10-2083 Spiva v. Astrue

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Public Health
Disability benefits

Where the ALJ’s opinion contained no analysis how the disability applicant could do his previous job, the denial of benefits must be reversed.

“The administrative law judge’s opinion is unsatisfactory, and likewise the government’s brief and oral argument, which misstate the record in several places and, worse, seem determined to dissolve the Chenery doctrine in an acid of harmless error. The doctrine of harmless error indeed is applicable to judicial review of administrative decisions. E.g., Borovsky v. Holder, 612 F.3d 917, 920-21 (7th Cir. 2010); Parker v. Astrue, supra, 597 F.3d at 924; Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir.
2004); see also 5 U.S.C. § 706; National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659-60 (2007).

If it is predictable with great confidence that the agency will reinstate its decision on remand because the decision is overwhelmingly supported by the record though the agency’s original opinion failed to marshal that support, then remanding is a waste of time. But that is not the government’s understanding of the doctrine of harmless error, if we may judge from its brief and oral argument in this case (and not only this case—see, e.g., Terry v. Astrue, 580 F.3d 471, 475-77 (7th Cir. 2009) (per curiam); Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir. 2009) (per curiam); Craft v. Astrue, 539 F.3d 668, 675, 678-79 (7th Cir. 2008); Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006); Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004)). The government seems to think that if it can find enough evidence in the record to establish that the administrative law judge might have reached the same result had she considered all the evidence and evaluated it as the government’s brief does, it is a case of harmless error. But the fact that the administrative law judge, had she considered the entire record, might have reached the same result does not prove that her failure to consider the evidence was harmless. Had she considered it carefully, she might well have reached a different conclusion.”

Reversed and Remanded.

10-2083 Spiva v. Astrue

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Posner, J.

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