In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3325
CHRISTINE BAUER,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 cv 697—Rudolph T. Randa, Chief Judge.
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ARGUED JUNE 10, 2008—DECIDED JULY 8, 2008
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Before POSNER, COFFEY, and FLAUM, Circuit Judges.
POSNER, Circuit Judge. The plaintiff challenges the
Social Security Administration’s denial (upheld by the
district court) of disability benefits. She claims to be
disabled by virtue of having the psychiatric illness that
is nowadays called “bipolar disorder”; the older and more
descriptive term is manic-depressive illness. A person
suffering from the disorder has violent mood swings,
the extremes of which are mania—a state of high excite-
ment in which he loses contact with reality and exhibits
bizarre behavior—and clinical depression, in which he
2 No. 07-3325
has great difficulty sleeping or concentrating, has suicidal
thoughts and may actually attempt suicide. The condition,
which varies in its severity, see American Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders
297-98 (4th ed. 2000), is treatable by antipsychotic drugs
and other medications. Sophia Frangou, “Advancing the
Pharmacological Treatment of Bipolar Depression,” 11
Advances in Psych. Treatment 28, 31-33 (2005). But many
patients do not respond well to treatment, or have fre-
quent relapses. See, e.g., Kaan Kora et al., “Predictive
Factors for Time to Remission and Recurrence in Patients
Treated for Acute Mania: Health Outcomes of Manic
Episodes (HOME) Study,” 10 J. Clin. Psychiatry 114 (2008);
Robert G. Bota, “Therapeutic Dilemmas in Treatment-
Resistant Bipolar Patients,” 101 S. Medical J. 584 (2008). “For
many patients, the prognosis of bipolar disorder is not
good, as the disorder is associated with frequent relapses
and recurrences.” Edward Watkins, “Combining Cog-
nitive Therapy with Medication in Bipolar Disorder,”
9 Advances in Psych. Treatment 110 (2003); see also Kangail
v. Barnhart, 454 F.3d 627, 630-31 (7th Cir. 2006).
For three years (less a month) the plaintiff was regularly
seen by a psychiatrist named Elizabeth Caspary and a
psychologist named Robert Chucka. Both diagnosed her
as bipolar. Though prescribed a variety of antipsychotic
drugs, she was hospitalized several times with hallucina-
tions, racing thoughts, thoughts of suicide, and other
symptoms of bipolar disorder. As a result of the imperfect
control of her disorder, both Caspary and Chucka
opined that she could not hold down a full-time job. And
she testified that she had been fired from her job as a
medical technician because, although she takes the drugs
prescribed for her faithfully (many manic depressives do
No. 07-3325 3
not, e.g., Gary E. Simon et al., “Long-Term Effectiveness
and Cost of a Systematic Care Program for Bipolar Dis-
order, 63 Gen. Psych. 500 (2006)), her condition prevented
her from working.
A consultant who has a Ph.D. in an unspecified field
examined the plaintiff’s medical records and concluded
that although she indeed has bipolar disorder, it only
moderately limits her ability to work. A vocational ex-
pert testified that, assuming the moderate limitation,
there were plenty of jobs she could fill.
The administrative law judge concluded that the plain-
tiff can hold down a full-time job. But he ignored the
“treating physician” rule, 20 C.F.R. § 404.1527(d)(2), which,
as we explained in Hofslien v. Barnhart, 439 F.3d 375, 376
(7th Cir. 2006), “directs the administrative law judge to
give controlling weight to the medical opinion of a
treating physician if it is ‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques’
and ‘not inconsistent with the other substantial evid-
ence.’ ” We expressed some puzzlement about the rule:
“Obviously if [the treating physician’s medical opinion] is
well supported and there is no contradictory evidence,
there is no basis on which the administrative law judge,
who is not a physician, could refuse to accept it. Equally
obviously, once well-supported contradicting evidence is
introduced, the treating physician’s evidence is no longer
entitled to controlling weight.” Id. At that point, “the
treating physician’s evidence is just one more piece of
evidence for the administrative law judge to
weigh . . . . The [treating-physician] rule goes on to list
various factors that the administrative law judge
should consider, such as how often the treating physi-
cian has examined the claimant, whether the physician is
4 No. 07-3325
a specialist in the condition claimed to be disabling, and
so forth. The checklist is designed to help the administra-
tive law judge decide how much weight to give the treating
physician’s evidence. When he has decided how much
actual weight to give it, there seems no room for him to
attach a presumptive weight to it.” Id. at 377.
