Judges: Per Curiam
Filed: Sep. 16, 2009
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted September 16, 2009* Decided September 16, 2009 Before JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge DIANE S. SYKES, Circuit Judge No. 09-1517 DAWN BOUTTÉ, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 07 C 3233 ARNE DUNCAN, Sec
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with FED. R. APP. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted September 16, 2009* Decided September 16, 2009 Before JOEL M. FLAUM, Circuit Judge TERENCE T. EVANS, Circuit Judge DIANE S. SYKES, Circuit Judge No. 09-1517 DAWN BOUTTÉ, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Illinois, Eastern Division. v. No. 07 C 3233 ARNE DUNCAN, Secr..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 16, 2009*
Decided September 16, 2009
Before
JOEL M. FLAUM, Circuit Judge
TERENCE T. EVANS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 09‐1517
DAWN BOUTTÉ, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 07 C 3233
ARNE DUNCAN,
Secretary of the Department of Ronald A. Guzmán,
Education Judge.
Defendant‐Appellee.
O R D E R
A student borrower of federal educational aid may have her loan liability discharged
in the event of death or permanent and total disability. 20 U.S.C. § 1087(a). Claiming that
she is disabled, Dawn Boutté asked the Department of Education to discharge her student‐
loan debt, but the agency concluded that Boutté had not submitted sufficient evidence of
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 09‐1517 Page 2
disability and denied her request. Proceeding pro se Boutté filed this lawsuit against the
Secretary of Education, and the district court interpreted her complaint as a request for
judicial review of an adverse agency decision, see 5 U.S.C. § 702. The district court granted
summary judgment in favor of the agency, and we affirm.
To fund her studies at Columbia College in Chicago, Illinois, during the 1996‐97
school year, Boutté accepted four loans totaling $13,250 through the William D. Ford
Federal Direct Loan Program. She later defaulted on all four loans and, with accrued
interest, owed a balance of $15,467 as of July 2007. Boutté suffers from, among other
ailments, severe spinal stenosis and osteoarthritis, and since January 2003 she has submitted
at least three applications to the Department of Education for a discharge on disability
grounds. The first two applications were immediately denied for failure to provide
supporting documentation, but the third was substantiated by a letter from Boutté’s
physician, Dr. Theri Raby, opining that she had been unable to work since November 2002.
Based on that letter, the agency preliminarily approved Boutté’s application pending further
investigation.
From March to June 2005, the agency’s medical review team sought additional
documentation from Dr. Raby to determine whether Boutté truly is “permanently and
totally disabled,” as required by 20 U.S.C. § 1087(a). The agency’s investigators specifically
wanted details about Boutté’s residual functioning and whether she was taking pain
medication, using any assistive devices, or making plans for surgical intervention. Dr. Raby
failed to provide the requested information but instead submitted two brief letters. The
first, dated April 4, 2005, offers Dr. Raby’s view that Boutté became “permanently and
totally disabled on November 15, 2002” and stands little chance of ever improving. The
second letter, dated May 19, 2005, explains that Boutté’s spinal stenosis and osteoarthritis
are “moderately controlled with medication and physical therapy” but probably would
progress without surgery or other “drastic measures,” and that Boutté’s treatment plan
included physical therapy, medication, and weight loss. The agency’s medical investigators
deemed the information in these letters too sparse to establish that Boutté is permanently
and totally disabled and thus denied her application in June 2005, but Boutté was still
invited to provide additional evidence. Boutté submitted a follow‐up letter from Dr. Raby
in September 2005 stating that her ailments make her “unable to walk, sit, or stand for long
periods of time” and restrict her from lifting anything heavier than 5 pounds. An agency
memo in the record also memorializes a December 2005 conversation in which Dr. Raby
told the agency investigator that Boutté’s spinal stenosis had progressed to the point where
she could not return to work because “she has to walk with a cane and she has severe lower
back pains.” Concluding again that Boutté had not established that she is permanently and
totally disabled, the agency again denied the application in February 2006.
No. 09‐1517 Page 3
In March 2006 Boutté filed a lawsuit in federal district court seeking review of the
agency’s denial of her application for a loan discharge. Boutté’s doctors produced ten years
of medical records during discovery, none of which Boutté had previously given to the
Department of Education. The district court remanded the case to the agency for
reconsideration based on this new evidence. The agency’s medical investigators concluded,
however, that the additional evidence still did not satisfy its request for information about
Boutté’s residual functioning, medications, assistive devices, or surgical plans, and that Dr.
Raby still had not explained why Boutté could not work in any capacity. Indeed, Dr. Raby’s
notes from Boutté’s most‐recent medical examination in December 2006 state that Boutté
should be restricted to “light duty at work.” The agency thus denied Boutté’s application
again in May 2007, and Boutté filed this lawsuit the following month. This time the district
court concluded that Boutté lacked evidence that the Department of Education had abused
its discretion or acted arbitrarily or capriciously in denying her application, and the court
thus granted summary judgment for the agency.
