In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐3607
GENE WILLIAMS on behalf of PAMELA J. TOWNSEND,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 1:12‐CV‐153‐JEM — John E. Martin, Magistrate Judge.
____________________
ARGUED JUNE 11, 2014 — DECIDED JULY 2, 2014
____________________
Before WOOD, Chief Judge, and POSNER and SYKES, Circuit
Judges.
POSNER, Circuit Judge. Pamela Townsend applied for so‐
cial security disability benefits and supplemental security
income in February 2003. She was 44 years old and claimed
she’d become incapable of full‐time gainful employment in
May 2002 when she had stopped working as a result of a
cascade of physical and psychiatric ailments. In January 2012
2 No. 13‐3607
an administrative law judge decided that she had indeed be‐
come totally disabled, but not until November 2008. By the
time that decision was rendered she had died (of pulmonary
diseases apparently unrelated to the ailments alleged to have
made her totally disabled). Her father, Gene Williams, was
substituted for her, and he argues (appealing from the dis‐
trict court, which upheld the administrative law judge’s de‐
cision) that she had become totally disabled earlier. If so, her
estate, which he represents, is entitled to the additional dis‐
ability insurance benefits (but not supplemental security in‐
come) to which she would have been entitled. See 20 C.F.R.
§§ 404.503(c), (d), 416.542(b)(4), 416.1334.
Williams had her first hearing, which was before a differ‐
ent administrative law judge, in November 2004. She and
her father both testified. The administrative law judge de‐
termined that she was not totally disabled, but she appealed,
and in May 2007 the decision was reversed by the district
court and remanded to the Social Security Administration.
After a hearing at which father and daughter again testified,
the administrative law judge again denied benefits and this
time the Social Security Administration’s appeals council re‐
versed and remanded, directing that on remand the case be
assigned to a different administrative law judge. In January
2012, after a hearing in 2011 at which neither Townsend nor
her father testified though both were at the hearing, the new
administrative law judge held that Townsend had become
totally disabled as of November 1, 2008. Townsend died sev‐
eral months after the hearing and it thus was Williams who
appealed the administrative law judge’s ruling partially ad‐
verse to his daughter’s claim. He wanted the date on which
she had become totally disabled pushed back to May 1, 2002.
But the district court affirmed the administrative law judge’s
No. 13‐3607 3
decision concerning the onset date, precipitating the father’s
appeal to this court.
It is not disputed that by May 2002 and continuing until
her death, Townsend suffered from fibromyalgia, defined by
the Mayo Clinic’s staff as “a disorder characterized by
widespread musculoskeletal pain accompanied by fatigue,
sleep, memory and mood issues. Researchers believe that
fibromyalgia amplifies painful sensations by affecting the
way your brain processes pain signals,” and that it
sometimes follows “significant psychological stress.” Mayo
Clinic, “Diseases and Conditions: Fibromyalgia,” www.
mayoclinic.org/diseases‐conditions/fibromyalgia/basics/defi
nition/con‐20019243 (visited June 24, 2014). She testified at
her first two hearings (remember that she didn’t testify at the
third one) that she had chronic pain (including burning
pains in her hands, shoulders, neck, back, and knees), edema
(swelling in limbs—mainly the legs, in her case—caused by
excess fluids trapped in bodily tissues), severe headaches,
and difficulty sitting, standing, and walking; that she had leg
tremors and fell frequently; that she suffered from post‐
traumatic stress disorder, chronic anxiety with acute
episodes (panic attacks), depression, night terrors, and
sleepwalking (with the bizarre feature that she would smoke
and sometimes even cook while sleepwalking); and that her
psychiatric problems had been exacerbated by her being
raped in 2002.
All these conditions were corroborated by extensive
medical records—she had been examined by a number of
doctors and therapists between 2002 and her death—and by
testimony by both her parents (with whom she lived).
4 No. 13‐3607
Her health deteriorated in 2008. She had to use a cane in
walking, fell a lot because of tremors in her leg, and by
January 2009 had to use a walker. In finding that she hadn’t
become totally disabled until November 2008, the
administrative law judge (the second one, remember) began
with the testimony of the only witness (besides a vocational
expert) at the hearing before her: a doctor who testified that
the medical evidence in the record supported diagnoses of
“fibromyalgia and chronic pain and, perhaps, myofascial
and musculoskeletal pain,” as well as “psychiatric
[ailments], anxiety and depression, et cetera.” He continued:
“Obviously, if [the neurologist’s] examination and findings
are operative, nobody with those findings would be able to
work,” but that “I don’t have enough information to sort out
whether her inability … to ambulate and weakness is an
underlying medical disorder or whether this is due to
[undiagnosed] psychiatric disorders.”