There was evidence—the report of the nonexamining
consultant—that contradicted the reports of the treating
physicians. (The psychologist, Dr. Chucka, is deemed a
“physician” in the sense of a medical expert with relevant
expertise who treats the applicant, 20 C.F.R. §§ 404.1513(a),
404.1527(a)(2); Bowen v. Commissioner of Social Security, 478
F.3d 742, 747-50 (6th Cir. 2007)—in fact the technical name
for the “treating physician” rule is the “treating source”
rule.) So the presumption falls out and the checklist
comes into play. Given that there were two treating
physicians, that they were both specialists in psychiatric
disorders, and that they examined the plaintiff over a
period of years, the checklist required the administrative
law judge to give great weight to their evidence unless it
was seriously flawed. Id.; Clifford v. Apfel, 227 F.3d 863, 869-
71 (7th Cir. 2000); compare White v. Barnhart, 415 F.3d 654,
658-59 (7th Cir. 2005); Roberson v. Astrue, 481 F.3d 1020,
1025 (8th Cir. 2005). The consultant did not identify a
flaw in the treating physicians’ analysis, but merely
expressed a contrary view after reading the medical
files; and it is not even clear whether he has relevant
expertise for such a task, since we do not know what his
field is.
Many of the reasons offered by the administrative law
judge for discounting the evidence of Drs. Caspary and
Chucka suggest a lack of acquaintance with bipolar
disorder. For example, the judge noted that the plaintiff
No. 07-3325 5
dresses appropriately, shops for food, prepares meals
and performs other household chores, is an “active partici-
pator [sic] in group therapy,” is “independent in her
personal hygiene,” and takes care of her 13-year-old son.
This is just to say that the plaintiff is not a raving maniac
who needs to be locked up. She is heavily medicated,
and this enables her to cope with the challenges of daily
living, and would doubtless enable her to work on some
days. But the administrative law judge disregarded
uncontradicted evidence that the plaintiff’s son cooks
most meals, washes the dishes, does the laundry, and helps
with the grocery shopping. And Caspary and Chucka,
having treated the plaintiff continuously for three years,
have concluded that she cannot hold down a full-time job.
What seems to have made the biggest impression on the
administrative law judge, but suggests a lack of under-
standing of bipolar disorder, was that Dr. Caspary’s
treatment notes, which back up the report in which she
concludes that the plaintiff cannot work full time, con-
tain a number of hopeful remarks. They are either re-
marks the plaintiff made to Caspary during office visits
or Caspary’s independent observations—the plaintiff’s
memory was “ok,” her sleep fair, she was doing “fairly
well,” her “reported level of function was found to have
improved,” she had “a brighter affect and increased
energy,” she “was doing quite well.” On the basis of
such remarks the administrative law judge concluded:
“little weight is given the assessment of Dr. Caspary.”
A person who has a chronic disease, whether physical
or psychiatric, and is under continuous treatment for it
with heavy drugs, is likely to have better days and worse
days; that is true of the plaintiff in this case. Suppose that
half the time she is well enough that she could work, and
6 No. 07-3325
half the time she is not. Then she could not hold down a
full-time job. E.g., Watson v. Barnhart, 288 F.3d 212, 217-
18 (5th Cir. 2002); Washington v. Shalala, 37 F.3d 1437, 1442-
43 (10th Cir. 1994). That is likely to be the situation of a
person who has bipolar disorder that responds erratically
to treatment. Ronald C. Kessler et al., “The Prevalence and
Effects of Mood Disorders on Work Performance in a
Nationally Representative Sample of US Workers,” 163 Am.
J. Psychiatry 1561-68 (2006). That is another point that the
administrative law judge overlooked.
We are mindful of the distinction between a plaintiff’s
disabilities, a subject that medical experts know best, and
the existence of jobs for someone with those disabilities.
Social Security is not an unemployment program; if the
plaintiff can do the tasks required by an employer, what-
ever they may be, the fact that employers prefer other
people, and so won’t hire her, does not entitle her to
benefits. So when Caspary and Chucka opined that the
plaintiff could not hold down a full-time job, they were
not just answering a medical question; they were im-
plicitly commenting on supply and demand. But the
medical (disability) question and the economic (vocational)
question are not readily separable. This is implicit in the
concept of listed impairments—medical conditions that
are deemed totally disabling without inquiry into labor-
market conditions. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R.
pt. 404, subpt. P; Barnett v. Barnhart, 381 F.3d 664, 668 (7th
Cir. 2004). Even in a case in which the applicant’s med-
ical condition does not meet the requirements for a listed
impairment, it may be apparent to medical experts that
the patient has a physical or mental condition that pre-
vents him from performing on a full-time basis any jobs
having particular requirements; as long the medical experts
No. 07-3325 7
understand those requirements, they may report or
testify that the patient is unable to perform those jobs.
Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008); Wagner v.
Astrue, 499 F.3d 842, 850 and n. 2 (8th Cir. 2007); Orn v.
Astrue, 495 F.3d 625, 634 (9th Cir. 2007); Mills v. Apfel, 244
F.3d 1, 7 (1st Cir. 2001). Their judgment is not conclusive,
id.; Robson v. Astrue, supra, 526 F.3d at 393, but in this
case it was not offset by evidence concerning the availa-
bility of jobs to someone having the plaintiff’s disorder
plus her other characteristics.
The judgment of the district court is reversed and the
case is remanded to the Social Security Administration.
USCA-02-C-0072—7-8-08