In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2006
G ARY A LLORD ,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner
of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 09-cv-310—Barbara C. Crabb, Judge.
A RGUED N OVEMBER 30, 2010—D ECIDED JANUARY 13, 2011
Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Gary Allord applied for
disability benefits from the Social Security Administra-
tion in 1996. His application has since languished in a
cycle of administrative review and litigation. Prior to
this appeal, it was considered by three Administrative
Law Judges (ALJs), three federal district courts, and this
court. After our initial remand of Allord’s case to the
2 No. 10-2006
Social Security Administration in 2006, a new ALJ deter-
mined that Allord was ineligible for disability benefits,
and the agency adopted his determination as its final
decision. Allord again sought relief in the district court,
and the district court remanded the case for further
proceedings. It found that aspects of the final decision
did not comport with this court’s earlier opinion, but
that the record did not support a judicial award of bene-
fits. Allord then appealed, asking this court instead
to order the Commissioner to award him benefits. Be-
cause the record does not compel a finding that Allord
was disabled as of the date he was last insured, we affirm.
I. B ACKGROUND
Allord currently suffers from severe post-traumatic
stress disorder (PTSD). Allord retired as a field-grade
officer from the United States Marine Corps (USMC) in
1987. As a junior officer, he served as a reconnaissance
platoon leader and then as a company commander
during consecutive tours of duty in Vietnam. During
those tours, Allord endured gruesome and traumatic
events that gave rise to the disability he now suffers.
Allord applied for disability insurance benefits from
the Social Security Administration on October 1, 1996,
claiming to have been disabled by PTSD since the date
of his USMC retirement. The parties agree that his
history of Social Security contributions made Allord last
eligible for disability insurance benefits on December 31,
1992 (his “date last insured”). Accordingly, Allord had
to show that he was disabled under the Social Security
No. 10-2006 3
Act and its implementing regulations as of that date
in order to begin receiving disability benefits.
A. Procedural History
Rather than detail the seemingly interminable proce-
dural history of Allord’s case, we will summarize the
steps leading to this appeal. After a local disability
agency denied his claim, Allord received a hearing
before ALJ Christine Benagh, who denied his claim.
Allord sought review in the United States District Court
for the District of Columbia, and the Commissioner
of the Social Security Administration stipulated to a
remand for further proceedings, including the consider-
ation of new medical evidence and expert testimony.
ALJ Guy Arthur next considered and denied Allord’s
application. Allord again sought federal court review,
and the District Court for the Western District of Wis-
consin granted the Commissioner’s motion for sum-
mary judgment. Allord appealed that judgment to this
court in 2006. We reversed the judgment and remanded
the case to the Social Security Administration for fur-
ther proceedings consistent with our opinion. Allord
v. Barnhart, 455 F.3d 818 (7th Cir. 2006).
Allord’s application was next considered by ALJ John
Pleuss, who denied it once again. As in each previous
iteration, the Social Security Administration’s Appeals
Council declined to review the ALJ’s determination, thus
making it the Social Security Administration’s final
decision. Allord again sought review in the Western
District of Wisconsin, asking the court to reverse the
4 No. 10-2006
administrative decision and order the Commissioner
to award him disability benefits. On March 25, 2010—
4,923 days after Allord initially applied for benefits—the
district court remanded the case to the Social Security
Administration, declining to instruct the Commissioner
to calculate and award benefits based on the record
before it. It is that judgment we consider in this appeal.
B. Most Recent Proceedings Below
In his 2008 decision, ALJ Pleuss acknowledged the
infirmities that our 2006 opinion identified in ALJ
Arthur’s decision. He noted that ALJ Arthur had erred
by improperly discrediting the testimony of Allord’s
acquaintance, Melissa Chappell-White. He also noted
that the law did not require contemporaneous medical
evidence for an award of benefits and that Chappell-
White’s testimony could nevertheless have supple-
mented the opinion of Dr. Aphrodite Matsakis, who
treated Allord shortly after his date last insured. He also
gave some weight to the finding of the Department of
Veterans Affairs that Allord was wholly disabled as of
1996. ALJ Pleuss then adopted the findings and conclu-
sions of ALJ Arthur’s decision, though ostensibly only
to the extent they were consistent with our 2006 opinion.
