In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2723
D ENISE L. M C C LESKY,
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, Western Division.
No. 08 C 50020—P. Michael Mahoney, Magistrate Judge.
A RGUED A PRIL 9, 2010—D ECIDED M AY 18, 2010
Before P OSNER, FLAUM, and W ILLIAMS, Circuit Judges.
P OSNER, Circuit Judge. Denise McClesky, age 41 at the
time of the alleged onset of what she claims to be total
disability, appeals from the district court’s affirmance of
the Social Security Administration’s denial of her claim.
It is uncontroversial that she suffers from major depres-
sion and has limited use of her fingers, hands, and arms
because of numbness, weakness, and pain in these ex-
tremities and in her shoulders, as a result of a combina-
2 No. 09-2723
tion of fibromyalgia and thoracic outlet syndrome
(compression of blood vessels or nerves in the region
between the collarbone and the highest rib).
After the boilerplate recital (see Parker v. Astrue, 597
F.3d 920, 921-22 (7th Cir. 2010)) that “based on the evi-
dence, the claimant’s medically determinable impair-
ments could reasonably be expected to produce the
alleged symptoms, but the claimant’s statements con-
cerning the intensity, persistence, and limiting effects of
these symptoms are not entirely credible,” the administra-
tive law judge began picking apart McClesky’s testimony,
noting first that she “has not always pursued things that
would elevate [sic—the judge meant ‘alleviate’] that
distress.” In support of this statement the judge pointed
out that McClesky had visited a doctor only once in
more than two years. That was mistaken. Her visits to
doctors and other medical practitioners were frequent,
and though her lawyer argued without contradiction
that her client could not afford even more frequent visits
to doctors, the administrative law judge thought it signifi-
cant that McClesky had once told “her then neurologist
she did not like to take medication.” In fact she takes
Advil and Tylenol, and while she refuses to take
Neurontin (misspelled “Neurotin” in the administrative
law judge’s opinion) (the trade name of Gabapentin), and
psychotropic drugs, including Lexapro, these are power-
ful and expensive drugs that many people are reluctant
to take or unable to afford. And Lexapro and other
psychotropic drugs are for treatment of depression and
other mental illnesses rather than, as the administra-
tive law judge seems to have thought, for pain. Nor is it
No. 09-2723 3
clear that McClesky can afford these drugs; she has no
health insurance and, it seems, no income.
The administrative law judge remarked that “even
though exercise has been beneficial to her, she does not
always do the exercises.” (Who does?) The judge
evinced no recognition that McClesky’s psychiatric dis-
order might interfere with her ability to follow a proper
regimen for alleviating her physical ailments. Cf. Kangail
v. Barnhart, 454 F.3d 627, 630-31 (7th Cir. 2006).
The judge thought the fact that McClesky had attended
college for a semester cast doubt on her claims of pain and
weakness. But she testified without contradiction that
fatigue and weakness were the reason she dropped out
after only one semester.
She had told doctors that she had quit a job at Wendy’s
because it was too much for her, but testified—incon-
sistently in the view of the administrative law judge—that
she had quit because she wasn’t earning enough. In
fact she testified without contradiction that she quit
after finding it physically impossible to work the
number of hours at Wendy’s that she would have
needed in order to earn a wage that would have
enabled her to support herself.
The judge further doubted McClesky’s credibility
because of mistaken statements that she made, such as
that she had last used illegal drugs in 1983. In fact she
had been consuming cocaine, including the crack form,
until at least 2004. The judge said that her “lack of candor
about her substance use decreases the credibility of her
statements,” without considering the possibility that she
4 No. 09-2723
had been afraid to admit to an official that she had been
until recently (and perhaps still is) committing crimes.
Granted, lack of candor on this subject reveals that
McClesky is willing to lie about subjects in order to
promote her self-interest. Maybe drugs are not the
only subject on which she is concealing information.
And a person who can afford cocaine might be able to
afford prescription drugs, though narcotic drugs like
Lexapro and Neurontin are expensive as we said and
quite possibly more so than self-medicating with crack.
If McClesky prefers unlawful drugs over their lawful
counterparts for reasons other than cost, this could be a
reason to deny her request for disability benefits. But there
is no discussion of the issue in the administrative law
judge’s opinion.
The judge grudgingly conceded that McClesky “cannot
do repetitive hand motions on a frequent basis,” though
she could use them “on an occasional basis.” In particular,
he said, she can’t do a job that requires “reaching over-
head” or frequent use of her hands or arms. And therefore,
the judge concluded, McClesky cannot do any of her
previous jobs “as a file clerk, light semi-skilled work;
billing clerk, sedentary semi-skilled work; secretary,
sedentary skilled work; and quality control worker
(food tester . . .), light unskilled work.”
So what kind of work can she do? A vocational expert,
told her limitations by the administrative law judge,
named only two jobs available in McClesky’s region
(the Chicago metropolitan area) that she would be physi-
cally capable of doing: surveillance system monitor and
No. 09-2723 5
telemarketer. Within a month after the hearing, however,
and more than a year before the administrative law
judge issued her decision, McClesky’s lawyer submitted
to the judge a letter from another vocational expert certi-
fied to testify in social security disability cases,
which states that all security guards and surveillance
system monitors require a license from the Department
of Homeland Security and that a person would need
training to qualify for such a license.
This is implausible. The administrative law judge could
have reopened the evidentiary record for a determination
of whether the letter was accurate and if so whether
McClesky could qualify for such a license (if it really is
required), considering her physical and mental limitations.
