Articles Posted in U.S. Court of Appeals for the Seventh Circuit

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Substantial evidence supported finding that hospital’s contracts with physicians violated Anti-Kickback statute. Novak and Nagelvoort participated in a scheme under which Sacred Heart Hospital paid illegal kickbacks to physicians in exchange for patient referrals. Novak was the Hospital’s owner, President, and Chief Executive Officer. Nagelvoort was an outside consultant, and, at various times. served as the Hospital’s Vice President of Administration and Chief Operating Officer. Federal agents secured the cooperation of physicians and other Hospital employees, some of whom recorded conversations. Agents executed warrants and searched the Hospital and its administrative and storage facilities. The prosecution focused on direct personal services contracts, teaching contracts, lease agreements for the use of office space, and agreements to provide physicians with the services of other medical professionals. The Seventh Circuit affirmed their convictions under 42 U.S.C. 1320a-7b(b)(2)(A) and 18 U.S.C. 371, rejecting arguments that there was insufficient evidence to prove that they acted with the requisite knowledge and willfulness under the statute; that the government failed to prove that certain agreements fell outside the statute’s safe harbor provisions; and that Nagelvoort withdrew from the conspiracy when he resigned his position, so that any subsequent coconspirator statements were not admissible against him. View "United States v. Naglevoort" on Justia Law

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In 2005, while serving in the Army National Guard, Bird injured a tendon in his right shoulder. He was operated on in 2006. He reported to Veterans Affairs doctors that he suffered hearing loss, migraines, and stiffness and pain in his hands, back and right shoulder, as well as anxiety, weakness in gripping objects, and ringing in his ears. The medical records include contradictory opinions from treating physicians. The Department of Veterans Affairs gave Bird a 70% service-connected disability rating but pays him at the 100% rate because they found him unemployable. The Social Security Administration denied Douglas Bird’s application for disability insurance benefits. The district court remanded. The Seventh Circuit affirmed. The VA’s finding that Bird is 70% disabled and unemployable does not establish that he is entitled to SSA benefits. There are differences in how the agencies evaluate claims: the VA’s evaluation is pro-claimant rather than neutral. The grounds for the VA’s decision finding Bird to be 70% disabled and unemployable were not available to the ALJ and neither were the results of Bird’s x-ray and MRI. The record even includes evidence conflicting with a finding of disability. View "Bird v. Berryhill" on Justia Law

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In 2009, the Social Security Administration notified Casey that he needed to repay about $334,000 in disability benefits he should not have received. Casey unsuccessfully sought a waiver. Six months later, Casey submitted an untimely request for review to the Appeals Council, arguing that he had good cause for his delay. The Appeals Council extended Casey’s deadline to submit evidence or a statement in support of his waiver claim; 15 months later, the Council reversed course, informing Casey that it had dismissed his review request because there was “no good cause to extend the time for filing.” Casey then sued the Acting Commissioner of Social Security. The district judge dismissed. The Seventh Circuit reversed. The Council's action in first granting and then retroactively denying Casey’s good cause request was arbitrary, having the effect of an unfair bureaucratic bait‐and‐switch. The Council had discretion to determine initially whether Casey offered good cause for his late administrative appeal, but, having granted Casey’s request, the Council could not simply change its mind on the theory that he had not adequately justified his delay, after leading him on for over a year without suggesting he needed to provide more information, an affidavit, or anything else by way of support. View "Casey v. Berryhill" on Justia Law

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Childress unsuccessfully sought Social Security Administration disability benefits in 2008, at age 35. He appealed to the district court, which remanded for reevaluation of the medical opinions in the record and reconsideration of the plaintiff’s credibility. After a second hearing, in 2013, the same ALJ again ruled that Childress was not disabled. The district court affirmed. The Seventh Circuit reversed. The ALJ did not give proper weight to medical evidence presented by Childress’s treating physicians, which was extensive and indicated that Childress suffers from congestive heart failure, cardiomyopathy, severe asthma, COPD (chronic obstructive pulmonary disease), occasional chest pain, obesity, hypertension, and dyspnea (difficult or uncomfortable breathing, resulting in shortness of breath). He was prescribed Advair, Benazepril, Coreg, Diovan, Lanoxin, Lasix, Norvasc, Proventil, and Spiriva, but the cardiologist estimated that in an eight‐hour workday Childress would be able to stand or walk for no more than one hour and to sit for no more than two hours. The court characterized the ALJ’s conclusion as “absurd,” noting that the vocational expert admitted that an employee who misses three or more days of work a month is unemployable. The court also noted the ALJ’s reference to Childress’s history of smoking. View "Childress v. Colvin" on Justia Law

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Brown applied for disability benefits on the ground that her bad back and obesity left her in too much pain to work. The Social Security Administration denied Brown’s application; an administrative law judge upheld the denial, concluding that Brown could perform sedentary work associated with six jobs identified by a vocational expert. The Seventh Circuit vacated and remanded, holding that the ALJ violated the Treating Physician Rule when he rejected certain opinions proffered by Brown’s doctor regarding Brown’s ability to sit and stand for prolonged periods of time. In substituting his own opinions for the doctor’s, the ALJ focused on facts that did not directly pertain to sitting or standing and misrepresented multiple statements Brown made to treatment providers and others. The court rejected arguments that the ALJ insufficiently considered her obesity and improperly relied on the vocational expert’s testimony from the administrative hearing, claiming that the expert failed to provide enough information to justify her departure from the Dictionary of Occupational Titles and failed to verify the source of the data on which her jobs-related opinions were based. View "Brown v. Colvin" on Justia Law

