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Date: 07-17-2018

Case Style:

Anthony Kaminski v. Nancy A. Berryhill (Commissioner, Social Security Administration)

Northern District of Indiana Federal Courthouse - Lafayette, Fort Wayne, South Bend, Hammond

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Case Number: 17-3314

Judge: Hamilton

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Indiana (St. Joseph County)

Plaintiff's Attorney: Joseph Sellers and Deborah Spector

Defendant's Attorney: Sharon Jefferson and Catherine A. Seagle

Description: In 2000, Anthony Kaminski fell
down a flight of stairs, suffering a head wound that caused a
traumatic brain injury and a seizure disorder. Thirteen years
later, he applied under the Social Security Act for disability
insurance benefits and supplemental security income. The Social
Security Administration denied his applications, and the
district court upheld the denial. Kaminski appeals, arguing
2 No. 17‐3314
that the administrative law judge improperly rejected his
treating physician’s opinions. We agree with Kaminski. Because
the treating physician’s opinions and the testimony of
the vocational expert together show that Kaminski is disabled,
we remand the case to the agency with instructions to
award benefits to Kaminski.
I. Background
After Kaminski’s fall in 2000, doctors determined that he
had suffered a seizure, was experiencing an intracerebral hematoma
(bleeding in his brain), and had fractured his left jawbone.
They reported that, as a result of the fall, Kaminski had
severe cognitive deficits—including problems with memory
and a change in personality—and an inability to understand
the severity of his injury.
Kaminski began regularly seeing a neurologist, Dr. Richard
Cristea, who monitored his seizure disorder and prescribed
him an anticonvulsant. Over the ensuing years, Kaminski,
while under Dr. Cristea’s care, suffered at least four
seizures—in 2007, 2008, 2013, and 2014.
Kaminski applied in 2013 for disability benefits, alleging
that he became disabled on the date of his fall. His strongest
evidence of disability consisted of a residual functional capacity
form and medical‐source statements that Dr. Cristea submitted
in the summer of 2013.
Dr. Cristea reported that brain atrophy and asymmetry
shown by a 2013 MRI were consistent with the traumatic
brain injury that Kaminski suffered in 2000. Dr. Cristea noted
that Kaminski had “frequent falls” and opined that seizures
could be triggered by physical activity, stress, inadequate
No. 17‐3314 3
sleep, and dehydration, so Kaminski was incapable of performing
even low‐stress work. The seizures often caused Kaminski
to be confused, irritable, and fatigued, and they impaired
his coordination, his level of alertness, and his awareness
of his surroundings. And Kaminski’s brain damage,
Dr. Cristea wrote, impeded his ability to organize thoughts
(especially when listening to someone speak), as well as to understand
what he saw or heard, and it “changed” his behavior
and personality. According to Dr. Cristea, Kaminski was “totally
disabled,” and it was “unsafe [for him] to work in any
capacity.”
In connection with Kaminski’s application, a state‐agency
physician and a state‐agency psychologist examined him in
the spring of 2013. Much of the physical exam was normal,
with the physician recording that Kaminski reported no feelings
of weakness, dizziness, or memory loss. He displayed a
stable mood and was able to show appropriate insight and
judgment. The psychological examination, however, noted
Kaminski’s poor hygiene; memory lapses and poor math
skills; an inability to interpret proverbs; and his bouts of depression,
moodiness, and anger. On the other hand, two consultants
for the state agency reviewed Kaminski’s file without
actually examining him. They opined that he could do
semi‐skilled medium work with some restrictions.
After the Social Security Administration denied Kaminski’s
claims, an administrative law judge held a hearing at
which Kaminski and his sister testified. Before his accident,
Kaminski had worked as a carpenter. When the judge asked
him why he could not work, he answered, “Because of my
seizures and me falling down and I get dizzy and I really can’t
4 No. 17‐3314
… be around people, too many people because I get frustrated.
I’ll get aggravated and I’ll blow up with them.” Kaminski
testified that he lived alone, and that the possibility of
a seizure prevented him from doing most activities. He could
not drive, and his friends helped him shop and clean his
house. Kaminski’s sister testified about his change in personality
since the accident. Before, he had been “very independent,”
but he had become unfocused, unclean, and verbally
abusive, and did not tolerate criticism or take direction.
A vocational expert also testified about Kaminski’s employment
prospects. The judge asked whether work was
available for a person with Kaminski’s age, education, and experience,
with a residual functional capacity for medium
work, appropriate physical limitations, and a number of other
limitations related to his mental status: limited to hearing and
understanding only simple oral instructions; limited to performing
simple, routine, and repetitive tasks (but not at production‐
rate pace); limited to simple work‐related decisions
in dealing with changes in the work setting; and limited to
having to respond appropriately only occasionally to coworkers
