author: WILLIAMS, Circuit Judge. EASTERBROOK, Circuit Judge,

text:
    Tyrone PETTIES, Plaintiff-Appellant, v. Imhotep CARTER and Saleh Obaisi, Defendants-Appellees.
    No. 14-2674
    United States Court of Appeals, Seventh Circuit.
    Argued April 28, 2015
    Reargued En Banc December 1, 2015
    Decided August 23, 2016
    Amended August 25, 2016

      Rami Naji Fakhouri, Attorney, Goldman Ismail Tomaselli Brennan & Baum LLP, Chicago, IL, for Plaintiff-Appellant.
    Robert L. Larsen, Attorney, Cunningham, Meyer & Vedrine, Warrenville, IL, Michael R. Slovis, Attorney, Cunningham, Meyer & Vedrine, Chicago, IL, for Defendants-Appellees.
    Before WOOD, Chief Judge, and • POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
   WILLIAMS, Circuit Judge.

Tyrone Petties suffered a debilitating rupture in his Achilles tendon, which caused him extreme pain and impeded his mobility over the course of three years. He brought a lawsuit under 42 U.S.C. § 1983 against his doctors at Stateville Correctional Facility, alleging they failed to alleviate his suffering and to enable his recovery from the injury. We heard this case en banc to clarify when a doctor’s rationale for his treatment decisions supports a triable issue as to whether that doctor acted with deliberate indifference under the Eighth Amendment. We conclude that even if a doctor denies knowing that he was exposing a plaintiff to a substantial risk of serious harm, evidence from which a reasonable jury could infer a doctor knew he was providing deficient treatment is sufficient to survive summary judgment. Because we find that Petties has produced sufficient evidence for a jury to conclude that the doctors knew the care they were providing was insufficient, we reverse the district court’s grant of summary judgment to the defendants.

I. BACKGROUND

Petties was walking up the stairs of his cell house at Stateville in January 2012 when he heard a loud pop and felt excruciating pain and weakness in his left Achilles tendon. It was not the first time he had suffered such an injury. In 2010 he suffered a partial rupture in his right Achilles tendon at the prison which had not fully healed.

An Achilles tendon rupture is a. tear in the tendon which impedes the ability of the foot to point downward, causing pain and limiting mobility. Walking around on a ruptured tendon exacerbates the injury, increasing the gap between the torn edges of a tendon because of the way that muscles contract in the foot and calf. Immobilizing the injured foot prevents stretching of the tear and allows the torn edges of the tendon to sit together, and scar tissue to form, rejoining the edges. When an Achilles rupture is not immobilized, the stretching apart of the torn tendon edges when the injured foot hits the ground causes severe pain and weakness.

Petties went to Stateville’s health clinic and eventually saw Dr. Imhotep Carter, the medical director of Stateville (though his actual employer was Wexford Health Sources, a private contractor of medical services to correctional facilities). Before Petties, Dr. Carter had seen approximately ten Achilles tendon ruptures in his twenty-year career. As the prison’s medical director, Dr. Carter was in charge of implementing Wexford’s medical policies and procedures, among which was a specific treatment protocol for patients with ruptured Achilles tendons. The protocol advised that patients receive a splint, crutches, and antibiotics if there were lacerations to the site of injury, and then be sent to a specialist for further treatment.

Dr. Carter’s notes reflect that he thought Petties had an Achilles tendon rupture, and that he followed some of Wexford’s protocol, but not all of it. He gave Petties crutches, ice, and Vicodin. He also authorized one week of “lay-in” meals, which meant that Petties did not have to walk to the-cafeteria, but could eat in his cell. Finally, he referred Petties to a specialist, but that appointment did not happen for almost six weeks. In the meantime, Dr. Carter did not provide Petties with a splint, boot, cast, or other device that would immobilize his foot. About a month later, after Petties reported to the infirmary that his tendon was “killing him” and keeping him from climbing stairs, Petties saw Dr. Carter again and received a renewed prescription for crutches, pain medication, lay-in meals, and assignment to a lower bunk to keep pressure off his foot. But he still did not receive a splint.

In March 2012, Petties had an MRI taken which showed an Achilles tendon rupture. There was a gap between the torn ends of the tendon that measured approximately 4.7 centimeters. About a week later, Petties met with Dr. Amy Puppala, an orthopedic specialist, who-noted that the lack of “any sort of cast” was potentially creating the gapping at the tendon rupture site. He recommended an orthopedic boot to prevent further gapping and to alleviate pain, and gave one to Petties. Finally, he thought that surgery might be necessary due to the gapping, and referred Petties to an ankle specialist. When Petties returned to Stateville, Dr. Carter authorized use of the boot, along with crutches, ice, and assignment to a lower bunk. Petties asserts that Dr. Carter said he would not order surgery because it was too costly.

In July 2012, Petties finally saw an ankle specialist, Dr. Samuel Chmell, who ordered a second MRI after noting weakness in Petties’s ankle. Dr. Chmell also ordered physical therapy, gentle stretching exercises, and follow-up treatment. In August 2012, Dr. Carter was replaced as the medical director of Stateville by Dr. Saleh Obai-si, another Wexford employee. Dr. Obaisi approved the order for a second MRI, but did not authorize physical therapy. According to Petties, he also said that surgery was too expensive.

That September, Petties had his second MRI, which showed a partial tear in his tendon, indicating some healing. But he continued to complain of pain, and Dr. Obaisi gave him Tylenol, approved a low bunk permit, and continued his use of the boot. Dr. Obaisi renewed the low bunk permit and use of the boot in November, and again the following June. Petties experienced pain, soreness and stiffness as late' as March 2014, over two years after the injury.

In November 2012, Petties filed a lawsuit under 42 U.S.C. § 1983 against Dr. Carter and Dr. Obaisi for deliberate indifference in violation of the Eighth Amendment. The district court granted summary judgment to Dr. Carter and Dr. Obaisi. Petties appeals.

II. ANALYSIS

We review the district court’s grant of summary judgment de novo, viewing the record in the light most favorable to Petties, and drawing all inferences in his favor. Pagal v. TIN Inc., 695 F.3d 622, 624 (7th Cir. 2012).

“The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones.” Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal citations and quotation marks omitted). Every claim by a prisoner that he has not received adequate medical treatment is not a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 Ed.2d 251 (1976). But the Eighth Amendment safeguards the prisoner against a lack of medical care that “may result in pain and suffering which no one suggests would serve any penological purpose.” Id. at 103, 97 S.Ct. 285. To determine if the Eighth Amendment has been violated in the prison medical context, we perform a two-step analysis, first examining whether a plaintiff suffered from an objectively serious medical condition, and then determining whether the individual defendant was deliberately indifferent to that condition. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; see also Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).

In evaluating an Eighth Amendment claim, we start by determining if the medical condition the plaintiff suffered was objectively serious. Farmer, 511 U.S. at 834, 114 S.Ct. 1970; see also Walker v. Peters, 233 F.3d 494, 498 (7th Cir. 2000). Here, the parties agree that an Achilles tendon rupture is an objectively serious condition, but they dispute whether in responding to the rupture, the defendants acted with deliberate indifference.

To determine if a prison official acted with deliberate indifference, we look into his or her subjective state of mind. Vance v. Peters, 97 F.3d 987, 992 (7th Cir. 1996) (citing Farmer, 511 U.S. at 842, 114 S.Ct. 1970). For a prison official’s acts or omissions to constitute deliberate indifference, a plaintiff does not need to show that the official intended harm or believed that harm would occur. Id. at 992. But showing mere negligence is not enough. Estelle, 429 U.S. at 106, 97 S.Ct. 285 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); McGee v. Adams, 721 F.3d 474, 481 (7th Cir. 2013) (“Deliberate indifference is not medical malpractice.”). Even objective recklessness — failing to act in the face of an unjustifiably high risk that is so obvious that it should be known — is insufficient to make out a claim. Farmer, 511 U.S. at 836-38, 114 S.Ct. 1970. Instead, the Supreme Court has instructed us that a plaintiff must provide evidence that an official actually knew of and disregarded a substantial risk of harm. Id. at 837, 114 S.Ct. 1970. Officials can avoid liability by proving they were unaware even of an obvious risk to inmate health or safety. Id. at 844, 114 S.Ct. 1970.

