author: BLAKEY, District Judge.

text:
    State of WISCONSIN LOCAL GOVERNMENT PROPERTY INSURANCE FUND, Plaintiff-Appellee, v. LEXINGTON INSURANCE COMPANY, Defendant-Appellant, v. Cincinnati Insurance Company, Defendant-Appellee.
    No. 15-1973
    United States Court of Appeals, Seventh Circuit.
    Argued February 19, 2016
    Decided October 21, 2016

      Patryk W. Silver, Attorney, Borgelt, Powell, Peterson & Frauen, Madison, WI, Robert C. Burrell, Attorney, Borgelt, Powell, Peterson & Frauen, Milwaukee, WI, for Plaintiff-Appellee.
    Peter E. Kanaris, David E. Heiss, Jefferson D. Patten, Attorneys, Fisher Ka-naris, P.C., Chicago, IL, for Defendant-Appellant.
    Don R. Sampen, Attorney, Clausen Miller, Chicago, IL, for Defendant-Appellee.
    Colleen A. Foley, Attorney, Office of the Corporation Counsel, Milwaukee, WI, for Defendant.
    Before MANION and ROVNER, Circuit Judges, and BLAKEY, District Judge.

       Of the Northern District of Illinois, sitting by designation.

   BLAKEY, District Judge.

This dispute arises from the 2013 fire at the Milwaukee County Courthouse (the “Courthouse”). Milwaukee County (the “County”) maintained its primary insurance policy covering the Courthouse with the State of Wisconsin Local Government Property Insurance Fund (the “Fund”). The Fund in turn engaged defendant Lexington Insurance Company (“Lexington”) as either its reinsurer or excess insurer (the parties disagree). The County also maintained a separate insurance policy with The Cincinnati Insurance Company (“Cincinnati”) that covered machinery and equipment at the Courthouse.

Shortly after the fire, the County'filed a claim with the Fund. The Fund paid all but a small portion of the County’s claimed losses. The Fund insisted that the remaining unpaid portion of the County’s claim should be paid by Cincinnati. Pursuant'to separate Joint Loss Agreements in the County’s policies with the Fund and Cincinnati, the Fund and Cincinnati agreed to arbitrate their dispute.

This appeal concerns Lexington’s attempt to insert itself in that arbitration between the Fund and Cincinnati. The district court denied Lexington’s motion to compel arbitration after concluding that Lexington’s participation was not contemplated by the plain language of the Joint Loss Agreements. Lexington appealed. For the reasons explained below, we AFFIRM.

I. Background & Procedural History

At the time of the fire in July 2013, the County held two separate insurance policies covering the Courthouse. The primary policy (the “Fund Policy”) was issued by the Fund, and explicitly excluded from coverage certain forms of electrical damage. The County held an additional policy with Cincinnati' (the “Cincinnati Policy”) that specifically covered electrical and mechanical failure.

Both the Fund Policy and the Cincinnati Policy contain a Joint Loss Agreement (“JLA”). Even though the two JLAs differ in several material respects, both provide that, if the insurers dispute which of them bears the cost of certain damage, the County may compel each to pay one-half of the disputed amount. The insurers then would submit their dispute regarding the paid claim to arbitration. The purpose of the JLAs is to make the County whole quickly, while allowing the insurers to resolve their own dispute separately.

After the fire, the County initially filed a claim for approximately $19 million with the Fund pursuant to the Fund Policy. The Fund paid the County approximately $17.4 million, but disputed the remaining $1.6 million under the theory that the remainder should be paid by Cincinnati, In response, the County invoked its rights under the JLAs with Cincinnati and the Fund. Consequently, the Fund and Cincinnati, consistent with their JLA obligations, each paid one-half of the disputed amount ($800,000) to the County and agreed to arbitrate their dispute.

Meanwhile, the Fund and Lexington maintained a separate policy that provided coVerage for the Fund in the event it paid on a claim worth $1.8 million or more (the “Lexington Policy”). After the Fund made its initial payment to the County, the Fund filed a claim with Lexington under the Lexington Policy, seeking reimbursement for amounts paid by the Fund to the County. Lexington paid the Fund $5 million but disputes that it owes anything more.

In an attempt to secure a declaration regarding the rights and obligations of the respective parties, the Fund initiated this case in the Circuit Court of Milwaukee County. Lexington removed the case to the United States District Court for the Eastern District of Wisconsin and filed a motion to compel Cincinnati and the Fund to allow Lexington to participate in the arbitration contemplated by the JLAs.

The district court identified “two overarching issues” implicated by Lexington’s motion to compel arbitration. The first is whether the Lexington Policy incorporated the JLA from the Fund Policy, The district court answered this question in the affirmative, pursuant to the “follow form” provision in the Lexington Policy. The second issue is whether the Fund Policy JLA, as incorporated into the Lexington Policy, compelled Lexington’s participation in the arbitration. The district court rejected this proposed participation because: (1) Lexington’s participation was inconsistent with the specific text of the Fund Policy JLA; and (2) Lexington failed to meet the Fund Policy JLA’s contractual prerequisites to arbitration. We reexamine both issues on appeal.

II. Analysis

We review the district court’s denial of Lexington’s motion de novo. See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1033 (7th Cir. 2016) (“Our review of the issues on this appeal—the question whether an agreement to arbitrate arose, and the denial of TransUnion’s motion to compel arbitration—is de novo.”).

In doing so, we apply Wisconsin law. The district court presumed that Wisconsin law controls. Given that the Fund and the County are Wisconsin entities, the Courthouse is located in Wisconsin, and the Cincinnati Policy contains Wisconsin-specific endorsements, we agree. Indeed, no party challenged the application of Wisconsin law.

A. Courts Decide Gateway Questions

The parties dispute the existence of an arbitration agreement between Lexington and any other entity. Under governing precedent, this is a question reserved for the judiciary. See Cont’l Cas. Co. v. Am. Nat. Ins. Co., 417 F.3d 727, 730 (7th Cir. 2006) (“Whether the parties have agreed to arbitrate is a question normally answered by the court rather than by an arbitrator. The issue is governed by state law principles governing contract formation.”). As such, we reject Lexington’s suggestion that the question posed by this appeal should be resolved by an arbitrator. Courts, not arbitrators, are charged with deciding “gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy.” Green Tree Fi nancial Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct. 2402, 156 L.Ed.2d 414 (2003); see also Sphere Drake Ins. Ltd. v. All Am. Ins. Co., 256 F.3d 587, 589, 591 (7th Cir. 2001) (reaffirming “the principle that courts, rather than-arbitrators, usually determine whether the parties have agreed to arbitrate” and that “the judiciary rather than an arbitrator decides whether a contract came into being”).

B.. Policy In Favor Of Arbitration Does Not Apply In This Case

As a general policy matter, federal courts favor arbitration. Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1159 (7th Cir. 2016) (“The [Federal Arbitration Act] contains a general policy favoring arbitration and a liberal federal policy favoring arbitration agreements.”) (internal quotation omitted). But that general preference yields to explicit contrary contractual language. As we explained in Andermann v. Sprint Spectrum L.P., the “federal policy favoring arbitration” was originally formulated to simply “make clear, as had seemed necessary because of judges’ historical hostility to arbitration, that arbitration was no longer to be disfavored.” 785 F.3d 1157, 1159 (7th Cir. 2015). For unambiguous contracts, however, the agreement, as reflected by the document’s explicit terms, controls. Id. (holding that a court must respect the parties’ “dispute-resolution preferences as embodied in an arbitration clause”); see also Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 303, 130 S.Ct. 2847, 177 L.Ed.2d 567 (2010) (reiterating that “it is the court’s duty to interpret the [parties’] agreement and to determine whether the parties intended to arbitrate grievances concerning a particular matter [such that] the presumption of arbitrability [applies] only where a .validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand”) (internal quotation omitted).

C.. The Lexington Agreement Incor-. porates The JLA Set Forth In The Fund Policy

The district court held that the Lexington Policy incorporates the Fund Policy’s JLA. The court grounded its reasoning in Endorsement A to the Lexington Policy, which provides that: “Policy follows form and is excess over the [Fund Policy] and endorsements.” App’x 5 at 32.

Following form “is an insurance industry term of art that is typically understood by insurance professionals to suggest that an excess or umbrella policy incorporates the terms of another underlying policy.” Wadzinski v. Auto-Owners Ins. Co., 342 Wis.2d 311, 818 N.W.2d 819, 829 (2012) (citation omitted). As such, absent explicit limitations to the contrary, a follow form provision incorporates the terms, definitions, exclusions, and conditions of the underlying policy “to ensure that the same terms of coverage are maintained between primary and excess levels of insurance.” Id.

Here, the district court determined that: (1) the Lexington Policy, pursuant to its Endorsement A, followed this form of the Fund Policy; (2) no other provisions of the Lexington Policy removed the Fund Policy’s JLA from the scope of the Lexington Policy’s follow form provision; and' therefore,- (3) the Lexington Policy incorporated the Fund Policy’s JLA. The Fund concedes this argument on appeal, and with good reason. We affirm the district court’s finding that the Lexington Policy incorporates the Fund Policy’s JLA.