ALJ Pleuss found that Allord was severely impaired
by depression and PTSD as of his date last insured, but
that neither condition met or equaled impairments listed
in Social Security Administration regulations such that
Allord would qualify as disabled at that stage. So ALJ
Pleuss proceeded to determine whether Allord was
No. 10-2006 5
capable of performing past relevant work or other work
for which jobs existed in significant numbers in Wis-
consin. He described Allord’s residual functional capacity
and vocational factors as of his date last insured to a
vocational expert, William Dingess. He then asked
Dingess hypothetical questions incorporating Allord’s
work capacities. Dingess testified that such an individual
would be able to perform several thousand jobs in the
Wisconsin area, including working as a janitor, hand
packer, assembler, or industrial inspector. ALJ Pleuss
decided that a conclusion of “not disabled” was required
under the law because Allord was capable of performing
other work that existed in significant numbers in the
regional and national economies as of his date last insured.
Allord appealed the decision under 42 U.S.C. § 405(g),
and the district court reviewed the Social Security Ad-
ministration’s reasoning to determine whether sub-
stantial evidence supported the denial. The district court
found two infirmities in the Social Security Administra-
tion’s final decision. First, ALJ Pleuss had failed to
follow this court’s instructions on remand regarding the
assessment of Chappell-White’s credibility. Second, ALJ
Pleuss failed to explain convincingly why he had dis-
counted Dr. Matsakis’s opinion and testimony while
adopting the opinion of another physician, Dr. Allen
Hauer, who had not treated Allord and who was not an
expert in PTSD. These infirmities led the district court
to reverse the administrative decision and remand the
case for further proceedings. Although the district court
recognized that “the case has been pending far too
long,” it declined to enter a judgment instructing the
6 No. 10-2006
Commissioner to calculate and award benefits to Allord.
It noted that some factual issues needed resolution,
such that the record did not exclusively support a
finding of disability as of Allord’s date last insured.
Allord timely appealed the district court’s decision.
II. A NALYSIS
Allord asks this court to reverse the district court’s
judgment (remanding the case to the Social Security
Administration for further proceedings) and then
remand this case to the Social Security Administration
ourselves with an order to the Commissioner directing
him to award Allord disability benefits. The Commis-
sioner, in turn, does not dispute the propriety of the
district court’s remand order.1 The Commissioner
instead argues that a judicially ordered award of benefits
would be inappropriate given the record in this case
and that the district court’s order should be affirmed. The
only issue we consider, therefore, is whether the record
compelled a finding that Allord was disabled at the time
his insured status expired in December 1992.
1
The Commissioner acknowledges that the Administration’s
final decision was not supported by substantial evidence.
Because the Commissioner has not cross-appealed the remand
for further proceedings, we do not reach the sufficiency of the
ALJ’s decision-making or his adherence to the law of our
previous case. The district court’s finding that the ALJ’s deci-
sion was not supported by substantial evidence is not at issue
in this appeal.
No. 10-2006 7
Judicial review of Administration decisions under the
Social Security Act is governed by 42 U.S.C. § 405(g). Jones
v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010). When, as
here, an ALJ’s decision constitutes the final action of the
Social Security Administration, the reviewing district
court examines the ALJ’s decision to determine whether
substantial evidence supports it and whether the ALJ
applied the proper legal criteria. Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Courts have
the statutory power to affirm, reverse, or modify the
Social Security Administration’s decision, with or with-
out remanding the case for further proceedings. 42 U.S.C.
§ 405(g). This power includes the courts’ ability to
remand with instructions for the Commissioner to cal-
culate and award benefits to the applicant. See Campbell
v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993). An award
of benefits is appropriate, however, only if all factual
issues involved in the entitlement determination have
been resolved and the resulting record supports only
one conclusion—that the applicant qualifies for disabil-
ity benefits. Briscoe, 425 F.3d at 355.
We ordinarily review the district court’s judgment
de novo, meaning we review the Administration’s final
decision denying Social Security benefits directly to
determine if the decision was supported by substantial
evidence. O’Connor-Spinner v. Astrue, ___ F.3d ___, ___,
2010 WL 4812819, at *3 (7th Cir. Nov. 29, 2010). Both
Allord and the Commissioner contend that this is the
appropriate standard of review here. Yet the procedural
posture of this case is atypical. Allord appeals the dis-
trict court’s decision not to order an award of benefits
8 No. 10-2006
on remand.2 This is neither a case in which a claimant is
appealing a district court’s affirmance of the Admin-
istration’s denial decision, see, e.g., Jones, 623 F.3d at 1160,
nor is it a “somewhat unusual” case in which the Com-
missioner is appealing a district court’s remand for
further proceedings, see, e.g., Briscoe, 425 F.3d at 348.
