In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2083
D AVID J. S PIVA,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-178—J.P. Stadtmueller, Judge.
A RGUED N OVEMBER 9, 2010—D ECIDED D ECEMBER 6, 2010
Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
P OSNER, Circuit Judge. In Parker v. Astrue, 597 F.3d
920 (7th Cir. 2010), we criticized the handling of social
security disability claims in the following respects:
(1) opinions of administrative law judges denying
benefits routinely state (with some variations in word-
ing) that although “the claimant’s medically determinable
impairments could reasonably be expected to produce
2 No. 10-2083
the alleged symptoms, . . . the claimant’s statements
concerning the intensity, persistence and limiting effects
of these symptoms are not entirely credible,” yet fail to
indicate which statements are not credible and what
exactly “not entirely” is meant to signify; (2) many of
the Social Security Administration’s administrative
law judges seem poorly informed about mental illness;
and (3) in defiance of the principle of SEC v. Chenery
Corp., 318 U.S. 80, 87-88 (1943), the Justice Depart-
ment’s lawyers who defend denials of disability benefits
often rely heavily on evidence not (so far as appears)
relied on by the administrative law judge, and defend
the tactic by invoking an overbroad conception of harm-
less error. See also, e.g., Larson v. Astrue, 615 F.3d 744, 749,
751 (7th Cir. 2010) (misunderstanding of mental illness;
Chenery violation); McClesky v. Astrue, 606 F.3d 351, 352,
354 (7th Cir. 2010) (credibility boilerplate; Chenery viola-
tion); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir. 2006)
(misunderstanding of mental illness); Mendez v. Barnhart,
439 F.3d 360, 362 (7th Cir. 2006) (Chenery violation); Ryan
v. Commissioner of Social Security, 528 F.3d 1194, 1199-
1201 (9th Cir. 2008) (misunderstanding of mental illness);
Kohler v. Astrue, 546 F.3d 260, 268-69 (2d Cir. 2008) (same);
Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007)
(Chenery violation); Robbins v. Social Security Administra-
tion, 466 F.3d 880, 883-85 and n. 2 (9th Cir. 2006) (credibility
boilerplate).
The administrative law judge found that the applicant
in this case, David Spiva, “has the following severe com-
bination of impairments [she probably meant to write
‘combination of severe impairments’]: mood disorder,
No. 10-2083 3
schizophrenia, dysthymia [a form of depression with
milder symptoms than major depressive disorder], psycho-
sis, depression, alcohol and cannabis abuse, and atten-
tion deficit disorder.” Schizophrenia is a psychosis, and
dysthymia a form of depression, and depression a
mood disorder, so what the administrative law judge
intended by adding depression, psychosis, and mood
disorder to the list of Spiva’s impairments is, like much
else in her opinion, unclear.
She concluded that Spiva was not totally disabled,
because he could perform the last job he had
held, which had been at Walmart, and lots of other
jobs (unspecified) as well. She said “there was reference
to malingering as an issue”; Spiva had been found to be
“evasive during his consultative evaluation”; there were
references to his “not taking medication as prescribed”;
he had admitted being “able to do simple household
chores and interact[] with family members,” including
“babysitting for his child while the mother worked”; and
he had “moved to Milwaukee in July 2006 because
the child’s mother needed help.” That’s it—and is a
remarkably sparse summary of a rich record.
