Jolene Moss v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1533
JOLENE M. M OSS,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 06-CV-01288—Michael M. Mihm, Judge.
A RGUED N OVEMBER 18, 2008—D ECIDED JANUARY 7, 2009
P UBLISHED F EBRUARY 5, 2009 Œ
Before F LAUM, S YKES, and T INDER, Circuit Judges.
P ER C URIAM. Jolene Moss applied for disability insur-
ance benefits after injuring her right ankle in a car acci-
Œ
This decision was originally released as an unpublished
order. Upon request, the panel has determined that this deci-
sion should now issue as a published opinion.
2 No. 08-1533
dent. An administrative law judge (“ALJ”) concluded that
Moss’s impairment is severe but not disabling. The Social
Security Appeals Council declined to review the decision.
Moss sought review in the district court, which upheld
the Commissioner’s denial of benefits. Moss now appeals
to this court. We conclude that the ALJ erred in discount-
ing the opinions of Moss’s treating physician and in
assessing Moss’s credibility. We also conclude that the
ALJ’s finding that Moss’s impairment does not meet or
equal a listed impairment in the Social Security regula-
tions is not supported by substantial evidence. Accord-
ingly, we vacate the judgment and remand for further
proceedings.
I. Background
Moss filed her application for benefits in October 2003.
She had been working as a gas-station attendant for six
years before she fractured and dislocated her right ankle
and suffered a severe laceration on her right knee in a
car accident. At the time of the accident, she was 43 years
old, had a high-school education, and had previously
worked as a housekeeper in hotels and nursing homes.
After the accident, however, Moss was unable to return
to her job at the gas station.
Moss underwent immediate surgery to repair her ankle
and was released from the hospital three days after the
accident. Two months later, the pins that had been used to
repair the fracture were removed. Moss’s surgeon,
Dr. Asamonja Roy, an orthopedic specialist, thought
that Moss was doing well and encouraged her to begin
walking and putting weight on her right foot. Moss started
No. 08-1533 3
physical therapy and by mid-November was walking and
able to bear 60 to 70% of her weight on her right foot. By
December 2003 she was able to walk at least 600 feet
with the use of a cane.
In the months following her accident, Moss also was
treated by her family physician, Dr. Steven Norris. A
month after the injury, Dr. Norris detected damage to
the peripheral nervous system of her ankle as a result of
the fracture. In January 2004 he reviewed x-rays of her
ankle and observed a bone formation that he suspected
was limiting her range of motion, which, he reported,
was generally “pretty good.” Dr. Norris also noted
that Moss was suffering from “[r]ight lower extremity
neuropathy,” for which he prescribed Neurontin and
advised her to continue with physical therapy.
Five months after the accident, in March 2004, Moss
was still experiencing difficulties, so she scheduled ap-
pointments with a neurologist as well as a second ortho-
pedic specialist. Moss met first with the neurologist,
Dr. Rakesh Garg, who was referred to her by Dr. Roy.
Following his examination, Dr. Garg concluded that
Moss had a “slight limitation” of movement in her right
ankle, but he did not detect any nerve damage.
Five days later Moss met with Dr. Steven Kodros, the
orthopedic specialist, who, unlike Dr. Garg, described
her range of motion as “quite limited.” Dr. Kodros noted
that Moss was experiencing pain when she flexed her
ankle, and that she had stiffness, tenderness, and dimin-
ished sensation in her right foot. He further observed that
Moss was walking with a steppage gait pattern and using
4 No. 08-1533
a cane. Dr. Kodros reviewed an outside CT scan and x-rays
of Moss’s ankle and found “some mild residual bony
deformity and some early degenerative changes.” He
noted that Moss had residual symptoms “consistent
with the natural history of her injury itself and
more specifically related to residual posttraumatic
arthrofibrosis, periarticular soft tissue adhesions, and
likely the early development of some early posttraumatic
arthritis.” Dr. Kodros ordered a second CT scan and
several weeks later followed up with Moss about his
findings. The new CT scan confirmed that the fracture
itself had healed but not without leaving small bony
fragments and debris in the ankle. He noted some early
degenerative changes and features that suggested
avascular necrosis—death of the bone tissue. Based on
these findings, Dr. Kodros recommended “conservative
management” that would include use of a customized
“Arizona ankle-brace” and corticosteroid injections.
Should these measures fail, he indicated during this
March 2004 consultation, he would recommend surgery.
