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Mitze v. Colvin

United States Court of Appeals, Seventh Circuit

April 9, 2015

BRENDA MITZE, Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee

Submitted: March 12, 2015.

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:13-cv-00444-WCG -- William C. Griesbach, Chief Judge.

Brenda Mitze, Plaintiff - Appellant, Pro se, New London, WI.

For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: James B. Geren, Attorney, Social Security Administration, Chicago, IL; Jonathan H. Koenig, Attorney, Office of The United States Attorney, Milwaukee, WI.

Before POSNER, EASTERBROOK, and TINDER, Circuit Judges.

OPINION

Page 880

Posner, Circuit Judge.

The plaintiff applied for social security disability benefits in 2009, at the age of 43, claiming to be disabled by a cyst (a liquid-filled sphere) in her pineal gland, a small endocrine gland in the brain that produces melatonin, which regulates sleep. After a hearing before an administrative law judge in November 2011, her application was rejected, and the rejection upheld by the district court, precipitating this appeal.

Pineal cysts are usually quite harmless, but not always; the plaintiff's cyst caused her to experience vertigo, blurred vision, and headaches. She argues that in combination these symptoms disable her from full-time gainful employment. She has a high-school education, is married and has chil-dren, but has never held a full-time job.

In 2010 she underwent brain surgery to remove the cyst. Although an MRI following the operation showed that the cyst had been removed and the site of the operation in the brain was healing normally, and her vertigo and vision problems had been resolved, within weeks she was com-plaining about pain and numbness in her head. Her surgeon referred her to a physician with expertise in anesthesiology, who prescribed drugs, and also referred her to two pain specialists. One suggested a treatment that she rejected--an " occipital nerve injection," which is an injection of a steroid at the back of the head to relieve pain, and is a standard procedure. She declined to consult the other pain specialist. Her primary physician then referred her to a third specialist, who recommended that she seek ongoing " tertiary" care (a higher level of specialty care) at a hospital in Madison, Wiscon-sin. She declined, saying she'd be unable to travel to Madison (a two-hour drive from her home) on a regular basis.

Though continuing to complain about pain, she did long-distance running in preparation for participating in a marathon. She didn't participate in the marathon after all, but she did run in a 5,000-meter race, and she runs for an hour daily. (She also traveled to Australia for a month.) Later an MRI showed a possible pinched nerve in her neck and a narrowing of some nerve passageways.

In support of her application for disability benefits she submitted documents from two chiropractors. One said that on the basis of what the plaintiff had told him he thought that if employed she would need 15-minute breaks every 30 minutes and would miss work more than four times a month--which if true would preclude full-time gainful employment and thus render

Page 881

her totally disabled within the meaning of the Social Security Act. (Vocational experts, who testify at all Social Security disability hearings, invariably testify that missing work more than three days a month precludes full-time gainful employment, and the administrative law judges seem always to credit that testimony. See, e.g., Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013); Pepper v. Colvin, 712 F.3d 351, 361 (7th Cir. 2013); Treichler v. Comm'r of SSA, 775 F.3d 1090, 1096 (9th Cir. 2014).) The chiropractor may, however, have thought (or so at least the administrative law judge may have suspected he thought) that she might be exaggerating her symptoms. ...


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