*1 knowing any specifics without about crimes actually allegedly
he had committed.
However, prosecutors’ statements were interpretation of Mrs. Rodri- reasonable lie,
guez’s apparently which itself was ad- as circumstantial
mitted into evidence evi-
dence of her state of mind.12 These state- “sufficiently
ments inferable from the were presented support prosecu-
evidence arguments.” closing Doyle, 771
tor[s’] 258;
F.2d at see also United States Cir.1990)
Auerbach,
(“the prosecutor’s simply statements were permissible comment what the evi-
dence showed and not a statement of his regarding
personal opinion the' defendant’s
guilt”).13 We thus conclude that the chal-
lenged improper. remarks were This unnecessary
conclusion makes it to reach part
the second of the Swiatek test. See
Auerbach,
Conclusion foregoing reasons, judgment
For the
of the district court is affirmed.
Affirmed. KEY, Plaintiff-Appellee,
Ernestine SULLIVAN, M.D., Secretary
Louis W. Services,
of Health and Human
Defendant-Appellant.
No. 89-3792. Appeals,
United States Court of
Seventh Circuit.
Argued Jan. 1991.
Decided Feb. 1991. trial, During Rodriguez Any prejudice negated Mr. had raised a risk when the evidence, hearsay objection commented, which the overruling district court the ob- argument ap- district court overruled. His jection AUSA More’s characterization of Mrs. that, testimony peal is because this was not lie, Rodriguez's jury testimony. "The heard asserted, offered for the it truth of the matter jury Supplementary will decide the case.” improper closing arguments was to to refer to it in July Tr. of 1989 at 15. imply guilt. *2 application subsequent
After denied, were request for reconsideration evidentiary and received an requested Judge Administrative Law hearing before July (“AU”) Y. Kortsch Gerald *3 Novem- decision issued In a recommended of Legal Action Wis- Dugan, Hannah C. 1984, Key 13, concluded that Kortsch ber Milwaukee, Wis., consin, plaintiff-appel- for meaning the not disabled within was lee. capacity the to Act. He found that she had of assembler. “past do her relevant” work Stephen J. Atty., Fryatt, E. U.S. John jargon, ability the to Security In Social Milwaukee, Wis., Liccione, Atty., Asst. U.S. despite limita- engage physical activity Weinstein, Sultz, Gary A. Donna Morros ca- Services, as “residual functional Re- tions is known Human Dept, of Health and Counsel, is “work pacity.” “Past relevant work” V, Chi- gion of the General Office years, Ill., defendant-appellant. fifteen performed within cago, for long enough for the claimant which lasted WOOD, BAUER, Judge, Chief Before it, learn to do and which was sub- to how Jr., CUDAHY, Judges. Circuit and employment.” 20 C.F.R. gainful stantial 416.965(a). findings Among Kortsch’s BAUER, Judge. Chief functional Key had the residual was years, Ernestine past seven For the only sedentary performing of capacity its disability claim case has inched Key’s “net work as an assembler and that hearings appeals, and and way through require performance of work did not any yet has to receive again. She back other than related activities which were jobs Key types held several of money. has sedentary.” Record [hereinafter “R.”] grocery store during her life. She was a Security Appeals Council The Social 1972, to cashier from 1967 between review, and the Key’s request for denied 1978, audit she worked as an 1976 and recommended decision became AU’s in the manufac- and as an assembler clerk Key appealed in Secretary’s final decision. 14, 1980, April Key turing industry. Since court. federal for various ailments has been treated 16, 1986, back, magis- a federal neck, arm, September and knees. On On her left order. The 1984, issued a decision and 15, application filed an trate February (“SSI”) the AU’s conclusion Security magistrate reviewed Supplemental Income for than sed- could no more disabled in that alleging that she had become entary characterized state- arthritis. work and August to scoliosis and due (“Act”) ment that assembler work was Security Act defines The Social “conclusory.” No. 85- “inability engage in as “disability” to as (E.D.Wis. C-0699, Sept. slip op. at 8 activity by reason any gainful substantial 1986). According magistrate, “the to medically physical or any determinable physical exertion expected AU failed to define impairment which can be mental make a find- required of an assembler” and or which has lasted or result in death ing physical and mental demands a continuous as to expected to last for can be ” past job comparison and a Key’s 42 of less than months.... period of not capabilities. The AU’s 423(d)(1)(A). present her Id. U.S.C. § in anoth- (“Secretary”) recommended decisionwas flawed Services Health and Human articulating inquiry aspect deter- er as well. Without sequential five-step a uses report a medical why, the AU credited person is disabled mine whether pain regarding