When the district court remands a case to the Social
Security Administration for further proceedings, but
declines to instruct the Commissioner to calculate and
award benefits, we review the latter decision only for an
abuse of discretion. Nelson v. Apfel, 210 F.3d 799, 802
(7th Cir. 2000). We will affirm that decision unless no
reasonable person could agree with the district court’s
determination. Id. Accordingly, we need only decide
whether the district court in this case abused its dis-
cretion when it determined that Allord was not en-
titled to a judicial award of benefits based on the cur-
rent record.
In order to secure the relief he seeks in this appeal,
Allord must have established that he was disabled on or
before his date last insured. 42 U.S.C. §§ 423(a)(1)(A), (c)(1);
Briscoe, 425 F.3d at 348. Allord bears the burden of proof
regarding his disabling conditions. See 20 C.F.R. § 404.1514;
2
The Supreme Court has held that “a Social Security disability
claimant seeking court reversal of an agency decision denying
benefits may appeal a district court order remanding the case
to the agency for further proceedings.” Forney v. Apfel, 524
U.S. 266, 267 (1998). Because the district court granted in
part, but denied in part, the relief Allord requested, we have
jurisdiction to hear his appeal. See id. at 271.
No. 10-2006 9
Howell v. Sullivan, 950 F.2d 343, 348 (7th Cir. 1991). The
district court found Allord had provided evidence that
would support a finding that he was disabled at his date
last insured, but that the record contained potentially
conflicting evidence that might support the opposite
conclusion if the ALJ could adequately explain his rea-
soning.
On appeal, Allord does not directly challenge
the district court’s finding, but rather focuses on the
infirmities of the ALJ’s decision. While those argu-
ments are convincing, none of them persuades us that
the district court erred in its assessment of whether
the record compelled a finding of disability as of Allord’s
date last insured. We have previously held that “we owe
no deference to the district court in the social security
context, and that [an appellant] is not necessarily
obliged to address its analysis,” White v. Barnhart, 415
F.3d 654, 658 (7th Cir. 2005). But that statement arose
in a de novo review case. Even in White, we warned that
“it is a risky tactic” to not address the district court’s
reasoning, “especially where . . . [it] has issued a
thorough and persuasive opinion.” Id. Where we review
only for an abuse of discretion, it is not just a risky
tactic—it is fatal.
The bottom line is that Allord provided no argu-
ments tending to undermine the district court’s conclu-
sions regarding the record. He only contends that three
considerations support a judicial award of benefits. He
first argues that the opinion of his treating physician,
Dr. Matsakis, should be given controlling effect and that
10 No. 10-2006
it shows him to have been disabled as of his date last
insured. Second, he argues that the Administration’s
obduracy in these proceedings entitles him to a judicial
award. Third, he argues that it would be futile to
remand for further proceedings when the Administra-
tion will only continue to reach the same denial decision.
Each lacks merit.
Allord argues that Dr. Matsakis’s opinion should be
given controlling weight. He bases this contention on
the following factors: she was his treating physician,
her opinion was supported by substantial evidence, she
was found to be an expert in PTSD, and her testi-
mony was not rebutted by any other expert in PTSD.
Dr. Matsakis opined that it would be highly improbable
that Allord was not totally disabled as of his date last
insured, given the nature and progression of PTSD. She
based this opinion on her evaluations and treatment of
Allord after his date last insured, as well as on Chappell-
White’s descriptions of Allord’s earlier behavior.
Allord is correct that the Social Security Administra-
tion is bound to give a treating physician’s opinion con-
trolling weight if her “opinion on the issue(s) of the
nature and severity of [the applicant’s] impairment(s) is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the applicant’s]
case record.” 20 C.F.R. § 404.1527(d)(2). If an ALJ does
not afford controlling weight to such an opinion, he or she
must articulate sufficient reasons for not doing so. Larson
v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010). The district
court found that the ALJ did not adequately describe
No. 10-2006 11
why he discounted Dr. Matsakis’s opinion while giving
Dr. Hauer’s more weight—especially when Dr. Hauer’s
opinion was not based on any treatment of Allord. The
district court also found that the ALJ’s erroneous cred-
ibility finding regarding Chappell-White further under-
mined the ALJ’s reasons for discounting Dr. Matsakis’s
opinion. These findings provided the impetus for the
district court to remand for further proceedings. But the
court declined to enter an award of benefits because
it noted that contradictory inferences could be drawn
from the physicians’ testimony. Allord does not address,
let alone refute, the soundness of the district court’s
reasoning on this point.