Spiva was working at a Walmart store in Mississippi
when in 2004, at the age of 28, he checked himself into
a psychiatric clinic. He told William Turner, his
attending physician, that he had suffered from “horrible
thoughts” since childhood and had attempted suicide
with rat poison in his teens. When he was a child his
father had died from a gunshot wound to the head and
his mother had beaten him. He had served time in prison
4 No. 10-2083
on drug charges. He had left his home in Milwaukee
(where people told him he was “crazy”), hoping to “get
a fresh start” in the South. But although he had found
work shelving goods and loading trucks at Walmart,
“thoughts of harming himself and thoughts of harming
other people” continued to haunt him. He reported
“having spirits within him from other people that are
evil spirits.” He said “he had been very depressed and
anxious. He had decreased appetite, decreased sleep
and decreased energy. He had had auditory hallucinations,
hearing ‘spirits.’ [He] stated that his thoughts were not
his, that his thoughts were being controlled by other
people’s spirits. He stated that he always had thoughts
of wanting to hurt people.” Dr. Turner tentatively diag-
nosed Spiva as having a psychotic disorder, a mood
disorder, and a personality disorder.
After a few days on Geodon, a drug for treating schizo-
phrenia, and Lexapro, a drug for the treatment of
major depressive disorder, Spiva was discharged with a
prescription for another antidepressant drug, Zoloft.
Five months later he checked himself back into the
facility. He had stopped taking Zoloft because it wasn’t
working. His condition had worsened. He reported that
“evil spirits” were “after him,” that sometimes he could
control the spirits and at other times they controlled
him, and that he often thought about hurting his fam-
ily. He denied having visual hallucinations—he would
admit only to auditory ones—yet also said that he was
seeing the spirits, though not with his “physical eye.” He
was prescribed both antipsychotic and antidepressant
No. 10-2083 5
drugs (Abilify, Effexor, Cymbalta, Trazodone, and again
Geodon). After a week in the facility Spiva was dis-
charged, but he didn’t return to work because he “wasn’t
functioning right.”
Dr. Shannon Johnson of the clinic opined that as long
as Spiva stayed on the drugs prescribed for his mental
illnesses and kept his appointments with mental-health
professionals, he would be able to maintain “steady,
gainful employment.” The two mental-health profes-
sionals whom the Mississippi Disability Determination
Services (a state agency that works with the Social
Security Administration) asked to evaluate Spiva’s
mental condition agreed that he was capable of working
full time. One of them, William Osborn, a psychologist,
could not decide whether Spiva was psychotic, in part
it seems because he was uncommunicative, refusing for
example to discuss his previous diagnoses of and treat-
ments for mental illness. Osborn concluded that
probably Spiva could “perform routine repetitive tasks,
interact with coworkers, receive supervision, and main-
tain concentration and attention.” The other consultant,
however, Janise Hinson, while she agreed that Spiva
could return to work, thought his vocational options
might be limited by his difficulties in concentrating and
in interacting with people (maintaining “socially appro-
priate behavior”), including both members of the
general public and supervisors and coworkers, and in
adhering to basic standards of cleanliness and neatness.
In 2006, no longer working, Spiva returned to Milwaukee
to help a woman with whom he had had a child. He
6 No. 10-2083
has had no fixed residence after returning from the South,
but has moved from relative to relative, each of whom
would eventually “put him out” because “I [Spiva] ended
up losing control of my thoughts.” (An aunt with whom
he had lived in Mississippi had said: “He is lovable one
day, but displays a lot of anger and hate the next day . . . .
He doesn’t talk like himself . . . . He has a lot of hate
and anger in him, and it’s hard to get to his head.”)
He laughs at inappropriate times, and at times exhibits
uncontrollable rage. At the time of the disability hearing
he was living with a cousin who wanted him to leave;
he may be running out of relatives to live with.
He was admitted to a psychiatric clinic in Milwaukee
in 2006, where he “talked a lot about spirits” (in typical
schizophrenic fashion he believes that people, as
well as spirits, insert unwanted thoughts into his brain
telepathically) and told a doctor that he didn’t want to
live any more. He returned to the clinic the following
year and this time was referred to a hospital for treat-
ment. He told hospital personnel that there was “evil in
me” and “around me” and made “vague” threats that
he would harm himself and others. He said that he and
his daughter (a child of nine) share the same spirit;
since the spirit tells him to do evil things, it may tell the
daughter to do evil things to him. He had what one
medical examiner called delusions of persecution and of
“alien control.” When his “walls are not up,” spirits
invade his body. He is “willing to cooperate [with men-
tal health professionals] but is fearful of groups of
people confronting him.” His thinking is “nihilistic and
grandiose.”
