Argued: March 3, 2015.
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:13-cv-00170-bbc -- Barbara B. Crabb, Judge.
For Kevin Voigt, Plaintiff - Appellant: Dana Wayne Duncan, Attorney, Duncan Disability Law, SC, Wisconsin Rapids, WI.
For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: David Levitt, Attorney, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL; Richard D. Humphrey, Attorney, Office of The United States Attorney, Madison, WI.
Before POSNER, KANNE, and TINDER, Circuit Judges.
Posner, Circuit Judge.
The plaintiff had applied to the Social Security Commission in 2009 (when he was 40 years old) for benefits to which he claimed to be entitled by reason of being disabled from gainful employment as a result of psychiatric disorders (primarily depression and bipolar disorder), chronic back and hip pain, and an anal fissure (cut or tear). The administrative law judge to whom his application was referred (John H. Pleuss) denied his claim on the ground that he's capable of performing unskilled sedentary work and is therefore not totally disabled. The district court, to which the applicant turned, upheld the denial of benefits, precipitating this appeal.
Voigt had been trained as a machinist, and until 2002 (the claimed onset date of his total disability) had worked intermittently as a machinist and as an assembly-line worker, jobs that the administrative law judge agreed he was no longer capable of doing, because of his physical and mental problems. Between 2001 (possibly earlier) and 2008, Voigt had taken prescription antidepressant medications such as
Paxil, but he quit taking them because of their adverse side effects.
In the fall of 2009, having abandoned the antidepressant medications, he sought the help of " crisis workers" at a mental health clinic. The intake report of his visit to the clinic summarizes his confused and rather wild description of his mental state. In a subsequent visit to the clinic he told the crisis worker who interviewed him that he thought it might be good for him to be in prison, where he might (he thought--we know not on what basis) get some additional experience as a machinist and earn money that he could save. Yet he also told that same worker in a later interview that his goal was to own a restaurant, which was and is both unrealistic given his mental condition and irrelevant to improving his skills as a machinist.
He was examined at the clinic by " an advanced practice psychiatric nurse" (see APNA, " What Is an Advanced Practice Psychiatric Nurse?" www.apna.org/i4a/pages/index.cfm?pageid=3866#1, visited March 15, 2015, as were the other websites cited in this opinion). The nurse, Debra Day, diagnosed him as suffering from depression (no surprise), but two years later (after his eighth examination by her), she submitted a report to the Social Security Administration in which she described Voigt as bipolar (oddly she did not mention depression, though of course depression is an aspect of bipolar disorder, which used to be called " manic depression" ) and opined that his mental illnesses would cause him to miss work more than four days each month--which the vocational experts on whom the administrative law judges rely testify disqualifies a person from gainful employment. Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013); Pepper v. Colvin, 712 F.3d 351, 361 (7th Cir. 2013); Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090, 1096 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). To qualify for gainful employment one must be able to work on a " sustained basis," defined as eight hours a day five days a week, see 20 C.F.R. § § 404.1512(a), 416.912(a); Rollins v. Massanari, 261 F.3d 853, 859 (9th Cir. 2001); SSR
96-8p," Purpose," ¶ 1, and to be incapable of gainful ...