Key’s over Step four of the source entitled to benefits. therefore objective x-ray evidence of cervical and an individual is inquiry states that “[i]f problems knee spine lumbosacral ab- performing work he or she capable of Also, her motion for finding of ‘not normalities. past, in the disabled’ done court, 416.920(e). summary judgment the district 20 C.F.R. must be made.” evidence that could was not disabled. Specifically, had submitted new he found requirements shed further that “the claimant is able past relevant and the nature of her parts of her work which include seden- impairment. Accordingly, the district work,” tary to cashier and that she is abeyance parties’ held in motions court other, capable semi-skilled summary judgment, and remanded the jobs using skills from her cashier remedy matter to the the defi- work. R. at 150-51. On December ciencies in the ALJ’s recommended decision 1988, adopted and to consider new evidence. Bernoski’s recommended decision as the fi- remand, again assigned On the case Secretary. nal decision of the Kortsch, supple- to AU who conducted Key again sought judicial review. On hearing mental on June This *4 August 16, 1989, the district court entered time, that the medical Kortsch concluded magistrate’s memorandum and order Key evidence indicated that had been dis- granting Key’s summary motion judg- for 5, 1983, July abled since and that her medi- ordering entry ment of reversal and problems precluded sedentary even cal judgment finding 5, Key July disabled as of 24, 1987, July His recommended work. Key 85-G-0699, slip 1983. No. findings Key that decision was based (E.D.Wis. 16, 1989). op. Aug. at 8 The disease, degenerative joint suffered from court indicated that AU Bernoski’s conclu- radiculopathy, mechanical low back cervical Key sion that could light certain pain, significant anxiety. R. at 295. work, including parts of her Appeals adopt did not this The Council Secretary’s cashier contradicted the recommended decision as the final decision Key 15, 1987, earlier decision that was limited to Secretary. of the In an October order, performing only certain it stated that it found “no evidentia- tasks. support Moreover, ry for the Administrative Law order the remand had limited the Judge’s that the claimant’s com- conclusion Secretary to a determination of whether of exertional and non-exertional bination job was assembler impairments precluded performance Instead, nature. the AU on remand found Council, activity.” The all work R. at 298. Key could certain therefore, withheld its final decision and tasks, including past job as cashier. yet pro- remanded the claim for another Thus, concluded, the court “The Secre- ceeding in which the AU was directed to tary’s prior plain- determination that psychiatric examina- obtain a consultative tiff’s relevant work was that of bench tion and a medical assessment. assembly implicitly was one which was af- AU, Bernoski, A Ronald conduct- new G. upon judicial firmed review this court hearing, during he re- ed a third and, therefore, under the ‘law of the case’ ceived a mental status evaluation from a subject not to redetermina- doctrine was Key had a psychologist that indicated that Deciding that the tion.” Id. Secre- daily moderate restriction of her activities tary “improperly redefined” had functioning. posed The and social AU relevant work and that there had been no questions to a vocational ex- hypothetical finding assembly that her from skills bench pert Key per- to determine whether could tasks, work would transfer to other gainful form work within each of her vari- Secretary’s court reversed the final deci- expert physical limitations. The of- ous sion and found disabled. Id. at 8. It opinion could fered his judgment is from this that the limitation, gainful work within each appeals. now prevent these limitations would matter, Key As a threshold raises for the clerk, cashier, doing Key from the audit appeal potential jurisdic- time in first this light assembly jobs performed she had respect tional defect to the past. large part upon Based in pursu- assumption jurisdiction Council’s testimony, Bernoski concluded his June 22, 1988, recommended decision that ant to the district court remand order of