The difficulty is that except in the most egregious cases, plaintiffs generally lack direct evidence of actual knowledge. Rarely if ever will an official declare, “I knew this would probably harm you, and I did it anyway!” Most cases turn on circumstantial evidence, often originating in a doctor’s failure to conform to basic standards of care. While evidence of medical malpractice often forms the basis of a deliberate indifference claim, the Supreme Court has determined that plaintiffs must show more than mere evidence of malpractice to prove deliberate indifference. Estelle, 429 U.S. at 106, 97 S.Ct. 285. But blatant disregard for medical standards could support a finding of mere medical malpractice, or it could rise to the level of deliberate indifference, depending on the circumstances. And that is the question we are faced with today— how bad does an inmate’s care have to be to create a reasonable inference that a doctor did not just slip up, but was aware of, and disregarded, a substantial risk of harm? We must determine what kind of evidence is adequate for a jury to draw a reasonable inference that a prison official acted with deliberate indifference.

We start this inquiry by examining our existing precedent. As an initial matter, we look at the totality of an inmate’s medical care when considering whether that care evidences deliberate indifference to serious medical needs. Cava- lieri v. Shephard, 321 F.3d 616, 625-26 (7th Cir. 2003). We have identified several circumstances that can be enough to show deliberate indifference. First, and most obvious, is a prison official’s decision to ignore a request for medical assistance. Estelle, 429 U.S. at 104-05, 97 S.Ct. 285. But an inmate is not required to show that he was literally ignored by prison staff to demonstrate deliberate indifference. Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000). If a risk from a particular course of medical treatment (or lack thereof) is obvious enough, a factfinder can infer that a prison official knew about it and disregarded it. Norfleet v. Webster, 439 F.3d 392, 396 (7th Cir. 2006); Cole v. Fromm, 94 F.3d 254, 260 (7th Cir. 1996).

In the medical context, of course, obviousness of a risk can be obscured by the need for specialized expertise to understand the various implications of a particular course of treatment. So we have found in those cases where unnecessary risk may be imperceptible to a lay person that a medical professional’s treatment decision must be “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible did not base the decision on such a judgment.” Cole, 94 F.3d at 261-62; see also Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998) (“A plaintiff can show that the professional disregarded the need only if the professional’s subjective response was so inadequate that it demonstrated an absence of professional judgment, that is, no minimally competent professional would have so responded under those circumstances.”). By contrast, evidence that some medical professionals would have chosen a different course of treatment is insufficient to make out a constitutional claim. Steele v. Choi, 82 F.3d 175, 179 (7th Cir. 1996).

Even among the medical community, the permissible bounds of competent medical judgment are' not always clear, particularly because “it is implicit in the professional judgment standard itself ... that inmate medical care decisions must be fact-based .with respect to the particular inmate, the severity and stage of his condition, the likelihood and imminence of further harm and the efficacy of available treatments.” Roe v. Elyea, 631 F.3d 843, 859 (7th Cir. 2011). So it can be challenging to draw a line between an acceptable difference of opinion (especially because even admitted medical malpractice does not automatically give rise to a constitutional violation), and an action that reflects sub-minimal competence and crosses the threshold into deliberate indifference. One hint of such a departure is when a doctor refuses to take instructions from a specialist. Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011); Jones v. Simek, 193 F.3d 485, 490 (7th Cir. 1999). Another is when he or she fails to follow an existing protocol. “While published requirements for health care do not create constitutional rights, such protocols certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm.” Mata v. Saiz, 427 F.3d 745, 757 (10th Cir. 2005).

Another situation that might establish a departure from minimally competent medical judgment is where a prison official persists in a course of treatment known to be ineffective. Walker; 233 F.3d at 499 (citations omitted). For example, if knowing a patient faces a serious risk of appendicitis, the prison official gives the patient an aspirin and sends him back to his cell, a jury could find deliberate indifference even though the prisoner received some treatment. Sherrod, 223 F.3d at 612; see also Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (continuing to treat severe vomiting with antacids over three years created material fact issue of deliberate indifference); Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (holding Eighth Amendment claim may exist if medical treatment is so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate the prisoner’s condition); Kelley v. McGinnis, 899 F.2d 612, 616-17 (7th Cir. 1990) (per curiam).

If a prison doctor chooses an “easier and less efficacious treatment” without exercising professional judgment, such a decision can also constitute deliberate indifference. Estelle, 429 U.S. at 104 n.10, 97 S.Ct. 285; Conley v. Birch, 796 F.3d 742, 747 (7th Cir. 2015) (material fact issue whether provision of only painkillers and ice to an inmate suffering from suspected fracture constituted deliberate indifference). While the cost of treatment is a factor in determining what constitutes adequate, minimum-level care, medical personnel cannot simply resort to an easier course of treatment that they know is ineffective. Johnson, 433 F.3d at 1013; Roe, 631 F.3d at 863 (although administrative convenience and cost may be permissible factors for correctional systems to consider, the Constitution is violated when they are considered to the exclusion of reasonable medical judgment about inmate health).

Yet another type of evidence that can support an inference of deliberate indifference is an inexplicable delay in treatment which serves no penological interest. Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008) (guards could be liable for delaying treatment of broken nose for a day and half); Edwards v. Snyder, 478 F.3d 827, 830-31 (7th Cir. 2007) (a plaintiff who painfully dislocated his finger and was needlessly denied treatment for two days stated a claim for deliberate indifference). Of course, delays are common in the prison setting with limited resources, and whether the length of a delay is tolerable depends on the seriousness of the condition and the ease of providing treatment. Compare Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (given extreme ease of supplying sufferer of gas-tro-esophageal reflux disease with over-the-counter pills, failing to do so for two months created fact question over deliberate indifference), Berry, 604 F.3d at 441 (finding refusal to refer patient to a dentist actionable because “a basic dental examination is not an expensive or unconventional treatment, nor is it esoteric or experimental”) (internal quotation marks omitted), Arnett, 658 F.3d at 752 (medical personnel could not stand idly by for more than ten months while patient’s rheumatoid arthritis progressively worsened), Simek, 193 F.3d at 490 (viable claim where doctor delayed scheduling appointment with specialist and then failed to follow specialist’s advice, while inmate’s condition worsened), Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 832 (7th Cir. 2009) (state employees could be liable for four-day delay where prisoner complained his intravenous therapy was causing him pain), with Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) (no valid claim for six-day delay in treating a mild cyst infection). To show that a delay in providing treatment is actionable under the Eighth Amendment, a plaintiff must also provide independent evidence that the delay exacerbated the injury or unnecessarily prolonged pain. Williams v. Liefer, 491 F.3d 710, 716 (7th Cir. 2007) (delay actionable where medical records showed it unnecessarily prolonged plaintiffs pain and high blood pressure); Gil v. Reed, 381 F.3d 649, 662 (7th Cir. 2004) (hours of needless suffering can constitute harm).

These cases bear a few notable commonalities. Most of them involve treatment, sometimes over an extended period of time. But repeatedly, we have rejected the notion that the provision of some care means the doctor provided medical treatment which meets the basic requirements of the Eighth Amendment. Rather, the context surrounding a doctor’s treatment decision can sometimes override his claimed ignorance of the risks stemming from that decision. When a doctor says he did not realize his treatment decisions (or lack thereof) could cause serious harm to a plaintiff, a jury is entitled to weigh that explanation against certain clues that the doctor did know. Those context clues might include the existence of documents the doctor regularly consulted which advised against his course of treatment, evidence that the patient repeatedly complained of enduring pain with no modifications in care, inexplicable delays or departures from common medical standards, or of course, the doctor’s own testimony that indicates knowledge of necessary treatment he failed to provide. While evidence of malpractice is not enough for a plaintiff to survive summary judgment on an Eighth Amendment claim, nor is a doctor’s claim he did not know any better sufficient to immunize him from liability*in every circumstance. Otherwise, prison doctors would' get a free pass to ignore prisoners’ medical needs by hiding behind the precedent that medical malpractice is not actionable under the Eighth Amendment. Prisoners are not entitled to'state-of-the art medical treatment. But where evidence exists that the defendants knew better than to make the medical decisions that they did, a jury should decide whether Or not the defendants were actually ignorant to risk of the harm that they caused.

We now turn our attention to Petties’s claims against his doctors.

A. Material Factual Dispute Exists as to Whether Dr. Carter Was Deliberately Indifferent

Petties’s principal claims against Dr. Carter are that he acted with deliberate indifference to his injury when he failed to immobilize Petties’s ruptured tendon for six weeks, delayed Petties’s appointment with a specialist, and refused to order surgery to repair the tendon.

