In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-3325

CHRISTINE BAUER,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 06 cv 697—Rudolph T. Randa, Chief Judge.

____________

ARGUED JUNE 10, 2008—DECIDED JULY 8, 2008

____________

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

POSNER, Circuit Judge. The plaintiff challenges the

Social Security Administration’s denial (upheld by the

district court) of disability benefits. She claims to be

disabled by virtue of having the psychiatric illness that

is nowadays called “bipolar disorder”; the older and more

descriptive term is manic-depressive illness. A person

suffering from the disorder has violent mood swings,

the extremes of which are mania—a state of high excitement in which he loses contact with reality and exhibits

bizarre behavior—and clinical depression, in which he
2 No. 07-3325

has great difficulty sleeping or concentrating, has suicidal

thoughts and may actually attempt suicide. The condition,

which varies in its severity, see American Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders

297-98 (4th ed. 2000), is treatable by antipsychotic drugs

and other medications. Sophia Frangou, “Advancing the

Pharmacological Treatment of Bipolar Depression,” 11

Advances in Psych. Treatment 28, 31-33 (2005). But many

patients do not respond well to treatment, or have frequent relapses. See, e.g., Kaan Kora et al., “Predictive

Factors for Time to Remission and Recurrence in Patients

Treated for Acute Mania: Health Outcomes of Manic

Episodes (HOME) Study,” 10 J. Clin. Psychiatry 114 (2008);

Robert G. Bota, “Therapeutic Dilemmas in TreatmentResistant Bipolar Patients,” 101 S. Medical J. 584 (2008). “For

many patients, the prognosis of bipolar disorder is not

good, as the disorder is associated with frequent relapses

and recurrences.” Edward Watkins, “Combining Cognitive Therapy with Medication in Bipolar Disorder,”

9 Advances in Psych. Treatment 110 (2003); see also Kangail

v. Barnhart, 454 F.3d 627, 630-31 (7th Cir. 2006).

For three years (less a month) the plaintiff was regularly

seen by a psychiatrist named Elizabeth Caspary and a

psychologist named Robert Chucka. Both diagnosed her

as bipolar. Though prescribed a variety of antipsychotic

drugs, she was hospitalized several times with hallucinations, racing thoughts, thoughts of suicide, and other

symptoms of bipolar disorder. As a result of the imperfect

control of her disorder, both Caspary and Chucka

opined that she could not hold down a full-time job. And

she testified that she had been fired from her job as a

medical technician because, although she takes the drugs

prescribed for her faithfully (many manic depressives do
No. 07-3325 3

not, e.g., Gary E. Simon et al., “Long-Term Effectiveness

and Cost of a Systematic Care Program for Bipolar Disorder, 63 Gen. Psych. 500 (2006)), her condition prevented

her from working.

A consultant who has a Ph.D. in an unspecified field

examined the plaintiff’s medical records and concluded

that although she indeed has bipolar disorder, it only

moderately limits her ability to work. A vocational expert testified that, assuming the moderate limitation,

there were plenty of jobs she could fill.

The administrative law judge concluded that the plaintiff can hold down a full-time job. But he ignored the

“treating physician” rule, 20 C.F.R. § 404.1527(d)(2), which,

as we explained in Hofslien v. Barnhart, 439 F.3d 375, 376

(7th Cir. 2006), “directs the administrative law judge to

give controlling weight to the medical opinion of a

treating physician if it is ‘well-supported by medically

acceptable clinical and laboratory diagnostic techniques’

and ‘not inconsistent with the other substantial evidence.’ ” We expressed some puzzlement about the rule:

“Obviously if [the treating physician’s medical opinion] is

well supported and there is no contradictory evidence,

there is no basis on which the administrative law judge,

who is not a physician, could refuse to accept it. Equally

obviously, once well-supported contradicting evidence is

introduced, the treating physician’s evidence is no longer

entitled to controlling weight.” Id. At that point, “the

treating physician’s evidence is just one more piece of

evidence for the administrative law judge to

weigh . . . . The [treating-physician] rule goes on to list

various factors that the administrative law judge

should consider, such as how often the treating physician has examined the claimant, whether the physician is
4 No. 07-3325

a specialist in the condition claimed to be disabling, and

so forth. The checklist is designed to help the administrative law judge decide how much weight to give the treating

physician’s evidence. When he has decided how much

actual weight to give it, there seems no room for him to

attach a presumptive weight to it.” Id. at 377.

