Kyle Alaura v. Carolyn Colvin

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1727
KYLE D. ALAURA,
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. 1:13-CV-287-PPS — Philip P. Simon, Chief Judge.
____________________

ARGUED AUGUST 4, 2015 — DECIDED AUGUST 18, 2015
____________________

Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. In September 2010, a 22-year-old
man named Alaura, the plaintiff in this social security disa-
bility case, was struck in the back of his head by an assailant
wielding a bar stool as a weapon. The blow shattered his
skull, necessitating emergency surgery to remove a portion
of his brain and place a metal plate in his skull. During this
2 No. 15-1727

craniotomy Alaura had a seizure, for which he was medicat-
ed. He remained hospitalized for eight days.
Two months after the surgery Alaura went to see Jeffrey
Kachmann, the neurosurgeon who had operated on him,
complaining of headaches, dizziness, and confusion. Dr.
Kachmann thought that Alaura was improving, but needed
further tests before it could be determined whether he could
return to work.
A month later Alaura was examined by a neurologist,
Thomas Banas, who diagnosed Alaura with post-traumatic
headaches and a cognitive impairment caused by the injury
to his brain. At about the same time Dr. Kachmann decided
that Alaura, who was continuing to take anti-seizure medi-
cation and for whom Dr. Banas had prescribed pain medica-
tion in addition, was not to return to work until March 2011.
In January 2011 Alaura complained to Dr. Kachmann of
daily headaches and was found to be suffering from occipi-
tal neuralgia. That is an injury to or inflammation of nerves
that run from the spinal cord at the base of the neck up
through the scalp. It causes piercing or throbbing pain in the
neck, the back of the head, and the front of the head behind
the eyes. Kachmann prescribed a nerve block to lessen the
pain.
The next month brought a lessening of pain, though the
pain returned the month after that, and Dr. Banas prescribed
another nerve block plus an antidepressant drug commonly
used to treat chronic pain conditions, including persistent
headaches. A year later (March 2012), Alaura visited a family
practitioner, a Dr. Ted Crisman, telling him he could no
longer afford Dr. Kachmann or Dr. Banas. He said he was
No. 15-1727 3

having daily headaches, and Dr. Crisman prescribed an an-
tidepressant. Alaura also complained that he was having
“absence-type” seizures several times a week—brief lapses
of consciousness in which he would blank out or zone out
for a couple of minutes. Around the same time he was visit-
ing a chiropractor for back and neck pain, and received some
relief from the chiropractor’s ministrations.
His headaches continued, however. He reported to a
neurologist named John Collins (who examined him nine
days before and three weeks after his hearing before the ad-
ministrative law judge assigned to his case, and whose re-
port was available to her when she wrote her opinion), and a
pain specialist named William Hedrick, that although his
headaches had been improving he was still experiencing
persistent headaches several times a week that were interfer-
ing with his normal activities. The doctors diagnosed Alaura
with chronic daily headaches, left occipital neuralgia, atypi-
cal spells with suspected seizure activity, myofascial pain—
pressure on sensitive points in the muscles—in his neck, diz-
ziness, and a mood disorder. They also concluded that
Alaura’s staring spells, during which he would experience
disorientation, confusion and lethargy, were consistent with
complex partial seizure activity. “Patients experiencing a
complex partial seizure may stare blankly into space, or ex-
perience automatisms (non-purposeful, repetitive move-
ments).” Johns Hopkins Medicine, “Neurology and Neuro-
surgery: Complex Partial Seizures,” www.hopkinsmedicine.
org/neurology_neurosurgery/centers_clinics/epilepsy/seizur
es/types/complex-partial-seizures.html (visited August 17,
2015, as were the other websites cited in this opinion). The
doctors prescribed two more nerve blocks, seizure and mi-
4 No. 15-1727