Dr. Carter’s deposition, as well as State-ville’s medical records, confirm that Dr. Carter’s initial diagnosis of Petties’s injury was an Achilles tear. Dr. Carter also testified that the appropriate treatment for a complete Achilles rupture is to immobilize the ankle, put it in a non-weight bearing status, and prescribe anti-inflammatory drugs and passive stretching exercises. He explained the purpose of immobilization, stating, “in the acute phase of healing, you are generating an immune system response in the body,” and when asked if keeping the tendon in one place enables this healing process to go forward favorably, he replied, “Correct. And if you’re continuously injuring it, it hinders that process.” He also testified that for both partial and complete Achilles ruptures, he would always immobilize the tendon.

Dr. Carter’s opinion was consistent with the deposition testimony of Petties’s orthopedic specialist, Dr. Puppala, who testified that he would always immobilize a ruptured Achilles. tendon, unless the injury had an open sore that needed to be addressed first. It was also consistent with the testimony of Dr. Chmell, the ankle specialist who treated Petties after Dr. Carter had left Stateville. He testified that immobilization is essential to the healing of an Achilles tendon, and that healing without immobilization is “possible but not very likely.” And finally, Wexford’s own' protocol, which Dr. Carter testified he was responsible for implementing, stated that the primary course of treatment for an Achilles rupture included a splint. Dr. Carter also testified he was not aware of any shortage of splints at Stateville during the time that he was treating Petties.

Together, these pieces of circumstantial evidence support a reasonable inference that Dr. Carter knew that failure to immobilize an Achilles rupture would impede Petties’s recovery and prolong his pain. It is certainly true that Dr. Carter’s decision not to immobilize Petties’s ankle could have been an oversight, or a fundamental misunderstanding of the proper course of treatment. Some of his testimony suggests that he believed crutches served the same purpose as a boot. But that testimony conflicts with other parts of his deposition that explained the distinct purpose of immobilization, which is not to prevent bearing weight on the injured foot, but to keep the ruptured tendon in one place. It also conflicts with the testimony of the other doctors who treated Petties. A jury could also find suspicious that Dr. Carter did not provide the boot until an outside doctor documented the importance of immobilization in writing. A reasonable inference to draw from this evidence is that Dr. Carter was aware of the need for immobilizing a ruptured tendon, but simply decided not to until he came under scrutiny. Also, a jury could reasonably conclude that Dr. Carter’s -decision caused substantial harm— Petties’s affidavit stated that without a splint, he had nothing to keep his ankle from moving around, which made him feel “constant, severe pain” whenever he got up to walk, and made sleeping difficult.

Besides Dr. Carter’s failure to immobilize his foot, Petties also claims that Dr. Carter was responsible for the six-week delay in seeing Dr. Puppala to confirm Petties’s diagnosis, which is when he finally received a boot. As an initial matter, Petties has. provided corroborating medical evidence that the delay had a detrimental effect on his condition through Dr. Puppa-la’s treatment notes, which indicate Petties was suffering pain and gapping at the rupture site due to the lack of immobilization. This finding is consistent with Pet-ties’s own testimony that he was in constant and severe pain while he waited to see a specialist.

Dr. Carter argues that the delay was attributable to prison lock-downs, which barred visits to outside specialists unless he issued an emergency override order which allowed patients to receive emergency care. But immobilization could have alleviated Petties’s pain while he waited, so this explanation does not resolve Dr. Carter’s testimony that he was unaware of any shortage of splints at Stateville during the six weeks that Petties suffered severe pain while waiting to see Dr. Puppala. It also does not explain why Dr. Carter did not view Petties’s situation as an “emergency” as compared with other serious injuries. The harm stemming from the delay in receiving the boot would have been avoided by sending Petties to the emergency room so he could get an MRI. And the harm from the delay in seeing a specialist would have been mitigated by splinting Petties’s foot while security issues were resolved. The delay of both, without a clear justification for either, dooms Dr. Carter’s argument that Petties’s suffering was unavoidable. On this record, whether the delay was the result of negligence or deliberate indifference is a question for the jury to decide.

Finally, Petties argues that Dr. Carter should have followed Dr. Puppala’s recommendation to explore surgery as an option. But Petties did not produce medical evidence confirming that he would have benefited from surgery, and when he visited Dr. Chmell in July 2012, his tendon showed signs of improvement. However, Petties’s contention that Dr. Carter said surgery would be “too expensive” is a piece of circumstantial evidence that a jury could view as supporting his other claims. If a jury believes that Dr. Carter cited cost as a reason for refusing one form of treatment, then it would be reasonable to infer that Dr. Carter made other medical decisions in Petties’s case — failing to splint his foot, not issuing an emergency override order so he could see a specialist— that were dictated by cost, administrative convenience, or both, rather than medical judgment.

Petties has provided sufficient evidence to survive summary judgment on his § 1983 claims against Dr. Carter.

B. Material Factual Dispute Exists as to Whether Dr. Obaisi Was Deliberately Indifferent

Petties also argues that Dr. Obaisi was deliberately indifferent when he refused to order physical therapy after Dr. Chmell ordered it. Dr. Obaisi responds that Petties did not need a physical therapist because he already knew which exercises to use from a prior Achilles injury. He also argues that Petties could have walked on his injured ankle to strengthen it.

The problem with Dr. Obaisi’s arguments is that they are totally at odds with the evidence in this case. He testified that he always follows the advice of specialists, that Petties’s specialist recommended physical therapy, and that he did not order physical therapy for Petties. To justify this questionable decision, he states that Petties knew what to do based on prior physical therapy. This is clearly a post-hoc rationalization, because he also testified he did not know whether Petties had previously undergone physical therapy at the time that he decided to refuse him physical therapy. And finally, his contention that walking on an injury is the equivalent of physical therapy is unsupported by any medical evidence, and strains even a lay person’s understanding of how to treat an injury. Professional judgment is needed to determine whether, when and how much exertion will heal rather than aggravate the injury. And a reasonable jury could find leaving a patient to make this determination by himself carried an impermissible and unjustifiable risk of pain and prolonged recovery. At the very least, Petties has the right for a jury to hear Dr. Obai-si’s justifications for his treatment decisions (or lack thereof) and to determine if Dr. Obaisi was deliberately indifferent, rather than simply incompetent, in treating his injury.

C. Qualified Immunity Inappropriate at Summary Judgment Stage

While the district court did not reach the issue, in the proceedings below, the defendants pursued the additional argument that they were entitled to qualified immunity. But even if the defendants preserved this argument, qualified immunity does not apply to private medical personnel in prisons. Shields v. Illinois Dep’t of Corrections, 746 F.3d 782, 794 (7th Cir. 2014). Even if the Wexford employees were entitled in theory to qualified immunity, it could not be granted at this point. If a jury finds that Dr. Carter and Dr. Obaisi knew that the course of treatment they were pursuing was inadequate to meet Petties’s serious medical needs, such conduct violates clearly established law under the Eighth Amendment. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Given that the threshold factual questions of the defendants’ states of mind remain disputed, summary judgment on the basis of qualified immunity is inappropriate. See DuFour-Dowell v. Cogger, 152 F.3d 678, 680 (7th Cir. 1998).

III. CONCLUSION

For the foregoing reasons, we Reverse the district court’s grant of summary judgment and RemaND for further proceedings.

EASTERBROOK, Circuit Judge,

joined by FLAUM and KANNE, Circuit Judges,

dissenting.

My colleagues take it as established that the Constitution entitled Petties to an orthopedic boot, or some other means to immobilize his foot, immediately after his injury. They remand for a trial at which a jury must determine whether the defendants were deliberately indifferent to the pain his ruptured Achilles tendon caused. This approach effectively bypasses one of the two issues that matter to any claim under the Cruel and Unusual Punishments Clause: first there must be a cruel and unusual punishment, and only then does it matter whether the defendant acted with the mental state necessary for liability in damages. See, e.g., Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). A court should begin with the conduct issue and turn to mental states only if the behavior was objectively cruel and unusual. And Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court’s sole decision addressing the question whether palliative medical treatment (pain relief without an effort at cure) violates the Eighth Amendment, holds that palliation suffices even if the care is woefully deficient.

