In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1873

P ATRICIA L. H UGHES,
                                                  Plaintiff-Appellant,
                                  v.

M ICHAEL J. A STRUE,
Commissioner of Social Security,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 10 C 4912—Arlander Keys, Magistrate Judge.



   A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 16, 2013




 Before P OSNER, R OVNER, and W OOD , Circuit Judges.
  P OSNER, Circuit Judge. An applicant for social security
disability benefits appeals from the district court’s
affirmance of the denial of her application by an adminis-
trative law judge, whose decision became final when the
Appeals Council of the Social Security Administration
declined to review it.
  The appellant is a 57-year-old woman who was diag-
nosed in 2002 with adhesive capsulitis (“frozen shoulder”)
2                                               No. 12-1873

in her right shoulder and later with chronic obstructive
pulmonary disease. The capsulitis limited the range of
motion of her right arm. Physical therapy helped. A
doctor from whom she sought treatment for her pul-
monary condition concluded that her problem wasn’t
pulmonary, but was acute sinusitis and related condi-
tions, triggered by allergies, cold virus, dust, cold air,
etc., in her nasal passage.
  She stopped medical treatment in 2003, possibly be-
cause she had no health insurance and a very low
income—$4500 to $9000 a year—as a clerical worker.
Her last significant employment, which ended in 2007,
was as a “night-clerk auditor,” a type of hotel clerk,
where in addition to clerical work she had to make
coffee and fill and empty coffee urns and provide
pillows, blankets, and towels to the hotel’s guests. She
quit because she thought the hotel was about to close.
She got another clerical job, but was fired on her first day
because unable to lift a box of paper. She then filed for
social security disability benefits and resumed seeking
medical treatment for her conditions. Examinations
revealed that she had regained the full range of arm
motion, but that the muscles in her arms and shoulders
were weak. And she was again diagnosed with chronic
obstructive pulmonary disease, which caused bronchitis,
respiratory infections, and shortness of breath.
  She testified at the hearing on her application for
benefits that during her stint as a hotel clerk she had
had to use copious amounts of Tylenol and nasal spray
to be able to do the required work and had needed to
No. 12-1873                                              3

put ice on her neck and back after carrying the coffee urns
(and so she worked the night shift so that she wouldn’t be
seen attending to her health problems by her supervisor).
She testified that she gets bronchitis between once and
four times a year and that in 2008 (the year before the
hearing) she had been sick for about 30 days because of
a respiratory infection. She explained the adjustments
she had had to make in her daily life to cope with the
weakness of her shoulders, such as using a small bag
instead of a laundry basket to carry laundry and limiting
the total weight of her purse to two and a half pounds.
  The administrative law judge decided he needed more
information and directed that she be examined by an
orthopedic surgeon named James P. Elmes. On the basis
of the examination Dr. Elmes reported that the applicant
is only 5 feet 4 inches tall and weighs only 96 pounds;
that X-rays of both shoulders revealed adhesive
capsulitis in both, resulting in range-of-motion problems,
and also revealed degenerative rotator cuff disease in
both; that she could lift or carry up to 10 pounds, but
only occasionally; and that she could not tolerate ex-
posure to pulmonary irritants.
  The administrative law judge decided that the ap-
plicant was capable of performing her past job as a
hotel clerk and that therefore she was not disabled. The
judge’s reasoning is hard to fathom. He ignored the
finding by Dr. Elmes—whom, remember, he had
appointed to examine the applicant, and with whom the
applicant had no prior relationship—that she could lift
or carry a 10-pound weight occasionally. In fact he disre-
4                                              No. 12-1873

garded Elmes’s entire report, on the unexplained
ground that it was “not consistent with the medical
evidence of record” and “seem[ed] to be based solely on
the [applicant’s] subjective complaints.” The judge
did not indicate what “medical evidence of record” he
had in mind and he ignored the fact that Elmes had
conducted a 90-minute examination of the applicant.
He also ignored Elmes’s finding that the applicant has
degenerative rotator cuff disease.
  The judge thought the applicant’s failure to have
sought medical treatment between 2003 and 2007 incon-
sistent with her having a disabling medical condition.
He noted her explanation that she hadn’t had medical
insurance or an income large enough to pay for
medical treatment out of pocket, but said she could
have sought treatment in a hospital emergency room.
Remarkably, he seemed unaware that emergency
rooms charge for their services and are required to treat
an indigent only if the indigent is experiencing a
medical emergency. He was troubled by “lack of aggres-
sive treatment” for her health problems, without
pausing to consider what “aggressive treatment” might
have solved them. He said she must be exaggerating her
shoulder problems because she had rejected certain
medications for them, but he neglected to mention that
she had done so because they gave her headaches. She
testified that she dislikes taking medicines, but so far as
appears this is because of a warranted concern with
side effects rather than an irrational antipathy to
medical treatment.
No. 12-1873                                                5