D.The JLA Does Not Compel . Lexington’s Participation In The Arbitration

We now turn to whether the Fund Policy’s JLA entitles Lexington to insert itself in the arbitration between Cincinnati and the Fund. In this case, the only potential basis for such an imposition is the Fund Policy’s JLA, as incorporated into the Lexington Policy. As always, we begin with the operative text. See State ex rel. Journal/Sentinel, Inc. v. Pleva, 155 Wis.2d 704, 456 N.W.2d 359, 362 (1990) (reiterating that the “cornerstone of contract construction is to ascertain the true intentions of the parties as expressed by the contractual language”).

E. The JLA Provisions Are Clear

The Fund Policy’s JLA, incorporated into the Lexington Policy by virtue of the latter’s follow form provision, states as follows:

In the event of damage to or destruction of property, at a location designated in this policy and also designated in a Boiler and Machinery Insurance Policy(ies) and there is a disagreement between the insurers with respect to:
(1) Whether such damage or destruction was caused by a peril insured against by this policy or by a peril insured against by such Boiler and Machinery Insurance Policy(ies) or
(2) The extent of participation of this policy and of such Boiler and Machinery Insurance Policy(ies) in a loss of which is insured against, partially or wholly, by any or all of said policies.
This company shall, upon written request of the insured, pay to the insured one-half of the amount of the loss which is in disagreement, but in no event more than this company would have paid if there had been Boiler and Machinery Insurance Policy(ies) in effect, subject to the following conditions:
(1) The amount of loss which is in disagreement, after making provisions for any undisputed claims payable under the said policies and after the amount of the loss is agreed upon by the insured and the insurers, is limited to the minimum amount remaining payable under either the Boiler and Machinery or Fire Policy(ies);
(2) The Boiler and Machinery insurer(s) shall simultaneously pay to the insured one-half of said amount which is in disagreement;
(3) The payments by the insurers hereunder and acceptance of the same by the insured signify the agreement of the insurers to submit to and proceed with arbitration within 90 days of such payments-, the arbitrators shall be three in number, one shall be appointed by the Boiler and Machinery insurer, one shall be appointed by the Fund, and the third appointed by consent of the other two. The decision by the arbitrators shall be binding on the insurers and that judgment upon such award may be entered in any court of competent jurisdiction;
(4) The insured agrees to cooperate in connection with such arbitration but not to intervene therein;
(5) The provisions of this endorsement shall not apply unless such other policy(ies) issued by the Boiler and Machinery insurance company(ies) is similarly endorsed; and
(6) Acceptance by the insured of some payment pursuant to the provisions of this endorsement, including an arbitration award, shall not operate to alter, waive, surrender or in any way affect the rights of the insured against any of the insurers.

App’x 4 at 24 (emphasis added).

The JLA is not ambiguous. See Tufail v. Midwest Hosp., LLC, 348 Wis.2d 631, 833 N.W.2d 586, 594 n.8 (2013) (“Ambiguity is found where a contract is fairly susceptible of more than one construction, not necessarily where different construe-tions are argued”) (internal quotation omitted). Wisconsin contract law provides that “terms incorporated by reference within the contract (but which the contract does not go on to define) do not create an ambiguity.” Matthews v. Wisconsin Energy Corp., 534 F.3d 547, 554 (7th Cir. 2008) (citation omitted). So long as “the extrinsic terms are clearly identifiable, the parties agree to abide by those terms just as they agree to the other terms in the contract.” Id. (citation omitted); see also Barrons v. J. H. Findorff & Sons, Inc., 89 Wis.2d 444, 278 N.W.2d 827, 831 (1979) (terms of a preceding contract “incorporated by reference in the [operative] contract” govern). This principle of interpretation is particularly forceful when, as here, the provision at issue is incorporated wholesale by virtue of a follow form provision. See Wadzinski, 818 N.W.2d at 829 (following form “is typically understood by insurance professionals to suggest that an excess or umbrella policy incorporates the terms of another”) (emphasis added); see also Tufail, 833 N.W.2d at 592 (“Contract language is construed according to its plain or ordinary meaning, consistent with what a reasonable person would understand the words to mean under the circumstances. For a business contract, that is the manner that it would be understood by persons in the business to which the contract relates”) (internal quotations omitted).

In sum, the terms of the Fund Policy JLA mean the same thing whether they are read within the Fund Policy or incorporated into the Lexington Policy. Thus, “insured,” as originally used in the Fund Policy JLA (and as incorporated in the Lexington Policy) means the County. This is hardly revelatory—unambiguous language remains unambiguous when it is incorporated into another contract. Our task now is to apply this same unambiguous language “according to its literal terms and consistent with what a reasonable person would understand the words to mean under the circumstances.” Fabco Equip., Inc. v. Kreilkamp Trucking, Inc., 352 Wis.2d 106, 841 N.W.2d 542, 546 (Wis. Ct. App. 2013) (internal quotation omitted).

F. The JLA Does Not Constitute An Agreement To Arbitrate With Lexington

The Fund Policy JLA, by its “literal terms,” is not an agreement to arbitrate at all. Instead, the Fund Policy JLA merely codifies a procedure whereby the parties can potentially agree to arbitrate. App’x 4 at 24 (“The payments by the insurers ... and acceptance of the same by the insured signify the agreement of the insurers to submit to and proceed with arbitration within 90 days of such payments.”) (emphasis added). That procedure, as spelled out above, requires a demand by the insured; a dispute between the insurers about liability; payment by each insurer of half the disputed amount; and acceptance of payment by the insured. Only by completing each of these enumerated steps can the parties form an agreement to arbitrate under the Fund Policy JLA. None of these steps occurred with respect to Lexington.

To be clear, the Fund Policy JLA’s payment-and-acceptance process is not merely a procedural mechanism attendant to an already-enforceable arbitration agreement. Instead, this procedure is the means by which the parties form an agreement to arbitrate. The stark contrast provided by Cincinnati and the Fund underscores this critical difference. Both the Fund and Cincinnati disputed the demands made by the County. Both the Fund and Cincinnati paid the County one-half of the disputed amount in response to the County’s invocation of its rights under the two JLAs. By the JLAs’ literal terms, the Fund and Cincinnati were only obligated to arbitrate their dispute upon the County’s acceptance of those same payments. In other words, the “literal terms” of the Fund Policy JLA provide the method by which the parties can “signify” their agreement to arbitrate.

■ Based upon the undisputed record here, Lexington simply did not employ the signifying procedure to trigger an agreement to arbitrate. Lexington never received a request for payment from the County, and Lexington never made a payment to the County. Moreover, neither Cincinnati nor the Fund nor the County communicated any of the enumerated signals to Lexington. Consequently, the parties did not agree to arbitrate a dispute with Lexington under the Fund Policy JLA.

G.This Court’s Reading Remains Consistent With Madison Teachers

Lexington argues that, under Wisconsin law, “the failure to satisfy one condition in an agreement to proceed to arbitration” may not “thwart the intent of an arbitration provision, which is to resolve a dispute with an arbitrator rather than in a courthouse.” Appellant Br. at 36 (citing Madison Teachers, Inc. v. Wisconsin Educ. Ass’n Council, 285 Wis.2d 737, 703 N.W.2d 711 (Wis. Ct. App. 2005)). This principle is true (so far as it goes), but not controlling here.

In Madison Teachers, the parties’ arbitration agreement specifically named an individual to serve as arbitrator; however, the named individual was not available at the, time of the parties’ dispute. Madison Teachers, Inc., 703 N.W.2d at 717. The trial court held that the parties were no longer bound to arbitrate in the absence of the named arbitrator. Id. at 713. The Wisconsin Court of Appeals reversed on the grounds that the named arbitrator’s absence was not “more important than the arbitration process itself.” Id. at 717. Indeed, the court took pains to note that the use of. the named arbitrator in that case was not a “condition precedent ... central to” the parties’ arbitration agreement. Id. at 715-16.

Madison Teachers is clearly not this case. Madison Teachers involved an express agreement to arbitrate. The Fund Policy JLA does not contain an express agreement to arbitrate, but merely provides a means by which the parties may express an agreement to arbitrate, and no party ever agreed to arbitrate any dispute with Lexington. Nor did Lexington engage in the Fund Policy JLA’s payment-and-acceptance process.

H.This Court’s Reading Gives Full Force And Effect To The Provisions Of The JLA

Lexington also argues that if we do not interpret the Fund Policy JLA to compel its participation in the arbitration between the Fund and Cincinnati, we render the Fund Policy JLA a nullity in contravention of established principles of contractual interpretation. Appellant Br. at 22. Not so. The plain text of the Fund Policy JLA provides a means by which the “insured” and the “insurers” can “signify” their agreement to arbitrate. The JLA, both as it is originally found in the Fund Policy and as incorporated into the Lexington Policy, retains this meaning today. It is merely dormant here because, as a factual matter, no party availed itself of this procedure vis-a-vis Lexington.

I.Lexington’s Status As A Reinsurer Or Excess Insurer Remains Irrelevant

The parties have spent considerable time on appeal debating a question left unanswered by the district court, namely, whether Lexington is an “excess insurer” or a “reinsurer.” We agree with the- district court that there is no need to answer this particular question.

The only possible ground for granting Lexington the relief it seeks is the JLA, as incorporated into the Lexington Policy from the Fund Policy. The JLA, in turn, is an unambiguous contractual provision, which we interpret according to its literal terms. The parties’ dueling characterizations of the nature of the Lexington Policy are simply not implicated by that process.

III. Conclusion

The Fund Policy JLA provides a procedure whereby the parties could “signify” an agreement to arbitrate. No such signals were exchanged between Lexington and any party here and, as a result, no agreement to arbitrate exists between Lexington and the other insurers. Absent such an agreement, Lexington is not entitled to insert itself into the arbitration between the Fund and Cincinnati.

