In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1601
STACY L. CHILDRESS,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social
Security
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:14‐CV‐00297‐CSB‐DGB — Colin S. Bruce, Judge.
____________________
ARGUED DECEMBER 13, 2016 — DECIDED JANUARY 4, 2017
____________________
Before POSNER, KANNE, and SYKES, Circuit Judges.
POSNER, Circuit Judge. The plaintiff‐appellant, Mr. Chil‐
dress, applied to the Social Security Administration for disa‐
bility benefits in 2008, when he was 35. Turned down in 2010
after a hearing before an administrative law judge, he ap‐
pealed to the district court, which initially remanded the
case to the Social Security Administration for reevaluation of
the medical opinions in the record and reconsideration of the
2 No. 16‐1601
plaintiff’s credibility. The upshot was a second hearing, held
in 2013, before the same administrative law judge, who
again ruled that Childress was not disabled; and this time
the district court affirmed, precipitating his appeal to us. He
complains that the administrative law judge again failed to
give sufficient weight to the opinions of his treating physi‐
cians and did not accurately assess his credibility or his ca‐
pacity to work.
The administrative law judge ruled in the second round
that Childress could perform only limited sedentary work
(and nothing more strenuous), because he is capable of
standing for only 25 to 30 minutes at a time and of walking 1
to 2 blocks at a time, adding up to a maximum of 2 hours a
day of either walking or standing; he is capable of sitting 45
to 60 minutes at a time, for a total of 6 hours a day; and he is
capable of carrying out workplace instructions—provided he
was given them no more than 30 days earlier. The adminis‐
trative law judge also ruled that he must avoid strenuous
work, dangerous machinery, unprotected heights, and expo‐
sure to extreme heat.
The medical evidence presented by Childress’s treating
physicians was extensive. A cardiologist who had been treat‐
ing Childress for years, Dr. Theodore Addai, reported that
Childress suffers from congestive heart failure, cardiomyo‐
pathy (another disease that diminishes cardiac perfor‐
mance), severe asthma, COPD (chronic obstructive pulmo‐
nary disease, actually one or more of a set of distinct diseas‐
es, all of which however are debilitating, progressive, and
potentially fatal lung diseases), occasional chest pain, obesity
(he weighs 350 pounds yet is only 69 inches—five feet nine
inches—tall), hypertension, and dyspnea (difficult or un‐
No. 16‐1601 3
comfortable breathing, resulting in shortness of breath). He
was prescribed a number of medications: Advair,
Benazepril, Coreg, Diovan, Lanoxin, Lasix, Norvasc, Proven‐
til, and Spiriva. We are not told whether any of them have
side effects that are harmful or that affect work capacity, ei‐
ther in general or with specific respect to Childress.
The percentage of blood pumped out of the ventricles
with each contraction of the heart (i.e., each heartbeat) is
called the “ejection fraction” (EF). The EF number helps a
health‐care provider determine whether a patient has heart
disease. A normal heart has an EF of 50 to 75 percent in the
left ventricle. (The right ventricle can have a lower EF with‐
out being abnormal, because it pumps blood only to the
lungs, whereas the left ventricle pumps blood to the rest of
the body.)
By 2010, Childress’s left‐ventricle EF had fallen to 35 to
40 percent (though later in the year it rose to a normal 66
percent). The cardiologist estimated that in an eight‐hour
workday Childress would be able to stand or walk for no
more than one hour and to sit for no more than two hours.
The ups and downs continued, but the downs predomi‐
nated. A stress test in 2011 showed “poor exercise tolerance
for his age” (though he was still in his 30s). He had shortness
of breath even at home, fatigue, tingling sensations, swelling
in his feet and ankles, tightness in his chest, flashes of light
in his vision, tingling all over, and continued diagnoses of
serious heart problems. The following year his ejection frac‐
tion fell to a dangerously low 20 to 25 percent, requiring im‐
plantation of a cardiac defibrillator. The following year his
ejection fraction rose to 30 to 35 percent, still abnormally
low. Other heart problems that he was diagnosed with in‐
4 No. 16‐1601
cluded diastolic dysfunction, severely dilated left ventricular
chamber size, severely dilated left and right atriums, and
mild aortic valve insufficiency.
