Michele A. Herrmann v. Carolyn W. Colvin

772 F.3d 1110, 2014 U.S. App. LEXIS 22915, 2014 WL 6808294
CourtCourt of Appeals for the Seventh Circuit
DecidedDecember 4, 2014
Docket13-3624
StatusPublished
Cited by112 cases

This text of 772 F.3d 1110 (Michele A. Herrmann v. Carolyn W. 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
Michele A. Herrmann v. Carolyn W. Colvin, 772 F.3d 1110, 2014 U.S. App. LEXIS 22915, 2014 WL 6808294 (7th Cir. 2014).

Opinion

POSNER, Circuit Judge.

The plaintiff (we’ll call her the applicant) applied for Supplemental Security Income, which is a benefit for which low-income people who are aged, blind, or disabled are eligible. She was turned down by an administrative law judge of the Social Security Administration for the benefit she sought for years before she turned 55. But because of the less demanding showing of disability required of applicants that age and older, she was deemed to have become disabled when she reached 55. She appealed the partial denial unsuccessfully, first to the appeals council of the Social Security Administration and then to the district court, and she now appeals to us.

*1111 The applicant’s treating physicians, together with three consultative physicians selected by the Social Security Administration who examined the applicant and studied her medical records, advised the administrative law judge that she suffers from fibromyalgia, spinal disk disease, “photo-phobia” (abnormal sensitivity to light), and other ailments unnecessary to discuss, and that as a result she walks haltingly, has difficulty gripping objects, experiences difficulty in rising from a sitting position, has trouble concentrating in a bright room or when looking at a computer screen, and as a result of this assemblage of impairments cannot do even light work on a full-time basis. If this is right she was disabled before she turned 55 and is therefore entitled to a back payment of Supplemental Security Income.

“Light work” is defined by the Social Security Administration as work that “involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 404.1567. This is a pretty precise description of the type of work that, according to the findings by the doctors regarding the applicant’s physical limitations, she can’t perform.

But the administrative law judge brushed aside the physicians’ findings. Typical was his statement that the opinion of Dr. Dauscher, one of the applicant’s treating physicians, would be “given no significant weight, because the functional limitations are not supported by Dr. Dauseher’s sparse treatment statement notes or by examination findings made by other physicians.” The administrative law judge seems to have thought that a physician’s evidence can be disregarded unless he has detailed notes to back it up and other physicians provide identical evidence even if they don’t contradict him — in other words no credibility without corroboration. These are insufficient grounds for disbelieving the evidence of a qualified professional.

The administrative law judge discussed at greatest length the evidence of Dr. Michael Holton, one of the consultative physicians, saying that Holton had

diagnosed fibromyalgia and lumbar degenerative disk disease. No sensory deficits were noted, and manipulative abilities were normal. Dr. Holton ... opined that the claimant can lift and carry up to 20 pounds occasionally but would be “unlikely” to be able to work eight hours a day. He also indicated that the claimant would be able to do only occasional reaching, handling, and fingering. This opinion is [to be] given little weight, except as to the lifting limitations, because Dr. Holton’s examination findings of 5/5 muscle strength, normal sensation and normal manipulative abilities are not consistent with his assessment that the claimant cannot sustain sitting, standing and walking for eight hours and has limitations regarding reaching, handling and fingering.... [Another consultative physician, a Dr. Sands] commented that the opinion of consultative examiner Dr. Holton was not [that is, should not be] given weight because the deficits Dr. Holton noted *1112 upon examination were not consistent with fibromyalgia. Furthermore, [Dr. Holton] failed to recognize the likelihood of symptom magnification and interpreted subjective findings as objective manifestations of disease [citations to exhibits omitted].

This is garbled. Consider first the criticisms by Dr. Sands. Sands could not have been talking about Dr. Holton, because Sands’s report preceded Holton’s. The government’s lawyer admitted this at the oral argument but speculated that it was a “scrivener’s error” — that the administrative law judge had meant Dr. Ksionski when he said Dr. Holton. This is possible, but we can’t assume it to be true on the basis of the lawyer’s speculation.

Consider next the statement attributed by the administrative law judge to Holton that “manipulative abilities were normal.” In fact Holton noted “grip strength” measurements of 31 pounds for the applicant’s right hand and 11 pounds for her left, which are well below the normal range for women of the' applicant’s age. See, e.g., Virgil Mathiowetz et al., “Grip and Pinch Strength: Normative Data for Adults,” 66 Archives of Physical Medicine and Rehabilitation 69, 71 (1985), www.fcesoftware. com/images/5_Grip_and_Pinch_Norms.pdf (visited Dec. 4, 2014). The applicant in our case may have areas of strength and be able to feel things (“normal sensation”) without having the grip strength that she’d need at work. The administrative law judge failed to compare X-ray and MRI evidence presented by Holton that revealed spinal disease of sufficient gravity to engender the limitations on gait, gripping (an important manipulative ability), and rising (for example, getting up from a chair one is sitting in or straightening up after lifting something) that he found she had.

It’s true that Holton reported that the applicant’s “fine finger manipulative abilities appear normal.” “ ‘Fingering’ involves picking, pinching, or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion.” Social Security Ruling 85-15:2. But Holton had also opined that the applicant would have trouble “handling,” a finding that is consistent with reduced grip strength (indeed, gripping is a form of handling) and is an essential manipulative activity in a great many jobs. The Social Security ruling that we’ve just been quoting from explains that “handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling, therefore, may eliminate a large number of occupations a person could otherwise do.”

The district court’s statement that “the ALJ’s evaluation of Dr. Holton’s opinion may not be perfect” is a considerable understatement. Coupled with the administrative law judge’s unreasoned brush off of the evidence offered by the other consulting physicians, his confused rejection of Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
772 F.3d 1110, 2014 U.S. App. LEXIS 22915, 2014 WL 6808294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michele-a-herrmann-v-carolyn-w-colvin-ca7-2014.