For these reasons, the judgment of the district court is AFFIRMED.

      . Lexington did pay $5 million to the Fund. Under the Fund Policy JLA, however, the County (not the Fund) is the "insured.” Moreover, Lexington does not argue'that this transfer had anything to do with the Fund Policy JLA’s payment-and-acceptance process.


source: Caselaw Access Project

author: POSNER, Circuit Judge. MANION, Circuit Judge,

license: Public Domain

text:
    HEARTLAND ALLIANCE NATIONAL IMMIGRANT JUSTICE CENTER, Plaintiff-Appellant, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellee.
    No. 16-1840
    United States Court of Appeals, Seventh Circuit.
    Argued September 28, 2016
    Decided October 21, 2016

      Kristen C. Rodriguez, Attorney, Den-tons US LLP, Chicago, IL, for Plaintiff-Appellant.
    Steve Frank, Attorney, Department of Justice, Civil Division, Appellate 'Staff, Washington, DC, Daniel M. Riess, Attorney, Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant-Appellee.
    Before POSNER, FLAUM, and MANI ON, Circuit Judges.
   POSNER, Circuit Judge.

Heartland Alliance’s National Immigrant Justice Center (sometimes referred to as Heartland Alliance National Immigration Justice Center—we’ll just call it the Center) is, we read on its website, www.immigrantjustice.org/about-nijc (visited October 19, 2016), “dedicated to ensuring human rights protections and access to justice for all immigrants, refugees and asylum seekers. [The Center] provides direct legal services to and advocates for these populations through policy reform, impact litigation, and public education. Since its founding three decades ago, [the Center] has been unique in blending individual client advocacy with' broad-based systemic change.” In the fall of 2011 the Center submitted to the Department of Homeland Security (and to other fedéral agencies as well, but we can ignore them) a request under the Freedom of Information Act, 5 U.S.C. § 562, for information relating to Tier III terrorist organizations, defined by the Immigration and Nationality Act in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The Department provided only some of the information requested by the Center, so the Center brought this suit to enjoin the Department from withholding the other information that the Center had sought— the names of what are referred to as “Tier III terrorist organizations.” Membership in any of the tiers makes one inadmissible to the United States, with narrow exceptions.

Tier I and Tier II organizations are publicly identified terrorist groups such as ISIS and al-Qaeda. Tier III organizations are defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III) as any group of two or more people that engages in terrorist activity (as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)), even if their terrorist activity is conducted exclusively against regimes that are enemies of the United States. Tier III organizations tend to have a lower profile than Tier I’s or Tier II’s, not only because the government does not publish them names but also because they tend to be groups about which the U.S. government does not have good intelligence, making it essential that the Department be able to obtain information about them during screening interviews that are as focused and complete as possible. The district judge granted summary judgment for the Department on the ground that the names of the Tier III organizations are protected from disclosure under the Freedom of Information Act by the Act’s 7(E) Exemption, 5 U.S.C. § 552(b)(7)(E). The judge then dismissed Heartland’s suit with prejudice, precipitating this appeal.

The exemption embraces “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information ... would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.” The Center contends not without reason that names of organizations are not “guidelines.” We are puzzled by the amount of space in its brief the government devotes to trying to show that they are “guidelines.” Our puzzlement derives from our inability to see what difference it makes whether the names are or are not guidelines given that the heart of the exemption, at least so far as relates to this case, lies in its authorizing the government not to “disclose techniques and procedures for law enforcement investigations or prosecutions.”

The government’s unwillingness to turn over the names of Tier III organizations to the Center—which remember intends to publicize them if it gets its hands on them—rests on a combination of two concerns, both encompassed by the passage in the exemption that we just quoted. The first concern is implicit in the statutory definition of a Tier III organization—“a group of two or more individuals ... which engages in” specified terrorist activities that involve acts of violence, 8 U.S.C. § 1182(a)(3)(B)(vi)(III), making it more likely than in the case of other asylum seekers that if admitted to the United States they would commit violent or otherwise unlawful acts. Second, as explained in the government’s brief, “an alien who becomes aware that a particular organization has been found to fall within the definition of a Tier III organization will have a very strong incentive to falsify or misrepresent any and all encounters, activities, or associations that he or she may have had with that organization.” If the alien doesn’t know that a terrorist organization that he has belonged to, been affiliated with, or maybe simply has provided supplies or money to, has been identified by our government as a terrorist organization, he is likely to be less guarded in answering questions about his activities in or associations with the organization. But if he knows that the organization he belonged to or was associated with is deemed a terrorist organization, he is likely to deny having ever had any connection to it or even having ever heard of it. And if his denials are believed he may—even if he is a past and prospective future terrorist—not only escape the government’s net but also cost the government an opportunity to obtain information about the organization that might in the future help in identifying terrorists. The withholding of the name of a terrorist organization from an alien who is being questioned is thus a technique of a law enforcement investigation that is squarely within the 7(E) exemption.

The Center argues that “no knowing terror affiliate will disclose his or her terror affiliation,” and so the government will learn nothing less from its questioning of aliens if the names were publicized. Well obviously an alien seeking asylum in the United States is not going to tell the government, in response to the question whether he has ever belonged to a terrorist organization, that he did, and it was called [whatever]. But. that would be dumb interrogation. He’ll be asked what he knows about terrorist activities in whatever region he’s from, and in an effort to demonstrate cooperation he may offer information about some terrorist groups— and one of them may be one he has had dealings with. If the government is required to name all terrorist groups at the Tier III level this type of questioning will be ineffectual.

We learn in the Center’s reply brief that its primary concern is not with names but with the Tier III category itself, for it says for example that “the designation of Tier III organizations is often doubtful.” It hopes that if it can obtain the names of all the organizations—its goal in this litigation—it will be able to discredit some or perhaps many of them. Deeply distrustful of the U.S. government, by the tone and content of its briefs the Center signals its disbelief that the government has secrets worth keeping from' asylum seekers and their helpers (such as the Center), but it does not explain what the government would gain by pretending that harmless organizations are actually terrorist groups. The government makes mistakes, but the Center has not shown that they’re willful, or that Exemption 7(E), on which this litigation pivots, is either invalid—in fact the Center concedes that the exemption is valid—or inapplicable to the ■ withheld names.

The judgment of the district court is

AFFIRMED.

MANION, Circuit Judge,

concurring in the judgment.

Under the Freedom of Information Act, Heartland Alliance’s National Immigrant Justice Center seeks the release of documents relating to the denial of entry into the United States of certain individuals.' In particular, it seeks the release of a list of the Tier III terrorist organizations that it claims is used to reject immigration applications. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). For its part, the government claims that the release of some or all of these organizations’ names is exempted from FOIA as law enforcement “guidelines,” the release of which would facilitate the circumvention of our nation’s immigration laws. This claim, if true, would allow the government to claim the protection of exemption 7(E), and refuse to release the list of these names. 5 U.S.C. § 552(b)(7)(E).

Because the government has demonstrated an adequate factual basis for its assertion that disclosure of these organizations could lead to circumvention of our nation’s immigration laws, I concur in the judgment. Enviro Tech Int'l, 371 F.3d 370, 373 (7th Cir. 2004).

I write separately for two reasons. First, we need not go beyond affirming the decision of the district court. It properly granted summary judgment on the grounds that the list of Tier III names was a guideline within the meaning of 7(E). Disclosing the names risked allowing terrorists to circumvent the laws. But our court goes on to hold that the names are law enforcement “techniques” akin to the use of wiretapping in drug trafficking investigations, exempt from disclosure under 7(E) on that basis. That leaves us with no better guidance for what constitutes a “technique” or a “guideline” under 7(E),

At oral argument, the government noted plausible foreign relations grounds for the government withholding this information under other FOIA exemptions. Specifically, it noted that- U.S. government relations with Tier III organizations might change on short notice, and that revealing certain Tier III organizations might have foreign policy ramifications. What one day might be an allied Christian militia- fighting against the Islamic State (ISIS) might the next day be our nation’s enemy, and while not rising to the level of a Tier I or II organization, might fall under Tier III. All of this suggests that the government has, in our nation’s FOIA law, adequate alternative claims for exemption that it chose to avoid, so there is no need to broadly construe 7(E).

I write separately for a second, critical reason, which is my concern about the apparent lack of Syrian Christians as a part of immigrants from that country. It is possible that our case bears a direct link to this enigma.

It is well-documented that refugees to the United States are not representative of that war-torn area of the world. Perhaps 10 percent of the. population of Syria is Christian, and yet less than one-half of one percent of Syrian refugees admitted to the United States this year are Christian. Recognizing the crisis in Syria, the President in 2015 set a goal of resettling 10,000 refugees in the United States. And in August the government reached this laudable goal. And yet, of the nearly 11,000 refugees admitted by mid-September, only 56 were Christian. To date, there has not been a good explanation for this perplexing discrepancy.

This is not to suggest that any refugee group is more or less welcome: quite the contrary. The good people of this country routinely welcome immigrants from all over the world. But in a democracy, good data is critical to public debate about national immigration policy. When we demand high evidentiary burdens for states seeking to keep their citizens safe, and then prevent the states from obtaining that evidence, we create a Catch-22.

