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In a number of ERISA cases, we have seen plan administrators whose lack of understanding of an impairment or medical condition led them to deny benefits to a deserving claimant. In a case decided in the 7th Circuit, an administrative law judge (ALJ) revealed his misunderstanding of bipolar disorder in affirming the Social Security Administration's denial of benefits to a deserving claimant.

Christine Bauer exhibited all the symptoms of bipolar disorder including manic depression, violent mood swings, loss of contact with reality, hallucinations, and thoughts of suicide. A psychiatrist and a psychologist who had been treating her for about three years both concurred that Bauer had the illness and was unable to hold a full-time job despite her faithfully taking medication for the disease.

After applying for social security disability, she was assessed by a consultant with a Ph.D in a field not specified in the record who concluded that she was bipolar but was only moderately limited based on his review of the medical records. As a result, Bauer was denied disability benefits. 

In reversing the determination, the appellate court found that the ALJ had ignored the “treating physician” rule in that he must give controlling weight to the treating physician's opinion if it is “well-supported by medically acceptable clinical and laboratory techniques” and is not contradicted by other substantial evidence. If such conflicting evidence exists, a checklist comes into play that the ALJ must use to decide what weight to give the treating physician.

In reviewing the consultant’s report, the court reasoned that he had merely offered an opposing view without challenging the treating physician’s analysis. In fact, the court could not determine the consultant’s field of expertise. In this case, the ALJ was required to give greater weight to Bauer’s physicians and their opinion.

More significantly, the ALJ referred to certain observations made of the claimant to support his denial of benefits such as instances of independent living and optimistic comments made of Bauer’s condition. Unfortunately, the ALJ selectively used portions of the record and ignored those that showed that Bauer was heavily dependent on her son for many daily living tasks. Bauer was also heavily medicated while performing some of these tasks in a limited fashion, but that did not mean that on other days she was able to function normally.

The medical literature also noted that people with bipolar disorder respond erratically to medication and treatment, so even if they could work some days, they undoubtedly were incapable of it on other days. It is obvious that someone with such inconsistent behavior is incapable of doing work that any employer could tolerate.

Although there are people with bipolar disorder who are very capable of full-time work, the evidence substantially indicated that Bauer was not one of them.

This case demonstrates that a skilled ERISA lawyer is necessary whenever benefits are denied to certain people regardless of their impairment. A careful examination of the record can sometimes reveal that even administrative law judges can reveal a profound misunderstanding not only of the law but how certain medical conditions affect people differently, and how in some instances they selectively use the record to confirm their own uneducated beliefs.


United States Court of Appeals,Seventh Circuit.

Christine BAUER, Plaintiff-Appellant,


Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee.

No. 07-3325.

Argued June 10, 2008.

Decided July 8, 2008.

Background: Claimant appealed from decision of the United States District Court
for the Eastern District of Wisconsin, Rudolph T. Randa, Chief Judge, affirming
Social Security Administration's denial of disability benefits.

Holding: The Court of Appeals, Posner, Circuit Judge, held that substantial
evidence did not support ALJ's determination to discount evidence from disability
claimant's treating physicians that her bipolar disorder prevented her from
holding down a full-time job.


Reversed and remanded.


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 excitement in which he loses contact with reality and exhibits bizarre
behavior-and clinical depression, in which he 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 frequent 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 Cognitive 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 hallucinations, 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 not, e.g., Gary E. Simon et al., Long-Term
Effectiveness and Cost of a Systematic Care Program for Bipolar Disorder, 63 Gen.
Psych. 500 (2006)), her condition prevented her from working.

[1] 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 expert testified that,
assuming the moderate limitation, there were plenty of jobs she could fill.

*608 [2] The administrative law judge concluded that the plaintiff can hold down a
full-time job. But he ignored the "treating physician" rule, 20 C.F.R. s
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 evidence.' " 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 physician has examined the claimant,
whether the physician is a specialist in the condition claimed to be disabling,
and so forth. The checklist is designed to help the administrative 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.

[3] 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. ss 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.2007). 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 dresses appropriately,
shops for food, prepares meals and performs other household chores, is an "active
participator [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 *609 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 understanding 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, contain a number of hopeful remarks. They are
either remarks 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 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 U.S. 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, whatever 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
implicitly 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.
s 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 medical
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 prevents him from performing on a full-time basis any jobs having particular
requirements; as long the medical experts 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 availability 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.


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Ben Glass is a nationally recognized Virginia injury, medical malpractice, and long-term disability attorney