No. 10-2083 7
In a 2007 hospitalization he “came in with vague com-
plaints. ‘Burning inside that feels like anger that needs
to explode.’ ” He was discharged two weeks after
being admitted, with a diagnosis of an unspecified mood
disorder. At the time he was taking several medications,
including the mood-stabilizer Depakote and the antide-
pressant Trazodone.
Spiva was the only person to testify at his disability
hearing. He testified that he was unable to work because
he was afraid he might have to be “around somebody
negative” and would “have an evil thought of hurting
them”; “all I think about is bad stuff and doing bad.” He
added that because of his medications he had trouble
sleeping and as a result spent most of the day groggy
and irritable. But he had babysat for his daughter and
sometimes he would help out at a friend’s day-care
facility, and in the past month he had attended two
parties hosted by a cousin with whom he was then living.
Without some analysis, nowhere to be found in
the administrative law judge’s opinion, it is difficult to
understand her determination that Spiva can do the
kind of work he did at Walmart. An employee who
stocks shelves at a Walmart or a Walgreens or a Costco or
a Treasure Island—large stores with limited sales person-
nel—has to be able to interact with customers; the em-
ployees who stock the store’s shelves are often the only
employees whom a customer can find to ask about the
location of specific items. A psychotic person busy
trying to cope with evil spirits and evil thoughts is not
likely to be employable as a shelf stocker in such a store.
8 No. 10-2083
Maybe he can do other jobs but the administrative law
judge didn’t discuss any other jobs that Spiva might be
able to do. She seems to have thought that because his
job with Walmart involved unloading trucks as well as
stocking shelves it was a simple, unskilled, routine job
that anyone could do.
That may be an accurate description of unloading
trucks at a loading dock (though there would still be a
question whether Spiva can work under supervision), but
that was only part of his job. He did testify that his job
at Walmart “started off like stocking foods and stuff and
I guess like loading trucks . . . . I was working at the
store, like the stocking stuff and then it changed like
to stocking the trucks.” So maybe loading trucks at a
Walmart or similar store can be a full-time job, but this
possibility was not explored at the hearing and the ad-
ministrative law judge described Spiva’s job simply
as “stocker work.”
An administrative law judge is required to determine
(at what is called “stage four” of the Social Security Ad-
ministration’s disability algorithm) whether, despite his
limitations, the applicant for benefits can do his
previous work. 20 C.F.R. § 404.1520(a)(4)(iv), (f); Castile
v. Astrue, 617 F.3d 923, 925 (7th Cir. 2010). If so, that’s
the end of the case. And that’s the point at which the
administrative law judge stopped in this case. She
made no finding concerning what jobs Spiva might be
capable of doing besides his previous one (which was
never precisely defined) and how many such jobs might
be available in the Milwaukee area.
No. 10-2083 9
The grounds, which we summarized earlier, on which
the administrative law judge based her determination
that Spiva’s testimony was “not entirely credible” are
inconsistent with the record. Her remark about maling-
ering was based on a statement by a doctor who at first
thought Spiva might be malingering but later decided
that he was not. The government’s brief cites what it
describes as additional evidence of malingering, but as
nearly as we can determine the evidence is a statement
by a doctor who expressed regret that Spiva wasn’t
willing to share with him the details of the family feud
that had driven him to seek treatment.
The references in the treatment notes to Spiva’s
being vague or evasive when questioned about his
illness could be evidence of malingering, but equally
could reflect the effects of his psychotic mentation. Noth-
ing in the treatment notes suggests that Spiva was being
deliberately or strategically vague or evasive. “Burning
inside that feels like anger that needs to explode”
may be vague, but it is consistent with Spiva’s other
psychiatric symptoms. His refusal at the time of his 2007
hospitalization to allow the hospital “to contact any-
one about him,” is “evasive” in a literal sense but also
consistent with paranoia.