1060 rigid deadlines Secretary to govern- regulation 16, A September uniformity of quality and ground that states: ing cases SSI 467 U.S. suffer. decisions would agency days after the date 60 Anytime within 2249, 2257, L.Ed.2d 119, 81 104, 104 S.Ct. dismissal, Ap- hearing decision or argu- Thus, Key’s jurisdictional (1984). to review may decide itself peals Council A recommended merit. is without Ap- If ment taken. that was the action a final into transformed hearing is not decision review does peals Council time sixty-day merely dismissal, action notice of the decision because decision ' last parties expired. at their limit has to all be mailed will known address. of the to the law turn now We be- Key posits that 416.1469. 20 C.F.R. § “on the is based The doctrine issue. case jurisdiction assumed cause the litiga policy that public salutary and sound July Kortsch’s days after eighty-three White end.” to an should come tion decision, its as- 1987, recommended Cir.1967). Murtha, untimely. was jurisdiction sumption of an once is that gist of the doctrine July Therefore, argues, by nec expressly or either appellate court deci- the final decision issue, the de an essary implication decides of this purposes sion subsequent binding upon all cision will be appeal. *5 This consist same case. proceedings the ac argument does take Key’s expense “from the parties ency protects only a that the AU made the fact count lawsuits, multiple attending vexation regulations decision. recommended resources, and fosters judicial conserves court district that “if a federal provide minimizing by action judicial on reliance Council, and Appeals case to the remands a of inconsistent decisions.” possibility the to an remands the case Council Appeals the 147, States, U.S. v. United 440 Montana the returned to must be [AU], case the 973-74, L.Ed.2d 59 153-54, 99 S.Ct. deci a recommended Appeals Council doctrine (1979). of the case The law 210 416.1453(c). Section 20 C.F.R. sion.” agency applied to administrative has been states that 416.1477(a) of 20 C.F.R. “[t]he Moore, Taggart & IB W. J. proceedings. to an may remand a case Appeals Council 0.403 Wicker, Federal Moore’s Practice § J. he or she judge so that law administrative rules, 1985). the law (2d Like most ed. or a decision hearing and issue may hold Previously exceptions. case has the its Similarly, 20 decision.” a recommended if applied are not determinations decided Appeals says, “The 416.1479 C.F.R. § doctrine rendering the there are reasons affirm, the modify or reverse may “(1) sub include would These inapplicable. adopt, modify or may itor hearing decision the after introduced new evidence stantial Under decision.” recommended reject Supreme review, (2) the decision of first authority ultimate regulations, the these review, (3) a con after first Court rests final decision issuing a reviewing part of the second viction A decision Appeals Council. first was decision court binding unless final and never becomes Chicago & North clearly erroneous.” by adopted the Council. expressly is it until Co. v. United Transportation Western provide that regulations Although the Cir.1978). (7th States, 930 to review may decide Appeals Council Secretary violated Key believes that 60 “anytime within sponte action sua First, ways. in two of the case the law specify a time regulations do not days,” the Key’s having 1985 determined after must the Council period within greater no capacity was functional residual a recommended modify, reject or adopt, Secretary in 1988 “sedentary,” the than Health v. Reagan decision. capacity Key’s residual functional enlarged Services, 125 F.2d and Human new evi- light” “sedentary without v. addition, Heckler Cir.1989). In (1st improved. that her condition had dence re Supreme Court Day, United States Key’s past work Second, although relevant hold should courts jected the notion that finding history initially was determined be activities. This became part of the final decision of Secretary. redetermined to job, assembler it later was Apparently, the district re- court reached the jobs. include other The Government’s Key’s past same conclusion about relevant sponse argument to the latter is that work, it stated because that “the AU finding Key’s Secretary never made a physical failed to define the exertion re- past job as an only relevant was assembler. ” quired of an assembler. Therefore, remand, Secretary prop- (E.D.Wis. 16,1986). (Em- slip op. Sept. at 9 erly could evaluated whether phasis provided). language In the of An- other relevant as well as other work gevine, “explicitly the district court by economy. in the national necessary implication,” 881 F.2d at level, is, this case as On more than one Secretary’s prior affirmed the determina- said, purportedly “deja vu all Yogi Berra tion that relevant work was that Sullivan, 881 again.” Angevine In over point of assembler. The whole of the re- Cir.1989), faced a similar F.2d 519 we mand was to allow the to make a problem in the context of a law of the case finding physical as to the and mental de- There, a disability benefits. claim for job in relation mands the assembler argued claimant that the Council Key’s present capabilities. After AU scope of the district exceeded the narrow present capabili- Key’s Kortsch found that remand, improperly recharacteriz- court’s ties would not allow her to capacity as ca- ing her residual functional past assembly job, inquiry expand- light work rather than pable performing she could ed to evaluate whether originally as determined any or other work