Moss next saw Dr. Kodros in February 2005. The exam
revealed that her condition had not improved. Moss had
not obtained the Arizona brace because her insurance
would not cover it, so Dr. Kodros gave her a temporary
brace and repeated his recommendation that she
attempt conservative management before resorting to
more surgery. Several weeks later, Moss also visited
Dr. Norris for a routine check-up. He noted that she
was wearing an ankle brace and had a limited range of
motion in her right ankle and an altered gait due to pain.
No. 08-1533 5
Before her car accident, Moss had received medical
treatment for other unrelated ailments. Medical records
document treatment in early 2003 for diverticulosis,
chronic constipation, hyperthyroidism, sinusitis, and
fatigue. And before that, in 2000, Moss was diagnosed
as suffering from migraine headaches.
The Social Security Administration denied Moss’s
application a month after it was filed. A month after that,
the agency also denied reconsideration. Moss requested
further review, and in January 2006 an ALJ heard testi-
mony from Moss and a vocational expert.
Moss testified that she experiences “chronic pain 24/7,”
as well as stiffness, tightness, and swelling in her right
ankle. She stated that she is unable to sit or stand for
extended periods of time and cannot walk with full
weight on her right foot, resulting in back and hip pain.
The pain, she said, interferes with her sleep, requiring her
to take sleeping pills. She continues to take Neurontin to
alleviate the burning feeling and “pins and needles”
sensation in her ankle. She also takes Tylenol Arthritis
and Motrin, which provide only minimal relief but do
not cause the drowsiness and constipation she experi-
enced with the prescription pain medications she had
been taking.
In describing her daily activities, Moss stated that she
is able to dress herself and bathe using a stool. She tries
to do housework but can no longer squat or bend; she is
able to make light meals and wash dishes, though
standing is painful. She no longer drives or does any
yard work, laundry, or grocery shopping. Moss testified
6 No. 08-1533
that during her husband’s frequent business travels, her
adult daughter, who lives with them, helps with the
laundry and shopping. For exercise, Moss said, she uses
her cane to take occasional walks around the block and
up and down the driveway.
The ALJ asked a vocational expert (“VE”) whether
there are entry-level jobs available to a 46-year-old high-
school graduate who is limited to unskilled, sedentary
work that requires no climbing and only minimal
standing and walking. The VE responded that although
Moss cannot perform her past relevant work and has no
transferrable skills, he found three positions that exist in
significant numbers in the national economy—cafeteria
cashier, ampule sealer, and surveillance system moni-
tor—that Moss could perform given the limitations de-
scribed.
The ALJ concluded that Moss is not disabled because
she can perform some sedentary jobs that exist in signifi-
cant numbers in the national economy. The ALJ applied
the sequential five-step analysis, see 20 C.F.R. § 404.1520,
and at step one found that Moss had not been engaged
in substantial gainful activity and at step two that her
ankle injury constitutes a severe impairment. The ALJ
acknowledged that Moss also suffers from back and
abdominal pain, sinusitis, fatigue, and headaches. At
step three, however, the ALJ found that Moss’s ankle
injury does not meet or equal a listed impairment. Moving
to step four, the ALJ found that Moss cannot perform
her past relevant work as a cashier or housekeeper but
even with all of her ailments still retains the residual
functional capacity to perform some sedentary jobs.
No. 08-1533 7
In making these determinations, the ALJ declined to
fully credit Moss’s complaints of pain because, the ALJ
said, there had been no medical finding that she needs a
cane or that she is unable to effectively ambulate. The
ALJ further stated that the medical evidence and Moss’s
own account of her daily activities do not corroborate
her testimony concerning the intensity, duration, and
limiting effects of her symptoms. The ALJ additionally
discounted the medical opinions of Dr. Kodros, the ortho-
pedic specialist. The ALJ characterized Dr. Kodros’s
opinions as inconclusive and inconsistent with Dr. Garg’s
findings, and surmised that some of Dr. Kodros’s
medical opinions “may have been made to help the
claimant in a pending legal matter since the doctor was
reporting directly to her attorney.” Therefore, at step
five the ALJ concluded that a significant number of
sedentary jobs exist in the national economy that Moss
can perform despite her limitations.
II. Analysis
Because the Appeals Council declined to review the
ALJ’s decision, the ALJ’s ruling is the final decision of the
Commissioner of Social Security. Getch v. Astrue, 539
F.3d 473, 480 (7th Cir. 2008). And while Moss raises
several arguments about the district court’s order uphold-
ing the denial of benefits, we review the district court’s
decision de novo, meaning we review the ALJ’s ruling
directly. See Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008).