From this testimony the administrative law judge
concluded that fibromyalgia was Townsend’s “only
medically determinable physical impairment” and that “the
evidence in the medical record does not support any
diagnoses that would explain … [her] alleged symptoms
such as leg tremors and frequent falling.” The administrative
law judge said that she gave the doctor’s testimony “great
weight” in her “determination that the claimant’s falling had
no medically determinable cause and that fibromyalgia is
the only medically determinable physical impairment.”
As for Townsend’s psychiatric ailments, the
administrative law judge noted that these had been treated
with drugs such as Prozac, beginning in 2002; and she
commented that the drugs had been effective. “Somewhat
No. 13‐3607 5
effective” would have been more accurate. For in 2005, as
the administrative law judge noted, a psychologist had
diagnosed Townsend with major depressive disorder and
various symptoms of post‐traumatic stress disorder,
including nightmares and panic attacks. Oddly, the
psychologist had nevertheless assigned her a “Global
Assessment of Functioning” of 65, which indicates (more
precisely, the range from 61 to 70 indicates) only “some mild
symptoms (e.g., depressed mood and mild insomnia) OR
some difficulty in social, occupational, or school functioning
…, but generally functioning pretty well.” American
Psychiatric Association, Diagnostic and Statistical Manual of
Mental Disorders 32 (4th ed. 1994). (The fifth edition of the
DSM, published in 2013, has abandoned the GAF scale
because of “its conceptual lack of clarity … and questionable
psychometrics in routine practice.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders 16 (5th ed. 2013).)
The administrative law judge did not mention that fewer
than three months after the psychologist’s exam, a
psychiatrist had assigned Townsend a GAF of only 45, and
the range from 41 to 50 indicates “serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable
to keep a job).” DSM‐IV, supra. A year later another
psychiatrist assigned Townsend a GAF of 45 too, which the
administrative law judge acknowledged, adding however
“but this rating took into account the claimant’s physical
problems with chronic pain and loss of function and her
frustration with needing to be financially dependent on her
parents.” We’re troubled by the “but” and what follows it,
6 No. 13‐3607
which seems to imply that the administrative law judge
thought the GAF 45 rating irrelevant because it took account
of “frustration,” which might be normal, but probably was
not normal in Townsend’s case. The psychiatrist made clear
that Townsend was frustrated, stressed out, and feeling
guilty (all of which are mental) because of her disabilities
and pain.
As we—and other circuits—have emphasized repeatedly
in reviewing denials of disability benefits by the Social
Security Administration’s administrative law judges, the
combined effects of the applicant’s impairments must be
considered, including impairments that considered one by
one are not disabling. See, e.g., Denton v. Astrue, 596 F.3d
419, 423 (7th Cir. 2010) (per curiam); Cichocki v. Astrue, 729
F.3d 172, 178 n.3 (2d Cir. 2013) (per curiam); Wells v. Colvin,
727 F.3d 1061, 1065 (10th Cir. 2013). This is required by the
Social Security Administration’s own regulation, 20 C.F.R.
§ 404.1523, which states: “we will consider the combined
effect of all of your impairments without regard to whether
any such impairment, if considered separately, would be of
sufficient severity.” The second psychiatrist who rated
Townsend a GAF 45 conducted that holistic analysis, since
pain and “loss of function” (as in difficulty walking) and
even frustration at being financially dependent on one’s
aged parents can exacerbate a disability caused by
psychiatric illness.
Immediately after criticizing that psychiatrist’s report,
the administrative law judge declared that “the claimant’s
medically determinable mental impairments did not cause
more than minimal limitation in the claimant’s ability to
perform basic mental work activities and were therefore
No. 13‐3607 7
nonsevere.” She had dropped physical limitations from the
analysis because the doctor who testified at the hearing had
said that the medical record didn’t identify a medical
condition that (in the administrative law judge’s words)
could have caused Townsend’s “alleged symptoms such as
leg tremors and frequent falling.” It was from that testimony
that the administrative law judge must have inferred that
there was no “medically determinable cause” of Townsend’s
falling. But the doctor had not testified that there was no
medically determinable cause of Townsend’s alleged
symptoms, but only that fibromyalgia was not the cause and
therefore Townsend should have additional medical tests to
determine the cause. She didn’t take the suggested tests; the
administrative law judge did not say why. She may have
been too ill; she died only five months after the hearing.
The administrative law judge amplified her “minimal
limitations” conclusion as follows. Regarding “activities of
daily living,” she said that Townsend had “mild limitation
due to mental issues.” She acknowledged that Townsend
reported “having problems with all activities of daily living
and did not drive due to pain and medications,” but said
“the record demonstrates that [Townsend’s] limitations in
this area were related to physical pain rather than mental
problems”—as if that eliminated the “limitations” from
consideration of whether she was disabled (again a failure to
consider the combined effects of her ailments).