other relevant work by at 521. We stated that an AU. Id. then, economy. By in the national decided, explicitly either previously “issues and her func- relevant work residual necessary implication, become the *6 issues, open capacity tional were not and the ease and such determinations law of disregard the was not free to the compel- applied to absent unusual or are be of the district narrow remand directions that the ling reasons.” Id. We stressed compel- court. There were no unusual or Secretary violated question of whether the cautioning against application ling reasons the law of the case on remand is best doctrine, of the case and none of of the law carefully considering the answered Trans- exceptions noted North Western remand order. scope of the district court’s applied. Secretary clearly The portation at The reason for this examination Id. 522. order, scope the remand exceeded the of the case doctrine comes is that the law of case. and the law of the violated previ- play only respect with to issues into if relevant work Even of- ously determined. The doctrine “most improperly, not redefined Sec had been already fully decided applies ten to issues disabled retary’s decision that was not subsequently re-appear in cases that before reviewing disability stand. When cannot rendering court.” The Trustees of claims, Secretary’s decisions we affirm the University v. The Aetna Indiana Casual- they supported by substantial evi if are Co., 435 ty Surety & 405(g). 42 dence in the record. U.S.C. § Cir.1990). open If an issue is left after F.2d 519 v. 898 See also Scott remand, free to decide tribunal is lower Bowen, (7th Cir.1990)(citing 834 Walker Miller, Wright, A. E. generally it. C. See (7th Cir.1987)). Substantial F.2d 639 Procedure Cooper, 18 Federal Practice & has defined to mean “such evidence been (1981). 4478 as a mind relevant evidence reasonable left support which issues were a con might accept adequate To determine as to case, Perales, retracing is in 402 open in this a bit of U.S. clusion.” Richardson 13, 1984, 389, 401, In recom 28 L.Ed.2d order. his November 91 S.Ct. 29, 1994, decision, (1971). that In deci AU Kortsch found 842 its December mended Bernoski’s recom adopting was that of sion AU Key’s past relevant work bench decision, Appeals took required only mended Council assembly, and that this work 1062 more of not lifting restriction has a she in the record evidence the medical note of exam- Every other twenty pounds. any situation than not work Key “could
that lifting restriction placed her ining physician lift- standing, sitting, prolonged requiring Three pounds. significant than ten carrying greater no looking up ing, difficulty sit- problems has agreed that she five evidence and other weight,” back, five All and low intervals. spine, ting for extended Key’s cervical pro- time to stand At the is unable R. at that agreed knees. decision, fif- Key was to It thus stands of time. longed periods AU’s that, although Conceding from precluded be years old. ty-two that would reason to may standing able cashier, be in a claimant either “the working as as or cashier clerk jobs as an audit medical Despite her sitting position. Council them,” Ap- she described and evidence, AU Bernoski both Bernoski’s agreed with nevertheless greater reliance placed peals range a full Key could finding that expert who testimony of the vocational range of a limited and sedentary work hear- administrative final at the appeared work, she is able and that that expert testified ing. The vocational work, include parts of her as classified is typically work cashier as as well light cashier neither He was work.” “light, semi-skilled using skills sedentary jobs semi-skilled to, job about, testify he nor did asked R. at cashier work. from it. performed, actually cashier as as work Key is able strong conclusion The record in the The evidence therefore, premature cashier, func greatest residual ly suggests “sedentary,” not Key has is unfounded. capacity tional never involves Sedentary work “light.” expert also failed The vocational requires pounds, ten than more lifting acquired skills fact Key had in testify that sitting. walking or only occasional Securi Social transferable. were contrast, 416.967(a). In C.F.R. § ex rules published Administration ty twenty than lifting less involves work “transferability” concept of plaining carrying of lifting or frequent pounds, disability evaluation. it is used how pounds. up to weighing ten objects “applying as “Transferability” is defined requires “a 416.967(b). job If a C.F.R. § has demonstrat person skills which if walking, even standing or good deal” *7 to jobs vocationally relevant in ed it in the carrying, is lifting or is little there or skilled of other requirements meet cash store grocery A category. “light” (1979); 1982(2)(b) jobs.” SSR semi-skilled Depart light. are typically ier’s duties 404.1568(d). Accord 