Ryan Tank, Spector & Lenz, P.C.

December 2023 Edition

After a brief hiatus, the Seventh Circuit resumed issuing Social Security decisions shortly before Thanksgiving. In November and December, the Court decided eight Social Security cases. All eight affirmed the Commissioner, including Ellison in which two recent appointees were panelists.

The good news is that we continue to see remand opinions from district courts in the Seventh Circuit. But as the Court of Appeals becomes increasingly deferential to ALJs, it limits the ability to rely on the claimant-friendly Seventh Circuit law of years past at the district court level.

The Seventh Circuit in Bertaud remarked in a footnote that “[i]f an issue has few published opinions, we encourage litigants to invite us to issue one.” But the trajectory of affirmations warrants a very cautious approach, lest we invite more precedent that limits the ability of district courts to continue remanding claims.

Sherman v. O’Malley (affirmed, unpublished)
Judges Scudder, St. Eve, and Pryor
Dec. 22, 2023

Bertaud v. O’Malley (affirmed, published)
Judges Easterbrook, Hamilton, and Brennan
Dec. 21, 2023

After being struck in the head with a 100-pound tree branch, Bertaud sought and was denied DIB and SSI. He exhausted his remedies before the agency and asked a district court to remand his claims based on 800 pages of new medical evidence which, he argued, showed the ALJ did not properly develop his record. But Bertaud was represented at the hearing. The Court noted that a claimant’s duty to develop the record is principal, while an ALJ’s duty is supplemental and “tethered to a claimant’s legal representation” even if it does not recede completely. In any case, “the reviewing court defers to the ALJ on the question of how much evidence must be gathered.” And the Court found the ALJ had no duty to inquire further about a gap in Bertaud’s medical history where his attorney confirmed the completeness of the record to the best of their knowledge.

Ellison v. Kijakazi (affirmed, unpublished)
Judges Kirsch, Jackson-Akiwumi, and Pryor
Dec. 20, 2023

Ellison sought disability benefits due to a variety of physical and mental health diagnoses, and an ALJ denied her claim at Step Five. The Court reviewed the ALJ’s handling of depression, anxiety, carpal tunnel syndrome, obesity, and fibromyalgia, and the combined effects of Ellison’s impairments, and concluded that the ALJ “examined and discussed Ellison’s record in the appropriate level of detail.” The Court also permitted the ALJ to discount a conclusory treating doctor’s opinion under the new opinion evaluation regulations and to rely on a radiologist’s opinion that new imaging showed no significant interval changes.

Martin v. Kijakazi (affirmed, published)
Judges Hamilton, Brennan, and Jackson-Akiwumi
Dec. 19, 2023

Martin, who hurt his back at work in 2016 and was last insured for DIB in 2017, was found disabled as of 2018 but not earlier. He was awarded SSI benefits but not DIB, and appealed. Martin argued that the ALJ should have engaged a medical expert and credited Martin’s testimony about past symptoms. The Court deferred to SSR 18-1p, which gives ALJs discretion to consult a medical expert to determine onset, and found no error in that respect or in not adopting Martin’s testimony about his limitations before seeking treatment.

Tutwiler v. Kijakazi (affirmed, published)
Judges Easterbrook, Hamilton, and Pryor
Dec. 7, 2023

Tutwiler was eventually fired after being diagnosed with endometrial cancer at age 41. She had significant gastrointestinal problems because of radiation treatment and applied for DIB and SSI. An ALJ issued a Step 5 denial, and Tutwiler sought review alleging an incomplete RFC that did not account for her gastrointestinal symptoms, weight loss, limited drug use, and mental limitations. The Court found that all but the gastrointestinal arguments were forfeited because they were not specifically raised in the district court.

As for Tutwiler’s argument about her gastrointestinal symptoms, the Court identified one medical record stating her diarrhea improved with medication and two others stating she was not experiencing gastrointestinal symptoms. The Court upheld the ALJ because “[h]e weighed the competing evidence, assessed testimony from Tutwiler and the vocational expert, and considered the opinions . . . .” Per the Court, the ALJ carefully considered the record because he added more limitations than the State agency consultants found, and Tutwiler did not submit a more restrictive opinion. And the ALJ based his credibility determination on several factors in addition to the medical records, with the Court assessing that “enough of [the factors] withstand scrutiny.”

Babiash v. Kijakazi (affirmed, unpublished)
Judges Scudder, St. Eve, and Pryor
Dec. 5, 2023

Babiash, who was working as a caregiver, obtained a partially favorable decision from an ALJ in 2015 which stated that if his work reaches SGA, his benefits may be stopped or adjusted and he may be subject to an overpayment. After significant earnings came to the agency’s attention, the Appeals Council returned the case to the ALJ. The ALJ then issued an unfavorable decision finding he engaged in SGA, and Babiash was ordered to repay about $88,000 in benefits.

Babiash sought waiver of the overpayment, and waiver proceedings remained pending before the agency while he appealed the ALJ’s unfavorable SGA decision. Because Babiash, pro se, did not argue that the record lacks substantial evidence for the ALJ’s finding of SGA, the Court found the issue forfeited. And the Court held that Babiash must exhaust his waiver contentions before the Commissioner before judicial review.

Pattee v. Kijakazi (affirmed, unpublished)
Judges Brennan, Scudder, and St. Eve
Nov. 30, 2023

Pattee argued that an ALJ denying his DIB claim erred at Step 3 and in assessing his RFC. Pattee said the ALJ improperly played doctor in interpreting his tilt-table test which Pattee believed reflected postural orthostatic tachycardia syndrome (POTS). But Pattee’s cardiologist and family nurse practitioner analyzed the test and did not conclude that Pattee had POTS, and the ALJ added postural limitations to the RFC, all of which the Court found sufficient without submitting the test results to medical expert scrutiny. Per the Court: “It is no more appropriate for a claimant to ‘play doctor’ than it is for an ALJ.”

Pattee also argued that the ALJ should have considered whether he medically equaled a listing and improperly rejected subjective symptoms. The Court found further listing analysis was not needed due to a lack of recurrent episodes and due to improvement with medication, and the Court said Pattee “repeatedly reported symptoms or conditions that were not backed up by examinations and tests, which produced largely normal results.”

Fitschen v. Kijakazi (affirmed, published)
Judges Sykes, Flaum, and Kanne (*argued in Feb. 2022 before Judge Kanne died)
Nov. 14, 2023

After approval of his 2000 DIB claim, Fitschen returned to work and exhausted his trial work period. The job ended during his extended period of eligibility, but Fitschen later returned to work again at SGA levels. SSA continued paying him for nearly four years before discovering the work activity and assessing an overpayment.

Fitschen sought waiver of the overpayment, arguing that SSA’s reopening rules prohibited assessing an overpayment and that he was not at fault. The Court held that the reopening rules do not apply to Fitschen’s overpayment proceedings because SSA did not possess the information about his earnings during earlier determinations and reviews. As for fault, Fitschen argued that receipt of 1099s from SSA caused him to cash DIB checks that he previously did not cash on account of his work activity, reasoning that he “did not think it was fair to get taxed on money [he] was not to use.” But the Court noted that Fitschen admitted fault in writing to the agency and that substantial evidence supports SSA’s finding of fault.

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

This is a guest column provided by a NOSSCR member. The views expressed in this column are the views of the author alone, and do not represent the views of NOSSCR, NOSSCR’s leadership, or NOSSCR’s staff.