There were three Social Security cases decided in May in the Seventh Circuit, including one published opinion. Unfortunately all were affirmations:

Combs v. Kijakazi (affirmed, published)

Judges Easterbrook, Ripple, and Wood
May 30, 2023

Combs sought disability benefits for multiple impairments, most prominently lumbar spondylosis. She underwent a series of injections, branch blocks, and radiofrequency ablation procedures. She testified that her back pain prevented her from standing more than ten minutes and that the procedures she tried did not bring any relief.

Combs argued that (1) the ALJ should have recognized a closed period of disability while she was undergoing the branch block and ablation procedures, (2) the ALJ failed to discuss two instances of these procedures, and (3) the procedures would have caused too many absences to permit employment.

First, the Court found it sufficient that the ALJ’s “recitation” of medical records “ma[d]e it evident that the ALJ did not believe that Ms. Combs was disabled during this time.” The Court left open whether more “clear evidence of serious, repeated medical interventions over a defined period” might produce a different result. Second, the Court did not find it important that the ALJ missed two branch block procedures because the evidence the ALJ recited “shows an understanding” that “multiple and different procedures for pain relief” were occurring. Third, the Court disagreed that a full-day absence for each procedure would be required since each appointment lasted 10 to 20 minutes and at least one occurred at 3:30 pm.

Hightshoe v. Kijakazi (affirmed, unpublished)

Judges Hamilton, Brennan, and Kirsch
May 18, 2023

Hightshoe was involved in a car accident that led to a traumatic brain injury, concussion, and right shoulder impairment. His ongoing post-concussive symptoms included headaches, vertigo, and fatigue. Two and a half years after the accident, Hightshoe took a job at a convenience store to provide health insurance for his daughter, but he left the job after five months. He applied for DIB and an ALJ issued a Step Five denial.

Hightshoe argued that the ALJ improperly rejected his subjective statements and rejected a treating doctor’s opinion that he could not work due to post-concussive symptoms. The Court was extremely deferential to the ALJ, and its generalized conclusion merits quoting:

“This standard [for disability under the Social Security Act] is a stringent one. These benefits are paid for with taxes, including taxes paid by many people who work despite serious physical or mental impairments and for whom working is quite difficult and painful, as it has been for Mr. Hightshoe since his accident. Before tax dollars are available to support someone applying for benefits, it must be clear that the claimant has a severe impairment and cannot perform virtually any kind of work. Unlike many private disability insurance plans, the Act does not contemplate degrees of disability or allow for an award based on partial disability. Also, unlike with many private disability insurance plans, a person may not be disabled under the Act even if he is no longer able to perform his past work. Under this statutory standard, these benefits are available only as a matter of nearly last resort.

“Hightshoe is not malingering. He has shown a strong work ethic and a positive approach to his difficulties. But substantial evidence supported the administrative law judge’s finding that Hightshoe could adapt to new kinds of work. We therefore AFFIRM the judgment of the district court.”

Trzebny v. Kijakazi (affirmed, unpublished)

Judges Brennan, Scudder, and Kirsch
May 16, 2023

Trzebny applied for DIB at age 45 alleging bipolar and anxiety disorders with panic attacks and manic episodes. She was last insured for DIB in 2010, when she was obtaining medication from her doctors but not engaging in consistent counseling, and she had been acquiring some medications illegally to manage her symptoms. State agency psychologists opined that Trzebny has mild to moderate limitations in the “paragraph B” criteria and that she could perform simple tasks with routine and superficial interaction with others. An ALJ issued a Step Five denial with similar restrictions.

On appeal, Trzebny argued that the ALJ should have found that she met a listing, objected to the ALJ’s characterization of substance abuse, objected to the Step Five jobs as “menial,” and argued that the ALJ should have considered evidence from her therapist and hospitalizations dating 9 to 11 years after her date last insured. The Court disagreed in each respect. And the Court found that the more recent evidence did not offer a “retrospective diagnosis that was corroborated by evidence” during the DIB-insured period that should have been considered.

Thanks for reading!

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