At oral argument the government explicitly noted that allies of the United States today might become enemies tomorrow, and vice versa: groups might fall in and out of the Tier III designation. Because none of this is public, it is impossible to know if this is the major reason for the lack of Syrian Christian immigrants to the United States. It is at least possible that incidental affiliation with some Christian militia could lead an immigration officer to deny entry , to Syrians on this basis. That would be a dubious consequence.

And yet, Congress, through the exemptions to FOIA, has consciously made the decision to limit what governmental information is available to the public. If Congress is concerned about how immigration officers are making their decisions related to the designation and application of the Tier III terrorist organization affiliation, Congress has the authority to act. Congress has its own oversight capabilities and subpoena power, and Congress could choose to amend our nation’s sunshine laws or our immigration laws. Until that time, however, many of us remain in the dark as a humanitarian catastrophe continues.

      . Stephen Dinian, U.S. accepts record number of Syrian refugees in June despite terrorist

        screening worries, Wash. Times, June 30, 2016, available at http://m,washingtontimes.com/ news/2016/jun/30/us-accepts-record-number-of-syrian-refugees-in-jun/#!.

      . Exodus Refugee Immigration v. Pence, No. 16-1509, 838 F.3d 902, 2016 WL 5682711 (7th Cir. Oct, 3, 2016), available at http:// media.ca7.uscourts.gov/cgi-bin/rssExec.pl? Submit=Display&Path=Y2016/D 10-03/C: 16-1509:J:Posner:aut:T:fnOp:N:1838881:S:0.


author: KANNE, Circuit Judge. HAMILTON, Circuit Judge,

text:
    William VIRAMONTES, Plaintiff-Appellant, v. CITY OF CHICAGO, Jessica Brady, and Marc Lapadula Defendants-Appellees.
    No. 15-2826
    United States Court of Appeals, Seventh Circuit.
    Argued September 13, 2016
    Decided October 21, 2016

      Jared S. Kosoglad, JARED S. KOSO-GLAD, P.C., Chicago, IL, for Plaintiff-Appellant.

      Stephen G. Collins, CITY OF CHICAGO LAW DEPARTMENT, Chicago, IL, for Defendants-Appellees City of Chicago and Marc Lapadula.
    Stephen G. Collins, CITY OF CHICAGO LAW DEPARTMENT, Myriam Z. Kasper, OFFICE OF THE CORPORATION COUNSEL, Chicago, IL, for Defendant-Appellee Jessica Brady.
    Before BAUER, KANNE, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

William Viramontes was convicted in Illinois state court of aggravated assault and resisting arrest. Despite the conviction, Vi-ramontes filed this § 1983 suit against the officers involved in the altercation alleging that they used excessive force in violation of his Fourth Amendment rights.

The jury returned a verdict for the officers. Viramontes sought a new trial for two reasons: (1) because the district court instructed the jury that it had to take as true the facts underlying the state-court conviction, and (2) because defense counsel made improper statements during closing argument. The district court denied the motion, holding that the jury instruction was proper and that, although defense counsel’s statements during closing argument were improper, they did not warrant a new trial. We agree and affirm.

I. Background

Viramontes was charged with mob action, aggravated assault, and resisting arrest in Cook County Circuit Court arising out of an incident at a Puerto Rican street festival in Chicago. Following a bench trial, Viramontes was convicted of aggravated assault and resisting arrest. The state court judge held,- “I find the Defendant guilty of resisting a police officer and aggravated assault in that he took a substantial step and actively swung in the direction of the police officer and missed,” and that “after the Defendant swung ... he did actively resist.” (R. 58-3.) The court sentenced Viramontes to 100 days’ imprisonment.

Viramontes then sued two officers involved in the arrest, Jessica Brady and Marc Lapadula, and the City of Chicago. Viramontes brought a § 1983 claim, alleging that the officers used excessive force during the arrest violating his Fourth Amendment rights.

After trial, the jury returned a verdict for the defendants on Viramontes’s claims. Viramontes filed a Rule 59 motion for a new trial, arguing that attorney misconduct and procedural and evidentiary errors rendered the trial unfair. The district court denied the motion. On appeal, Viramontes argues that an allegedly improper jury instruction and defense counsel’s improper statements in closing argument entitle him to a new trial.

Because the § 1983 claim involved the same incident for which Viramontes had been convicted of aggravated assault and resisting arrest, the claim implicated the Supreme Court’s decision in Heck v. Humphrey. There, the Court held that a plaintiffs § 1983 claim is barred if it “necessarily implies] the invalidity of his conviction.” 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court relied on our decision in Gilbert v. Cook, 512 F.3d 899 (7th Cir. 2008) and held that an excessive-force claim was not inconsistent with Viramontes’s conviction. The district court also held, however, that the facts underlying the conviction had to be taken as true. Before trial and over Vira-montes’s objection, the district court read the following jury instruction:

Mr. Viramontes actively swung in the direction of a police officer and missed. After he swung, Mr. Viramontes actively resisted the police officer. Any statements to the contrary by Mr. Vira-montes, his lawyers, or a witness must be ignored. What you need to determine is whether the officers used more force than was reasonably necessary under the circumstances and whether the officers maliciously prosecuted Mr. Vira-montes for mob action. Although during the trial you must accept that Mr. Vira-montes swung in the direction of a police officer and missed, you must also decide whether the testimony of each of the witnesses is truthful and accurate .in part, in whole, or not at all. You should give fair and equal consideration to all the evidence because you are the impartial judges of all of the facts.

(R. 97 at 20-21;) The court read the instruction before and after the parties presented evidence. During trial, the court reread the instruction when it believed testimony contradicted Viramontes’s conviction. Of importance here, the district court stopped Officer Lapadula from answering whether he testified at the criminal trial that Viramontes had pulled away after swinging (as the state court found) or that Viramontes had pulled away and then swung. The court told Viramontes that he was “not permitted to directly examine in contradiction” of the state court’s findings. (R. 98 at 124.)

Additionally, two district court orders are relevant to Viramontes’s appeal. First, the district court denied Viramontes’s motion to bar reference to prior convictions, allowing the defendants to use Vira-montes’s 2012 felony conviction for impeachment purposes only. Second, the district court granted Viramontes’s motion in limine to bar evidence bolstering the officers’ character. In closing argument, however, defense counsel disobeyed the district court’s orders. Defense counsel used the 2012 felony conviction to make a propensity argument when he argued that the felony “conviction reflects on Mr. Vira-montes’ unwillingness to conform his conduct to the law.” (R. 99 at 40.) Defense counsel also claimed that the -officers were “stars” and “outstanding police officers.” (R. 99 at 61.) Viramontes objected immediately to the remarks. The district court sustained both objections and instructed the jury that statements made during closing argument were not evidence.

II. Analysis

Viramontes appeals the district court’s denial of his-motion for a new -trial on two grounds. First, Viramontes argues that the Gilbert instruction was unlawful and prejudiced him in three ways: (1) the instruction reflected the state court’s factual findings instead of the criminal complaint, (2) the instruction was read before he contradicted his conviction, and (3) the district court inappropriately used the instruction to prevent him from impeaching Officer La-padula.- Second, Viramontes argues that defense counsel’s improper comments during closing argument denied him his right to a fair trial.- We take those claims in turn.

A. The Gilbert Instruction

In Heck, the Supreme Court held that a plaintiff seeking damages under § 1983 cannot recover if judgment in the plaintiffs favor would “necessarily imply the invalidity” of a criminal conviction. 512 U.S. at 487, 114 S.Ct. 2364. This court has held that a plaintiff s. conviction for assaulting a police officer- does not “necessarily imply”, that the officer used -appropriate force during the course of arrest after the assault. Gilbert, 512 F.3d at 901. A subsequent excessive-force claim may, however, imply the invalidity of a conviction if the plaintiff attempts to, testify -in .a way that contradicts the conviction’s factual basis. To balance this tension, we held in Gilbert that the district court should implement ■Heck by instructing the jury that it must take as true the facts proved at the earlier criminal or disciplinary proceeding. Id. at 902. The district court gave this exact instruction.

This court reviews jury instructions “de novo when the underlying assignment of error implicates a question of law.” Empress Casino Joliet Corp. v. Balmoral Racing Club, Inc., 831 F.3d 815, 835 (7th Cir. 2016) (citing United States v. Macedo, 406 F.3d 778, 787 (7th Cir. 2005)). We give the district court “substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law.” Saathoff v. Davis, 826 F.3d 925, 932 (7th Cir. 2016) (internal quotation marks omitted); see also Brown v. Smith, 827 F.3d 609, 614 (7th Cir. 2016) (“We review a district court’s decisions on jury instructions for abuse of discretion.”). Reversal due to an improper jury instruction is warranted .only if the “instruction misstates the law in a way that misguides the jury to the extent that the complaining party suffered prejudice.” Brown, 827 F.3d at 614.

1. Content

Viramontes argues that the district court erred in crafting the jury instruction because it relied on the state court’s factual findings instead of the criminal complaint. We disagree.

Gilbert itself belies Viramontes’s argument. There, the court referred to the prison disciplinary board’s finding that the plaintiff had delivered the first punch in the fight between the plaintiff and the prison guards. 512 F.3d at 902. The Gilbert court’s proposed jury instruction was not limited to the complaint filed with the disciplinary board but instead mirrored the disciplinary board’s factual findings. Id. at 900.

