United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. Johnston United States Magistrate Judge.
Shane Hamel was in the Marines from 1988 until 1992, and
spent seven months in combat in the First Gulf War. While
there, as he would later tell a doctor, he saw “dead
men, women & children” and “survived many
IED, RPG, Mortar attacks.” R. 988. This experience led
to post-traumatic stress disorder (“PTSD”), a
condition he has suffered from, in varying degrees, since
then. This ailment is the primary basis for claiming Social
Security disability benefits now.
simple A-causes-B narrative is complicated by plaintiff's
post-military work record. For many years, he was able to
work full-time despite his PTSD, with his longest stint being
a flight attendant for United Airlines. This job required him
to work in close quarters and interact with diverse people.
Plaintiff eventually quit this job because he was missing too
many days. After working a series of other jobs, plaintiff
applied for disability benefits from the Veterans
Administration (“VA”). In early 2010, a VA doctor
concluded that plaintiff was 100% disabled based on his
flashbacks of “dead bodies [he] saw littering the
streets in the Gulf War, ” his hypervigilance, and his
poor concentration. R. 305. Plaintiff began receiving a
monthly payment of $2, 673. R. 298.
this time, which was his low point, plaintiff began to
improve somewhat. Various theories, discussed below, have
been offered to explain the improvement. In August 2013, over
three years after the VA's determination, plaintiff
applied for Social Security disability benefits, alleging
that mental and physical problems still prevented him from
working. One of his main arguments for being found disabled
by the SSA was that the VA had already done so. After two
hearings, an administrative law judge (“ALJ”)
found that plaintiff could work full-time subject to
restrictions designed to accommodate his PTSD. Disagreeing
with this decision, plaintiff filed this appeal. Everyone
agrees that plaintiff has PTSD and that it causes problems
from time to time. The nub of the dispute is how much
plaintiff improved after 2010 and specifically whether this
improvement would last if plaintiff went back to work.
Numerous medical experts over the course of this case have
grappled with this core question.
first hearing, held in early 2015, plaintiff's attorney
gave an opening statement laying out plaintiff's theories
and also indirectly revealing a few weak points in his case.
Counsel began by stating that it was “notable”
that the VA “deemed that this gentleman was entitled to
service-connected disability.” R. 80. Although
acknowledging that the VA “utilizes a different
standard, ” counsel argued that the VA doctors were
“uniquely suited and trained to deal with” PTSD.
Id. Counsel then offered a second cause for
plaintiff's PTSD, which was the 9/11 terrorist attack.
Counsel explained as follows:
[T]here was [a] secondary exacerbating factor that did emerge
subsequent, when the Claimant did attempt to rejoin society
among other things. He attempted to be a flight attendant,
and he did that for several years. In this case he had the
unfortunate set of coincidences whereby he requested a
transfer off of a route that he'd been on for eight
years, recently getting that transfer, and then very shortly
thereafter September 11th, 2001, the very route that he'd
been on for many years, was the route that was the second
plane that hit the Twin Towers. We don't offer that
gratuitously. We don't offer that for anything other than
that that's something that he has noted and he has what
seems to be some substantial amount of survivor's guilt
as a result of.
R. 81. Counsel explained that, after working a series of
jobs, plaintiff filed for VA benefits and then engaged in
“a regular therapy regime.” R. 82. Counsel
offered several other “exacerbating factors, ”
including plaintiff's divorce from his first wife and
“substantial amounts of domestic strife” with his
second wife and her daughter. Counsel finally offered yet
another factor, stating that the flashbacks had “become
more pronounced in recent months with the protracted increase
in the strife and violence that we see in the Middle
East.” R. 83. Overall, counsel described the 20-year
period as a “pretty clear trajectory, ” a story
“that makes a lot of sense.”
Kathleen O'Brien, a clinical psychologist, then testified
as the impartial medical expert. R. 190. She stated that
plaintiff, after receiving VA benefits, “did struggle a
good deal with the PTSD” for four or five months, but
that his mental status eventually improved by August 2010. R.
85. She stated that he had “some issues of
non-compliance with treatment, ” but overall had only
mild limitations in activities of daily living, moderate
limitations in social functioning, and mild limitations in
concentration. Id. Plaintiff's counsel
cross-examined Dr. O'Brien at some length. Dr.
O'Brien stated that she had worked with war veterans who
had PTSD and acknowledged that symptoms can wax and wane. She
observed that, even though plaintiff had some family
difficulties in the last two years, she did not see anything
that “would suggest that the decompensation would occur
simply because he was in a setting where he was doing simple
tasks.” R. 87. Counsel asked what was
“missing” to find plaintiff disabled, and Dr.