graine medication, and additional antidepressants for pain
and depression.
The administrative law judge mentioned none of this.
She said only that the doctors’ “physical examination find-
ings were usually within normal limits, except for tender-
ness over his scalp, neck, and shoulders, as well as sharp-
ened Romberg.” She did not explain the significance of
“usually,” the significance of “tenderness over his scalp,
neck, and shoulders,” or what she meant by “sharpened
Romberg.” There is a Sharpened Romberg Test—a test of
balance; we don’t know what she meant by saying that
Alaura had a “sharpened Romberg.” That he had taken such
a test and passed? Taken it and it had revealed a balance
problem?
The administrative law judge noted that an EEG (electro-
encephalogram) of Alaura taken around the same time was
normal, yet she did not mention that the accompanying ex-
am notes repeated the diagnoses by Drs. Collins and
Hedrick of pain, seizures, dizziness, and mental-health prob-
lems such as depression.
Both Alaura and his mother (he lives in her home) testi-
fied at the hearing before the administrative law judge. They
were the only witnesses, unless the vocational expert, whom
we discuss later, should be considered a witness. Alaura tes-
tified to a variety of ailments. A partial list would include
constant headache, severe headaches a couple of times a
week that make him sick and are exacerbated by bright
lights (“photophobia”) and force him to go to bed, nausea
from headaches, an occasional loss of feeling in one arm,
mood swings, hearing loss, neck pain, a weakness in his
right leg that sometimes causes him to fall, tremors in his
No. 15-1727 5

hands, dizziness in standing, anxiety, nightmares, and diffi-
culty gripping objects. He testified that he can play video
games only for five minutes at a time because the light from
the screen bothers him (i.e., his play is inhibited by his pho-
tophobia), that he can’t mow the lawn because the jarring
motion of the lawnmower makes him sick, and that five or
ten minutes after sitting down he falls asleep.
His mother added that at times he stares blankly into
space (consistent with his diagnosis of complex partial sei-
zures), that he has trouble finishing projects, that he can’t
drive, that she’s reluctant to leave him alone in the house,
that he leaves stove burners on, has dizzy spells, and cannot
walk far and that she has to remind him to take his medica-
tions, brush his teeth, and take out the garbage. These lists,
the mother’s and the son’s, of the son’s ailments and defi-
ciencies are only partial.
On the basis of the testimony and medical records, the
administrative law judge determined that Alaura indeed
suffers from multiple severe impairments—traumatic brain
injury, seizure disorder, neuropathic pain (chronic pain
caused by injury to the nervous system), headaches, occipital
neuralgia, insomnia, cognitive disorder caused by his brain
injury, adjustment disorder (a tendency to go to pieces un-
der stress), anxiety disorder, and mood disorder. Neverthe-
less she concluded that Alaura is not totally disabled—that
he can perform light work that involves no concentrated ex-
posure to bright lights or jarring movements, no having to
climb ropes (are there any rope-climbing jobs anymore?) or
ladders or work on scaffolds, no commercial driving, and no
more than superficial interaction with members of the pub-
lic. Asked what jobs he can do given these limitations, a vo-
6 No. 15-1727

cational expert testified that he would be able to work as a
retail marker, hand packager, or addresser. A retail marker
does such things as placing price tickets on articles of mer-
chandise; a hand packager does packaging by hand and per-
forms related tasks such as sealing and weighing containers
and inspecting materials at various stages of the packaging
process; an addresser addresses envelopes and other items
by either hand or typewriter.
The grounds on which the administrative law judge con-
cluded that Alaura’s long list of impairments did not disable
him from light work (which is not, with the exception of the
addresser, sedentary work—the marker and the packager
are bound to spend a lot of time standing) are that nerve
blocks and other medications had reduced the severity of his
impairments, that he went for significant periods of time
(aggregating to eight months since his brain surgery) with-
out taking medications or seeing doctors, that he was on
Medicaid yet hadn’t sought treatment at low-cost or free
clinics, and that he could prepare soup and sandwiches for
himself, do laundry, send text messages on a cellphone, feed
his two cats and change their litter, count change, handle
bank accounts (whatever that means), play video games
(though apparently only for five minutes at a time), take his
medications with only occasional reminders by his mother to
do so, and get along with other people. How being able to
feed cats, make a sandwich, etc., prepare one for full-time
employment as a retail marker, hand packager, or addresser
was left unexplained. Handling bank accounts certainly
sounds like an activity that prepares one for gainful em-
ployment, but the meaning of the phrase was not explained.
No. 15-1727 7