We review the district court’s grant of summary judgment de novo, construing all
facts and reasonable inferences in favor of Boutté, the opposing party. See Clancy v.
Geithner, 559 F.3d 595, 599 (7th Cir. 2009). Our review of the agency’s decision is governed
by the Administrative Procedure Act (“APA”), which permits us to set aside the decision of
an administrative agency only if it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); Israel v. USDA, 282 F.3d 521,
526 (7th Cir. 2002). To determine whether an agency’s decision was arbitrary or capricious,
we ask if it was “‘based on a consideration of the relevant factors and whether there has
been clear error of judgment.’” Ind. Forest Alliance, Inc. v. United States Forest Serv., 325 F.3d
851, 858‐59 (7th Cir. 2003) (quoting Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378
(1989)). Under this highly deferential standard, we uphold an administrative decision so
long as “the agency’s path may be reasonably discerned.” Mt. Sinai Hosp. Med. Ctr. v.
Shalala, 196 F.3d 703, 708 (7th Cir. 1999) (internal quotation marks and citation omitted).
As an initial matter, we note that only “final agency action” is subject to judicial
review under the APA. 5 U.S.C. § 704. The district court assumed without discussion that
the Department of Education had taken final action, but the record does not include any
formal document memorializing the agency’s most‐recent decision to deny Boutté’s
application for a loan discharge. The agency produced informal notes from its medical
investigators and an internal memorandum explaining the decision to deny Boutté’s request
to have her loans discharged, but neither Boutté nor the agency submitted a written
communication of that decision. (In contrast, when Boutté filed her first lawsuit, she
attached copies of the formal notices she had received from the agency when it denied her
applications in June 2005 and February 2006.) Nevertheless, the parties are in agreement
that the agency did make a formal determination denying Boutté’s application and
No. 09‐1517 Page 4
confirming her obligation to repay her loans, and so we conclude, as the district court
assumed, that the Department of Education took “final agency action” for purposes of the
APA. See Bennett v. Spear, 520 U.S. 154, 177‐78 (1997) (explaining that agency action is
“final,” and thus subject to judicial review, when it “marks the consummation of the
decisionmaking process” and “determines a party’s rights or obligations”).
And we agree with the district court that there is no genuine factual dispute about
whether the agency’s action was arbitrary and capricious or an abuse of discretion.
Although the phrase “permanently and totally disabled” is not defined by statute, an
agency regulation explains that the term describes “an individual who is unable to work
and earn money because of an injury or illness that is expected to continue indefinitely or
result in death.” 34 C.F.R. § 682.200(b). If the Department of Education determines that the
borrower’s application does not conclusively prove that she is disabled, the agency may
require the borrower to submit additional evidence. Id. § 682.402(c)(4)(v). Although Boutté
argues that the medical evidence she submitted to the agency was sufficient to demonstrate
that she is disabled, the record does not support her contention. Dr. Raby offered her
opinion that Boutté’s condition renders her “permanently and totally disabled” and “[t]here
is no reasonable probability that the disabled condition will ever improve,” but the agency
was not required to accept this conclusory and unsupported assessment. Cf. Dixon v.
Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001) (explaining that Social Security Administration
need not grant disability benefits simply because claimant’s doctor says she is “disabled” or
unable to work). Nor do the few specific details that Dr. Raby provided about Boutté’s
condition—that her ailments are “moderately controlled with medication and physical
therapy,” that her symptoms will worsen without surgery, that she walks with a cane and
has severe lower back pain, and that she is “unable to walk, sit, or stand for long periods of
time” or lift anything heavier than 5 pounds—come close to establishing that Boutté is
unable to work in, for example, a sedentary position. Further, although in her appellate
brief Boutté informs us that she presently receives federal disability‐retirement and Social
Security disability benefits, meaning that other arms of the federal government have
classified her as “disabled,” the form for obtaining a loan discharge specifically warns that
the Department of Education is not bound by the standards of other agencies. Boutté, in
any event, never submitted evidence, either to the Department of Education or to the district
court, that she in fact receives disability benefits or, if she does, when those benefits
commenced. In light of the limited medical evidence and Dr. Raby’s repeated failure to
provide the specific information requested, we cannot conclude that the agency’s decision
was arbitrary, capricious, or an abuse of discretion.
We end by noting that our decision does not prevent Boutté from reapplying for a
discharge of her loan liability if she becomes permanently and totally disabled in the future.
The government has represented in its appellate brief that the agency provides a “simple,
No. 09‐1517 Page 5
fill‐in‐the‐blanks” form for an applicant’s physician to complete so that the agency may
properly assess the applicant’s ability to work. The government mentions for the first time
on appeal that, after filing her previous applications, Boutté received but never returned the
form, but there is no evidence in the record to either support or undermine this contention.
In any event, should Boutté reapply she is now aware of the form and the consequences of
failing to provide the specific information requested by the agency.
AFFIRMED.