After a rough start in January, I’m pleased to report two remands—one published and one unpublished—in the Seventh Circuit in February, 2023.

A quick word about panel composition in recent cases. Judge Pryor was elevated to the Seventh Circuit in December, assuming Judge Hamilton’s seat as he took senior status. Kennedy marks Judge Pryor’s first Social Security case since her confirmation. Judge Lee, who joined the Court last September when Judge Wood assumed senior status, was on the panels of both cases that the Court affirmed in January. Judge Lee’s first Social Security case as a circuit judge was Sok v. Kijakazi (affirmed) in December. There is one vacancy in our Circuit for the former seat of Judge Kaane, who died last June. As of this writing, there is no nomination pending.

Without further ado, here are the Seventh Circuit cases from February 2023:

Kennedy v. Kijakazi (unpublished)

Judges Sykes, Wood, and Pryor

Feb. 14, 2023

Kennedy fell and broke a vertebra in his neck. He had residual pain and tingling after surgery and problems using his hands and fingers. A VE testified that a limitation to occasional handling and fingering would preclude work, but an ALJ found Kennedy could do so frequently and denied his disability claim. Shortly before the ALJ’s decision, Kennedy’s doctor ordered an EMG. The study took place a month after the decision and showed evidence of carpal tunnel syndrome, possible compression of an ulnar nerve, and damage to nerve roots near the spine. Kennedy sent the EMG to the Appeals Council, which found it did “not relate to the period at issue.”

The Government “made no effort to defend the Appeals Council’s actual rationale” and argued there was no reasonable probability that the EMG would change the outcome. The Court explained that Chenery applies at the Appeals Council and requires the Government to limit itself to the Council’s stated reasons. Harmless error arguments could not clear “the high bar for bypassing Chenery” because (1) no doctor had scrutinized the EMG results “and this is not the stuff of lay knowledge” and (2) “even if the EMG results duplicated other evidence,” such as Kennedy’s reported hand pain and his doctor’s earlier suspicion of carpal tunnel syndrome, “the corroboration [the EMG] provided may have led to a different decision.” The Court remanded because “it is at least possible” that the EMG would change the outcome.

Sevec v. Kijakazi (published)

Judges Easterbrook, Ripple, and Wood

Feb. 1, 2023

Sevec, 60 years old when an ALJ denied her disability claim, had developed osteoarthritis in her knees. She worked as a registered nurse in various long-term care facilities until it became difficult to be on her legs long enough to do the job. A vocational expert classified Sevec’s past work as a “home health nurse,” without elaboration, and told the ALJ that this job would “possibly” be available as Sevec performed it based on the controlling hypothetical. Sevec’s counsel did not ask questions about this classification, and the ALJ issued a Step Four denial.

The Court sharply rejected arguments that the vocational expert’s testimony provided substantial evidence for the ALJ’s decision—even at Step Four where Sevec had the burden of proof. The Court questioned “whether, in forming his opinions, the VE actually had reviewed the record and had paid attention to the testimony,” suggesting that the expert confused the long-term care facility jobs he was supposed to classify with some home health care work that Sevec did for a neighbor, which the ALJ told the expert not to classify. Nor could the Court find evidence in Sevec’s testimony that she worked at the light exertional level, as the expert claimed. The Court colorfully described the expert’s conclusion that this job would “possibly” be available as breezy, terse, vague, ill-explained, equivocal, and “too thin an evidentiary reed on which to base a disability determination.” Finally, the ALJ’s reliance on this testimony without addressing its equivocality, per the Court, added “a gloss of certainty to the VE’s testimony that the record does [not] support.”

Thanks for reading!

Ryan Tank
ryantank@spectorandlenz.com
Spector & Lenz, P.C.
Chicago, IL