To understand the Supreme Court’s conclusion that medical malpractice is a problem under state law rather than the Constitution, it helps to start with the facts of Estelle, which may be found in the Fifth Circuit’s opinion, Gamble v. Estelle, 516 F.2d 937 (5th Cir. 1975), as well as the Supreme Court’s. Gamble alleged that a 600-pound bale had fallen on him and injured his back, leaving him in pain so severe that he frequently fainted (his complaint called the episodes “blank-outs”). He visited the prison infirmary and received medicine designed to dull the pain. When he said that this did not work, and that the pain and blackouts were continuing, the prison gave him more of the same medicine. When he said that his pain prevented him from working, he was treated as a •shirker and thrown into solitary confinement. Although the prison’s medical staff stuck to ineffective medication, it did nothing to find out what kind of injury Gamble had suffered and how the problem might be fixed.

The Fifth Circuit ruled that Gamble had established a constitutional claim, because “the State has totally failed to provide adequate treatment of [his] condition. Again and again, as the complaint makes clear, the only medication prescribed was to relieve the pain, not to cure the injury; indeed, the exact nature of the back injury remains unknown.” 516 F.2d at 941 (emphasis added). The Fifth Circuit thought that the Constitution requires not only palliation but also a medically competent effort to cure, starting with an x-ray, a diagnostic procedure that the prison had not employed.

The reader of today’s majority opinion would suppose that the Supreme Court affirmed the Fifth Circuit’s demand for competent care. But that’s not what happened. The Supreme Court reversed and held that palliation satisfies the Constitution, even if the prison’s medical staff does not try to determine how pain is being caused and what might be done to cure it. That some care was given was enough. The Justices said that deliberate indifference to a prisoner’s pain violates the Constitution if it leads the staff to do nothing, but that medical care meets the constitutional standard. Gamble received care. He received nrretched care, but the Court held that a claim based on deficient care depends on state medical-malpractice law. 429 U.S. at 107 & n.15, 97 S.Ct. 285. The Justices disapproved the Fifth Circuit’s conclusion that the Constitution entitles prisoners to “adequate” care.

Our initial question therefore ought to be: Did the defendants provide Petties with medical care? That question is easily answered. Petties concedes that he received medical care — quite a lot of it. The majority opinion outlines the basics. In January 2012 Dr. Imhotep Carter correctly diagnosed a ruptured Achilles tendon and gave Petties crutches, ice, and Vicodin (a pain-reducing drug). He referred Pet-ties to a specialist. In March 2012 an MRI exam confirmed Carter’s diagnosis. Dr. Anuj Puppala, an orthopedist, gave Petties an orthopedic boot to reduce motion of the foot (in relation to the tendon) when he walked. Carter authorized the use of the boot in the prison, assigned Petties to a lower bunk, and continued the ice and drug treatments. In July 2012 Carter referred Petties to Dr. Samuel Chmell, an ankle specialist who recommended physical therapy, stretching, and another MRI. After replacing Carter as Stateville’s medical director, Dr. Saleh Obaisi continued the course of treatment that Petties was receiving, including use of the boot. The second MRI, which Obaisi approved, showed partial healing.

Petties maintains that Carter and Obaisi should have done more — that Carter should have provided an orthopedic boot in January 2012 rather than waiting until Petties saw Puppala in March, and should have authorized surgery; that Obaisi should have authorized physical therapy in addition to ordering another MRI and continuing the treatment • already provided (the boot, the lower bunk, and so on). Nonetheless, there can be no question that Petties received more, and better, medical care than Gamble received. Yet Gamble lost on the pleadings.

Estelle holds that a claim of deficient medical care must proceed under state law rather than the Constitution. When the prison provides no care for a serious medical condition, that counts as cruel and unusual punishment if the physicians or other responsible actors are deliberately indifferent to the condition. (Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), supplies the Court’s definition of “deliberate indifference”.) Estelle recognized one more potential category: harmful interventions. 429 U.S. at 104 & n.10, 97 S.Ct. 285. But Petties does not contend that the care he received from Carter and Obaisi made his condition worse, compared with no care at all.

Notes 10 and 12 of Estelle suggest a potential way to distinguish malpractice from a violation of the Constitution: whether the prison’s staff exercised medical judgment. Petties does not pursue this possibility; he does not deny that the defendants exercised medical judgment. Instead he insists that they exercised bad medical judgment, leading to inferior care. And Estelle holds that a claim of poor care must be classified under the law of medical malpractice. (Petties complains that Carter and Obaisi deemed surgery and rehabilitative therapy too expensive, but asking whether a potential treatment is cost-justified is part of professional judgment. Outside of prisons, solvent patients and their insurers, as well as physicians, routinely consider whether a particular drug or medical procedure is worth the price.)

At least three circuits ask whether the prisoner received some treatment, rather than whether the treatment was inferior (even grossly deficient). See, e.g., Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979); Durmer v. O’Carroll, 991 F.2d 64, 68-69 (3d Cir. 1993); Self v. Crum, 439 F.3d 1227, 1230-33 (10th Cir. 2006) (discussing other eases in the circuit); Farmer v. Moritsugu, 163 F.3d 610, 614-16 (D.C. Cir. 1998). Today’s decision is incompatible with the approach of those circuits, though it has support in decisions of the Ninth Circuit. See, e.g., Snow v. McDaniel, 681 F.3d 978 (9th Cir. 2012); Hamilton v. Endell, 981 F.2d 1062, 1066-67 (9th Cir. 1992). The First Circuit may have an intra-circuit conflict. Compare Perry v. Roy, 782 F.3d 73 (1st Cir. 2015), with Feeney v. Correctional Medical Services, Inc., 464 F.3d 158 (1st Cir. 2006). Still other circuits are hard to classify.

My colleagues say that prisoners are entitled to relief under the Eighth Amendment when prison physicians do not employ “competent medical judgment” (opinion at 729) or “minimally competent medical judgment” (id. at 729-30). That tracks state tort law and is incompatible with Estelle. Other phrases in the opinion, such as “professional judgment” (id. at 730 and 733) and “reasonable medical judgment” (id. at 730) also seem to be proxies for the law of medical malpractice and equally at odds with Estelle.

And if we were authorized to find a “competent medical judgment” standard in the Constitution, why should we want to federalize the law of medical malpractice? Prisoners such as Petties have a tort remedy under state law. Carter and Obaisi were employed by Wexford rather than the state. They owe prisoners the same duties as any physician owes to private patients and are subject to the same remedies under Illinois law. See Jinkins v. Lee, 209 Ill.2d 320, 336, 282 Ill.Dec. 787, 807 N.E.2d 411 (2004). Even physicians employed by the state are subject to the normal rules of tort law. See 745 ILCS 10/6 — 106(d); Moss v. Miller, 254 Ill.App.3d 174, 181-82, 192 Ill.Dec. 889, 625 N.E.2d 1044 (1993). When prison physicians are employed by the state, inmates have an extra remedy by suit against the state itself, see 745 ILCS 5/1; 705 ILCS 505/8(d), just as inmates injured by medical malpractice in federal prisons can use the Federal Tort Claims Act. Perhaps prisoners hope that constitutional claims will produce awards of attorneys’ fees under 42 U.S.C. § 1988(b), while Illinois requires plaintiffs to bear their own fees, but § 1988 is not a good reason to constitution-alize tort law. And federal law comes with complications, such as qualified immunity and the deliberate-indifference standard, missing from state law. Estelle told the courts of appeals to relegate bad-treatment situations to state law, and we should carry out its approach.

      . Our dissenting colleagues suggest that Estelle shields doctors from liability if they provide palliative care to prisoners. Unless a doctor refuses to provide care or leaves the inmate worse off than before, the dissent would have us draw the legal conclusion that the prison doctor did not intentionally disregard a prisoner’s serious medical needs. But Estelle explicitly held that a violation of the Eighth Amendment can be established whether “the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner’s serious illness or injury states a cause of action under § 1983.” 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (emphasis added). The dissent collapses these distinct avenues to proving deliberate indifference into one — any response by a physician, so long as it is not harmful, satisfies the Eighth Amendment. But that is not the holding of Estelle, and we decline to make such a leap here.

      . Our colleagues take issue with our repeated references to the competence of medical professionals, suggesting we are injecting state malpractice standards into the constitutional test for deliberate indifference. But we do not suggest that incompetent doctors violate the Constitution. We simply note that a medical decision that has no support in the medical community, along with a suspect rationale provided for making it, can support a juiy finding that a doctor knew his decision created a serious risk to an inmate’s health. To hold otherwise would mean that any treatment decision a doctor made, regardless of whether it had any scientific basis, would be immune from scrutiny.