That principle has since been entrenched in our case law. In Helman v. Duhaime, we held that, when considering whether Heck bars a § 1983 claim, “we must consider the factual basis of the claim and determine whether it necessarily implies the invalidity of [the] conviction.” 742 F.3d 760, 762 (7th Cir. 2014) (emphasis added). “[T]he plaintiff can only proceed to the extent that the facts underlying the excessive force claim are not inconsistent with the essential facts supporting the conviction.” Id. (citing Evans v. Poskon, 603 F.3d 362, 363-64 (7th Cir. 2010)). In Moore v. Mahone, this court-held that the plaintiffs § 1983 suit was barred by Heck because the allegations were “in tension with the disciplinary board’s findings.” 652 F.3d 722, 724-25 (7th Cir. 2011).

In fact, at no point has our focus been on the words used in the actual criminal or disciplinary complaint. Even our Heck analysis in decisions that predate Gilbert focused on facts and not on the formalistic language in the original complaint. See VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006) (holding that the plaintiffs § 1983 suit was not barred by Heck in part because it didn’t “challenge the factual basis presented at his change of plea hearing”); McCann v. Neilsen, 466 F.3d 619, 621 (7th Cir. 2006) (“[A] plaintiffs claim is Heck-barred despite its theoretical compatibility with his underlying conviction if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction,...”); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“It is irrelevant that he disclaims any intention of challenging his conviction; if he makes allegations that are inconsistent with the conviction’s having been valid, Heck kicks in and bars his civil suit.”).

Here, the state court held that Vira-montes was guilty of aggravated assault because “he took a substantial step and actively swung in the direction of the police officer and missed.” (R. 58-3.) The state court also concluded that Viramontes was guilty of resisting arrest because “after the Defendant swung ... he did actively resist.” (Id.) The jury instruction the district court gave—that “Mr. Viramontes actively swung in the direction of a police officer and missed. After he swung, Mr. Viramontes actively resisted the police officer.”—was consistent with the state court’s findings. (R. 97 at 20.) Consequently, the jury instruction’s content was appropriate.

2. Timing

Viramontes next argues that the district court should not have read the instruction until he contradicted his conviction. We disagree.

First, we expressly stated in Gilbert that an instruction could be read to the jury “at the start of trial, as necessary during the evidence, and at the close of the evidence.” 512 F.3d at 902. The district court did exactly what we stated district courts should do and thus did not err.

Despite the plain language in Gilbert, Viramontes argues that this case is distinguishable because the court in Gilbert was faced with a plaintiff who “encountered difficulty adhering to an agnostic posture on” the disciplinary board’s factual findings. 512 F.3d at 902. Viramontes argues, then, that no instruction should be given until a defendant contradicts a prior conviction. Although Viramontes correctly articulates the factual situation in Gilbert, we decline to adopt his narrow interpretation of the rule. In most cases, a district court judge won’t know before trial whether a plaintiff will remain agnostic about a prior conviction. Indeed, before trial, all plaintiffs must claim to remain agnostic in order to have their day in court. See Evans, 603 F.3d at 364 (stating that “a plaintiff is master of his claim and can, if he insists, stick to a position that forecloses relief’). Waiting to instruct the jury to take certain facts as true until the plaintiff claims innocence or disputes the conviction’s factual basis might confuse the jury. An instruction before the presentation of evidence solves this potential problem—the jury knows upfront that it must decide all facts except for the facts already stipulated.

Even if the rule was not as plain as we make it here, the district, court’s decision would still withstand scrutiny because Vi-ramontes proved that he could not remain agnostic about his conviction. Viramontes claimed in his deposition that he never tried to hit Officer Lapadula, a claim that directly contradicts his conviction. Further, at trial, Viramontes testified that he “never resisted” (R. 97 at 103) and was “innocent” (R, 97 at 120). Far from remaining agnostic, Viramontes’s conduct makes clear why a Gilbert instruction is necessary in these cases.

Because the district court was within its discretion to give the Gilbert instruction at the beginning of trial, the timing of the instruction was appropriate.

3. Use

During the presentation of evidence, the district court read the Gilbert instruction multiple times when it believed that testimony contradicted Viramontes’s conviction. Viramontes objects to one of those times. At trial, Viramontes sought to get Officer Lapadula to testify that at the criminal trial he said Viramontes resisted arrest and then swung, not vice versa. The district court stopped Officer Lapadula from answering based on the Gilbert instruction that stipulated that Viramontes had swung and then resisted arrest. Vira-montes now claims that he should have been able to “argue this contradiction” between the conviction and Officer Lapadu-la’s testimony and to impeach Officer La-padula for inconsistencies in his testimony.

A district court’s evidentiary decisions are reviewed for an abuse of discretion. Nelson v. City of Chicago, 810 F.3d 1061, 1066 (7th Cir. 2016). We will not reverse a jury verdict unless the district court’s error affected the objecting party’s substantial rights. Id.; Barber v. City of Chicago, 725 F.3d 702, 715 (7th Cir. 2013). An error affects substantial rights only if there is a “significant chance” that the ruling affected the trial’s outcome. Nelson, 810 F.3d at 1066 (quoting Maurer v. Speedway, LLC, 774 F.3d 1132, 1135 (7th Cir. 2014)). We will not reverse if the error is harmless in light of the trial record as a whole. Nelson, 810 F.3d at 1066; Barber, 725 F.3d at 715.

First, the district court did not err in denying Viramontes the chance to argue a contradiction between Officer Lapadula’s testimony and the state court’s factual findings. Specifically, Viramontes wanted to argue that “[r]egardless of the extent, or even direction, that Plaintiffs fist moved, he did so after the defendants touched his person; he resisted then swung—not swung and then resisted.” (Appellant’s Br. at 12.) Fair enough, Vira-montes might believe that to be the sequence of events. But that sequence directly contradicts his conviction. Consequently, that argument would violate Ilech and thus the district court did not err.

Second, the district court erred in preventing Viramontes from impeaching Officer Lapadula based on inconsistent testimony. The district court was correct in its pretrial ruling: Heck prevents plaintiffs from implying the invalidity of a conviction; it does not bar a plaintiff from impeaching a witness based on inconsistent testimony across trials. Impeachment evidence is used to impugn a witness’s reliability, not to prove the truth of the matter asserted. United States v. Burt, 495 F.3d 733, 736-37 (7th Cir. 2007). Thus, even though Viramontes could not challenge the state court’s factual findings, he should have been allowed to argue that Officer Lapadula was not a reliable witness because his testimony had changed over time.

The district court’s error, however, was harmless. Despite Viramontes’s argument to the contrary, Officer Lapadula’s testimony at the criminal trial was consistent with the' state court’s factual findings. Viramontes alleges that Officer Lapadula testified that Viramontes resisted arrest and then swung at him, not that Vira-montes swung and then resisted arrest as the state court found. The Illinois Appél-late Court’s decision affirming the state court conviction stated that “both officers testified that after they took defendant down to the ground and attempted to handcuff him, defendant continued moving his body and arms, and tried to get away from them.” People v. Viramontes, 2013 IL App (1st) 123014-U, ¶ 16, 2013 WL 6592765. Any attempt to impeach Officer Lapadula would have been rebutted by the fact that he did. testify that Viramontes resisted arrest after swinging at him. In fact, both officers testified that Viramontes continued to resist arrest after he swung at Officer Lapadula.

There is not a substantial likelihood that the jury’s analysis would have been any different than it was because Officer Lapa-dula’s testimony was consistent. United States v. Miller, 688 F.3d 322, 329 (7th Cir. 2012) (“The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been significantly less -persuasive had the improper evidence been excluded.” (quoting United States v. Loughry, 660 F.3d 965, 975 (7th Cir. 2011))). Thus, the error was harmless.

B. Defense Counsel’s Improper Comments

We turn to Viramontes’s argument that defense counsel’s improper statements during closing argument denied him his right to a fair trial. Defense counsel stated that Viramontes’s 2012 felony conviction reflected his “unwillingness to conform his conduct to the law.” Defense counsel also attempted to bolster the officers’ character and credibility by calling them “stars” and “outstanding officers." Appellants admit that the statements were improper but argue that the district court did not abuse its discretion in denying Viramontes’s motion for a new trial. We agree.

A district court’s ruling on a Rule 59 motion for a new trial is reviewed for an abuse of discretion. Empress Casino, 831 F.3d at 833-34. Parties seeking a new trial based on counsel’s improper comments must show that “misconduct occurred and that it prejudiced their case.” Christmas v. City of Chicago, 682 F.3d 632, 642 (7th Cir. 2012); see also Smith v. Hunt, 707 F.3d 803, 812 (7th Cir. 2013). We give great deference to the district court’s ruling because the district court is in the best position to evaluate improper conduct in light of the trial and determine whether it caused prejudice. Christmas, 682 F.3d at 642-43.

Defense counsel’s comments were plainly improper. That propensity arguments are improper is basic hornbook evidence law. Fed. R. Evid. 404(b)(1); United States v. Gomez, 763 F.3d 845, 855 (7th Cir. 2014). The statements concerning the officers’ character were also improper— the district court explicitly ruled before trial that these comments were prohibited. The impropriety of the comments notwithstanding, we cannot conclude that the statements prejudiced Viramontes. Improper comments during closing argument rarely constitute reversible error. Smith, 707 F.3d at 812; Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 388 (7th Cir. 2011).

