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David J. Spiva v. Michael J. Astrue

December 6, 2010

DAVID J. SPIVA, PLAINTIFF-APPELLANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 09-C-178-J.P. Stadtmueller, Judge.

The opinion of the court was delivered by: Posner, Circuit Judge.

ARGUED NOVEMBER 9, 2010

Before POSNER, TINDER, and HAMILTON, Circuit Judges.

In Parker v. Astrue, 597 F.3d 920 (7th Cir. 2010), we criticized the handling of social security disability claims in the following respects:

(1) opinions of administrative law judges denying benefits routinely state (with some variations in wording) that although "the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, . . . the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible," yet fail to indicate which statements are not credible and what exactly "not entirely" is meant to signify; (2) many of the Social Security Administration's administrative law judges seem poorly informed about mental illness; and (3) in defiance of the principle of SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943), the Justice Depart-ment's lawyers who defend denials of disability benefits often rely heavily on evidence not (so far as appears) relied on by the administrative law judge, and defend the tactic by invoking an overbroad conception of harmless error. See also, e.g., Larson v. Astrue, 615 F.3d 744, 749, 751 (7th Cir. 2010) (misunderstanding of mental illness; Chenery violation); McClesky v. Astrue, 606 F.3d 351, 352, 354 (7th Cir. 2010) (credibility boilerplate; Chenery violation); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006) (misunderstanding of mental illness); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006) (Chenery violation); Ryan v. Commissioner of Social Security, 528 F.3d 1194, 1199-1201 (9th Cir. 2008) (misunderstanding of mental illness); Kohler v. Astrue, 546 F.3d 260, 268-69 (2d Cir. 2008) (same); Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) (Chenery violation); Robbins v. Social Security Administration, 466 F.3d 880, 883-85 and n. 2 (9th Cir. 2006) (credibility boilerplate).

The administrative law judge found that the applicant in this case, David Spiva, "has the following severe combination of impairments [she probably meant to write 'combination of severe impairments']: mood disorder, schizophrenia, dysthymia [a form of depression with milder symptoms than major depressive disorder], psychosis, depression, alcohol and cannabis abuse, and attention deficit disorder." Schizophrenia is a psychosis, and dysthymia a form of depression, and depression a mood disorder, so what the administrative law judge intended by adding depression, psychosis, and mood disorder to the list of Spiva's impairments is, like much else in her opinion, unclear.

She concluded that Spiva was not totally disabled, because he could perform the last job he had held, which had been at Walmart, and lots of other jobs (unspecified) as well. She said "there was reference to malingering as an issue"; Spiva had been found to be "evasive during his consultative evaluation"; there were references to his "not taking medication as prescribed"; he had admitted being "able to do simple household chores and interact[] with family members," including "baby-sitting for his child while the mother worked"; and he had "moved to Milwaukee in July 2006 because the child's mother needed help." That's it-and is a remarkably sparse summary of a rich record.

Spiva was working at a Walmart store in Mississippi when in 2004, at the age of 28, he checked himself into a psychiatric clinic. He told William Turner, his attending physician, that he had suffered from "horrible thoughts" since childhood and had attempted suicide with rat poison in his teens. When he was a child his father had died from a gunshot wound to the head and his mother had beaten him. He had served time in prison on drug charges. He had left his home in Milwaukee (where people told him he was "crazy"), hoping to "get a fresh start" in the South. But although he had found work shelving goods and loading trucks at Walmart, "thoughts of harming himself and thoughts of harming other people" continued to haunt him. He reported "having spirits within him from other people that are evil spirits." He said "he had been very depressed and anxious. He had decreased appetite, decreased sleep and decreased energy. He had had auditory hallucinations, hearing 'spirits.' [He] stated that his thoughts were not his, that his thoughts were being controlled by other people's spirits. He stated that he always had thoughts of wanting to hurt people." Dr. Turner tentatively diagnosed Spiva as having a psychotic disorder, a mood disorder, and a personality disorder.

After a few days on Geodon, a drug for treating schizophrenia, and Lexapro, a drug for the treatment of major depressive disorder, Spiva was discharged with a prescription for another antidepressant drug, Zoloft.

Five months later he checked himself back into the facility. He had stopped taking Zoloft because it wasn't working. His condition had worsened. He reported that "evil spirits" were "after him," that sometimes he could control the spirits and at other times they controlled him, and that he often thought about hurting his family. He denied having visual hallucinations-he would admit only to auditory ones-yet also said that he was seeing the spirits, though not with his "physical eye." He was prescribed both antipsychotic and antidepressant drugs (Abilify, Effexor, Cymbalta, Trazodone, and again Geodon). After a week in the facility Spiva was discharged, but he didn't return to work because he "wasn't functioning right."

Dr. Shannon Johnson of the clinic opined that as long as Spiva stayed on the drugs prescribed for his mental illnesses and kept his appointments with mental-health professionals, he would be able to maintain "steady, gainful employment." The two mental-health professionals whom the Mississippi Disability Determination Services (a state agency that works with the Social Security Administration) asked to evaluate Spiva's mental condition agreed that he was capable of working full time. One of them, William Osborn, a psychologist, could not decide whether Spiva was psychotic, in part it seems because he was uncommunicative, refusing for example to discuss his previous diagnoses of and treatments for mental illness. Osborn concluded that probably Spiva could "perform routine repetitive tasks, interact with co-workers, receive supervision, and maintain concentration and attention." The other consultant, however, Janise Hinson, while she agreed that Spiva could return to work, thought his vocational options might be limited by his difficulties in concentrating and in interacting with people (maintaining "socially appropriate behavior"), including both members of the general public and supervisors and co-workers, and in adhering to basic standards of cleanliness and neatness.

In 2006, no longer working, Spiva returned to Milwaukee to help a woman with whom he had had a child. He has had no fixed residence after returning from the South, but has moved from relative to relative, each of whom would eventually "put him out" because "I [Spiva] ended up losing control of my thoughts." (An aunt with whom he had lived in Mississippi had said: "He is lovable one day, but displays a lot of anger and hate the next day . . . . He doesn't talk like himself . . . . He has a lot of hate and anger in him, and it's hard to get to his head.") He laughs at inappropriate times, and at times exhibits uncontrollable rage. At the time of the disability hearing he was living with a cousin who wanted him to leave; he may be running out of relatives to live with.

He was admitted to a psychiatric clinic in Milwaukee in 2006, where he "talked a lot about spirits" (in typical schizophrenic fashion he believes that people, as well as spirits, insert unwanted thoughts into his brain telepathically) and told a doctor that he didn't want to live any more. He returned to the clinic the following year and this time was referred to a hospital for treatment. He told hospital personnel that there was "evil in me" and "around me" and made "vague" threats that he would harm himself and others. He said that he and his daughter (a child of nine) share the same spirit; since the spirit tells him to do evil things, it may tell the daughter to do evil things to him. He had what one medical examiner called delusions of persecution and of "alien control." When his "walls are not up," spirits invade his body. He is "willing to cooperate [with mental health professionals] but is fearful of groups of people confronting him." His thinking is "nihilistic and grandiose."

In a 2007 hospitalization he "came in with vague complaints. 'Burning inside that feels like anger that needs to explode.' " He was discharged two weeks after being admitted, with a diagnosis of an unspecified mood disorder. At the time he was taking several medications, ...


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