Judges: Posner
Filed: Jul. 20, 2016
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3529 ELIZABETH G. TAYLOR, Plaintiff-Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:14-cv-01118-DML-SEB — Debra McVicker Lynch, Magistrate Judge. _ ARGUED JULY 6, 2016 — DECIDED JULY 20, 2016 _ Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. T
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 15-3529 ELIZABETH G. TAYLOR, Plaintiff-Appellant, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:14-cv-01118-DML-SEB — Debra McVicker Lynch, Magistrate Judge. _ ARGUED JULY 6, 2016 — DECIDED JULY 20, 2016 _ Before POSNER, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. Th..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3529
ELIZABETH G. TAYLOR,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14‐cv‐01118‐DML‐SEB — Debra McVicker Lynch,
Magistrate Judge.
____________________
ARGUED JULY 6, 2016 — DECIDED JULY 20, 2016
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The plaintiff applied for Supple‐
mental Security Income on the ground that she is intellectu‐
ally disabled from full‐time gainful employment. She was
turned down by an administrative law judge, whose ruling
was upheld on appeal to the district court by a magistrate
judge, precipitating her appeal to us.
2 No. 15‐3529
She had been a very poor student, unsurprisingly, be‐
cause her IQ was (and presumably still is) between 70 and
75, indicative of an intellectual disability. In her final year of
high school she was functioning at only a fourth‐grade level
in math, fifth grade in reading, and seventh grade in writing.
Her special‐education teacher said that Taylor “struggles
with new concepts and tends to shut down when something
seems ‘too hard’ for her,” has difficulty keeping up with in‐
structions when they are “given too quickly,” and has seri‐
ous problems with learning new material, recalling previ‐
ously learned material, and even caring for herself.
Now in her early twenties, living at home with her moth‐
er, and never having worked, Taylor continues to exhibit
definite symptoms of a serious intellectual disability. She
needs her mother’s help to get dressed, wash her hair, and
take her medications. She can do simple chores around the
house—though very slowly and only if reminded to do
them—but often, even if reminded, forgets how to do them.
She isn’t allowed to cook by herself because her mother is
fearful about her using the stove. She becomes easily
stressed, and cries when she feels overwhelmed. She has
poor depth perception and is clumsy—both being conse‐
quences of surgery to correct a lazy eye. She has seizures,
which though mostly controlled with medication produce
debilitating headaches that require her to sleep several hours
during the day. She has a history of kidney problems, which
have reduced her kidney function by 25 percent. She doesn’t
know how to mail a letter.
A social security field officer who interviewed her re‐
garding her application for benefits reported that after “al‐
most every question that was asked of her she would look to
No. 15‐3529 3
her mother before answering,” and “she was very soft spo‐
ken and became teary‐eyed because she was so nervous
about the process.” The officer concluded that her “capabil‐
ity [of working] is questionable.”
A psychologist named Barrow who interviewed her not‐
ed that at times she “had difficulty understanding instruc‐
tions and, at other times, [was] hesitant to provide answers.”
He assessed her as “currently functioning in the borderline
range of intelligence.” He found her verbal comprehension
to be particularly low, and concluded that she suffers from
“a significant learning disability” and has “markedly dimin‐
ished” working memory and ability to sustain focus. He
deemed her “incapable of managing her funds independent‐
ly” but offered no opinion on whether she could hold down
a job.
Oddly, another psychologist, Gange, who did not inter‐
view Taylor but instead relied on her application for benefits
and on what Barrow had said, concluded that she could
“understand, remember, and carry‐out simple tasks,” “relate
on at least a superficial basis … with coworkers and supervi‐
sors,” “attend to task[s] for sufficient periods of time to
complete tasks,” was “not significantly limited” in her “abil‐
ity to maintain attention and concentration for extended pe‐
riods,” and could “manage the stresses involved with simple
work.”
But there is no basis in the record for this assessment—no
basis for thinking Taylor can carry out simple tasks in a
workplace environment where she wouldn’t have a mother
or a mother substitute to tell her what to do, or that she can
relate to coworkers and supervisors since she’s never had a
job (with a nominal exception to which we’ll come in a mo‐
4 No. 15‐3529
ment). There is also no basis for thinking her able to main‐
tain attention and concentration for extended periods—she
never has.
The closest she’s had to a job was, in the year preceding
the disability hearing, volunteering an hour a week at the
local public library to “fold brochures, cut slips and notices,
and affix labels to a monthly magazine subscription.” The
librarian reported that Taylor “completes her tasks well” but
“has problems following procedures unless she has a list to
follow, which her mother created for her.” The librarian said
she “would hesitate in giving [Taylor] any more responsibili‐
ties” than those involved in her hour‐a‐week volunteer posi‐
tion.