There was evidence—the report of the nonexamining

consultant—that contradicted the reports of the treating

physicians. (The psychologist, Dr. Chucka, is deemed a

“physician” in the sense of a medical expert with relevant

expertise who treats the applicant, 20 C.F.R. §§ 404.1513(a),

404.1527(a)(2); Bowen v. Commissioner of Social Security, 478

F.3d 742, 747-50 (6th Cir. 2007)—in fact the technical name

for the “treating physician” rule is the “treating source”

rule.) So the presumption falls out and the checklist

comes into play. Given that there were two treating

physicians, that they were both specialists in psychiatric

disorders, and that they examined the plaintiff over a

period of years, the checklist required the administrative

law judge to give great weight to their evidence unless it

was seriously flawed. Id.; Clifford v. Apfel, 227 F.3d 863, 869-

71 (7th Cir. 2000); compare White v. Barnhart, 415 F.3d 654,

658-59 (7th Cir. 2005); Roberson v. Astrue, 481 F.3d 1020,

1025 (8th Cir. 2005). The consultant did not identify a

flaw in the treating physicians’ analysis, but merely

expressed a contrary view after reading the medical

files; and it is not even clear whether he has relevant

expertise for such a task, since we do not know what his

field is.

Many of the reasons offered by the administrative law

judge for discounting the evidence of Drs. Caspary and

Chucka suggest a lack of acquaintance with bipolar

disorder. For example, the judge noted that the plaintiff
No. 07-3325 5

dresses appropriately, shops for food, prepares meals

and performs other household chores, is an “active participator [sic] in group therapy,” is “independent in her

personal hygiene,” and takes care of her 13-year-old son.

This is just to say that the plaintiff is not a raving maniac

who needs to be locked up. She is heavily medicated,

and this enables her to cope with the challenges of daily

living, and would doubtless enable her to work on some

days. But the administrative law judge disregarded

uncontradicted evidence that the plaintiff’s son cooks

most meals, washes the dishes, does the laundry, and helps

with the grocery shopping. And Caspary and Chucka,

having treated the plaintiff continuously for three years,

have concluded that she cannot hold down a full-time job.

What seems to have made the biggest impression on the

administrative law judge, but suggests a lack of understanding of bipolar disorder, was that Dr. Caspary’s

treatment notes, which back up the report in which she

concludes that the plaintiff cannot work full time, contain a number of hopeful remarks. They are either remarks the plaintiff made to Caspary during office visits

or Caspary’s independent observations—the plaintiff’s

memory was “ok,” her sleep fair, she was doing “fairly

well,” her “reported level of function was found to have

improved,” she had “a brighter affect and increased

energy,” she “was doing quite well.” On the basis of

such remarks the administrative law judge concluded:

“little weight is given the assessment of Dr. Caspary.”

A person who has a chronic disease, whether physical

or psychiatric, and is under continuous treatment for it

with heavy drugs, is likely to have better days and worse

days; that is true of the plaintiff in this case. Suppose that

half the time she is well enough that she could work, and
6 No. 07-3325

half the time she is not. Then she could not hold down a

full-time job. E.g., Watson v. Barnhart, 288 F.3d 212, 217-

18 (5th Cir. 2002); Washington v. Shalala, 37 F.3d 1437, 1442-

43 (10th Cir. 1994). That is likely to be the situation of a

person who has bipolar disorder that responds erratically

to treatment. Ronald C. Kessler et al., “The Prevalence and

Effects of Mood Disorders on Work Performance in a

Nationally Representative Sample of US Workers,” 163 Am.

J. Psychiatry 1561-68 (2006). That is another point that the

administrative law judge overlooked.

We are mindful of the distinction between a plaintiff’s

disabilities, a subject that medical experts know best, and

the existence of jobs for someone with those disabilities.

Social Security is not an unemployment program; if the

plaintiff can do the tasks required by an employer, whatever they may be, the fact that employers prefer other

people, and so won’t hire her, does not entitle her to

benefits. So when Caspary and Chucka opined that the

plaintiff could not hold down a full-time job, they were

not just answering a medical question; they were implicitly commenting on supply and demand. But the

medical (disability) question and the economic (vocational)

question are not readily separable. This is implicit in the

concept of listed impairments—medical conditions that

are deemed totally disabling without inquiry into labormarket conditions. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R.

pt. 404, subpt. P; Barnett v. Barnhart, 381 F.3d 664, 668 (7th

Cir. 2004). Even in a case in which the applicant’s medical condition does not meet the requirements for a listed

impairment, it may be apparent to medical experts that

the patient has a physical or mental condition that prevents him from performing on a full-time basis any jobs

having particular requirements; as long the medical experts
No. 07-3325 7

understand those requirements, they may report or

testify that the patient is unable to perform those jobs.

Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008); Wagner v.

Astrue, 499 F.3d 842, 850 and n. 2 (8th Cir. 2007); Orn v.

Astrue, 495 F.3d 625, 634 (9th Cir. 2007); Mills v. Apfel, 244

F.3d 1, 7 (1st Cir. 2001). Their judgment is not conclusive,

id.; Robson v. Astrue, supra, 526 F.3d at 393, but in this

case it was not offset by evidence concerning the availability of jobs to someone having the plaintiff’s disorder

plus her other characteristics.

The judgment of the district court is reversed and the

case is remanded to the Social Security Administration.

USCA-02-C-0072—7-8-08