Instead the judge, when she got around to writing her
opinion denying McClesky’s application for disability
b e n e fi t s , s a i d t h a t “ a lt h o u g h t h i s a s s e r t i o n
[that a surveillance system monitor would need a
license, and training to qualify for the license] seems to
paint with a broad brush as there is no indication that
this requirement literally applies to every job even as-
suming most of the surveillance system jobs would be
affected, and there is no evidence of that, there remain
a significant number of jobs in the economy.” But the
only other job that either the vocational expert who
testified in the present case, or the administrative law
judge, had mentioned that McClesky could do was
telemarketing, and the vocational expert had overlooked
the fact that while telemarketers generally use a headset in
making calls to potential customers, they still have to be
able to type on a computer keyboard in order to make a
6 No. 09-2723
record of the call if the person they speak to is interested
in the product being marketed. The Dictionary of Occupa-
tional Titles—the Bible of vocational experts —says that
telemarketing requires “frequent fingering.” McClesky is
physically incapable of that; she can do only “occasional
typing.”
This gaping hole in the record was never filled. In
violation of the Chenery doctrine, e.g., SEC v. Chenery
Corp., 318 U.S. 80, 87-88 (1943); Banks v. Gonzales, 453
F.3d 449, 451 (7th Cir. 2006); Mendez v. Barnhart, 439
F.3d 360, 362 (7th Cir. 2006), the Social Security Admin-
istration’s lawyer argued to us that the evidence about sur-
veillance jobs that was submitted after the hearing should
not have been considered by the administrative
law judge and should not be considered by us. The judge
had not excluded the evidence; she had admitted it,
accepted its truth for purposes of her decision, and ruled
erroneously that the evidence made no difference be-
cause McClesky was capable of working as a telemarketer
if not as a surveillance system monitor. In addition the
judge failed to consider whether McClesky would be able,
physically and financially, to undergo the training
required to obtain a license to be a surveillance system
monitor.
Not only is it improper for an agency’s lawyer to
defend its decision on a ground that the agency had not
relied on in its decision; there is no basis for the lawyer’s
argument that the post-hearing evidence was inadmissible.
The Social Security Administration’s regulations do
provide that “if possible, the evidence or a summary of
evidence [that the claimant] wish[es] to have considered at
No. 09-2723 7
the hearing should be submitted to the administrative law
judge with the request for hearing or within 10 days after
filing the request.” 20 C.F.R. § 404.935. But the judge “may
also reopen the hearing at any time before he or she mails
a notice of the decision in order to receive new and mate-
rial evidence.” 20 C.F.R. § 404.944. The Social Security
Administration suggests to applicants that “after an
administrative law judge hearing . . . [they] submit post
hearing evidence as soon as possible.” Social Security
Administration, “Best Practices for Claimants’ Representa-
tives,” www.ssa.gov/appeals/best_practices.html (visited
Apr. 22, 2010); see 1 National Organization of Social
Security Disability Claimants Representatives, Social
Security Practice Guide § 10.04 (2009); Richard C. Ruskell,
Social Security Claims Handbook §§ 3:14, 9:88 (2009). The
implication is that “evidence can be submitted up to the
date an ALJ decision is issued.” 1 Barbara Samuels, Social
Security Disability Claims: Practice and Procedure § 16:51
(2009).
And in fact the submission and consideration of post-
hearing evidence are common in social security disability
cases—especially evidence consisting of “posthearing
affidavits of experienced workers, supervisors, etc., to
rebut vocational ‘expert’ testimony which cannot be
anticipated prior to hearing,” Ruskell, supra, § 9:88, since
the claimant has no clue to what the vocational expert
will testify until the end of the hearing. He testifies last
and bases his testimony on hypothetical questions, sum-
marizing the claimant’s condition, asked him by the
administrative law judge at the end of the hearing. If, as
in this case, he stumbles, it is proper for the claimant
8 No. 09-2723
to submit further evidence after the hearing, provided
this is done promptly, as it was here.
The lawyer for the Social Security Administration also
suggested to us that the vocational expert who wrote the
letter about the surveillance jobs, Edward Pagella, was
some unknown interloper. Actually he’s one of
the vocational experts who testifies regularly in social
security disability cases. He has managed a vocational
rehabilitation and consulting company (“Health Connec-
tion of Illinois”) since 1989, healthconnectionil.com (visited
Apr. 21, 2010); has consulted as an expert for the
Social Security Administration for twenty years; and
has been mentioned by name as the testifying expert in
several reported social security disability cases. See Grieves
v. Astrue, 600 F. Supp. 2d 995, 997 (N.D. Ill. 2009); Kopulos
v. Barnhart, 215 F. Supp. 2d 996, 998 (N.D. Ill. 2002);
Vadeboncoeur v. Callahan, 976 F. Supp. 751, 754-55 (N.D. Ill.
1997).
The government’s rather wild arguments were made
by its lawyer only at oral argument, and so perhaps
should be forgiven. In his brief all he said about Pagella’s
affidavit was that the administrative law judge was not
required to consider it. The decision whether to reopen
the hearing to receive “new and material evidence” is
indeed discretionary, 20 C.F.R. § 404.944, and we need not
decide whether it would have been an abuse of discre-
tion for her to refuse to consider the post-hearing
evidence, since she did consider it. We can’t find any
cases ruling on when an administrative law judge’s
refusal to consider new and material evidence first sub-
mitted after the hearing might be an abuse of discretion.
No. 09-2723 9
The case must be returned to the Social Security Admin-
istration for further proceedings in light of the inade-
quate analysis of credibility by the administrative law
judge and her erroneous assumption that a job as a
telemarketer would be consistent with McClesky’s limita-
tions.
R EVERSED AND R EMANDED.
5-18-10