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Benchslap: Posner Schools ALJ on How to Be a Judge

By Robyn Hagan Cain | Last updated on

"Really the Social Security Administration and the Justice Department should have been able to do better than they did in this case."

Seventh Circuit Judge Richard Posner, never one to shy away from a benchslap, ended a disability appeal opinion this week with an admonishment that an administrative law judge (ALJ) must discuss the meaning of "past relevant work" before deciding that a disability benefits applicant was capable of doing "past relevant work."

Patricia Hughes, 57, was diagnosed in 2002 with adhesive capsulitis ("frozen shoulder") in her right shoulder and later with chronic obstructive pulmonary disease. The capsulitis limited the range of motion of her right arm. Her last significant employment, which ended in 2007, was as a "night-clerk auditor," a type of hotel clerk. (In addition to clerical work, the night-clerk auditor had to make coffee, fill and empty coffee urns, and provide extra linens to the hotel's guests.)

Hughes eventually filed for Social Security disability benefits. An ALJ appointed an orthopedic surgeon to examine her before making a benefits determination. He then disregarded the court-appointed doctor's findings and concluded that Hughes wasn't disabled.

The ALJ was flippant about Hughes' health problems and prescribed treatments -- an attitude that Judge Posner and the panel found annoying -- and was generally dismissive of her claims because she was able to "do laundry, take public transportation, and shop for groceries." (According to the panel, the ALJ shouldn't have equated household chores with employment tasks because an employee can't rely on friends and family for assistance at work.)

Even after explaining point-by-point how the ALJ botched the case, the Seventh Circuit didn't hold that Hughes was actually disabled; it merely criticized the ALJ for concluding that Hughes could do her "past relevant work" without explaining his conclusion. Hopefully the ALJ doesn't make the same mistakes on remand.

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