Viramontes objected immediately, to the propensity argument and to the comment that the officers were “stars.” The district court sustained those objections. When improper comments are objected to and the district court sustains the objection, the comments are less likely to require reversal. See Smith, 707 F.3d at 812; Christmas, 682 F.3d at 643. Moreover, the district court instructed the jury twice, once before closing argument and once after, that attorneys’ statements during closing argument are not evidence. “There is a longstanding presumption that ‘curative instructions to the jury mitigate harm that may otherwise result from improper comments’ during closing argument.” Smith, 707 F.3d at 812 (citing Schandelmeier-Bartels v. Chi. Park Dist., 634 F.3d 372, 388 (7th Cir. 2011)); see also Soltys v. Costello, 520 F.3d 737, 744 (7th Cir. 2008) (“We presume that juries follow the instructions given them by the court.”). Finally, the statements were brief and did not represent a substantial part of defense counsel’s closing statement. Banister v. Burton, 636 F.3d 828, 834 (7th Cir. 2011) (holding that brief and unrepeated improper statements at closing are unlikely to rise to the level of reversible error).

Because the improper comments were made in closing argument, objections to the statements were sustained, the district court gave a curative instruction, and the statements were brief, the district court did not abuse its discretion denying the motion for a new trial.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s denial of Viramontes’s motion for a new trial.

HAMILTON, Circuit Judge,

concurring.

I join Judge Kanne’s opinion for the court, including the holding that the district judge did not abuse her discretion by denying a new trial on the basis of the defendants’ lawyer’s misconduct in closing argument. I write separately to emphasize how important our standard of review is on that issue.

The defendants’ lawyer said in closing argument that plaintiffs 2012 felony conviction for unlawful use of a weapon “reflects on Mr. Viramontes’ unwillingness to conform his conduct to the law.” The admissibility of the conviction had been the subject of a pretrial motion in limine and order by the district court limiting its use to references only to “a felony conviction,” without explanation, based on the permissible purpose (as defense counsel had argued to the court) of impeaching credibility under Federal Rule of Evidence 609. The defense brief to the district court on the motion in limine shows that counsel fully understood the difference between proper and improper use of the conviction, as should any lawyer who has passed an introductory evidence class. It is difficult to see this misconduct during closing argument as anything other than a deliberate harpoon, in flagrant violation of Rule 609 and the judge’s order in limine. The defendants make no effort on appeal to justify the misconduct. They ask only that we not order a new trial.

As the court explains, the appropriate response to such misconduct during trial is left to the sound discretion of the district judge. In this case, Judge Kendall’s response was toward the gentler end of the spectrum of reasonable responses. It is important to recognize that a much stronger response was also within the judge’s discretion. For example, the trial judge might have granted a new trial and ordered the offending party to pay the court and opposing party for the additional costs of a new trial. I would also have found such a response within the judge’s discretion.


author: ROVNER, Circuit Judge.

text:
    Erik S. ISRAEL, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 15-3220
    United States Court of Appeals, Seventh Circuit.
    Argued September 8, 2016
    Decided October 21, 2016

      Barry Schultz, LAW OFFICES OF BARRY A. SCHULTZ, P.C., Evanston, IL, for Plaintiff-Appellant.
    Shefali Baltz, SOCIAL SECURITY ADMINISTRATION, Chicago, IL, Brian E. Pawlak, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Defendant-Appellee.
    Before FLAUM, ROVNER, and SYKES, Circuit Judges.
   ROVNER, Circuit Judge.

Erik Israel applied for Social Security disability benefits in 2007, and diligently pursued his claim through administrative review. After many years of review, error and delay, the Acting Commissioner of the Social Security Administration (hereafter “Commissioner” or “Agency”) issued a final decision denying his claim. Israel filed suit in the district court to challenge that decision. The Commissioner conceded in the district court that her decision was not supported by substantial evidence and requested remand to conduct additional proceedings. Israel, frustrated with years of delay, sought a direct award of benefits. The district court remanded the case .to the Agency for additional proceedings because the record, as it stands, does not compel a finding of disability, Israel v. Colvin, No. 14-CV-1155, slip op. at 6-7 (E.D. Wisc. Aug. 28, 2015). Because the district court did not abuse its discretion in ordering a remand, we affirm. On remand, the Agency should expedite proceedings so that the matter may be resolved once and for all.

I.

In 2001, Israel injured his back while digging posts for a porch. He continued to work while receiving various treatments but his pain worsened and he stopped working in February 2003. Later that year, he underwent a lumbar lami-nectomy and diskectomy. The surgery did not resolve his pain and two surgeons determined that further surgery was not an option. Under the care of various doctors and specialists, Israel tried physical therapy, transcutaneous electrical nerve stimulation (also called “TENS”), a dorsal column stimulator, epidural injections, narcotic pain medications including Methadone and morphine, lidocaine patches to block nerves from sending pain signals, a muscle relaxer, an antidepressant known to help with chronic pain, and drugs used for nerve pain. Israel, who has been diagnosed- with lumbar radiculo-pathy and post-laminectomy pain syndrome (also called Failed Back Surgery Syndrome), continues to experience severely limiting pain despite these treatments. His doctor sought approval from his insurance company to implement an “intrathecal drug delivery system,” a pain pump that delivers medication directly to the spinal cord. Despite repeated requests, however, Israel’s insurer has refused to cover the cost of the device. According to Israel, he spends much of his day trying to manage his pain by elevating his legs in bed. He has undergone four hernia repair surgeries because he uses abdominal muscles to compensate for his back problems. At times, he suffers debilitating side-effects from the many medications he takes in an attempt to control his pain, including memory and concentration problems, fatigue and swelling.

Israel filed applications for Disability Insurance Benefits and Supplemental Security Income benefits on October 30, 2007. His first hearing before an administrative law judge (“ALJ”) resulted in a denial of his claims in February 2010. The Appeals Council vacated that ruling because it was not supported by substantial evidence. The Appeals Council directed the ALJ on remand to further evaluate Israel’s residual functional capacity because the medical evidence was not consistent with the ALJ’s finding that Israel could perform light work. The Council also directed the ALJ to further consider Israel’s credibility because the reasons given for discrediting Israel’s allegations of pain were contradicted by the record. The ALJ was further instructed to update the record with any new medical evidence; give further consideration to the opinions of Israel’s treating doctor, nurse practitioner and examining occupational therapist; reevaluate Israel’s subjective claims of pain; obtain expert medical opinion preferably from a pain management specialist; reconsider Israel’s residual functional capacity; and obtain supplemental evidence from a vocational expert.

The same ALJ conducted a second hearing and again rejected Israel’s claim in July 2011. The Appeals Council again vacated the decision and remanded for further proceedings, this time finding an error of law. Apparently, the ALJ held a video hearing at which she ordered the claimant to attend a post-hearing consultative medical examination. A little more than two weeks later, before Israel could attend the scheduled exam, the ALJ rejected his claim. Israel nevertheless kept the appointment and the. next month, the ALJ issued an amended decision discussing the new consultative exam report and again rejecting Israel’s claim. But there was no evidence that Israeí had received the report or that he had waived his right to see it. Nor was there evidence that the ALJ provided the amended decision to Israel. On remand, the Appeals Council directed that the matter be assigned to a different ALJ; that the new ALJ proffer the consultative exam report to Israel; that the ALJ obtain additional evidence concerning Israel’s impairments; that the ALJ reevaluate Israel’s subjective complaints of pain; that the ALJ give further consideration to Israel’s residual functional capacity; and that the ALJ again obtain evidence from a vocational expert to clarify the effect of Israel’s assessed limitations on the occupational base.

A new ALJ held a third hearing and denied Israel’s claim in April 2014. This time, the Appeals Council denied the request for review, and Israel filed this suit. In his brief in support of reversing the decision of the Commissioner, Israel sought a reversal without remand and an award of benefits. In the alternative, he requested that the court reverse the decision of the Commissioner and remand, for a new hearing. In response, the Commissioner conceded that the decision was not supported by substantial evidence, and moved for remand in order to gather more evidence and conduct additional proceedings. The Commissioner contended that, although Israel' prodüced evidence supporting his claim of disability, other evidence in the record could be construed to undermine his claim of disabling limitations. At that point, Israel opposed a remand, instead seeking an immediate award of benefits. The district court concluded that, because the record did not compel a finding that Israel is disabled, the case should be remanded to the Agency for further proceedings. Israel, slip op. at 6-7.

The district court noted that there is ample evidence supporting Israel’s claim that he is disabled, including the opinions of his treating physician Dr. Donald Harvey (a pain specialist) and his treating physician assistant, Ms. Dawn Nehls. Id. at 3-4. They opined that Israel could sit continuously for only one hour at a time and for a total of less than two hours in an eight-hour work day; that he could stand continuously for only fifteen minutes and could stand or walk for a total of less than two hours in a work day; that he could occasionally lift ten pounds or less and could never lift' twenty pounds or more; that he would need tó lie down for one to two hours during thé work day in order to relieve pain and fatigue; that he needs to be able to shift positions at will; that he requires a cane; that he is not at all able to bend or twist at the waist; that he experiences constant interference with attention and concentration due to pain; that he is extremely limited in his ability to deal with the normal stresses of competitive employment; and that he'would be absent from work more than three days per month. Their opinions were consistent with that of an examining ’ occupational therapist, Mr. Bergthold, and a vocational expert opined that these limitations would preclude full-time employment.

