Green has been in and out of pain clinics ever since the operation and has twice undergone intercostal nerve blocks, which are surgical procedures for alleviating pain by killing the nerves that transmit the sensation that triggers a pain reaction in the brain. He was taken off Tylenol with codeine, a powerful painkiller, because codeine is addictive; he has been offered a third intercostal nerve block, but has declined, which may show nothing more than that, the first two not having succeeded, a third surgical procedure is an unappealing prospect. He may prefer to live with pain than to undergo further surgery uncertain to succeed. That he has not been prescribed heavier painkillers than extra-strength Tylenol and Motrin (ibuprofen) cannot be thought compelling evidence of lack of severity of pain, since heavy painkillers often have serious side effects, or are addictive, or both. And what is one to make of “reasonably” good pain control? It sounds hopeful, or euphemistic. We do not say that Green has disabling pain in fact; he may despite his lack of education and intellectual sophistication be a skillful dissembler; but we do not see how on this record the administrative law judge could have rejected the claim of disabling pain without having a physician examine Green, or at least examine his clinical records.

We have similar though less acute misgivings about the handling of the issue of shortness of breath. A person who cannot walk a block without panting cannot engage in medium work. See Soc. Sec. Ruling 83-10, 1983 WL 31251; Allen v. Sullivan, 977 F.2d 385, 388-90 (7th Cir.1992); Rousey v. Heckler, 771 F.2d 1065, 1068, 1070 (7th Cir.1985); Stewart v. Secretary of Health & Human Services, 957 F.2d 581 (8th Cir.1992).

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Bluebook (online)
204 F.3d 780, 2000 U.S. App. LEXIS 2521, 2000 WL 198213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-green-v-kenneth-s-apfel-commissioner-of-social-security-ca7-2000.