  The administrative law judge dismissed the ap-
plicant’s respiratory problems on the ground that she’s
a smoker and would not be if she really had such prob-
lems. He must have forgotten that she’d given up
smoking 30 years earlier. The government dismisses
this error as a “harmless error,” on the ground that
other evidence demonstrates conclusively that she is not
disabled; it doesn’t. Another ungrounded finding was
that the applicant can stand or walk for six hours in an
eight-hour workday. The administrative law judge
also was derisive that a “nasal spray” could treat a
serious condition, apparently overlooking the fact that
the nasal spray prescribed for the applicant contains
cortisone, which can suppress the immune system and
cause headaches, nausea, and nose bleeds.
  He confused the range of motion in her shoulders
with the strength of her arms, maybe because he over-
looked her testimony that her clerical employment
had required lifting 30 pounds, which was very painful
for her. (The coffee urns may well have weighed that
much if full; the weight of the coffee alone in a 40-cup
coffee urn would exceed 20 pounds.)
  He attached great weight to the applicant’s ability to
do laundry, take public transportation, and shop for
groceries. We have remarked the naiveté of the Social
Security Administration’s administrative law judges in
equating household chores to employment. “The critical
differences between activities of daily living and
activities in a full-time job are that a person has more
flexibility in scheduling the former than the latter, can get
6                                                  No. 12-1873

help from other persons ( . . . [her] husband and other
family members), and is not held to a minimum standard
of performance, as she would be by an employer. The
failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law
judges in social security disability cases.” Bjornson v.
Astrue, 

, 647 (7th Cir. 2012); see also Craft v.
Astrue, 

, 680 (7th Cir. 2008); Gentle v. Barnhart,

, 867-68 (7th Cir 2005); Rogers v. Commissioner
of Social Security, 

, 248-49 (6th Cir. 2007); Draper
v. Barnhart, 

, 1131 (8th Cir. 2005). The appli-
cant cannot afford to hire a laundress, so she has to do
the laundry herself, painful though that may be. She
explained, as we noted, that she does so in a way that
minimizes the weight she has to lift; the administra-
tive law judge ignored her explanation. She has to buy
groceries if she doesn’t want to starve, because she has
no one to buy them for her; she limits the amount of
groceries she buys at any one time, so that the weight
will be less. And taking public transportation doesn’t
involve lifting heavy objects, and is less strenuous than
walking while carrying a bag of groceries. And in doing
these chores she is not subject to an employer’s perfor-
mance standard; remember that the applicant was fired
for being unable to lift a box of paper.
  Characteristically, and sanctionably, the government’s
brief violates the Chenery doctrine (see SEC v. Chenery
Corp., 

, 87-88 (1943); Kastner v. Astrue, 

, 648 (7th Cir. 2012)), arguing for example that the
administrative law judge rejected Dr. Elmes’s report
because he is not a pulmonologist.
No. 12-1873                                               7

  We do not hold that the applicant is in fact disabled. She
is college educated and certainly intellectually capable
of a variety of sedentary clerical work, and many of those
jobs don’t require lifting or aggravate respiratory prob-
lems. Indeed, it’s not even clear that she is incapable of
doing her past relevant work. The term refers to the type
of job, not to idiosyncratic duties that the employer may
have imposed. 20 C.F.R. § 404.1560(b)(2); Smith v. Barnhart,

, 253 (7th Cir. 2004). Emptying coffee urns
doesn’t sound like a typical duty of a night-clerk auditor,
but the administrative law judge did not discuss the
meaning of “past relevant work” and so far as appears
found that the applicant can do her past work as a night-
clerk auditor, coffee-urn duties and all—a finding not
supported by his analysis or by the record, or even by
his opinion, in which he says that she can lift up to
10 pounds.
  Really the Social Security Administration and the
Justice Department should have been able to do better
than they did in this case.
  The judgment of the district court is reversed with
directions to remand the case to the Social Security Ad-
ministration for further proceedings consistent with
this opinion.




                           1-16-13