The administrative law judge’s reference to Spiva’s
failing to take his medications ignores one of the most
serious problems in the treatment of mental illness—the
difficulty of keeping patients on their medications. The
drugs used to treat schizophrenia, for example, can make
a patient feel drowsy and stunned. See, e.g., National
10 No. 10-2083
Institute of Mental Health, Schizophrenia 9 (2009),
www.nimh.nih.gov/health/publications/schizophrenia/
schizophrenia-booket-2009.pdf (visited Nov. 14, 2010); John
M. Grohol & National Institute of Mental Health, “Schizo-
phrenia and Psychosis Treatment: Part 2, Length of Treat-
ment and Side Effects,” Psych Central (Nov. 12, 2006),
http://psychcentral.com/disorders/schizophrenia/schizo_
treatment2.htm (visited Nov. 14, 2010). As a result he
may be unwilling to keep taking them. The administrative
law judge also ignored Spiva’s testimony that he can’t
afford all the medications prescribed for him because
he has no health insurance. And she ignored the finding
that Spiva had scored only 20 on the “Global Functioning
Assessment” scale (which runs from 0 to 100), a score
that indicates (so far as bears on this case) “some danger
of hurting himself or others.”
The government’s brief points out that all the medical
professionals who have dealt with Spiva believe that he’s
capable of working full time. Yet the administrative
law judge mentioned none of this evidence. The brief
argues that if she had, her finding that Spiva is not
totally disabled would be solidly grounded. This ignores
the fact that she made an explicit finding that Spiva’s
“mental impairments moderately limit his social func-
tioning and concentration/persistence/pace.” She added,
it is true, that his impairments “only mildly limit his
activities of daily living,” and this is relevant because
the mental and physical capabilities that a person
employs in his nonworking hours are relevant to his
ability to work. But an ability to engage in “activities of
daily living” (with only mild limitations) need not
No. 10-2083 11
translate into an ability to work full time. In this case it
may mean nothing more than that Spiva can survive
outside a mental institution or halfway house. Whether
he can work full time as a “stocker”—the only type of
job that the administrative law judge mentioned—is the
question, and she offered no basis for her answer.
No vocational expert, who might have been able to infer
from Spiva’s limitations what jobs he could do, testified.
And the only activity of daily living to which the ad-
ministrative law judge referred was babysitting, from
which an ability to work full time could not be inferred,
as we held in Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th
Cir. 2005). She didn’t mention the evidence that
Spiva’s performance of household chores was incom-
petent; as the aunt with whom he had lived for a time
stated, he needed help with everything because “his mind
runs a lot.”
The basis for the administrative law judge’s finding
that Spiva’s mental impairments limit his social func-
tioning must have been (though she didn’t say so)
Janise Hinson’s determination that Spiva is capable of
interacting with coworkers and supervisors on “a
limited basis.” The question is whether that “limited
basis” is nevertheless consistent with his being able to
work full time. The administrative law judge did not
address that question, for when she expressed concern
with Spiva’s credibility and concluded that he could do
his old job at Walmart she made no mention of his
mental impairments. She may have forgotten her
earlier finding or changed her mind; who knows?
12 No. 10-2083
It is not obvious that a person who hears evil spirits
can respond to customers’ requests for help in finding
particular items that they want to buy, which is a compo-
nent of the job of stocking shelves in a retail store.