      . We reject the dissent's characterization of Petties’s claims against both of his doctors as a challenge to the quality of his medical care. Rather, Petties argued that his doctors' treatment decisions — and their harmful consequences — supported his claim that the defendants deliberately refused to pursue care they knew he needed. Petties has never argued that his doctors' poor care by itself violated the Eighth Amendment.

      . We are puzzled by the dissent’s proposition that the care Petties received did not worsen his condition because his health eventually improved. We do not ascribe to the view that the eventual resolution of a long-ignored medical issue establishes compliance with the Eighth Amendment.


source: Caselaw Access Project

author: SYKES, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darryl ROLLINS, Defendant-Appellant.
    No. 13-1731
    United States Court of Appeals, Seventh Circuit.
    Argued December 2, 2015
    Decided August 29, 2016

      Erica N. O’Neil, Benjamin W. Proctor, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Ap-pellee.
    Peter W. Henderson, Attorney, Office of the Federal Public Defender, Urbana, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendanb-Appellant.
    Before WOOD, Chief Judge, and POSNER, FLAUM, EASTERBROOK, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
   SYKES, Circuit Judge.

Darryl Rollins pleaded guilty to selling crack cocaine and was sentenced to 84 months in prison. This is our second time hearing his appeal. He challenges the calculation of his Sentencing Guidelines range — specifically, the district court’s application of the career-offender guideline, which assigns a higher offense level if the defendant has two prior convictions for a “crime of violence.” See U.S.S.G. § 4B1.1(a). The term “crime of violence” includes “any offense ... that ... is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a)(2) (2014) (emphasis added). The highlighted text is known as the residual clause.

The district judge classified Rollins as a career offender based in part on a prior conviction for possession of a sawed-off shotgun, a crime that qualifies (if at all) only under the residual clause of this definition. In United States v. Miller, we held that possession of a short-barreled shotgun is not a predicate “violent felony” under the identically phrased residual clause in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 721 F.3d 435, 437 (7th Cir. 2013). In the first go-round on this appeal, Rollins argued that because the two residual clauses are the same, Miller controls, notwithstanding application note 1 to § 4B1.2, which specifically lists possession of a sawed-off shotgun as a predicate crime of violence. A panel of the court rejected this argument based on United States v. Raupp, which holds that that the application note’s list of qualifying crimes is a valid interpretation of the guideline’s residual clause. 677 F.3d 756, 758-60 (7th Cir. 2012).

In the meantime, the government changed its position on two key questions lurking in the background: (1) Does the Supreme Court’s holding in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), apply to the residual clause in the career-offender guideline; and (2) should United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012), be overruled? Johnson invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2563. Although Johnson logically applies to the mirror-image residual clause in § 4B1.2(a)(2), our decision in Tichenor categorically forecloses vagueness challenges to the Guidelines. 683 F.3d at 364-65. The government previously invoked Tichenor, and Rollins did not ask the court to revisit and overrule it.

After the panel issued its opinion, however, the government reversed course and now argues that Tichenor should be overruled and that Johnson's constitutional holding applies to the residual clause in § 4B1.2(a)(2). In light of the government’s concession, the panel vacated its opinion and granted rehearing.

In a separate decision also issued today, the en banc court overrules Tichenor and holds that under Johnson, the residual clause in the career-offender guideline is unconstitutionally vague. United States v. Hurlburt, Nos. 14-3611 & 15-1686, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016). That decision undermines Raupp’s rationale and is decisive here. Application note 1 has no legal force independent of the guideline itself; the note’s list of qualifying crimes is valid (or not) only as an interpretation of § 4B1.2. See Stinson v. United States, 508 U.S. 36, 41-42, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). More to the point, when the Sentencing Commission says in application note 1 that possession of a sawed-off shotgun is a crime of violence, it is interpreting the residual clause in § 4B1.2(a)(2); no other part of the crime-of-violence definition applies. That was the basic premise of Raupp, which addressed the inchoate crime of conspiracy, another offense on the application note’s list. 677 F.3d at 757-60.

But the residual clause in § 4B1.2(a)(2) is invalid, so Raupp’s premise no longer holds. The panel circulated a new opinion to the full court proposing to overrule Raupp. See 7th CiR. R. 40(e). An en banc vote followed, and the- court approved, making this the opinion of the full court. See Buchmeier v. United States, 581 F.3d 561 (7th Cir. 2009) (using the same procedure). Accordingly, we now vacate Rollins’s sentence and remand for resentencing.

I. Background

Rollins sold crack cocaine to confidential informants on four separate occasions in 2009 and 2010, and these sales led to his eventual indictment on four counts of drug distribution. See 21 U.S.C. § 841(a)(1). The government initially sought a statutory sentencing enhancement, see id. § 851, based on Rollins’s 2005 Wisconsin felony drug conviction. Pursuant to plea negotiations, Rollins pleaded guilty to two counts and agreed for purposes of sentencing that he was responsible for the drug quantities involved in the other two sales. In exchange the government dropped the two remaining counts and withdrew its request for the § 851 enhancement.

Rollins’s presentenee report initially calculated a Guidelines sentencing range of 188-235 months based on an adjusted offense level of 31 and criminal history category VI. To reach this offense level, the probation officer classified Rollins as a career offender, which gave him a base offense level of 34, see U.S.S.G. § 4Bl.l(b)(2), then deducted three points for acceptance of responsibility, see id. § 3E1.1. The career-offender guideline assigns higher base offense levels if the defendant has “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” § 4331.1(a). A ‘.‘crime of violence” is defined as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

§ 4131.2(a) (emphasis added). Subsection (1) is sometimes called the “elements” clause; the highlighted text in subsection (2) is the residual clause.

Rollins’s 2005 drug conviction supplied the first predicate for the career-offender designation. Rollins also has a prior conviction for possession of a sawed-off shotgun, see Wis. Stat. § 941.28, and application note 1 to § 4B1.2 lists this offense as a qualifying crime of violence: “For purposes of this guideline[,] ... [Unlawfully possessing a firearm described in 26 U.S.C. § 5845(a) (e.g., a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun) is a ‘crime of violence.’ ” The judge accordingly accepted the probation officer’s recommendation and classified Rollins as a career offender.

Rollins initially faced a mandatory five years in prison and a maximum term of 40 years, but the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372, reduced the statutory range to no minimum and a 20-year maximum. The Act also reduced the statutory minimum term of supervised release from four years to three; the government alerted the judge to this change.

By reducing the maximum prison term, the Fair Sentencing Act also affected the sentencing range under the Guidelines. Rollins’s adjusted offense level dropped from 31 to 29, which reduced the Guidelines range to 151-188 months. The parties agreed that this was the correct range. Without the career-offender designation, the Guidelines range drops to 130-162 months.

Regarding the recommended term of supervised release, although the government had alerted the court to the Act’s reduction in the statutory minimum, no one told the judge that the recommended term of supervised release under the Guidelines was now three years rather than four to five years.

At sentencing the government recommended a below-Guidelines sentence of 87 months based on Rollins’s substantial assistance, see U.S.S.G. § 5K1.1, and in recognition of the 18 months he had spent in state custody. Rollins argued for a 57-month sentence. The judge imposed a sentence of 84 months in prison and four years of supervised release.

Rollins appealed, arguing that the judge improperly applied the career-offender guideline and misapprehended the effect of the Fair Sentencing Act on the recommended term of supervised release under the Guidelines. His first argument hinged on our decision in Miller, which held that possession of a sawed-off shotgun is not a predicate violent felony under the ACCA’s residual clause. 721 F.3d at 437. Because the residual clause in § 4B1.2(a)(2) mirrors the residual clause in the ACCA, Rollins urged us to apply Miller to the career-offender guideline, notwithstanding application note 1. That is, he asked us to disregard the application note because it contradicted the text of the residual clause in § 4B1.2(a)(2).

After the panel heard argument, the Supreme Court issued its decision in Johnson invalidating the ACCA’s residual clause on vagueness grounds. 135 S.Ct. at 2563. The panel ordered supplemental briefing to address the effect of Johnson on this case. The government argued that Tichenor blocked application of Johnson to the career-offender guideline. See Tiche-nor, 683 F.3d at 364 (holding that the Guidelines are not susceptible to vagueness challenges). Rollins did not ask the court to revisit Tichenor, so we set aside the question of Johnson’s, effect on § 4B1.2(a)(2).

