Hello and welcome!

This is the first edition of a monthly caselaw update for members practicing in the 7th Circuit (Illinois, Indiana, and Wisconsin). Much has changed in our circuit in recent years. The affirmation rate has increased dramatically and with it notices of appeal have decreased. But there are silver linings—both at the circuit level and especially in the district courts.

Whether you regularly practice in federal court or focus more on claims before the agency, monitoring the circuit’s caseload and tracking trends is a critical part of best practices. We hope these updates make it easier to stay up to date. Every month we’ll send a synopsis of each 7th Circuit decision—the good, the bad, and the ugly, whether published or unpublished—from the previous month.

To start off the year, in January 2023 the court issued unpublished orders in two Social Security cases and no published opinions.

• Leskowyak v. Kijakazi (Sykes, Scudder, Lee; Unpublished; Jan. 23, 2023)

Affirmed

Leskowyakunderwent a lumbar discectomy in 2011, stopped working in 2013, and was last insured for DIB in 2017. She applied for DIB alleging disability since 2013. Shortly after her date last insured, Leskowyakneeded another lumbar surgery in 2018. The court suggested that treatment was minimal between the alleged onset and date last insured and declined to infer that the second surgery showed Leskowyak’s condition had been on a “downhill trajectory” since the first. Said the court:

Leskowyak’s counsel observed on appeal both that the 2018 MRI showed degenerative changes at or near the same place in her spine as were addressed in her 2011 surgery and that the diagnosis of post-laminectomy syndrome implies continued difficulties from that surgery. We recognize that there is a certain intuitive attraction to counsel’s reasoning. But that is not enough. Leskowyak (and her counsel) cannot appeal to common sense alone; she needed to support her arguments with medical evidence that was put into the record before the ALJ.

(Emphasis added.)

• McCorkle v. Kijakazi (Sykes, Scudder, Lee; Unpublished; Jan. 13, 2023)

Affirmed

McCorkle developed neurological problems after a car accident in 1989, with migraines, vertigo, and fainting episodes developing in the years since. In 2018, at age 53, she was hospitalized after fainting. She left a sedentary job and applied for DIB. The ALJ included some limitations related to vertigo in the RFC, but McCorkle argued that more was required to account for her migraines such as off-task time due to her nausea, vomiting, and use of Tylenol 3 with codeine. The court found a logical bridge where the ALJ focused on “McCorkle’s more prevalent and objectively observed symptoms.” The court observed that regular complaints of nausea and vomiting were not documented and found no evidence the ALJ improperly overlooked.

The court was careful not to explicitly disturb prior migraine caselaw by emphasizing that McCorkle’s testimony about her symptoms and the ALJ’s adverse credibility findings were not at issue on appeal, such that the question of self-reports versus the need for objective tests did not need to be addressed further.

If anyone has feedback or suggestions about these updates going forward, comments are welcome. My colleagues and I are always open to discussing these cases or just kicking around ideas. Thanks for reading!

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

This piece is a recurring guest column, provided by a NOSSCR member. Any views, opinions, or analysis presented in this column represent the views of the author alone.