Asked by the administrative law judge at her disability
hearing whether she thought she’d ever be able to live on
her own, Taylor said “I don’t think so.” She said she plays
some video games but can’t drive or handle her own money;
doesn’t shop or cook without her mother; and sometimes
requires help showering, fixing her hair, and remembering
to take her medications. She doesn’t know her own weight,
or know how to text.
The administrative law judge, remarking that Taylor had
not engaged in substantial gainful activity and that her cog‐
nitive disorder was a severe impairment but that her sei‐
zures, kidney disease, and lazy eye were not, concluded
with no basis in the record that Taylor can “perform … rou‐
tine, unskilled work at a fourth or fifth grade level.” Not on‐
ly is that conclusion unfounded, but one doesn’t need child‐
labor laws (though we have them) to realize that an adult
with no greater capability for full‐time work than a fourth‐
or fifth‐grader is incapable of full‐time gainful employment.
No. 15‐3529 5
The administrative law judge conjectured that because Tay‐
lor is “a young adult” who can play video games and is
“learning these new tasks” (what new tasks?), she may expe‐
rience “increased function with maturity.” Maybe so—
anything is possible. But there is no evidence to support the
administrative law judge’s conjecture. And he ignored the
doubt we expressed in Voigt v. Colvin, 781 F.3d 871, 878–79
(7th Cir. 2015), that playing video games requires the same
level of concentration as working full time.
He acknowledged that observing Taylor during the hear‐
ing gave him only a “snapshot” of her, which was doubtless
true but hardly a reason to deny her benefits. He accorded
only “limited weight” to the mother’s uncontradicted testi‐
mony about Taylor’s inability to care for herself because it
was a “lay opinion”—which of course most evidence is. He
went so far as to say that her hour a week in the library indi‐
cated that she could engage in “higher functioning”—a con‐
clusion directly contrary to the librarian’s statement that she
“would hesitate in giving [Taylor] any more responsibilities”
beyond the meager tasks in the library that Taylor had not
managed to commit to memory after a year of practice.
The administrative law judge purported to give “great
weight” to Barrow’s report—or rather to the fact that Barrow
had “noted nothing of [Taylor’s] inability to work.” But he
had been asked only to assess her mental functioning. While
overlooking the statement in Barrow’s report that Taylor’s
memory and ability to focus were “markedly diminished,”
the administrative law judge injected that curious conjecture
about performing “routine, unskilled work at a fourth or
fifth grade level,” contrary to our rejection of the view that
“confining the claimant to simple, routine tasks and limited
6 No. 15‐3529
interactions with others adequately captures temperamental
deficiencies and limitations in concentration, persistence,
and pace.” E.g., Yurt v. Colvin, 758 F.3d 850, 858–59 (7th Cir.
2014).
As is customary in disability hearings a vocational expert
employed by the Social Security Administration was asked
what full‐time jobs if any the applicant could perform, as‐
suming the applicant wasn’t totally disabled from gainful
employment. The vocational expert testified that “if” (a huge
“if”) Taylor could do routine or unskilled work involving
only infrequent interpersonal contact and no exposure to
hazards, she could work as a cleaner, assembler, hand pack‐
er, or machine feeder. The vocational expert failed, however,
to explain the source or accuracy of her data concerning the
number of such jobs that exist in the economy, an oversight
we criticized in Alaura v. Colvin, 797 F.3d 503, 507–08 (7th
Cir. 2015), and Voigt v. Colvin, supra, 781 F.3d at 879.
The expert said “these jobs are not considered fast‐paced
jobs. They do require accuracy.” But, he added—a big
“but”—a person who needed “occasional redirection by a
supervisor” (up to one‐third of the workday) in order to re‐
main on task would be unable to work. Five witnesses indi‐
cated that Taylor was such a person: the librarian, the teach‐
er, the mother, the Social Security field officer, and Barrow.
The administrative law judge ignored their evidence, contra‐
ry to our ruling in Moore v. Colvin, 743 F.3d 1118, 1123
(7th Cir. 2014), that an administrative law judge “must con‐
front the evidence that does not support her conclusion and
explain why that evidence was rejected.” He ignored the vo‐
luminous record evidence establishing that Taylor’s intellec‐
tual deficiencies disable her from working full time. Indica‐
No. 15‐3529 7
tive that the administrative law judge wasn’t even concen‐
trating on the testimony or other evidence at the disability
hearing, he twice referred in his opinion to Taylor as a male.
True, there was Gange, who—remember—had checked a
box indicating that Taylor was “not significantly limited” in
her “ability to maintain attention and concentration for ex‐
tended periods.” But neither Gange, who said he relied on
Barrow’s report, nor the administrative law judge, nor any‐
one else, offered any reason for disagreeing with Barrow’s
opinion that Taylor’s abilities are markedly impaired. The
denial of the benefits sought by Taylor was unsupported,
and the district court should not have affirmed it.
The judgment of that court is reversed with instructions
to remand the case to the Social Security Disability Office for
further proceedings consistent with this opinion.