With Johnson out of the picture, the outcome of the appeal turned on Raupp. There we held that the Sentencing Commission is “free to go its own way” when classifying offenses as crimes of violence under the career-offender guideline’s residual clause, and this was so even if the same crime doesn’t qualify as a predicate under the parallel residual clause in the ACCA. Raupp, 677 F.3d at 760-61. Applying Raupp, the panel rejected Rollins’s argument under Miller. However, because the parties agreed that the judge misunderstood the recommended term of supervised release, the panel remanded to permit the judge to reconsider that part of the sentence.

Rollins quickly petitioned for rehearing, noting that in the meantime the government had changed its position on both Tichenor and Johnson’s effect- on the career-offender guideline. The Assistant U.S. Attorney acknowledged the government’s about-face and agreed that he should have notified us of this development sooner. The parties now agree that Tichenor should be overruled and that Johnson’s holding applies to the residual clause in § 4B1.2(a)(2). Accordingly, the panel vacated its decision and granted rehearing to address these questions and whether Raupp remains viable. As we’ve noted, an en banc vote followed, and this opinion has been adopted by the en banc court.

II. Discussion

In a separate opinion issued today, the en banc court overrules Tichenor and applies Johnson’s constitutional holding to the residual clause in § 4B1.2(a)(2). United States v. Hurlburt, Nos. 14-3611 & 15-1686, 835 F.3d 715, 2016 WL 4506717 (7th Cir. Aug. 29, 2016). That decision settles the lion’s share of this appeal. The residual clause is unconstitutionally vague, and Rollins’s conviction for possession of a sawed-off shotgun is not a crime of violence under any other part of the definition in § 4B1.2(a). That is, it doesn’t qualify under the “elements” clause in subsection (1), and it’s not one of the specific crimes listed in subsection (2). The only question is whether this conviction counts as a predicate crime of violence based on the application note alone. On a proper understanding of the role that application notes play, this question virtually answers itself.

We begin with the Supreme Court’s decision in Stinson, which explained the “three varieties” of text in the Guidelines Sentencing Manual. 508 U.S. at 41, 113 S.Ct. 1913. The first variety “is a guideline provision itself.” Id. These “are the equivalent of legislative rules adopted by federal agencies.” Id. at 45, 113 S.Ct. 1913. The Guidelines (and any amendments) must be submitted to Congress “for a 6-month period of review, during which Congress can modify or disapprove them.” Id. at 41, 113 S.Ct. 1913.

The second variety of text in the Sentencing Manual consists of the Sentencing Commission’s policy statements, which have much the same effect as the Guidelines themselves. See id. at 41-42, 113 S.Ct. 1913 (citing 28 U.S.C. § 994(a)(2)). The third variety is the Commission’s commentary; these “application notes” interpret the Guidelines and explain how they are to be applied. Id. at 42, 113 S.Ct. 1913. The application notes thus are the agency’s interpretation of its own legislative rules and under Stinson get Auer deference. Id. at 44, 113 S.Ct. 1913; Raupp, 677 F.3d at 758 (citing Auer v. Robbins, 519 U.S. 452, 461-63, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). Under this form of deference, an application note has “controlling weight unless it is plainly erroneous or inconsistent with” the text of the guideline it interprets. Stinson, 508 U.S. at 45, 113 S.Ct. 1913 (quotation marks omitted).

In short, the application notes are interpretations of, not additions to, the Guidelines themselves; an application note has no independent force. Accordingly, the list of qualifying crimes in application note 1 to § 4B1.2 is enforceable only as an interpretation of the definition of the term “crime of violence” in the guideline itself. More specifically, the Sentencing Commission has interpreted the residual clause in § 4B1.2(a)(2) to include the specific crimes listed in application note 1. That interpretation is entitled to Auer deference, as we recognized in Raupp. But the note has no legal force standing alone. It follows, then, that because the residual clause in § 4B1.2(a)(2) is unconstitutional, the application note’s list of qualifying crimes is inoperable and cannot be the basis for applying the career-offender enhancement.

The government suggests that we can read the list as a freestanding interpretation of the term “crime of violence.” That argument cannot be squared with Stinson. “Crime of violence” is a defined term in the career-offender guideline. Under § 4B 1.2(a), “crime of violence” means sub-part 1 (the elements clause) and subpart 2 (the four specific crimes followed by the residual clause). If the application note’s list is not interpreting one of those two subparts — and it isn’t once the residual clause drops out — then it is in effect adding to the definition. And that’s necessarily inconsistent with the text of the guideline itself.

Indeed, the First Circuit has recently rejected the government’s argument that the note independently supports application of the career-offender enhancement. See United States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016) (“There is simply no mechanism or textual hook in the [guideline that allows us to import offenses not specifically listed therein into § 4B1.2(a)’s definition of ‘crime of violence.’ With no such path available ..., doing so would be inconsistent with the text of the [guideline.”). We think that court has it exactly right.

Because the residual clause in § 4B1.2(a)(2) is unconstitutionally vague, our holding in Raupp has lost its tether to the text of the career-offender guideline. In Raupp we upheld the defendant’s career-offender designation based on a prior conviction for a different crime on the application note’s list: the inchoate crime of conspiracy. 677 F.3d at 757-60. We held that the note’s list of qualifying crimes was a valid interpretation of § 4B1.2(a)(2)’s residual clause, which was otherwise silent on the subject. Id. at 759 (“There cannot be a conflict [between the note and the guideline] because the text of § 4B1.2(a) does not tell us, one way or another, whether inchoate offenses are included or excluded. The note says they are included.”).

But Raupp was decided before Johnson, and the prevailing understanding at the time was that the residual clauses in both the statute and the guideline had some kernel of meaning despite the judiciary’s persistent struggle to settle on a coherent and consistent construction. That permitted us to defer to the Sentencing Commission’s interpretation of the guideline’s residual clause in application note 1. The prevailing understanding has now changed. Because Raupp’s premise has been undone by intervening legal developments, it is overruled.

To sum up, application note 1 is enforceable only as an interpretation of the residual clause in § 4B1.2(a)(2); it has no independent legal force. The. residual clause is invalid, and the p application note’s list of qualifying crimes cannot alone supply the basis for a career-offender designation. Rollins’s conviction for possession of a sawed-off shotgun doesn’t qualify as a crime of violence under any other part of the definition. He was wrongly classified as a career offender.

Our final question is one of remedy. The career-offender error produced a Guidelines range that was too high. The case is before us on plain-error review; we may correct a forfeited error if it is (1) “plain”; (2) affects the defendant’s “substantial rights”; and (3) “seriously affects the fairness, integrity, or public reputation of [the] judicial proceedings.” Henderson v. United States, — U.S. —, 133 S.Ct. 1121, 1126-27, 185 L.Ed.2d 85 (2013) (quotation marks omitted). Rollins was sentenced before Johnson upended the controlling law, but it’s enough that the error is “plain” at the time of appellate review. Id. at 1130.

That leaves the question of prejudice. To establish that the error affected his substantial rights, Rollins must show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Molina-Martinez v. United States, — U.S. —, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (internal quotation marks omitted). As in Hurlburt, the question of prejudice in this case is informed by the Supreme Court’s recent decision in Molina-Martinez. There the Court explained that “[w]hen a defendant is sentenced under an incorrect Guidelines range[,] ... the error itself can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.” Id. at 1345 (emphasis added). Rollins’s -84-month sentence is well below the original Guidelines range because he received credit for his substantial assistance to the government, and it remains below the correctly calculated range once the career-offender error is removed. Still, “[w]hen a district court incorrectly calculates the [G]uide-line[s] range, we normally presume the improperly calculated [G]uideline[s] range influenced the judge’s choice of sentence, unless he says otherwise.” United States v. Adams, 746 F.3d 734, 743 (7th Cir. 2014). Nothing in the record suggests that the normal presumption should not apply here.