But the court noted .that the evidence was not entirely one-sided. Two non-examining physicians, Pat Chen, M.D. and Laura Rosch, D.O., reviewed the record and concluded that Israel could frequently lift ten pounds, sit for six hours in an eight-hour work day, and stand or walk for six hours in an eight hour work day, which would enable him to perform sedentary work under Social Security standards. The court also noted two MRI reports, from 2007 and 2010, that the court characterized as “inconsistent with Israel’s disability claim” “on their face.” Israel, slip op. at 5. The court acknowledged that the opinions of the non-treating physicians could not alone justify summarily rejecting the opinions of the treating physician, physician assistant and examining occupational therapist. Because the record contained medical evidence that supported a finding of disability and also included evidence that supported a contrary finding, the court was persuaded that remand was necessary to resolve the claim. Israel appeals.

II.

The district court entered the remand order under its statutory authority “to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Our review at this stage is very limited. “When the district court remands a case to the Social Security Administration for further proceedings, but declines to instruct the Commissioner to calculate and award benefits, we review the latter decision only for an abuse of discretion.” Allord v. Astrue, 631 F.3d 411, 415-16 (7th Cir. 2011); Nelson v. Apfel, 210 F.3d 799, 801-02 (7th Cir. 2000). We will affirm the district court’s judgment unless no reasonable person could agree with the decision. Allord, 631 F.3d at 416.

Israel contends that the court abused its discretion in ordering the remand for a fourth administrative hearing rather than awarding benefits outright. He argues that the record contains ample evidence supporting a finding of disability and no evidence that provides a reasonable basis to discredit that conclusion. Israel maintains that the opinions of two non-treating physicians cannot overcome the well-documented opinions of his treating health care providers. Nor can an MRI alone discredit his subjective claim of disabling pain because objective medical tests such as x-rays and MRIs cannot establish the intensity of a person’s pain, he contends. The Commissioner responds that the opinions of the non-treating physicians in combination with the MRI results, physical examination results and the opinion of a consulting physician, Dr. Ayaz Samadani, could warrant discounting the opinions of the treating physician and other providers, and that there are factual issues that must be resolved. Because the record evidence is mixed, the Commissioner contends that remand for further proceedings was a reasonable decision.

Israel is correct that a “treating physician’s opinion regarding the nature and severity of a medical condition is entitled to controlling weight if it is well supported by medical findings and not inconsistent with other substantial evidence in the record.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). See also Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014) (regulations require that the ALJ give the opinions of a treating physician controlling weight as long as they are supported by medical findings and consistent with substantial evidence in the record); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (same). We give more weight to the opinions of treating physicians because they are most familiar with the claimant’s conditions and circumstances. Gudgel, 345 F.3d at 470. An ALJ must offer good reasons for discounting the opinion of a treating physician. Moore, 743 F.3d at 1127. See also Gudgel, 345 F.3d at 470 (an ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence in the record). A contradictory opinion of a non-examining physician does not, by itself, suffice as a justification for discounting the opinion of the treating physician. Gudgel, 345 F.3d at 470. See also Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014) (an ALJ must provide a valid explanation for preferring a record reviewer’s analysis over that of an examining doctor).

In the district court, the Commissioner conceded that the ALJ failed to adequately evaluate the opinion from the treating source, Dr. Harvey, a pain specialist, and his physician assistant, Ms. Nehls. The Commissioner further admitted that the reasons given by the ALJ for assigning little weight to the opinions of Dr. Harvey and Ms. Nehls were “insufficient,” and that the ALJ had also failed to adequátely evaluate the opinion of the examining occupational therapist, Mr. Bergthold, whose assessment was consistent with the opinions of the treating providers. The Commissioner also agreed below and agrees on appeal that the opinions of Dr. Harvey, Ms. Nehls and- Mr. Bergthold support a finding of disability. But the Commissioner nonetheless contends that the opinions of other medical sources provide evidence that would support a contrary result.

Given that the Agency has conceded that Israel has produced substantial evidence of disability, we turn to the evidence that the Commissioner asserts could undermine that conclusion. The Commissioner relies in part on the opinions of the npn-treating physicians, Drs. Chen and Rosch, as well as the opinion of the consultative examining physician, Dr. Samadani. The ALJ did not mention or rely upon the opinions of Drs. Chen and Rosch, and the Commissioner does not explain why these opinions are entitled to any weight let alone more weight than that of the treating physician. See Gudgel, 345 F.3d at 470; Beardsley, 758 F.3d at 839. Moreover, we note that Israel’s treating physician is a specialist in the area of pain management, and the non-examining opinions came from internists with.no special training or expertise as to pain. Social Security regulations specify that particular weight be given to the opinions of specialists related to their areas of expertise. 20 C.F.R. § 416.927(c)(5) (“We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.”). That is not to say that an ALJ could not give any weight to the opinions of the non-treating physicians; to date, however, the ALJ has not explained the value of the non-treating physician opinions, if any.

Although Drs. Chen and Rosch concluded that Israel was capable of performing light work, Dr. Samadani did not offer a definitive opinion on Israel’s ability to work. Instead, Dr. Samadani opined that Israel suffered from post-laminectomy lower back pain and left lumbar radiculopa-thy, diagnoses consistent with the opinions of his treating providers. In a paragraph titled “Ability to Perform Work Functions,” Dr. Samadani said only that Israel has “subjective limitations as described,” but was able to “sit, stand, walk, handle objects, see, hear, speak, and travel. He required help in ambulation. He was walking with the cane. He was slow in his walking pace and complained of constant pain in the lower back.” A.R. at 656. As for the “subjective limitations,” Dr. Samadani noted earlier in his report that Israel complained of constant pain that is between 8 and 9 on a 0-to-10 scale; that he had reported that all of his activities are restricted by his pain; that he cannot drive a car and needs help putting on his shoes and dressing; that his gait and station were stable but he was “uncertain to convert regular walking to tandem walk;” that he leaned to the side and was afraid of falling due to his lower back pain; and that bending down or lifting his legs when sitting or lying down caused pain in his lower back. A.R. at 654-55. Consistent with Dr. Samadani’s report, the ALJ who conducted the third hearing observed that Israel “appeared overweight and seriously decondi-tioned, relied heavily on a cane to ambulate, and alternated between -sitting and standing during the proceedings.” A.R. at 25.

The Commissioner argues on appeal that Dr. Samadani’s opinion could be read to support a finding that Israel is not disabled because the report implies that only Israel’s ability to walk is- impaired. Regulations require consulting doctors to report what an individual can do despite his or her impairments, the Commissioner asserts, and so Dr. Samadani arguably would have reported additional functional limitations if he determined that Israel had them. We first note that the district court did not rely on Dr. Samadani’s opinion in ordering a remand, and it would be difficult to judge whether the court abused its discretion based on evidence that the court admittedly did not consider. Nevertheless, the Commissioner’s reading of Dr. Sama-dani’s opinion is quite a stretch when reading the report as a whole. First, Dr. Sama-dani acknowledged but did not fully list “subjective limitations as described,” so we may equally assume that Israel has functional limitations not expressly included in the report. Second, the Commissioner largely relies on the absence of information in Dr. Samadani’s report to establish facts, when the regulations do not require that a consulting physician report all limitations to the ALJ. See Thomas v. Colvin, 745 F.3d 802, 808 (7th Cir. 2014) (ultimate responsibility for determining a claimant’s residual functional capacity rests on the ALJ and not on an examining doctor). Moreover, nothing in Dr. Samadani’s report is inconsistent with the opinions of Dr. Harvey and Ms. Nehls. And finally, Dr. Samadani’s report fails to gauge the duration or frequency of Israel’s limitations or abilities, rendering his opinion too vague and incomplete to be of much use in assessing Israel’s overall limitations.

The ALJ who denied Israel’s claim after the third hearing discounted the opinions of Dr. Harvey and Ms. Nehls because their functional assessment of Israel “clearly overstated overall limitations.” A.R. at 25. As an example of the overstatement, the ALJ cited what he characterized as a claim in the assessment that Israel has “little to no use of his hands/fingers,” a finding that the ALJ asserted was unsupported in the record. Ait. at 25. But the ALJ had misread the functional assessment: Dr. Harvey and Ms. Nehls had said the exact opposite of this, indicating instead that Israel had full use of his hands and fingers. The assessment asked whether the patient had “significant limitations in the ability to use hands and fingers for actions in a competitive job.” A.R. at 597. Ms. Nehls (joined by Dr. Harvey) checked the “no” box eight times, for “grasp, twist,” “turn objects,” “fine manipulation,” and “reaching, including overhead,” for both right and left hands. A.R. at 597. Those responses indicated no significant limitations in those areas. But the ALJ’s misreading of the response caused him to believe that Ms. Nehls and Dr. Harvey had exaggerated Israel’s limitations. Perhaps that is why the Commissioner agreed in the district court that the reasons given to discount the opinions of the treating- providers were “insufficient,” an understatement given the nature of the error.