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In 2001, Israel injured his back while digging posts for a porch. He worked while receiving treatments but his pain worsened; he stopped working in February 2003. He underwent a lumbar laminectomy and diskectomy, which did not resolve his pain Two surgeons determined that further surgery was not an option. Under the care of various doctors, Israel tried physical therapy, transcutaneous electrical nerve stimulation (TENS), a dorsal column stimulator, epidural injections, narcotic pain medications including Methadone and morphine, lidocaine patches, a muscle relaxer, an anti‐depressant, and drugs for nerve pain. Diagnosed with lumbar radiculopathy and post‐laminectomy pain syndrome, Israel continues to experience severely limiting pain. His doctor sought approval to implement an “intrathecal drug delivery system,” a pain pump that delivers medication directly to the spinal cord. Israel’s insurer refused to cover the cost. Israel sought Disability Insurance Benefits and Supplemental Security Income benefits in 2007. On remand, the Social Security Administration repeatedly denied benefits.The Commissioner conceded in the district court that her decision was not supported by substantial evidence and requested remand. Israel, frustrated with years of delay, sought a direct award of benefits. The district court remanded. The Seventh Circuit affirmed, finding that the district court did not abuse its discretion in ordering a remand; the agency should expedite proceedings so that the matter may be resolved. View "Israel v. Colvin" on Justia Law

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Meuser, 46 years old, was diagnosed with schizophrenia in 1996. For 15 years managed his symptoms with the antipsychotic drug Zyprexa. From 1995-2012, Meuser worked in a mailroom. Meuser’s health began deteriorating in late 2011 after his pharmacist gave him the generic version of Zyprexa. Meuser started having insomnia; he could not focus at work. Hoping that a break would improve his symptoms, Meuser took a leave of absence from his job. He was and is living with his parents.His new psychiatrist rediagnosed Meuser’s schizophrenia from “undifferentiated” to “paranoid type,” which involves “prominent delusions or auditory hallucinations,” switched Meuser back to the brand‐name Zyprexa, and increased his dosage. Meuser said he still did not feel well enough to return to work. Faced with the choice of returning to work or being fired, Meuser quit his job. An ALJ denied his application for Social Security Disability Insurance Benefits, finding that Meuser’s schizophrenia was not a severe impairment. The Seventh Circuit reversed, holding that the ALJ misunderstood the medical evidence and improperly rejected the treating psychiatrist’s opinion, so the conclusion that Meuser did not have a severe impairment was not supported by substantial evidence View "Meuser v. Colvin" on Justia Law

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Pursuant to 8 U.S.C. 1157(a)(2), the President authorized entry of 85,000 refugees for fiscal 2016; at least 10,000 were to come from Syria. Since 2001, all persons seeking to enter the U.S. as refugees are required to undergo screening by the U.N. High Commissioner for Refugees, followed by multiple layers of screening by the federal government, which can take two years. Indiana has an approved refugee resettlement plan (8 U.S.C. 1522) and receives federal funds to contract with private agencies for the provision of services, “without regard to race, religion, nationality, sex, or political opinion.” Indiana’s governor refused to pay for services to any refugee whose “‘country of origin” is Syria. The Seventh Circuit affirmed entry of a preliminary injunction. Regulation of immigration is a federal function. The state’s brief provided no evidence that Syrian terrorists are posing as refugees or have ever committed acts of terrorism in the U.S. The court characterized the governor’s argument as “the equivalent of his saying . . . that he wants to forbid black people to settle in Indiana not because they’re black but because he’s afraid of them, and since race is therefore not his motive he isn’t discriminating.” Indiana is free to withdraw from the refugee assistance program, but withdrawal might not interrupt the flow of Syrian refugees; the Wilson/Fish program distributes federal aid to refugees without the involvement of the state government. View "Exodus Refugee Immigration, Inc. v. Pence" on Justia Law

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O.B., two years old, has Down Syndrome, lung disease, and cardiac abnormalities. He is ventilator‐dependent and cannot digest take oral nutrition. O.B. is the named plaintiff in a class action against the Illinois Department of Healthcare and Family Services, alleging violation of the Medicaid Act. The Act defines “medical assistance” as including “early and periodic screening, diagnostic, and treatment services [EPSDT] … for individuals … under the age of 21,” 42 U.S.C. 1396d(a)(4)(B), and requires "reasonable promptness." EPSDT services include “private duty nursing services,” so that the child lives at home. When he was nine months old, the Department approved $19,718 monthly to pay nurses for up to 18 hours a day to care for O.B. at home. It took his parents almost a year to obtain home‐nursing staff so that O.B. could go home. The district judge certified a class of Illinois children who have been approved for home nursing but who have not been able to hire nurses. The judge ordered the Department to “take immediate and affirmative steps to arrange directly or through referral . . . in‐home shift nursing services.” The Seventh Circuit affirmed, noting that Congress has clarified that where the Act refers to the provision of services, a participating state is required to provide (or ensure the provision of) services, not merely pay for them and that O.B.’s in-hospital care cost four times what home nursing would cost. View "O. B. v. Norwood" on Justia Law

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In 2010, Ghiselli applied for disability insurance benefits under the Social Security Act, claiming that she was unable to work due to a combination of health problems that included degenerative disc disease, asthma, and obesity. She asserted that she had been employed as a retail customer service manager and was disabled by injuries she suffered at her job on August 6, 2007, when a customer struck her in the back with a shopping cart. After her initial application and her request for reconsideration were denied, an administrative law judge found that she was not disabled despite her impairments. The district court, reviewing the ALJ’s decision under 42 U.S.C. 405(g), held that the decision was supported by substantial evidence, and affirmed. The Seventh Circuit reversed, reasoning that the ALJ erred in finding that she lacked credibility based on certain purportedly inconsistent statements. View "Ghiselli v. Colvin" on Justia Law