Before concluding, we note that the Sentencing Commission has amended the Guidelines to delete § 4B1.2(a)(2)’s residual clause in light of Johnson. 81 Fed. Reg. 4741, 4742 (2016). The amendment, which became effective on August 1, 2016, also moves specific crimes from the application note’s list to the text of the guideline itself. The amended guideline now reads, in relevant part: “The term ‘crime of violence’ means ... murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).” 81 Fed. Reg. 4741, 4742 (2016) (emphasis added). (Recall that §- 5845(a) covers possession of a sawed-off shotgun.) The amendment doesn’t resolve this ease, but it' substantially clarifies future applications of the career-offender guideline.

For the foregoing reasons, we VaCate Rollins’s sentence and Remand for resen-tencing.

      . Under Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), the Fair Sentencing Act applies retroactively to Rollins.

      . District Judge J. Phil Gilbert, of the Southern District of Illinois, served on the original panel, sitting by designation. We appreciate his willingness to assist the court.

      . On remand the district court will have the opportunity to correct the error regarding the recommended term of supervised release.


author: WILLIAMS, Circuit Judge.

text:
    Eric ALVARADO, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
    No. 15-2925
    United States Court of Appeals, Seventh Circuit.
    Argued April 1, 2016
    Decided September 1, 2016

      Ellen C. Hanson, Hanson &' Hanson, Morris, IL, for Eric Alvarado, Plaintiff-Appellant.
    Eric Truett, Office of the General Counsel, Region V, Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.
    Before POSNER, EASTERBROOK, and WILLIAMS, Circuit Judges.
   WILLIAMS, Circuit Judge.

In 1993, Eric Alvarado was granted disability benefits due to his impairments, which included a severe learning disorder. In 2004, the Social Security Administration stopped paying those benefits after determining that, despite his severe learning disorder, Alvarado could do certain relatively simple jobs. Because that determination was supported by substantial evidence, we affirm.

I. BACKGROUND

Alvarado was born in 1967. He was first awarded disability benefits in 1993, when it was determined that he had suffered from severe impairments since birth. He was granted childhood disability benefits and Supplemental Security Income. The Social Security Act requires the Social Security Administration to periodically review whether a recipient remains disabled. Alvarado’s eligibility was reviewed and affirmed in 1999. But in a 2004 review, the Administration determined that his disability had ended, so his benefits were discontinued.

Alvarado challenged that determination, but a hearing officer upheld it. After a hearing that included testimony from Alvarado, his family and friends, and experts, an Administrative Law Judge also upheld the decision. The Appeals Council denied review and Alvarado sought review in federal court. But based on the parties’ agreement, the district court ordered the case remanded for further fact finding. On remand, the same ALJ made the same determination — that Alvarado’s disability had ended.

The ALJ wrote a 39-page opinion explaining her decision. In short, she assumed the correctness of the prior determinations that Alvarado was disabled, but found that the evidence showed his disability had ended. She found that he continued to suffer from a severe learning disorder, which prevented him from performing many jobs, but which did not prevent him from doing simple jobs that did not require interaction with the public. Because a significant number of such jobs exist in Illinois, she concluded that Alvarado was not disabled. The Appeals Council denied review, a federal magistrate judge recommended affirmance, the district judge affirmed, and this appeal followed.

II. ANALYSIS

A. ALJ Did Not Violate Remand Order

Before we address the merits, we note that many of Alvarado’s arguments proceed from a faulty premise: that the ALJ violated the remand order. Alvarado suggests that the order barred the ALJ from evaluating any evidence dating from before 1999 (when Alvarado’s eligibility was last affirmed). But that is not what the order says. To the contrary, by directing the ALJ to compare evidence from before 1999 with evidence from after 1999, the order required the ALJ to evaluate the earlier evidence.

To be sure, the order limited the scope of the remand, but the limit was not exceeded. In the typical case, the Administration cannot terminate a recipient’s benefits without finding that he experienced some “medical improvement” that allows him to work even though he previously could not. See 20 C.F.R. § 404.1594(c). There are exceptions to the medical improvement requirement, under which a recipient can be found newly ineligible even if he did not improve medically. The most relevant exception is where “substantial evidence demonstrates that any prior disability decision was in error.” Id. § 404.1594(d)(4). The remand order limited the ALJ’s ability to terminate Alvarado’s benefits on the basis of an exception to the medical improvement requirement. The ALJ did not violate the order because she did not apply any exception — she explicitly found that Alvarado had improved.

B. Substantial Evidence Supports ALJ’s Decision

Because the Appeals Council denied review, we review the ALJ’s decision directly. Tumminaro v. Astrue, 671 F.3d 629, 632 (7th Cir. 2011). We will affirm as long as the ALJ’s findings were supported by “substantial evidence,” 42 U.S.C. § 405(g), which is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). We will not decide the facts anew, reweigh evidence, or substitute our judgment for the ALJ’s. See, e.g., Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013).

To determine whether a benefits recipient remains eligible, ALJs follow an eight-step process for childhood disability benefits, and a seven-step subset of that process for Supplemental Security Income. 20 C.F.R. §§ 404.1594(f); 416.994(b)(5). The regulations fully describe the steps, as does the magistrate judge’s written report and recommendation, so we do not belabor the details. The focus for our purposes is on the ALJ’s findings concerning the effects of Alvarado’s learning disorder. The ALJ found that Alvarado had a severe learning disorder, which would exclude him from many jobs. But the ALJ found that the disorder was not completely disabling, and that Alvarado could work a job so long as: (i) it could be demonstrated to him (rather than explained orally or in writing); (ii) it did not require interaction with the public; (iii) it did not involve complex or detailed processes; and (iv) it did not involve processes that changed significantly from day to day. The question for us is whether that finding was supported by substantial evidence.

1. Evidence Supporting Finding that Alvarado Remained Disabled

i. Medical Opinions

To be sure, the record contained evidence favorable to Alvarado’s claim. Most notably, Dr. Luke Dalfiume, a licensed clinical psychologist, opined that given Alvarado’s difficulties reading, writing, and doing math, and given his slow processing speed, it was difficult to imagine a job that would be “a good fit.” Alvarado argues that the ALJ gave Dr. Dalfi-ume’s opinion “no weight,” but that is not right. The ALJ said that she considered Dr. Dalfiume’s opinion, and the ALJ’s written opinion shows that to be true. For example, on the basis of Dr. Dalfiume’s opinion about Alvarado’s anxiety, avoidant personality, and attention span, the ALJ found that Alvarado could not perform jobs that required interaction with the public or complex or detailed job processes, or job processes that changed significantly from day to day. And consistent with Dr. Dalfiume’s opinion, the ALJ found that Alvarado could not do a job that required reading, writing, or math.

The ALJ did not, however, give controlling weight to Dr. Dalfiume’s opinions, for several reasons. The ALJ noted that Dr. Dalfiume was hired by Alvarado’s lawyer, specifically to bolster Alvarado’s claim to disability benefits. As Alvarado notes on appeal, the fact that a doctor is hired by a claimant is an insufficient reason, on its own, to reject the doctor’s opinion. Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011). But the ALJ did not rely on the hiring relationship alone. Instead, she gave several reasons for discounting some of Dr. Dalfiume’s opinions.

For example, the ALJ noted that Dr. Dalfiume never treated Alvarado. See 20 C.F.R. § 404.1527(e)(2) (opinions from treating doctors are generally given more weight than those from non-treating doctors). The ALJ also noted that Dr. Dalfi-ume’s opinions in 2012 contradicted his own opinion from 2008, and contradicted opinions that other doctors rendered in 1999 and 2004. See Skarbek v. Barnhart, 390 F.3d 500, 503-04 (7th Cir. 2004) (ALJ can discount medical opinion for being inconsistent with other medical opinions, as long as ALJ “minimally articulates” the reasons for discount). The ALJ also noted that Dr. Dalfiume’s analysis was based on subjective reports from Alvarado and his mother, rather than objective measurements. See, e.g., White v. Barnhart, 415 F.3d 654, 659 (7th Cir. 2005) (permissible to discount medical opinion that is based on subjective complaints); see also 20 C.F.R. § 404.1527(c)(3). Finally, the ALJ noted that Dr. Dalfiume was not an expert in “vocational issues,” so his conclusion that no jobs would be a “good fit” was beyond his expertise. See Loveless v. Colvin, 810 F.3d 502, 507 (7th Cir. 2016) (whether claimant can perform jobs in the economy is a question for the Administration, not medical experts); 20 C.F.R. § 404.1527(d). These were permissible reasons for the ALJ to give less than controlling weight to Dr. Dalfiume’s opinion.

ii. Lay Testimony

Alvarado testified and was supported by testimony from his mother and brother, Melody Justus (an employee of his mother’s flower shop), and the supervisor for Norman Township (where Alvarado lived). The ALJ permissibly .rejected the parts of this testimony — from Alvarado’s brother and the township supervisor — that were in the nature of expert vocational opinions, rather than fact testimony about Alvarado. On the facts, the witnesses testified that Alvarado could be forgetful and easily distracted. For example, Alvarado testified that he sometimes forgets to buy certain grocery items, even when he uses a list. He also said that his previous work mowing lawns was difficult for him because he would forget how different customers wanted their lawns mowed.

