DANIEL J. HALL, Plaintiff-Appellant,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee
Submitted January 20, 2015.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:13-cv-00993-JMS-MJD -- Jane E. Magnus-Stinson, Judge.
DANIEL J. HALL, Plaintiff - Appellant, Pro se, Noblesville, IN.
For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: Luke F. Woltering, Attorney, SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel, Region V, Chicago, IL.
Before POSNER, KANNE, and SYKES, Circuit Judges.
Posner, Circuit Judge.
This is an appeal by an applicant for social security disability benefits named Daniel Hall, who was turned down by the Social Security Administration seconded by the district court. An aviation mechanic discharged in 2001 by the military (we are not told which branch) because of pain from an ankle injury, he was deemed by the Department of Veterans Affairs to be 70 percent disabled and, more important, to be " unemployable" in " a substantially gainful occupation" and therefore totally disabled. 38 C.F.R. § 4.16. In 2010 he applied for social security disability benefits on the ground that pain from his ankle
injury, together with back and knee pain and other ailments, had steadily worsened and by 2009 had rendered him totally disabled under the standards of the Social Security Act.
Between 2005 and 2011 he underwent a series of physical examinations and diagnostic tests. Some of the results were normal but many were not, and revealed torn ligaments, obesity (a BMI varying between 30 and 32--and 30 is considered the threshold of obesity), possible arthritis in a knee and ankle, an " alignment problem" in his back, and fibromyalgia. At his hearing before administrative law judge Blanca B. de la Torre, Hall testified that he can't sit continuously for more than half an hour or stand continuously for more than an hour, is incapacitated by his pain for at least six days a month, of the 12 days per month on which his wife is working and he is home alone with the children he is incapacitated for six of them and has to get help from his father to take care of the children, and that often when his wife is at home he has to lie on his back and apply heat or ice to his body to alleviate his pain. Including pain killers and muscle relaxants, he takes four meds daily and they make him " drowsy" and " foggy."
On the basis of the evidence presented at the hearing a vocational expert concluded that if as one of the doctors had said Hall can't sit continuously for more than 15 minutes or stand for more than 10 (which may be underestimates--see preceding paragraph) and if his testimony about his pain was credible, then Hall was indeed totally disabled, but otherwise he could perform such jobs as general office clerk, hand packer, or ticket checker.
The administrative law judge concluded that Hall was not totally disabled, albeit severely impaired by the effects of a torn ligament in his ankle, obesity, and a torn meniscus in his knee. (The meniscus is a piece of cartilage in the knee-- and a tear of it can be extremely painful. WebMD, " Fitness & Exercise: Knee Injury and Meniscus Tear," www.webmd. com/fitness-exercise/meniscustear (visited Feb. 11, 2015, as were the other websites cited in this opinion).) She emphasized that Hall spends what she called a " significant" amount of time taking care of his children, though it's only 12 days a month and on half of them he needs his father's help.
The administrative law judge expressed skepticism that Hall's medications make him drowsy, and was critical that he had sought physical therapy only belatedly, implying that he is the author of his troubles. She gave " little weight" to a doctor's testimony that supported Hall's claims of pain, in part because the doctor had seen Hall only three times. She thought it suspicious that he hadn't seen doctors more frequently, though he explained that it's very difficult to get an appointment with a Veterans Administration doctor. (Delay in obtaining such appointments has become notorious. See, e.g., Richard A. Oppel Jr. and Abby Goodnough, " Doctor Shortage Is Cited in Delays at V.A. Hospitals," New York Times, May 29, 2014, www.nytimes.com/2014/05/30/us/doct or-shortages-cited-in-va-hospital-waits.html.) Her principal reason for concluding that Hall is not totally disabled by pain is that the diagnostic tests, mainly x-rays, that he underwent provided only limited support for his pain complaints. However, for such soft-tissue injuries an MRI is a better diagnostic tool than an x-ray. National Library of Medicine, Medline Plus, " Lumbosacral Spine X-Ray," ...