O'Brien stated as follows:
We should expect to see that he would have participated in an
intense kind of group therapy, which is in many ways the gold
standard of treatment for PTSD. He was enrolled in March 2010
in such group. He attended once and then stopped attending
because he reported that he was working. There's no
evidence that he ever picked up again and did this. He could
be in an intensive outpatient program where he worked with
other veterans again on issues  of readjustment into the
environment. I would expect to see much more intensive
records of ongoing contact that was addressing the severity
that you're alluding to.
then testified. The ALJ asked why he stopped working.
Plaintiff answered as follows: “I was finding it hard
to deal with certain situations. As a flight attendant I
stopped because I just couldn't deal with the fact that,
you know, I just lost my friends and it was just very
irritating to me.” R. 89. However, the ALJ then noted
that plaintiff only quit the flight attendant job in 2003
(i.e. he continued to work after the 9/11 incident),
and plaintiff responded vaguely as follows: “Yes, but
if you need to go back and reflect, I am not hirable by
United Airlines due to my attendance.” R. 90. Plaintiff
then described his jobs after United Airlines. One was an
assembly line job, but attendance “was a big problem
because [he] would  get really sick, ” and he also
had “battles” with a coworker. Plaintiff stated
that he would “get chest pains” and “throw
up” and that he had “bouts of depression.”
R. 91. Another job was as a delivery driver. This job was
short-lived because plaintiff and the manager were
“butting heads quite a bit.” Id.
Plaintiff attributed these problems to the fact that
“[t]here's still so much of the Marine in [him]
that it's hard to make that transition between military
and civilian.” R. 92.
then asked plaintiff to respond to the assertion that his
records show that “things are pretty stable.” R.
94. Plaintiff answered that he still had “day-to-day
battles” and only left the house two to three times a
week and those trips were “basically just to run to the
grocery store.” R. 94-95. The ALJ asked why he
“didn't always go” to therapy, and plaintiff
stated that he was “making every excuse not to
go.” R. 96. Asked what triggered PTSD symptoms, he
identified the smell of oil from road construction,
fireworks, and crowds. R. 97.
wife testified that she and plaintiff had been married since
July 6, 2002 and that things seemed “good in the
beginning.” Plaintiff was then working for United
Airlines and would call in sick each month because of fatigue
and vomiting which she thought was from acid reflux. She
stated that he sometimes yelled. R. 104 (“When he's
frustrated or having mood swings  he'll just yell, and
he's angry, and it kind of just doesn't matter what
you do, [you] don't want to be in the line of
fire.”). She described an incident when he got in a
yelling match in the checkout line at a Walmart while
shopping during the Christmas season. When asked why
plaintiff did not always go to therapy, she referred vaguely
to “pivotal points in [their] marriage” which
they did not “like to talk about much.” R. 107.
She stated that plaintiff sometimes was irritated with
therapists but noted that he had been seeing a therapist
named Mike since 2010 and that they had “quite a strong
bond.” R. 109.
not satisfied with the first hearing, the ALJ called a second
one, which took place six months later. Plaintiff was again
represented by counsel, albeit a different attorney. This
attorney also made an opening statement, stating that the
“theory here remains that [plaintiff] is totally and
permanently disabled due to [PTSD] related to his time in
combat.” R. 46. Counsel again emphasized the VA's
earlier decision. Counsel anticipated that his client might
come off as “very pleasant, very articulate” and
could “explain things well” but argued that, like
many people with PTSD, he has “his triggers.”
Id. Counsel acknowledged that Dr. O'Brien had
opined that plaintiff improved after 2010. Id.
(“I understand some of the testimony from the experts
at the last hearing that there was a notion of this
improvement and that things were going relatively well for
him.”). Counsel then offered the following explanation:
Your Honor, our position is that [the improvement is] because
Mr. Hamel is no longer in a situation where he's in
unfamiliar like workplace dealing with stressors. He's
been able to confine himself as he needs to which is almost
entirely at home. He doesn't maintain hypervigilance.
He'll explain today that he has bells affixed to the
doorknobs in the house so he can hear if someone is coming
in. He does still have great struggles with startle response
and whether he's awake or sleeping, if someone comes in
and he's not expected it, he's bound to try to strike
someone. He's securing his perimeter when he's at
home.  But really what this comes [to] is his ability to
sustain in the workplace setting. Even with minimal stress,
we believe that he would be triggered in a way that he could
not be vocationally reliable without having interference from
Michael Cremerius testified as an impartial medical expert.
After reviewing the evidence, he opined that plaintiff could
work certain jobs. As discussed below, plaintiff's
counsel cross-examined Dr. Cremerius at some length and tried
to get him to agree that plaintiff would decompensate if he
returned to full-time work.
January 15, 2016, the ALJ found that plaintiff had the
residual functional capacity (“RFC”) to do light
work subject to certain restrictions, including the
following: “The claimant could understand, remember,
and carry out simple instructions and perform simple tasks
and occasionally interact with the public, co-workers, and
supervisors.” R. 27.
raises four major arguments for remand. The first two are the
most extensive while the final two are briefer, focusing on