Justus, and Alvarado’s mother and brother, all testified that it takes Alvarado longer than most people to complete tasks. They admitted that Alvarado worked at the flower shop, but said that was only so he would have something to do, not because his work was beneficial to the shop. Similarly, though Alvarado admitted to driving regularly, his witnesses said that he typically went places that were familiar to him because he could get lost going new places, as he did not do well with maps or directions. According to his mother, Alvarado could not remember a sequence of instructions given to him orally, but he could do jobs once they were demonstrated to him. And Alvarado testified to some physical limitations — vision problems, bad coordination, and shaky hands. Justus also testified that Alvarado had bad coordination.

The ALJ credited some of this testimony — for example, that Alvarado could not remember a sequence of instructions given to him orally, and that he did better in familiar environments as opposed to new ones. Indeed, the ALJ found that Alvarado “has intellectual deficits that would impose significant restriction on the type of work he could reliably perform.” But the ALJ also discounted some of the fact testimony, particularly that of his mother and Justus. The ALJ noted that these witnesses stood to personally gain from Alvarado’s receipt of benefits (because Alvarado lived with his mother for a while before her death, after which he lived with Justus). See Stepp v. Colvin, 795 F.3d 711, 720 (7th Cir. 2015) (permissible to discount testimony based on a witness’s “incentive to exaggerate”). And more importantly in the ALJ’s view, Alvarado’s mother and Justus admitted to lying, forging Alvarado’s signature, and falsifying receipts, as part of a scheme to evade taxes, which the ALJ found demonstrated their willingness to be untruthful in pursuit of government benefits. Accordingly, the ALJ looked skeptically on any testimony from those two witnesses that was not corroborated by other evidence. That may have been a harsh judgment of their credibility, but it was tied to evidence in the record and was not patently wrong, so we may not disturb it. See Loveless, 810 F.3d at 508; Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015); Pepper, 712 F.3d at 367.

2. Evidence Supporting Finding that Alvarado’s Disability Had Ended

The ALJ’s conclusion that Alvarado’s learning disorder was not completely disabling — and that Alvarado could do certain simple jobs — was supported by substantial evidence. As previously mentioned, Alvarado’s mother testified that he had trouble remembering a sequence of oral or written instructions, but said that if he was shown how to do a job, he could do it well. His witnesses also testified that, though it might take him longer than other people to do tasks, he persevered until the task was complete.

To the ALJ, more important than that testimony was the evidence of Alvarado’s actual activities. Alvarado obtained a driver’s license and drove regularly, including by himself, and including on long trips (to Indianapolis and New Orleans). He was able to travel by public transportation, including by plane and train. He obtained an associate’s degree and was only a few credits short of a bachelor’s degree. Alvarado notes that his schools provided him with many accommodations, and one school was specifically for students with learning disabilities. But it is also true that he was able to live alone, in a different state from his family, while attending his various schools.

For years, Alvarado assisted at his mother’s flower shop, picking up flowers from wholesalers (typically by himself), and making deliveries to customers (sometimes by himself, though not typically). And he performed chores both at home and at the flower shop — he built furniture, prepared simple meals, took out the trash, mowed the lawn, put away the dishes, and (occasionally) did his own laundry. He also helped a friend run for office by passing out campaign literature. For leisure, he watched television, played computer games, visited political websites, and bought and sold things through eBay.

To be sure, the preceding list includes activities of daily living, and we have cautioned ALJs not to equate such activities with the rigorous demands of the workplace. See, e.g., Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir. 2010). But it is entirely permissible to examine all of the evidence, including a claimant’s daily activities, to assess whether “testimony about the effects of his impairments was credible or exaggerated.” Loveless, 810 F.3d at 508; see also 20 C.F.R. § 404.1529(c)(3)(I) (agency' considers daily activities to evaluate severity of claimant’s symptoms). So, for example, it was permissible for the ALJ to note that Alvarado was given “critical” tasks at the flower shop (picking up and delivering flowers), and to find that this undercut testimony from witnesses suggesting he was not capable of doing anything in a workplace. (The ALJ’s reasoning was permissible even though the flower shop was owned by Alvarado’s mother. See 20 C.F.R. § 404.1573(c)(6) (claimant’s work activities can be considered even if he was only given the opportunity to work due to a family relationship).)

So substantial evidence supported the. ALJ’s findings concerning Alvarado’s abilities. The ALJ incorporated those' findings into a question posed to a vocational expert, who opined that someone with Alvarado’s limitations could work as a house cleaner, car washer, or kitchen helper— and over 24,000 such jobs exist in Illinois. In response to further questioning, the expert testified that those jobs could be done by someone with below-average mental abilities, and by someone who lacked vision in one eye and had problems with hand-eye coordination. Indeed, the expert said that, in his thirty years of experience, though he had seen people who were physically unable to do such jobs, he had never encountered anyone who could not handle the mental demands. Alvarado’s appellate briefing marches through a long history of evidence to demonstrate that Alvarado has a severe learning disorder — a contention with which the ALJ agreed — but does not grapple with the expert’s testimony that someone with Alvarado’s limitations can nonetheless do some jobs.

Because substantial evidence supported the ALJ’s findings concerning Alvarado’s limitations, and those limitations were incorporated into the questions posed to the vocational expert, the expert’s testimony is substantial evidence supporting the ALJ’s decision. See, e.g., Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007). Alvarado complains that the ALJ’s hypothetical question did not note that Alvarado processes information slowly and requires supervision. But the ALJ was only required to incorporate limitations that she found supported by the evidence. E.g., Simila v. Astrue, 573 F.3d 503, 521 (7th Cir. 2009). And in any event, Alvarado has not shown how such limitations would disqualify him from a job as a car washer or kitchen helper. See Spiva, 628 F.3d at 353 (harmless error review applies in Social Security cases).

III. CONCLUSION

The decision of the district court is AFFIRMED.

      . The ALJ was permitted to apply an exception only if the conditions for reopening Alvarado's earlier decision were met. See 20 C.F.R. § 404.988. That would be the case, for example, if the ALJ found Alvarado's earlier eligibility decisions had been procured by fraud. Id. § 404.988(c)(1).

      . The ALJ noted that Dr. Dalfiume’s conclu- ' sions in 2012 were much bleaker than they were in 2008, and that Dr. Dalfiume did not give reasons for the differences. In 2004, Dr. William Hilger, a state-hired consultative psychologist, concluded that Alvarado was malingering — a conclusion that the ALJ did not adopt outright but did refer to in her opinion. And in 1999, Dr. Valjean Cashen, a licensed clinical psychologist, opined that Alvarado had a learning disorder but could do "entry-level” jobs. (Given that conclusion from Dr. Cashen, and its similarity to the ALJ's own conclusions, Alvarado’s separate argument that the ALJ gave too little weight to Cashen’s opinion is unavailing.)

      . The ALJ noted that the circumstances may have given Alvarado and his mother greater-than-typical motivation to portray Alvarado as "considerably impaired.” Specifically, at the original administrative hearing (not the hearing on remand), the vocational expert opined that there were hundreds of thousands of jobs that Alvarado could do. In other words, that hearing did not go well from Alvarado’s perspective. The subjective statements that Dr. Dalfiume relied on were given by Alvarado and his mother just two days after that hearing.

      . Alvarado did not tell the Administration about his work at the flower shop. (A claimant's work activities are obviously relevant to the ongoing evaluation of the claimant’s abilities.) Instead, the Administration was tipped off by Justus's disgruntled former boyfriend.

      . Alvarado argues that Justus "would get no gain” from Alvarado’s benefits "because she does not support him.” If that is true, it undermines Justus's credibility because it is contrary to her own testimony.

      . Alvarado offers no support for the implication in his briefs that someone who processes information slowly would necessarily wash cars,. sweep floors, or take out trash slowly.