20 C.F.R. also see § Occupational Dictionary of of Labor’s ment transferability regulations, when ing to the informa (“DOT”) contains relevant Titles required to issue, isAU is skills of work, as types of concerning various tion skills, spe and acquired work identify the the skills descriptions of detailed well as acquired to occupations which cific econ jobs in most involved and tasks cited be must transferable skills are work DOT 211.462-014 omy. Section SSR decision. recommended in the AU’s and receiving that, to in addition states decision, AU 1982(6). In his reg operating a cash money and disbursing testimony of only to the referred Bernoski shelves, mark ister, stock cashiers retail “past expert has that vocational items, bag containers, weigh and prices light semi-skilled relevant in experience Everyday merchandise. clerk, and audit experience as an work stand cashiers supermarket us forms experience as has work also She shifts, cashier. their through feet most on their oper machine to medium unskilled an carrying lifting and are they while often in a wrapper ator, and meat assembler Although bags. grocery items and heavy Based R. at 150. supermarket.” Key’s capa regarding evidence the medical concluded, Ap and testimony, the AU five only conflicting, one bilities concurred, Key could peals her examined stated who physicians parts of her proceedings. relevant tive Agency adjudications capaci- work within her residual functional quasi-judicial are they but need not neces- ty, ability and that this translated into her sarily partake of all rigor the formalistic jobs numerous in the national that characterizes their courtroom counter- clerk, economy, including billing billing ma- parts. The Secretary does not sit as an operator, payroll timekeeping chine and judge Article III presiding neutrally and (now fifty-two clerk. fail to see how a We relatively passively adversary over pro- fifty-five) year old woman with a tenth ceedings. Because the must ac- grade grocery education who worked in a tively execute statutory certain policy approximately store check out line for five mandates, his or her discretion should not years, jobs and then held two for a few overly be rigid circumscribed appli- months, having could be characterized as judicial cation of doctrines. It thing is one jobs transferable work skills to “in exist- comply explicit judicial commands significant ence in numbers in the econo- quite on remand but another to narrow my.” R. at 151. Nowhere his recom- proceedings, remanded without direct in- mended decision does Bernoski iden- AU structions, specific originally to the course tify actually acquired by Key work skills followed. that would enable her to as he I think it incorrect to conclude that the indicated, given her residual functional ca- district court Secretary’s pri- “affirmed the experience. pacity and work or determination that relevant Because there is substantial evi work was that of assembler.” Assembler engage dence that is “unable to in is occupation upon indeed the which the gainful activity by substantial reason of focused, initially, AU at least neither but medically any physical determinable nor the district court found this impairment expected mental which can be uniquely worthy scrutiny work to the to result in death or lasted exclusion of all others. The escalation expected can be to last for a continuous from work to work without months,” period of not less than 12 we evidence, hand, new other essential- conclude that she is under disabled ly represent changed finding— seems 423(d)(1)(A) of the Act. The justifiable apparently much less than the proving by failed in his burden of substan shift in relevant work. tial in the record that is not evidence agency participates An administrative perform parts disabled and that she can govern- of all three branches of jobs work as well as other in the legislature, ment—the the executive and economy. agree national We with the dis judiciary. occupies unique It that, many years trict court after so potentially position in govern- creative our hearings, rehearings, appeals, no use easy lawyers— mental structure. It is purpose by delaying ful would be served *8 judges agencies by imposing fetter —to conclusion, Key’s receipt In of benefits. overly rigid judicial ways. them I then, above, for the reasons stated think we should avoid such a course decision of the district court is Affikmed applying the law case doctrine to the and the case is Remanded with instruction agencies great circumspec- work of to the an to remand award of tion. receive, Key should benefits. and receive immediately, long benefits which entitled. been
CUDAHY, concurring: Judge, Circuit join judgment
Although I and am general majority’s accord with the able
analysis, agree I do not seems to what overly confining
me an view of the “law of applied doctrine as
the case” to administra-