PUNZIO v. ASTRUE (January 21, 2011)
Patricia Punzio's life has been difficult -- alcoholic parents, sexual abuse, attempted suicide, dyslexia, depression, and alcohol abuse all by the time she was 26. Although she stopped drinking at that time, she still had few job skills and had trouble maintaining employment. In 1998, at the age of 40, she sought psychiatric treatment. For the next several years, she participated in treatment and took medication. She was diagnosed with depression and bipolar disorder. Her condition and symptoms improved at times and, at other times, regressed. Her therapist, who saw her in weekly sessions in 2005 and 2006, concluded that she was incapable of holding down a job as a result of her mental illness. Punzio applied for disability benefits in 2005. At an ALJ hearing in 2007, she testified that her condition had improved with treatment but that she still had days when she could not leave the house, that she was still troubled by dyslexia and poor memory, that she mixes up numbers, that she has trouble remembering directions, and that she spends most of her time at home. In response to a question from the ALJ proposing certain limitations on Punzio's capacity to work, a vocational expert testified that Punzio could return to her prior work and would also be able to do factory work. Punzio's lawyer added additional restrictions to the question, including an inability to stay on task and to understand instructions and a likelihood to miss work three days a month. The vocational expert testified that any of those restrictions would eliminate any potential employment. The ALJ commented that the record did not support those added restrictions and asked for supplemental evidence. Punzio solicited an opinion from her treating psychiatrist. The psychiatrist submitted a report that supported the conditions suggested by Punzio's lawyer. The ALJ denied benefits, assigning no weight to the psychiatrist assessment because it was solicited by her attorney for purposes of the hearing and because it was inconsistent with other treatment notes. He also rejected the therapist’s opinion and Punzio's own testimony (as "not entirely credible"). Judge Darrah (N.D. Ill.) affirmed. Punzio appeals.
In their opinion, Judges Posner, Rovner, and Tinder reversed and remanded for the award of benefits. The Court first noted that the ALJ's failure to give any reason whatsoever for the belief that Punzio's testimony was not credible was grounds for reversal itself. The Court has commented several times recently on this unacceptable but frequent practice. (See Martinez, Spiva, and Parker). But another, more serious problem attracted the Court's attention. A treating physician's opinion is entitled to "controlling weight" if it is supported by competent evidence and not inconsistent with other evidence. Here, the ALJ rejected the treating physician's opinion, citing both that it contradicted her treatment notes and that it was solicited by her lawyer. The Court rejected both reasons. It found no contradiction between her diagnosis and her notes, when viewed as a whole, and criticized the ALJ’s “cherry-picking” the record to find an arguable, fleeting contradiction. As for the opinion being requested by the lawyer, the Court noted that the practice was endorsed by the agency's regulations and even encouraged on the agency's website. The Court recognized that sometimes treating physicians are not objective, but noted that the concern is addressed by the regulations. Given the treating physician's opinion and supporting evidence and the vocational expert's testimony that no jobs are available to someone with Punzio's mental condition, the Court concluded that a remand for further consideration was unnecessary. Instead, it remanded for an award of benefits.