and the public.
The expert said that such a person would be unable to do
Kaminski’s past carpentry work but could work as a general
helper, laundry laborer, or dryer attendant. But if limits were
added consistent with Dr. Cristea’s opinions, so that the person
would be either off task 20 percent of the workday, unable
to accept instructions or to respond to supervisors appropriately,
or both, the person could not do any full‐time jobs.
The administrative law judge denied benefits using the familiar
five‐step framework. See 20 C.F.R. §§ 404.1520(a),
No. 17‐3314 5
416.920(a). The judge determined that Kaminski had not engaged
in substantial gainful activity since September 19, 2000
(Step 1); he suffered from a seizure disorder and an organic
mental disorder, both severe (Step 2); but his impairments, individually
or in combination, did not satisfy a listing for presumptive
disability (Step 3).
The judge then concluded that Kaminski could not perform
his past work (Step 4), but that there were jobs available
in the national economy that Kaminski could perform, as
identified by the expert (Step 5). When determining Kaminski’s
residual functional capacity, the judge rejected Kaminski’s
account of disabling limitations. The judge acknowledged
that Kaminski’s impairments “could reasonably be expected
to cause the alleged symptoms,” but the judge did not
accept Kaminski’s statements about the extent that the symptoms
limited him. The judge believed that Kaminski’s seizure
disorder was well controlled, that his mental limitations were
not as severe as reported, and that Dr. Cristea’s opinions about
Kaminski’s functionality were inconsistent with the doctor’s
own treatment notes as well as Kaminski’s testimony. The
judge gave Dr. Cristea’s opinion “little evidentiary weight,”
while giving substantial weight to the consulting (i.e., non‐examining)
doctors’ reports.
The Appeals Council summarily denied review, and the
district court upheld the agency’s denial of benefits.
II. Analysis
On appeal Kaminski focuses on the administrative law
judge’s decision to discount the medical opinions of his treating
physician, Dr. Cristea. Under the “treating physician rule”
6 No. 17‐3314
that applies to Kaminiski’s claim, a judge should give controlling
weight to the treating physician’s opinion as long as it is
supported by medical findings and consistent with substantial
evidence in the record. See 20 C.F.R. § 404.1527(c)(2);
Gerstner v. Berryhill, 879 F.3d 257, 261 (7th Cir. 2018).1 Kaminski
argues that the administrative law judge erred by discounting
Dr. Cristea’s opinions, and did so by (1) misconstruing
Kaminski’s own statements as inconsistent with Dr.
Cristea’s opinions when they actually were symptomatic of
his frontal‐lobe injury, (2) not apprehending that the physical
limits Dr. Cristea imposed aimed to prevent seizures, and (3)
cherry‐picking evidence and “playing doctor.”
We agree with Kaminski that the judge improperly discounted
Dr. Cristea’s opinion in each of these ways. First,
Dr. Cristea’s findings about Kaminski’s limitations were consistent
with Kaminski’s statements that he did not have
memory loss, problems with concentration, or mood and personality
changes. In fact, these statements actually corroborate
Dr. Cristea’s opinion that Kaminski was significantly limited
yet did not recognize his limitations.
Kaminski suffered a left frontal‐lobe injury that is confirmed
by extensive medical evidence. A paradoxical effect of
the injury is that it made him unable to understand the magnitude
of his impairments. His denials of impairments and
limits were in fact some of the symptoms of the serious brain
injury that he suffered. Other so‐called inconsistencies the
1 The treating‐physician rule has been modified to eliminate the “controlling
weight” instruction for newer claims, but the old rule still applies
to Kaminski’s claim. Compare 20 C.F.R. § 404.1527 (for claims filed before
March 27, 2017), with 20 C.F.R. § 404.1520c (for claims filed on or after
March 27, 2017).
No. 17‐3314 7
judge seized upon, like Kaminski’s denials of fatigue in regular
doctor visits, also were consistent with Dr. Cristea’s opinions.
Dr. Cristea reported that Kaminski felt fatigued after a
seizure, and in hospital records from visits immediately after
seizures, Kaminski reported fatigue.
Next, the judge misunderstood that Dr. Cristea placed
physical limits on Kaminski only to prevent seizures. On his
residual functional capacity form, the doctor described activities
that Kaminski should avoid—i.e., reaching, handling objects,
bending, squatting, and kneeling. The judge misinterpreted
the report to say that Kaminski was not physically capable
of these activities, when he actually can perform them,
but at dangerously increased risk of seizures. The mistake led
the judge to make too much of an apparent inconsistency with
Kaminski’s ability to perform the prohibited activities at his
state‐agency physical examination. This was error. Where a
judge rejects a treating physician’s opinion because it does not
align with the judge’s own “incorrect interpretation of the
medical evidence,” that decision is not supported by substantial
evidence. Meuser v. Colvin, 838 F.3d 905, 912 (7th Cir.
2016).
The judge also impermissibly cherry‐picked evidence.
See Gerstner, 879 F.3d at 261–63; Cole v. Colvin, 831 F.3d 411,
416 (7th Cir. 2016). Specifically, the judge appears to have
overlooked the consulting psychologist’s report that Kaminski