Hinson opined that Spiva can maintain his concentra-
tion for two hours at a time; whether, given his
psychoses and his attention deficit disorder, he could
maintain concentration for an entire workday is un-
known. Because he was unrepresented by counsel—
and mentally impaired to boot—the administrative law
judge was supposed to try by questioning him to obtain
all information relevant to his claim, Nelms v. Astrue,
553 F.3d 1093, 1098 (7th Cir. 2009); Thompson v. Sullivan,
933 F.2d 581, 585-86 (7th Cir. 1991); Moran v. Astrue,
569 F.3d 108, 112-13 (2d Cir. 2009), much like an investi-
gating magistrate in a Continental legal system, rather
than assume, as in an adversarial setting in which the
plaintiff is pro se, that he is capable of providing the
information that his lawyer, if he had had one, would
have elicited on direct examination. Her questioning of
Spiva was perfunctory; she seems not to have read his
medical records.
The government’s brief refers to contradictions in
Spiva’s testimony; the administrative law judge did not
mention these. Some of them may not be contradictions:
he testified that he did not drive, yet he had told one of
his doctors that he did—but that was years earlier. Since
he is psychotic, his inability to maintain consistency in
responding to different medical personnel cannot auto-
matically be ascribed to an intention to deceive. The
government’s brief intimates that the administrative law
judge found that Spiva’s credibility was impaired by
No. 10-2083 13
substance abuse. She did not; her opinion mentions
substance abuse but does not relate it to the issue of
Spiva’s credibility.
The administrative law judge’s opinion is unsatisfac-
tory, and likewise the government’s brief and oral argu-
ment, which misstate the record in several places and,
worse, seem determined to dissolve the Chenery doctrine
in an acid of harmless error. The doctrine of harmless
error indeed is applicable to judicial review of admin-
istrative decisions. E.g., Borovsky v. Holder, 612 F.3d 917,
920-21 (7th Cir. 2010); Parker v. Astrue, supra, 597 F.3d at
924; Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir.
2004); see also 5 U.S.C. § 706; National Ass’n of Home
Builders v. Defenders of Wildlife, 551 U.S. 644, 659-60 (2007).
If it is predictable with great confidence that the
agency will reinstate its decision on remand because the
decision is overwhelmingly supported by the record
though the agency’s original opinion failed to marshal
that support, then remanding is a waste of time. But that
is not the government’s understanding of the doctrine of
harmless error, if we may judge from its brief and oral
argument in this case (and not only this case—see, e.g.,
Terry v. Astrue, 580 F.3d 471, 475-77 (7th Cir. 2009) (per
curiam); Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir.
2009) (per curiam); Craft v. Astrue, 539 F.3d 668, 675, 678-79
(7th Cir. 2008); Stout v. Commissioner, Social Security Ad-
ministration, 454 F.3d 1050, 1054-56 (9th Cir. 2006); Allen v.
Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)). The gov-
ernment seems to think that if it can find enough evi-
dence in the record to establish that the administrative
law judge might have reached the same result had she
considered all the evidence and evaluated it as the gov-
14 No. 10-2083
ernment’s brief does, it is a case of harmless error. But
the fact that the administrative law judge, had she con-
sidered the entire record, might have reached the same
result does not prove that her failure to consider the
evidence was harmless. Had she considered it carefully,
she might well have reached a different conclusion.
The government implies that if the administrative law
judge’s opinion consisted of two words—“benefits
denied”—a persuasive brief could substitute for the
missing opinion. That is incorrect. It would displace the
responsibility that Congress has delegated to the Social
Security Administration—the responsibility not merely
to gesture thumbs up or thumbs down but to articulate
reasoned grounds of decision based on legislative policy
and administrative regulation—into the Justice Depart-
ment, which represents the agency in the courts. The
Chenery doctrine “provides an assurance that the object
of the court’s review is the product of a body or official
to whom Congress delegated authority. That constraint
in turn polices the conditions for judicial deference to
agency action.” Kevin M. Stack, “The Constitutional
Foundations of Chenery,” 116 Yale L.J. 952, 1021 (2007). The
Justice Department has overstepped its proper bounds.
The district court’s denial of relief is reversed and the
case remanded with instructions to return the matter to
the Social Security Administration for further pro-
ceedings consistent with this opinion.
12-6-10