The administrative law judge noted that Alaura has not
had further brain surgery, or been hospitalized, and that a
physical examination in 2011 had yielded findings “essen-
tially within normal limits, except for numbness in his scalp,
tenderness over his occipital ridge, swaying with closed
eyes, and a slow, deliberate gait.” Except? These don’t sound
like trivial obstacles to being able to hold full-time employ-
ment.
The reasons given for concluding that Alaura is capable
of full-time gainful employment despite the administrative
law judge’s long list of his severe (her term) impairments are
thin. True, he was better in May 2012, the date of his hearing
before the administrative law judge, than he had been when
he had his skull broken and a chunk of his brain removed.
But how much better is unclear because at the time of the
hearing more than a year had elapsed since Alaura had been
examined by Drs. Kachmann and Banas, who appear
(Kachmann especially) to have analyzed Alaura’s brain-
related impairments more thoroughly than any other doc-
tors.
Above all, the administrative law judge made no effort to
consider the combined effects on Alaura’s ability to work of
all his impairments and limitations. An administrative law
judge is unlikely to be capable of assessing the interaction
within and overall effect of such a collection of impairments;
she is not a doctor. But she has access to the stable of medical
consultants used by the Social Security Administration to
evaluate applicants for disability benefits. Why didn’t she
ask a reputable neurologist and a reputable pain specialist,
experts comparable to Kachmann and Banas, to examine
Alaura and Alaura’s medical records and offer an opinion on
8 No. 15-1727

his ability to do various forms of light work on a full-time
basis? Kachmann and Banas had last seen Alaura in January
and March 2011, respectively, more than a year before
Alaura’s administrative hearing; and the administrative law
judge didn’t issue her opinion until August 2012, roughly a
year and a half after Alaura’s last visits to them.
Not that they were the only doctors who examined
Alaura and gave evidence. He was examined by Dr. Gau-
tham Gadiraju in March 2011, but Gadiraju’s field is internal
medicine rather than neurology and so, unsurprisingly,
there is virtually nothing in his report about Alaura’s neuro-
logical symptoms. The administrative law judge rejected,
moreover, without explanation, Dr. Gadiraju’s opinion that
Alaura can sit for only thirty minutes at a stretch and walk
only six blocks at a time.
Alaura was later seen, as we noted, by a neurologist and
a pain management specialist, Drs. Collins and Hedrick, but
remember that virtually all that the administrative law judge
said about their findings was that physically Alaura seemed
to be in pretty good shape and in particular that he had no
significant hearing loss. Yet these doctors reported that
Alaura has chronic daily headaches, occipital neuralgia,
atypical spells with suspected seizure activity, myofascial
pain in his neck, dizziness, a mood disorder, and staring
spells in which he experiences disorientation, confusion and
lethargy consistent with complex partial seizure activity—all
unremarked on by the administrative law judge.
There is probably some exaggeration in Alaura’s and his
mother’s description of his physical and mental situation; for
all we know, there is gross exaggeration. But the administra-
tive law judge’s scattershot analysis leaves us with no confi-
No. 15-1727 9

dence that Alaura’s fitness for full-time gainful employment
as of the hearing date was responsibly determined; and so
the case must be returned to the Social Security Administra-
tion for reconsideration of his application for benefits.
We need to say something about the vocational expert’s
conclusion that (in the words of the administrative law
judge) “the claimant is capable of making a successful ad-
justment to other work [that is, other than his pre-brain-
injury employment as a warehouse worker, landscape labor-
er, and forklift driver] that exists in significant numbers in
the national economy.” The vocational expert said that there
are 500 retail-marker jobs in Alaura’s region, 7000 in the
state, and 300,000 in the nation; 100 hand-packager jobs in
the region, 2000 in the state, and 80,000 in the nation; and
100 addresser jobs in the region, 1500 in the state, and
200,000 in the nation. Why local and state statistics are in-
cluded is unclear, since if there is a significant number of
jobs that the applicant for benefits can perform anywhere in
the United States he is deemed not disabled, Browning v.
Colvin, 766 F.3d 702, 708 (7th Cir. 2014), although this surely
exaggerates the mobility of a person with as many acknowl-
edged severe impairments as Alaura.
Asked at argument where the job figures we just quoted
from the administrative law judge’s opinion came from, the
Social Security Administration’s lawyer said she had no idea
and added that the agency’s lawyers are forbidden to speak
to vocational experts—which we find hard to believe, and
which if true makes no sense at all. The administrative law
judge said she’d “determined that the vocational expert’s
testimony is consistent with the information contained in the
Dictionary of Occupational Titles” (U.S. Department of La-
10 No. 15-1727

