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Allensworth v. Colvin

United States Court of Appeals, Seventh Circuit

February 25, 2016

RYAN ALLENSWORTH, Plaintiff-Appellant,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee

Argued January 26, 2016

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 14 C 1162 -- Elaine E. Bucklo, Judge.

For Ryan Allensworth, Plaintiff - Appellant: James R. Schiff, Attorney, Barry Schultz, Attorney, Law Offices of Barry A. Schultz, P.C., Evanston, IL.

For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: Alison Talbert Schwartz, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL.

Before WOOD, Chief Judge, and BAUER and POSNER, Circuit Judges.


Page 832

Posner, Circuit Judge.

The plaintiff applied to the Social Security Administration for disability benefits and was turned down by the administrative law judge who heard his case. He appealed to the district court, which affirmed, and now appeals to us.

In 2008 he began having pain in his back that radiated to his legs. It turned out that he had a herniated disk and mild arthritis in the lumbar region of his spine (his lower back). The symptoms worsened. Dr. William Imlach had been treating him since 2010 (or perhaps earlier) for back pain, joint and leg pain, and hypersomnia (excessive daytime drowsiness) caused, it was later discovered, either by a neurological disorder called narcolepsy or more likely by severe obstructive sleep apnea, which causes a patient's breathing to stop and start repeatedly while he is asleep. See Mayo Clinic, " Sleep Apnea," ditions/sleep-apnea/basics/definition/con-20020286 (visited February 24, 2016). The plaintiff also had migraine headaches and complained that his low-back pain was radiating into his legs and causing tingling and burning sensations and that he was experiencing numbness in his right leg; Dr. Imlach diagnosed a compressed nerve in the spine (radiculopathy).

Another doctor diagnosed the plaintiff with, among other ills, low-back pain, fibromyalgia, left-knee pain, fatigue, migraine headaches, and sleep apnea. He further reported that the plaintiff's range of motion in his lumbar spine was impaired and that a straight-leg-raising test had revealed impairments in mobility caused by low-back pain and by the large size of the plaintiff's abdomen. A third doctor diagnosed the plaintiff with chronic pain disorder, and also noted that the plaintiff's activities of daily living included performing light chores around the house and grocery shopping with his wife, and that he could get around the neighborhood by walking, driving, or getting a ride from others. Incidentally these last two doctors (numbers two and three) had not been retained by the plaintiff; they were consultants to the Social Security Administration, which had directed the plaintiff to be examined by them.

Dr. Imlach, his primary treating physician, concluded that the plaintiff suffered from cervical and lumbar radiculopathy, as well as chronic pain, that these afflictions were not diminishing and that they limited him to standing for a total of no more than half an hour, and sitting for no more than

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an hour, in an 8-hour workday. In addition, during the workday he would have to elevate his feet, and lie down, frequently (since he can sit or stand for only an hour and a half in an eight-hour workday) in order to relieve his back pain. Imlach further opined that the medications that the plaintiff takes cause fatigue, diminished concentration, and somnolence--side effects that the doctor believed would markedly limit the plaintiff's ability to sustain concentration and pace during, and require that he take frequent breaks throughout, the workday. The plaintiff testified that he must take frequent naps lasting anywhere from five minutes to a few hours. His drowsiness often comes on unexpectedly, and he has fallen asleep at the computer, while using the restroom, and also while helping his son with his homework. He cannot hold a full-time job if he is unable to stay awake for long periods of time or falls asleep unexpectedly.

On top of everything the plaintiff is obese. Between 2009 and 2012 his weight fluctuated, usually between 280 and 310 pounds, yielding a BMI (bodily mass index) ranging from about 35 to 40 (based on his height of 6'2" to 6'3" ). A BMI of 30 or more signifies obesity, a BMI of 35 or more severe obesity. The administrative law judge acknowledged that the plaintiff's obesity is " a condition that could aggravate his back, knee and OSA [obstructive sleep apnea] impairments." See, e.g., Luciano F. Drager, et al., " Obstructive Sleep ...

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