The Commissioner also maintains that the MRI results in combination with’ the opinions of the non-treating internists could support a finding that Israel is not disabled, if the opinions of non-treating physicians are insufficient by themselves to overcome the well-supported opinion' of the treating doctor. So we turn to the MRI reports. Without citing any medical opinion to this effect, the district cóurt characterized the 2007 and 2010 MRIs as inconsistent on their face with Israel’s claim of disability. There is always a danger when lawyers and judges attempt to interpret medical reports and that peril is laid bare here. See Browning v. Colvin, 766 F.3d 702, 705 (7th Cir. 2014) (noting that administrative law judges' are not permitted to “play doctot”). In noting the so-called inconsistency, the district court cited a 2010 letter from Israel’s lawyer as characterizing his primary impairment as “degenerative disc disease, particularly at L4-S1 vertebrate, and hernias.” Israel, slip op. at 5. The letter cited actually says that Israel “alleges disability due to degenerative disc disease with degenerative changes at L5-Sl, status post diskectomy, laminectomy, and fusion; L4-5 disc bulging; and history of repair of multiple hernia defects.” A.R. at 449. First, the district court incorrectly noted the location of the claimed degenerative disk changes. Second, at the risk of making the same mistake the district court made, the 2007 MRI report appears consistent, at least in part, with Israel’s claims:

There are degenerative endplate changes noted , at L5-S1, this is the level of prior left hemilaminectomy/diskecto-my. Degenerative disk disease is present at this level but there is only mild broad-based disk bulging and .probable mild scar tissue/fibrosis creating very minimal mass effect/stenosis. The left SI nerve root remains mildly enlarged with a probable mild element of stenosis.

A.R. at 520. As for L4-5, the 2007 MRI reports a “very mild element of broad-based disk bulging” that had decreased since a 2005 MRI, “a minor element of ligamentum. flavum thickening and mild posterior facet sclerosis,” as well as “minimal overall spinal stenosis,” and “no major neural foraminal narrowing.” A.R. at 519, The 2007 MRI seemingly supports Israel’s claim of degenerative disk disease. Similarly, the 2010- MRI notes “[sjtable minimal broad-based disk bulging” at L4-5 “with associated minimal facet osteoarthritis and ligamentum flavum hypertrophy.” A.R. at 651. At L5-S1, the 2010 report indicated, “[mjild stable broad-based disk bulging and endplate marrow signal change ... with stable post-operative changes of a left L5 laminectomy. Findings result in minimal e'ffacement of the anterior thecal sac. There is stable minimal bilateral neural foraminal narrowing.” A.R. at 651. Because no physician in the record has opined on whether these results are consistent with Israel’s claim of disabling pain, and because the reports are replete with technical language that does not lend itself to summary conclusions, we cannot say whether the results support or undermine Israel’s claim. Israel’s treating physician was aware of these results and apparently did not find them inconsistent with Israel’s subjective report of disabling pain. On remand, these records should be reviewed by a physician to determine whether they are in fact consistent with Israel’s claim of disability.

But even if a physician determines that the MRIs do not support a subjective claim of pain, we have repeatedly stated that “an individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.” Cole v. Colvin, 831 F.3d 411, 416 (7th Cir. 2016) (quoting Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015)); Adaire v. Colvin, 778 F.3d 685, 687 (7th Cir. 2015) (noting the recurrent error in decisions of Social Security ALJs of discounting pain testimony that can’t be attributed to “objective” injuries or illnesses that can be revealed by x-rays, and collecting cases). See also Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (an ALJ cannot disregard subjective'complaints of disabling pain just because a determinable basis for pain of that intensity does not stand out in the medical record). “If the medical record does not corroborate the level of pain reported by the claimant, the ALJ must develop the record and seek information about the severity of the pain and its effects on the applicant.” Moss, 555 F.3d at 561. And the district court itself, after first claiming the MRI reports to be inconsistent with Israel’s claim, noted that a medical source’s opinion was required “to assess the extent, if any, to which, this medical evidence is inconsistent with the alleged disability.” Israel, slip op. at 6. The Commissioner cites no such opinion, despite the repeated orders of the Appeals Council that the reviewing ALJ should seek additional medical evidence to clarify the nature and severity of Israel’s impairments.

So the opinions of the non-treating generalists may not generally overcome those of the treating specialist unless the specialist’s opinions are inconsistent with substantial record evidence. And the MRIs alone are insufficient to allow an ALJ to discount the claimant’s subjective claim of disabling pain, especially because the MRIs have not been characterized by any medical source as inconsistent with Israel’s claim of disabling pain. Dr. Samadani’s opinion adds little to the calculus because he failed to take a definitive stance on the key issue of Israel’s abilities to perform tasks essential to work and to his capacity to persist in those tasks in a manner that would allow him to hold full-time employment.

Israel has a lengthy medical history that begins with a specific injury, continues through a failed surgery resulting in a diagnosis consistent with persistent pain (a diagnosis affirmed by Dr. Samadani, the State’s own doctor), and proceeds through a lengthy series of failed attempts to control Israel’s pain. Israel has undergone painful and risky procedures in attempts to alleviate his pain, actions that would seem to support the credibility of his claims regarding the severity of his pain. See Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (noting the improbability that a claimant would have undergone extensive pain-treatment procedures that included not only heavy doses of strong drugs but also the surgical implantation in her spine of a spinal-cord stimulator, “merely in order to strengthen the credibility of her complaints of pain and so increase her chances of obtaining disability benefits”). Yet the last ALJ to assess his claims found him “not entirely credible,” “somewhat credible,” and “partially credible,” vague findings based largely on documented misunderstandings of the record. See Moss, 555 F.3d at 561 (we will uphold an ALJ’s credibility determination if the ALJ gave specific reasons for the finding that are supported by substantial evidence).

Although Israel presents a strong claim for an award of benefits, we cannot say that the district court abused its discretion in remanding. The ALJ failed to gather the evidence' to make the findings necessary to resolve the ultimate question of whether Israel’s pain disables him from working. Israel has presented substantial evidence which can be read in favor of an award of benefits, but the record also includes some evidence that could be read to undermine his claim, including the opinions of two non-treating internists, MRI results that have yet to be interpreted by a competent medical source, the incomplete opinion of a State doctor, and physical examination findings over the years that present an unclear picture of the effectiveness of various treatments for his persistent pain. Because of these uncertainties in the record, we must conclude that the district court did not abuse its discretion in remanding for a fourth hearing.

Israel’s patience has understandably grown thin. We agree that it should not take nine years to determine whether a claimant’s impairments prevent him from engaging in full-time employment, especially a claimant who appears to have a well-documented and well-supported claim for disability. Israel believes he is entitled to a directed award of benefits at this stage, citing Wilder v. Apfel, 153 F.3d 799 (7th Cir. 1998). But the record in this case is not as severely lopsided as it was in Wilder, and we do not perceive the same level of obduracy on the part of the Agency. See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir. 2005) (“Another remand for further proceedings was unnecessary in. Wilder because after two evi-dentiary hearings, the ALJ had no reasonable. grounds to reject the claimant’s claim.”). “It remains true that an award of benefits is appropriate only if all factual issues have been resolved and the record supports a finding of disability.” Briscoe, 425 F.3d at 356. If the case returns to this court with the Agency seeking a- fifth hearing, our analysis may change. After this remand, the Agency may not simply persist in pointing to unexplained MRI results or non-treating physician opinions as undermining Israel’s claim. If the Agency again rejects Israel’s claim, it must provide a logical basis, supported in the record, to disregard the well-founded opinions of Israel’s treating physician, physician assistant, and the independent occupational therapist, not to mention the extensive history of procedures and treatments Israel has endured and his own testimony regarding the severity of his pain. We strongly encourage the Agency to expedite the proceedings in order to resolve Israel’s claims once and for all.

AFFIRMED. .

      . A laminectomy is a surgical procedure to remove the lamina, a part of the bone that makes up a vertebra in the spine, in order to take pressure off of spinal nerves or the spinal cord. https://medlineplus.gov/ency/article/ 007389.htm (last visited October 11, 2016). Diskectomy is surgery to remove all or part of a disk, the cushion that helps support part of the spinal column and separate vertebrae. https://medlineplus.gov/ency/article/007250. htm. All websites referenced in this opinion were last visited October 11, 2016. Throughout the record, different sources uses different spellings for the cushion separating vertebrae, . some adopting "disk” and others "disc.” We will use "disk” unless we are quoting a source that uses the alternate spelling,

      . A TENS unit is a small box placed over the painful area that sends mild electrical pulses to nerves, See http://www.niams.nih.gov/ Health_Info/Back_Pain/baclc_pain_ff.asp.

      . A dorsal column stimulator is a surgically implanted device used to relieve pain by supplying a mild electric current to block nerve impulses in the spine. See https://medlineplus. gov/ency/article/007560.htm. .

      . Epidural injections for back pain typically involve the delivery of a steroid, a powerful anti-inflammatory medicine, directly into the space outside of the sac of fluid around the spinal cord, https://medlineplus.gov/ency/ article/00748 5 .htm.

      . "Radiculopathy is a condition caused by compression, inflammation and/or injury to a spinal nerve root. Pressure' on the nerve root results in pain, numbness, or a tingling sensation that travels or radiates to other areas of the body that are served by that nerve. Radi-culopathy may occur when spinal stenosis or a herniated or ruptured disc compresses the nerve root.” http://www.ninds.nih.gov/ disorders/backpain/detaiLbackpain.htm.

      . In its Decision and Order, the district court condensed the opinions of Dr. Harvey and Ms. Nehls. We include a more complete outline of the medical source opinions, which can be found at pages 589-97 of the Administrative Record (hereafter "A.R.”).

      . The third ALJ found that Israel's condition had declined after the agency doctor opined that he could perform light work. The ALJ determined that Israel was “further decondi-tioned to the point he would now be limited to sedentaiy types of activity.” A.R. at 26.

      . Israel's lawyer later clarified at the hearing that Israel had undergone a laminectomy and diskectomy but not a fusion procedure.