had diminished cognitive abilities, yet relied heavily on
the reports of doctors who did not examine Kaminski but who
opined that he could work with some restrictions.
The judge also erred when he relied on his own interpretation
of Kaminski’s MRI instead of Dr. Cristea’s. “ALJs are required
to rely on expert opinions instead of determining the
8 No. 17‐3314
significance of particular medical findings themselves.” Moon
v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014); see Hill v. Colvin, 807
F.3d 862, 869 (7th Cir. 2015) (remanding denial of benefits
where ALJ “played doctor”). In this case the judge concluded
from Kaminski’s MRI in 2013 that his brain abnormalities
were not disabling. The relevant expert on this issue is not the
judge but Dr. Cristea, the neurologist who had treated Kaminski
for years. Dr. Cristea explained that the MRI’s results
showed conditions—generalized atrophy, ischemic disease,
and scarring in the left temporal lobe—consistent with a seizure
disorder and cognitive limits. The judge supported his
conclusion primarily by crediting Kaminski’s own, more positive
views about his abilities. As explained above, Kaminski’s
mistaken views of his own abilities are actually symptomatic
of his frontal‐lobe injury. They do not provide a sound basis
for discounting Dr. Cristea’s opinions.
In addition to assessing the contents of Dr. Cristea’s opinions,
it was incumbent on the judge to “determine what
weight his opinion was due under the applicable regulations.”
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010), citing
20 C.F.R. § 404.1527(d)(2). “An ALJ must consider the length,
nature, and extent of the treatment relationship; frequency of
examination; the physician’s specialty; the types of tests performed;
and the consistency and support for the physicianʹs
opinion.” Id.
All of these factors support Dr. Cristea’s expertise: He
treated Kaminski regularly over many years after his 2000 accident
and frontal‐lobe injury; he is a neurologist; and contrary
to the judge’s findings, his opinion is consistent with the
other evidence in the record. Besides saying he was assigning
No. 17‐3314 9
Dr. Cristea’s opinions “little evidentiary weight,” the judge
did not address any of these factors.
The administrative law judge’s failure to give controlling
weight to Dr. Cristea’s opinions was an error requiring remand.
When a reviewing court remands to the Appeals
Council, the ordinary remedy is a new hearing before an administrative
law judge. In unusual cases, however, where the
relevant factual issues have been resolved and the record requires
a finding of disability, a court may order an award of
benefits. E.g., Larson, 615 F.3d at 749 (awarding benefits);
Maresh v. Barnhart, 438 F.3d 897, 901 (7th Cir. 2006) (awarding
benefits where evidence showed that listing was met); Hickman
v. Apfel, 187 F.3d 683, 690 (7th Cir. 1999) (same); Wilder
v. Chater, 153 F.3d 799, 804 (7th Cir. 1998) (evidence required
finding of disability); Micus v. Bowen, 979 F.2d 602, 609
(7th Cir. 1992) (awarding benefits); Vargas v. Sullivan, 898 F.2d
293, 296 (2d Cir. 1990) (awarding benefits where ALJ had “ignored
or misinterpreted” treating physician’s opinions);
Woody v. Secretary, 859 F.2d 1156, 1162–63 (3d Cir. 1988)
(awarding benefits where no evidence rebutted case for disability);
King v. Barnhart, 2007 WL 968746, at *7 (S.D. Ind.
Feb. 26, 2007) (awarding benefits where findings showed that
listing was met).
This is one of those unusual cases. The judge found that
the five‐step analysis of a disability claim had to proceed to
the fifth step. At the fifth step, the burden of proof and persuasion
is on the agency. To deny benefits, the agency must
show that even though the claimant could no longer perform
his past relevant work, he was capable of performing some
other work in the national economy. See 20 C.F.R.
§ 404.1520(g); Overman v. Astrue, 546 F.3d 456, 464 (7th Cir.
10 No. 17‐3314
2008); Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); Herron
v. Shalala, 19 F.3d 329, 333 n.8 (7th Cir. 1994); Stiles v. Berryhill,
242 F. Supp. 3d 773, 777 (S.D. Ind. 2017).
The agency did not meet that burden here. Once the treating
physician’s opinions are given the proper weight, the record
compels the conclusion that Kaminski was unable to work
and thus was disabled under the relevant statutes and regulations.
20 C.F.R. § 404.1520(a)(4)(v); see also Larson, 615 F.3d
at 749; Vargas, 898 F.2d at 296. We base this conclusion primarily
on the combination of Dr. Cristea’s opinions and the testimony
of the vocational expert. The vocational expert testified
that a person with the limits that Dr. Cristea had ascribed to
Kaminski simply would not be able to sustain full‐time employment.
There is no sound basis in the record to dispute that
opinion. Thus, “all factual issues involved in the entitlement
determination have been resolved and the resulting record
supports” the conclusion “that the applicant qualifies for disability
benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir.
2011) (summarizing standard but then remanding for further
hearing where record did not compel finding of disability).

Outcome: We REVERSE the judgment of the district court, and
REMAND the case to the agency with the instruction to calculate
and award benefits to Mr. Kaminski.

Plaintiff's Experts:

Defendant's Experts:

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