Israel v. Colvin

840 F.3d 432, 2016 U.S. App. LEXIS 19052, 2016 WL 6135856
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 21, 2016
DocketNo. 15-3220
StatusPublished
Cited by166 cases

This text of 840 F.3d 432 (Israel v. Colvin) 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
Israel v. Colvin, 840 F.3d 432, 2016 U.S. App. LEXIS 19052, 2016 WL 6135856 (7th Cir. 2016).

Opinion

ROVNER, Circuit Judge.

Erik Israel applied for Social Security disability benefits in 2007, and diligently pursued his claim through administrative review. After many years of review, error and delay, the Acting Commissioner of the Social Security Administration (hereafter “Commissioner” or “Agency”) issued a final decision denying his claim. Israel filed [434]*434suit in the district court to challenge that decision. The Commissioner conceded in the district court that her decision was not supported by substantial evidence and requested remand to conduct additional proceedings. Israel, frustrated with years of delay, sought a direct award of benefits. The district court remanded the case .to the Agency for additional proceedings because the record, as it stands, does not compel a finding of disability, Israel v. Colvin, No. 14-CV-1155, slip op. at 6-7 (E.D. Wisc. Aug. 28, 2015). Because the district court did not abuse its discretion in ordering a remand, we affirm. On remand, the Agency should expedite proceedings so that the matter may be resolved once and for all.

I.

In 2001, Israel injured his back while digging posts for a porch. He continued to work while receiving various treatments but his pain worsened and he stopped working in February 2003. Later that year, he underwent a lumbar lami-nectomy and diskectomy.1 The surgery did not resolve his pain and two surgeons determined that further surgery was not an option. Under the care of various doctors and specialists, Israel tried physical therapy, transcutaneous electrical nerve stimulation (also called “TENS”),2 a dorsal column stimulator,3 epidural injections,4 narcotic pain medications including Methadone and morphine, lidocaine patches to block nerves from sending pain signals, a muscle relaxer, an antidepressant known to help with chronic pain, and drugs used for nerve pain. Israel, who has been diagnosed- with lumbar radiculo-pathy5 and post-laminectomy pain syndrome (also called Failed Back Surgery Syndrome), continues to experience severely limiting pain despite these treatments. His doctor sought approval from his insurance company to implement an “intrathecal drug delivery system,” a pain pump that delivers medication directly to the spinal cord. Despite repeated requests, however, Israel’s insurer has refused to cover the cost of the device. According to Israel, he spends much of his day trying to manage his pain by elevat[435]*435ing his legs in bed. He has undergone four hernia repair surgeries because he uses abdominal muscles to compensate for his back problems. At times, he suffers debilitating side-effects from the many medications he takes in an attempt to control his pain, including memory and concentration problems, fatigue and swelling.

Israel filed applications for Disability Insurance Benefits and Supplemental Security Income benefits on October 30, 2007. His first hearing before an administrative law judge (“ALJ”) resulted in a denial of his claims in February 2010. The Appeals Council vacated that ruling because it was not supported by substantial evidence. The Appeals Council directed the ALJ on remand to further evaluate Israel’s residual functional capacity because the medical evidence was not consistent with the ALJ’s finding that Israel could perform light work. The Council also directed the ALJ to further consider Israel’s credibility because the reasons given for discrediting Israel’s allegations of pain were contradicted by the record. The ALJ was further instructed to update the record with any new medical evidence; give further consideration to the opinions of Israel’s treating doctor, nurse practitioner and examining occupational therapist; reevaluate Israel’s subjective claims of pain; obtain expert medical opinion preferably from a pain management specialist; reconsider Israel’s residual functional capacity; and obtain supplemental evidence from a vocational expert.

The same ALJ conducted a second hearing and again rejected Israel’s claim in July 2011. The Appeals Council again vacated the decision and remanded for further proceedings, this time finding an error of law. Apparently, the ALJ held a video hearing at which she ordered the claimant to attend a post-hearing consultative medical examination. A little more than two weeks later, before Israel could attend the scheduled exam, the ALJ rejected his claim. Israel nevertheless kept the appointment and the. next month, the ALJ issued an amended decision discussing the new consultative exam report and again rejecting Israel’s claim. But there was no evidence that Israeí had received the report or that he had waived his right to see it. Nor was there evidence that the ALJ provided the amended decision to Israel. On remand, the Appeals Council directed that the matter be assigned to a different ALJ; that the new ALJ proffer the consultative exam report to Israel; that the ALJ obtain additional evidence concerning Israel’s impairments; that the ALJ reevaluate Israel’s subjective complaints of pain; that the ALJ give further consideration to Israel’s residual functional capacity; and that the ALJ again obtain evidence from a vocational expert to clarify the effect of Israel’s assessed limitations on the occupational base.

A new ALJ held a third hearing and denied Israel’s claim in April 2014. This time, the Appeals Council denied the request for review, and Israel filed this suit. In his brief in support of reversing the decision of the Commissioner, Israel sought a reversal without remand and an award of benefits. In the alternative, he requested that the court reverse the decision of the Commissioner and remand, for a new hearing. In response, the Commissioner conceded that the decision was not supported by substantial evidence, and moved for remand in order to gather more evidence and conduct additional proceedings. The Commissioner contended that, although Israel' prodüced evidence supporting his claim of disability, other evidence in the record could be construed to undermine his claim of disabling limitations. At that point, Israel opposed a remand, instead seeking an immediate award [436]*436of benefits. The district court concluded that, because the record did not compel a finding that Israel is disabled, the case should be remanded to the Agency for further proceedings. Israel, slip op. at 6-7.

The district court noted that there is ample evidence supporting Israel’s claim that he is disabled, including the opinions of his treating physician Dr. Donald Harvey (a pain specialist) and his treating physician assistant, Ms. Dawn Nehls. Id. at 3-4. They opined that Israel could sit continuously for only one hour at a time and for a total of less than two hours in an eight-hour work day; that he could stand continuously for only fifteen minutes and could stand or walk for a total of less than two hours in a work day; that he could occasionally lift ten pounds or less and could never lift' twenty pounds or more; that he would need tó lie down for one to two hours during thé work day in order to relieve pain and fatigue; that he needs to be able to shift positions at will; that he requires a cane; that he is not at all able to bend or twist at the waist; that he experiences constant interference with attention and concentration due to pain; that he is extremely limited in his ability to deal with the normal stresses of competitive employment; and that he'would be absent from work more than three days per month.

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Bluebook (online)
840 F.3d 432, 2016 U.S. App. LEXIS 19052, 2016 WL 6135856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/israel-v-colvin-ca7-2016.