The administrative law judge said much the same thing
about Townsend’s “social functioning,” but regarding
“concentration, persistence or pace” found only low energy
and a slight negative effect on short‐term memory and noted
that the psychologist who had found these things—the same
8 No. 13‐3607
psychologist who had assigned her a GAF of 65—“was
unsure if [Townsend] was maximally motivated to
participate in the evaluation, since she was concerned about
maintaining her Medicaid eligibility.” There was other
medical evidence of memory problems, but the
administrative law judge did not mention it. She noted that
Townsend had “never had a psychiatric hospitalization.”
She then returned to Townsend’s physical ailments,
largely repeating what she had said earlier but now making
clear that she thought Townsend’s “statements concerning
the intensity, persistence and limiting effects of her
fibromyalgia symptoms … not credible prior to November 1,
2008, to the extent they are inconsistent with” her being able
to work.
That’s it, so far as the administrative law judge’s analysis
is concerned. It was deeply flawed. One flaw was in
assessing Townsend’s credibility without asking any
questions of her and her father even though both of them
were present at the hearing. It’s true that her lawyer told us
at argument that he hadn’t wanted either of them to testify,
lest they contradict the testimony they had given at the
earlier hearings. That is a very poor reason, but in any event
the administrative law judge could and should have
questioned daughter and father on her own initiative, as she
could do without impropriety because a social security
disability hearing is not adversarial. And it’s not as if the
administrative law judge had decided to rely on the
credibility assessments of her predecessor; she never
mentioned the proceedings before that judge.
The need to hear what Townsend might say concerning
her physical ailments was essential because the medical
No. 13‐3607 9
evidence was inconclusive. The doctor on whom the
administrative law judge relied so heavily had not testified
that Townsend was exaggerating her physical symptoms,
but rather that since they probably had not been caused by
fibromyalgia she should have additional medical tests (and
remember that we don’t know why she didn’t have them) in
order to determine the cause. Had she testified to those
symptoms and the administrative law judge believed her
and concluded that they were disabling, the absence of a
medical diagnosis would be irrelevant. Green‐Younger v.
Barnhart, 335 F.3d 99, 108 (2d Cir. 2003); Smolen v. Chater, 80
F.3d 1273, 1282, n. 2 (9th Cir. 1996); McLaughlin v. Secretary of
Health, Education & Welfare, 612 F.2d 701, 704–05 (2d Cir.
1980). Again this is the Social Security Administration’s own
rule: 20 C.F.R. § 404.1529(c)(2) states that “we will not reject
your statements about the intensity and persistence of your
pain or other symptoms or about the effect your symptoms
have on your ability to work solely because the available ob‐
jective medical evidence does not substantiate your state‐
ments.” There’s nothing unusual about a person’s having
disabling symptoms that, though real, the doctors cannot
explain—especially psychosomatic symptoms, which some
of Townsend’s symptoms may well have been.
Strangely, the administrative law judge actually
recognized that a person can have disabling symptoms
without a diagnosis when she concluded that Townsend had
become totally disabled by November 1, 2008. She based that
conclusion on the deterioration in Townsend’s ability to
walk and to avoid falling. She made no effort to determine
the medical cause of the symptoms. She thought it enough to
entitle Townsend to disability benefits that they existed and
were disabling.
10 No. 13‐3607
The administrative law judge committed the further
error, remarked earlier, of ignoring the combined effect of
Townsend’s ailments on her ability to work. She considered
Townsend’s psychiatric problems and found them not to be
disabling, and then considered her physical problems and
found them not to be disabling either, but she ignored the
possibility that the combination was disabling. It seems to
have been a deadly combination—the physical symptoms
aggravating the psychiatric symptoms, and the psychiatric
symptoms in turn aggravating the physical symptoms. And
finally the administrative law judge simply ignored some of
Townsend’s well‐attested serious impairments—her edema
(which required her to try to keep her legs elevated), her
chronic pain, her severe headaches.
The errors that we’ve identified, taken together, require
reversal of the district court’s decision and a remand to the
Social Security Administration for a redetermination of the
date on which Townsend became totally disabled and thus
eligible for disability insurance benefits. If that date was
earlier than June 30, 2006 (the date of “last insured,” which
means the date on which she ceased to be covered by social
security disability insurance), her father is entitled to his
daughter’s disability insurance benefits from that date until
the date of her death.
We are mindful of the difficulty of determining that date,
given that she cannot testify. But her father can, of course;
nor is it clear that further testimony is required, given the
abundant medical evidence relating to her disability that is
already in the record.
REVERSED AND REMANDED.