Nor is the ejection fraction the only evidence that Chil‐
dress’s left ventricle is impaired. If the left ventricle is wider
than 6 centimeters in its diastolic state (that is, when it is ex‐
panded and full of blood), this indicates a severe thinning of
the heart muscle. See 20 C.F.R. Part 404, Subpart P, App. 1,
4.02(A)(1). Childress’s heart measurements have consistently
revealed that his left ventricle is more than 6 centimeters
wide. This was actually noted by the administrative law
judge at Childress’s first hearing. Yet at the second hearing,
the one now under review, she did not mention it, thus over‐
looking an important fact supportive of his claim to be disa‐
bled.
Another doctor, Kari Cataldo, evaluated and treated
Childress beginning in 2008. Her diagnoses were similar to
Dr. Addai’s, but with the addition of diagnosing crackles in
the lungs, bronchial markings, a hernia, acute bronchitis,
depression, a systolic heart murmur, increased lung mark‐
ings, increased dyspnea and chest pain, wheezing and
coarse breath sounds, edema (swelling) of the ankles, head‐
aches, and pain and swelling in the legs. In 2009 another
doctor appeared on the scene, Patrick Hartman, who diag‐
nosed acute bronchitis and hypertension, coarse breath
sounds, shortness of breath, coughing, fatigue, decreased
exercise tolerance, severe fatigue, congestive heart failure,
chronic obstructive pulmonary disease, obesity, etc., and an
ejection fraction, still subnormal, of 35 to 40 percent. Chil‐
dress also had painful cysts on his legs, which Dr. Hartman
treated.
No. 16‐1601 5
Dr. Hartman estimated that Childress would be able to
sit for 3 hours total and stand or walk for 1 hour total in an
8‐hour workday, though he would also have to lie down for
an hour every 1 to 2 hours during the workday—which
would reduce his workday. If he lay down only every 2
hours, say at 11 a.m. and 1 p.m. and 3 p.m., and his workday
was 9 a.m. to 5 p.m., that would reduce the actual working
part of his “working day” to 5 hours (9 to 11 a.m., 12 to 1
p.m., 2 to 3 p.m., and 4 to 5 p.m.), rendering him unemploy‐
able. Dr. Hartman also thought it likely that Childress’s
medical symptoms would worsen in a work environment,
and he concluded that Childress is totally disabled from
gainful employment.
Two nonexamining state agency physicians looked at a
severely incomplete set of the plaintiff’s medical records,
and concluded without any real evidence that he can walk
about 6 hours a day and sit about 6 hours a day. The second
such physician summarily agreed with the first, after re‐
viewing treatment records that ended at the end of January
2009.
Childress testified at length at his hearing before the ad‐
ministrative law judge. He described the bad effect of his
obesity on his breathing (he is constantly short of breath), his
joints, and his ability to get up and sit down. He testified
that he was unable to lose weight through either dieting or
exercise, despite trying—in part because his medications,
which include steroids, have caused him to gain thirty to for‐
ty pounds. He leaves his home infrequently, sleeps a good
deal during the day, has trouble showering and dressing,
does very little work around the house, does not cook or do
his laundry, and gets help from his parents in cleaning the
6 No. 16‐1601
house. His testimony was not contradicted. The picture it
painted is not that of a person capable of full‐time work even
of a sedentary character, especially since Childress had not
attended college; and although when younger he had had
occasional jobs, they were as a cook and as a satellite anten‐
na installer, which are not sedentary jobs.
Although the testimony of Drs. Addai and Hartman, if
believed, established that Childress was totally disabled
from gainful employment, the administrative law judge dis‐
believed them on the ground that their testimony was “not
consistent with the medical record as a whole, or with their
own progress notes.” Yet she gave little weight to the evi‐
dence presented by the nontreating physicians—and rightly
so, as their evidence was essentially worthless since they had
not had access to Childress’s full (abundantly full) medical
record. Her decision rejecting Childress’s claim of total disa‐
bility rested on her belief that the two treating physicians
had given evidence concerning Childress’s activities that
contradicted the record: that Dr. Addai had recommended
that Childress walk 30 minutes a day, five to seven days a
week, to help with his cardiac functioning—and he did
walk, almost daily. He had worked as a part‐time cook for
three months ending in November 2009. And despite his
disabilities he lives alone and cares for himself.
These are feeble points. Ability to walk 30 minutes a day
doesn’t contradict Childress’s need for sleeping (or at least
lying down) at work 3 hours a day, which would surely dis‐
able him from gainful, full‐time employment, as the voca‐
tional expert agreed. Furthermore the Social Security Ad‐
ministration defines gainful sedentary employment as com‐
prising at least 6 hours of sitting and 2 hours of standing or
No. 16‐1601 7
walking—not 30 minutes. The administrative law judge
seems not to have realized that Childress’s treating physi‐
cians considered all his problems in combination when as‐
sessing his ability to stand or sit for long periods of time.