Instead, Allord turns to his second contention. He
argues that the Social Security Administration has been
obdurate in its repeated consideration of his applica-
tion, refusing to follow controlling regulations and the
law of our earlier opinion and controlling regulations.
He cites Wilder v. Apfel as an example of this court’s
willingness to directly award benefits when the Admin-
istration refuses to apply controlling law and drags out
the appeals process. 153 F.3d 799, 804 (7th Cir. 1998). But
as we later clarified in Briscoe, “[o]bduracy is not a
ground on which to award benefits; the evidence
properly in the record must demonstrate disability.”
Briscoe, 425 F.3d at 357. As in Briscoe, the critical factual
dispute in this case is whether Allord was disabled prior
to his date last insured—a necessary condition for a
benefits award. See id. The district court therefore cor-
rectly held, “Despite the agency’s continued failure to
follow the law of the case, Briscoe precludes this court
from entering an award of benefits.” Allord v. Astrue, 2010
12 No. 10-2006
WL 1292157, at *13 (W.D. Wis. Mar. 26, 2010). Because
Allord’s brief does not extinguish the lingering doubt
regarding his qualification for disability benefits, his
obduracy contention does not show that the district court
abused its discretion by declining to order an award of
benefits.
Allord finally argues that any remand for further con-
sideration would be futile. He suggests that the Social
Security Administration is determined to deny his
claim even if it must disregard evidence and this court’s
opinions to do so. He presents no legal authority sup-
porting the idea that futility alone warrants an award
of benefits, and such a line of reasoning would suffer
from the same fatal flaw as an award based on obduracy
alone. “It remains true that an award of benefits is ap-
propriate only if all factual issues have been resolved
and the record supports a finding of disability. This is
so because a court does not have the authority to award
disability benefits on grounds other than those pro-
vided under 42 U.S.C. § 423.” Briscoe, 425 F.3d at 356-57
(citations omitted). Regardless, we do not believe the
outcome on remand to be pre-determined. We doubt
that the Commissioner will tolerate continued disregard
of the findings and admonitions of this and other
courts. Allord may also find the Commissioner willing
to consider settling this protracted litigation, rather than
dragging it into a fifteenth year or later.3
3
We note that at least one other Court of Appeals has
imposed a time limit on the Administration when remanding
(continued...)
No. 10-2006 13
Given Allord’s current condition and what experts
now know about PTSD—especially its potential for de-
layed onset followed by inexorable progression—it is
both possible and reasonable to infer that Allord was
disabled on his date last insured. But the record evi-
dence is not such that a reasonable person could reach
no conclusion other than finding Allord was disabled
before December 31, 1992. It remains to be determined
by the Administration—with, we expect, promptness
and an attention to detail lacking in previous itera-
tions—whether the available evidence indicates that
an award of benefits is appropriate for Allord. For pur-
poses of this appeal, however, reasonable persons
could easily agree with the district court’s judgment. Ac-
cordingly, we conclude that the district court did not
abuse its discretion in remanding Allord’s case to the
Social Security Administration for further proceedings
instead of remanding with instructions for the Commis-
sioner to calculate and award benefits.
3
(...continued)
a case. Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005) (al-
lowing 120 days for further ALJ proceedings and 60 days for
the Commissioner to reach a final decision). It imposed
those limits in July 2005 in an attempt to conclude litigation
over a disability benefits application that had been filed in
January 1998. While we decline to impose such a limitation
here, we pause to point out that Allord filed his application
in 1996 and that we’re still dealing with it more than five
years after Butts.
14 No. 10-2006
III. C ONCLUSION
Although we are loath to extend this litigation even
further, the record before the district court did not neces-
sitate a finding that Allord was disabled as of his date
last insured. Accordingly, we A FFIRM the judgment of
the district court.
1-13-11