bor, Dictionary of Occupational Titles (4th ed. 1991)), but she
was wrong, because the DOT doesn’t contain statistics. An-
yway the DOT has been superseded by the O*NET (Occupa-
tional Information Network)—a fact ignored by the Social Se-
curity Administration’s vocational experts and administra-
tive law judges.
We have recently expressed concern with the source and
validity of the statistics that vocational experts trot out in so-
cial security disability hearings, Browning v. Colvin, supra,
766 F.3d at 709; Herrmann v. Social Security Administration,
772 F.3d 1110, 1112–14 (7th Cir. 2014), as have other courts,
Brault v. Social Security Administration, 683 F.3d 443, 446–47
(2d Cir. 2012) (per curiam); Guiton v. Colvin, 546 Fed. App’x
137, 143–45 (4th Cir. 2013) (concurring opinion), and com-
mentators: Jon C. Dubin, “Overcoming Gridlock: Campbell
After a Quarter-Century and Bureaucratically Rational Gap-
Filling in Mass Justice Adjudication in the Social Security
Administration’s Disability Programs,” 62 Administrative
Law Review 937, 964–71 (2010); Peter J. Lemoine, “Crisis of
Confidence: The Inadequacies of Vocational Evidence Pre-
sented at Social Security Disability Hearings (Part II),” Social
Security Forum, Sept. 2012, p. 1. The problem appears to be
that the only reliable statistics are census data for broad cat-
egories of jobs, rather than for jobs in the narrower catego-
ries that the applicant for benefits is capable of doing. Typi-
cally, it appears, the vocational expert simply divides the
number of jobs in the broad category that includes the nar-
row category of jobs that the applicant can perform by the
number of narrow categories in the broad category, Browning
v. Colvin, supra, 766 F.3d at 709, thus assuming that each nar-
row category has the same number of jobs as each other nar-
row category—which is preposterous. A vocational expert’s
No. 15-1727 11

stated number of jobs in a narrow category seems likely,
therefore, to be a fabrication.
According to the DOT, an “addresser” is someone who
“addresses by hand or typewriter, envelopes, cards, adver-
tising literature, packages, and similar items for mailing.
May sort mail.” “Addresser,” U.S. Department of Labor, Dic-
tionary of Occupational Titles (4th ed. 1991), www.oal
j.dol.gov/public/dot/references/dot02a.htm. It’s hard to be-
lieve that, as the vocational expert testified in this case, there
are 200,000 people in the United States for whom this is a
full-time job. And does anyone use a typewriter anymore?
Most addressing nowadays is either personal, as when one is
sending a Christmas or get-well card, or automated, as in the
case of business mailings, including mass mailings of adver-
tisements or magazines. There is no indication that Alaura is
capable of performing jobs typically found in automated
mailing, such as bar-coding, pre-sorting, list management,
variable data laser printing, folding, inserting, tabbing,
warehousing, and shipping. See Automated Mailing Sys-
tems, Inc., www.automailsys.com/. And many of the jobs in
the category “hand packager” are technical or demanding,
Browning v. Colvin, supra, 766 F.3d at 710–12, and therefore
likely, like most addresser jobs, to be beyond Alaura’s ability
to perform. Even “retail marker” is a lot more complicated
than it sounds; here is the DOT’s definition: “Marks and at-
taches price tickets to articles of merchandise to record price
and identifying information: Marks selling price by hand on
boxes containing merchandise, or on price tickets. Ties,
glues, sews, or staples price ticket to each article. Presses
lever or plunger of mechanism that pins, pastes, ties, or sta-
ples ticket to article. May record number and types of arti-
cles marked and pack them in boxes. May compare printed
12 No. 15-1727

price tickets with entries on purchase order to verify accura-
cy and notify supervisor of discrepancies. May print infor-
mation on tickets, using ticket-printing machine.”
www.occupationalinfo.org/20/209587034.html.
The denial of the application for benefits, and the affir-
mation of that denial by the district court, were premature.
The judgment is reversed with directions to remand the case
to the Social Security Administration for further considera-
tion of Alaura’s application for benefits.
REVERSED AND REMANDED