That is the correct approach. Engstrand v. Colvin, 788 F.3d
655, 661 (7th Cir. 2015).
Childress lives by himself but receives lots of assistance
in his home from his parents and does very little himself be‐
sides sleeping. As for working as a part‐time cook for three
months, the precise nature of the job and the reasons for his
being employed for so short a period were never explored in
the hearing. We have emphasized that “working sporadical‐
ly or performing household chores are not inconsistent with
being unable to engage in substantial gainful activity.” Eng‐
strand v. Colvin, supra, 788 F.3d at 661. See also Bjornson v.
Astrue, 671 F.3d 640, 647 (7th Cir. 2012), noting that failing to
recognize the difference between performing activities of
daily living with flexibility (and often with help from family
and friends) and performing to the standards required by an
employer “is a recurrent, and deplorable, feature of opinions
by administrative law judges in social security disability cas‐
es.”
The administrative law judge was critical of the fact that
two of Childress’s visits to doctors’ offices recorded symp‐
toms after he’d run out of his medications, when one would
expect his symptoms to worsen. But there is no evidence that
he failed to take any of his medications after April 2009, and
yet despite that his symptoms were worse by March 2010.
The medications, numerous and formidable as they were,
were unable to improve his perilous health.
8 No. 16‐1601
Very strangely the administrative law judge thought that
the fact that, as mentioned by the treating physicians, Chil‐
dress has been given a Class III rating on the New York
Heart Association Functional Classification scale showed he
can do full‐time sedentary work. Not so. A Class III rating is
indicative of “marked limitation in physical activity,” such
that “less than ordinary activity causes fatigue, palpitation,
or dyspnea.” See American Heart Association, “Classes of
Heart Failure,” www.heart.org/HEARTORG/Conditions/
HeartFailure/AboutHeartFailure/Classes‐of‐Heart‐Failure_
UCM_306328_Article.jsp (visited Jan. 3, 2016).
Another curious observation made by the administrative
law judge was that Childress does not have the “usual objec‐
tive signs of severe pain … such as abnormal weight loss or
muscular atrophy.” No, he does not have those particular ob‐
jective signs of severe pain; but does the administrative law
judge really believe that an obese person with very serious
heart and lung problems will not have severe pain? Nor is
severity the only pain dimension worth considering; to be
plagued by constant pain can be torture even if the individ‐
ual spasm is not severe. Similarly, it was wrong of the ad‐
ministrative law judge to fault Childress for not taking
strong opioids for pain, when his medical conditions did not
require them and, as is now well known, opioids can be very
dangerous.
She said “the doctor concluded [that Childress had] pos‐
sible sleep apnea, and advised referral for a sleep study. This
is not a medically determinable impairment.” What could
she have meant? Sleep apnea is a serious, medically deter‐
minable condition, which if not diagnosed and treated can
kill.
No. 16‐1601 9
Between them, Drs. Addai and Hartman treated Chil‐
dress for a total of about 30 months, the treatment including
numerous medical tests. There is no suggestion that the two
doctors are not reputable physicians specializing in the spe‐
cific health problems that afflict Childress. Their testimony
and records were entitled to significant weight, see 20 C.F.R.
§ 404.1527(c); Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir.
2016) (per curiam), yet the administrative law judge gave
their testimony and records virtually no weight, as a result
leaving the record of the hearing almost blank. Her conclu‐
sion that Childress can sit for at least 6 hours a day at work
and stand and/or walk another 2 hours a day, while sleeping
3 hours a day at work and missing 3 or more days of work
per month, and keep to this schedule week after week, and
continue employed until his sleeping on the job and absen‐
teeism is noticed by the employer is—absurd. The vocational
expert admitted that an employee who misses three or more
days of work a month is unemployable. The administrative
law judge never explained why she thought this limitation
did not apply to Childress.
A final botch by the administrative law judge was her
remark that if Childress was really suffering he would have
stopped smoking cigarettes earlier; he stopped only four
days prior to the second hearing. But there is no evidence of
whether on balance his smoking relieved or increased his
pain, or, most important, given the gravity of his medical
condition, whether stopping smoking would improve his
health significantly—as we explained in Shramek v. Apfel, 226
F.3d 809, 812–13 (7th Cir. 2000). Nor is there evidence of how
much he was smoking before he stopped.
10 No. 16‐1601
The judgment of the district court is reversed and the
case remanded to that court with directions to remand the
case to the Social Security Administration.