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Childress v. Colvin

United States Court of Appeals, Seventh Circuit

January 4, 2017

Stacy L. Childress, Plaintiff-Appellant,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Defendant-Appellee.

          Argued December 13, 2016

         Appeal from the United States District Court for the Central District of Illinois. No. 2:14-CV-00297-CSB-DGB - Colin S. Bruce, Judge.

          Before Posner, Kanne, and Sykes, Circuit Judges.

          POSNER, Circuit Judge.

         The plaintiff-appellant, Mr. Chil-dress, applied to the Social Security Administration for disability benefits in 2008, when he was 35. Turned down in 2010 after a hearing before an administrative law judge, he appealed to the district court, which initially remanded the case to the Social Security Administration for reevaluation of the medical opinions in the record and reconsideration of the plaintiff's credibility. The upshot was a second hearing, held in 2013, before the same administrative law judge, who again ruled that Childress was not disabled; and this time the district court affirmed, precipitating his appeal to us. He complains that the administrative law judge again failed to give sufficient weight to the opinions of his treating physicians and did not accurately assess his credibility or his capacity to work.

         The administrative law judge ruled in the second round that Childress could perform only limited sedentary work (and nothing more strenuous), because he is capable of standing for only 25 to 30 minutes at a time and of walking 1 to 2 blocks at a time, adding up to a maximum of 2 hours a day of either walking or standing; he is capable of sitting 45 to 60 minutes at a time, for a total of 6 hours a day; and he is capable of carrying out workplace instructions-provided he was given them no more than 30 days earlier. The administrative law judge also ruled that he must avoid strenuous work, dangerous machinery, unprotected heights, and exposure to extreme heat.

         The medical evidence presented by Childress's treating physicians was extensive. A cardiologist who had been treating Childress for years, Dr. Theodore Addai, reported that Childress suffers from congestive heart failure, cardiomyo-pathy (another disease that diminishes cardiac performance), severe asthma, COPD (chronic obstructive pulmonary disease, actually one or more of a set of distinct diseases, all of which however are debilitating, progressive, and potentially fatal lung diseases), occasional chest pain, obesity (he weighs 350 pounds yet is only 69 inches-five feet nine inches-tall), hypertension, and dyspnea (difficult or un- comfortable breathing, resulting in shortness of breath). He was prescribed a number of medications: Advair, Benazepril, Coreg, Diovan, Lanoxin, Lasix, Norvasc, Proven-til, and Spiriva. We are not told whether any of them have side effects that are harmful or that affect work capacity, either in general or with specific respect to Childress.

         The percentage of blood pumped out of the ventricles with each contraction of the heart (i.e., each heartbeat) is called the "ejection fraction" (EF). The EF number helps a health-care provider determine whether a patient has heart disease. A normal heart has an EF of 50 to 75 percent in the left ventricle. (The right ventricle can have a lower EF without being abnormal, because it pumps blood only to the lungs, whereas the left ventricle pumps blood to the rest of the body.)

         By 2010, Childress's left-ventricle EF had fallen to 35 to 40 percent (though later in the year it rose to a normal 66 percent). The cardiologist estimated that in an eight-hour workday Childress would be able to stand or walk for no more than one hour and to sit for no more than two hours.

         The ups and downs continued, but the downs predominated. A stress test in 2011 showed "poor exercise tolerance for his age" (though he was still in his 30s). He had shortness of breath even at home, fatigue, tingling sensations, swelling in his feet and ankles, tightness in his chest, flashes of light in his vision, tingling all over, and continued diagnoses of serious heart problems. The following year his ejection fraction fell to a dangerously low 20 to 25 percent, requiring implantation of a cardiac defibrillator. The following year his ejection fraction rose to 30 to 35 percent, still abnormally low. Other heart problems that he was diagnosed with in- eluded diastolic dysfunction, severely dilated left ventricular chamber size, severely dilated left and right atriums, and mild aortic valve insufficiency.

         Nor is the ejection fraction the only evidence that Chil-dress's left ventricle is impaired. If the left ventricle is wider than 6 centimeters in its diastolic state (that is, when it is expanded and full of blood), this indicates a severe thinning of the heart muscle. See 20 C.F.R. Part 404, Subpart P, App. 1, 4.02(A)(1). Childress's heart measurements have consistently revealed that his left ventricle is more than 6 centimeters wide. This was actually noted by the administrative law judge at Childress's first hearing. Yet at the second hearing, the one now under review, she did not mention it, thus overlooking an important fact supportive of his claim to be disabled.

         Another doctor, Kari Cataldo, evaluated and treated Childress beginning in 2008. Her diagnoses were similar to Dr. Addai's, but with the addition of diagnosing crackles in the lungs, bronchial markings, a hernia, acute bronchitis, depression, a systolic heart murmur, increased lung markings, increased dyspnea and chest pain, wheezing and coarse breath sounds, edema (swelling) of the ankles, headaches, and pain and swelling in the legs. In 2009 another doctor appeared on the scene, Patrick Hartman, who diagnosed acute bronchitis and hypertension, coarse breath sounds, shortness of breath, coughing, fatigue, decreased exercise tolerance, severe fatigue, congestive heart failure, chronic obstructive pulmonary disease, obesity, etc., and an ejection fraction, still subnormal, of 35 to 40 percent. Childress also had painful cysts on his legs, which Dr. Hartman treated.

         Dr. Hartman estimated that Childress would be able to sit for 3 hours total and stand or walk for 1 hour total in an 8-hour workday, though he would also have to lie down for an hour every 1 to 2 hours during the workday-which would reduce his workday. If he lay down only every 2 hours, say at 11 a.m. and 1 p.m. and 3 p.m., and his workday was 9 a.m. to 5 p.m., that would reduce the actual working part of his "working day" to 5 hours (9 to 11 a.m., 12 to 1 p.m., 2 to 3 p.m., and 4 to 5 p.m.), rendering him unemployable. Dr. Hartman also thought it likely that Childress's medical symptoms would worsen in a work environment, and he concluded that Childress is totally disabled from gainful employment.

         Two nonexamining state agency physicians looked at a severely incomplete set of the plaintiff's medical records, and concluded without any real evidence that he can walk about 6 hours a day and sit about 6 hours a day. The second such physician summarily agreed with ...


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