Therefore, only Moss’s challenges to the ALJ’s decision
are at issue here. See Skinner v. Astrue, 478 F.3d 836, 841
8 No. 08-1533
(7th Cir. 2007). We will uphold that decision if it is sup-
ported by substantial evidence. See 42 U.S.C. § 405(g);
Skinner, 478 F.3d at 841.
Moss raises a number of arguments, primarily that the
ALJ failed to give appropriate weight to the medical
opinions of Dr. Kodros which in turn contributed to a
flawed assessment of her credibility. She also argues that
at step three the ALJ failed to conduct a legally sufficient
analysis of the listings of impairments. We agree with
Moss about Dr. Kodros and about the ALJ’s adverse
credibility determination, and further conclude that the
ALJ’s determination that Moss’s impairment does not
meet or equal a listed impairment is not supported by
substantial evidence.
Moss is correct that the ALJ failed to appropriately
consider the medical opinions of Dr. Kodros, one of her
treating physicians. A treating physician’s opinion about
the nature and severity of the claimant’s impairment
is normally given controlling weight so long as it is
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and is consistent with
substantial evidence in the record. 20 C.F.R.
§ 404.1527(d)(2); Bauer v. Astrue, 532 F.3d 606, 608 (7th
Cir. 2008). Dr. Kodros’s opinions support Moss’s com-
plaints of pain and physical limitation given his findings
that her ankle exhibited bony defects, bony fragments
and debris, early degenerative changes, and residual
symptoms from her ankle fracture “specifically related
to residual posttraumatic arthrofibrosis, periarticular soft
tissue adhesions, and likely the early development of
some early posttraumatic arthritis.”
No. 08-1533 9
The ALJ, however, discounted the opinions of
Dr. Kodros based on speculation that Moss was referred to
him by her attorney and that his findings “may have been
made to help the claimant in a pending legal matter
since the doctor was reporting directly to her attorney.”
And the ALJ altogether failed to address whether
Dr. Kodros’s medical opinions are supported by
medically acceptable clinical and laboratory diagnostic
techniques. See Bauer, 532 F.3d at 608. An ALJ’s conjecture
is never a permitted basis for ignoring a treating physi-
cian’s views, see Gudgel v. Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003); Rohan v. Chater, 98 F.3d 966, 971 (7th Cir. 1999),
and it is further questionable whether the ALJ’s basis for
discounting Dr. Kodros’s medical opinion would be
legitimate, even if not speculative, see Reddick v. Chater, 157
F.3d 715, 726 (9th Cir. 1998) (“[T]he mere fact that a
medical report is provided at the request of counsel or,
more broadly, the purpose for which an opinion is pro-
vided, is not a legitimate basis for evaluating the reliabil-
ity of the report.”).
Additionally, the ALJ failed to determine the weight to
be accorded Dr. Kodros’s opinion in accordance with
Social Security Administration regulations. See 20 C.F.R.
§ 404.1527(d)(2). If an ALJ does not give a treating physi-
cian’s opinion controlling weight, the regulations require
the ALJ to consider the length, nature, and extent of the
treatment relationship, frequency of examination, the
physician’s specialty, the types of tests performed, and the
consistency and supportability of the physician’s opinion.
Id.; Bauer, 532 F.3d at 608; Books v. Chater, 91 F.3d 972,
979 (7th Cir. 1996). The ALJ apparently thought that
10 No. 08-1533
Dr. Kodros’s assessment of Moss’s medical condition
conflicted with Dr. Garg’s opinion and that Dr. Garg’s
view should carry the day. But the choice to accept one
physician’s opinions but not the other’s was made by
the ALJ without any consideration of the factors outlined
in the regulations, such as the differing specialties of
the two doctors, the additional diagnostic testing con-
ducted by Dr. Kodros, or the consistency of Dr. Kodros’s
findings over the course of a year. Moreover, the per-
ceived conflict between the two medical opinions is
illusory. Dr. Garg, a neurologist, was looking only for
nerve damage, while Dr. Kodros, an orthopedic
specialist, evaluated entirely different aspects of Moss’s
injury after reviewing x-rays and two CT scans, and after
examining Moss twice over the course of a year. The fact
that Dr. Garg did not find a neurological cause for Moss’s
condition does not undercut the opinions of Dr. Kodros,
whose specialty is the function of the musculoskeletal
system, extremities, spine, and associated structures. See
S TEDMAN’S M EDICAL D ICTIONARY, 1277 (27th ed. 2000).
Therefore, in discounting the medical opinions of
Dr. Kodros, the ALJ failed to apply the correct legal
standard and further failed to support that decision
with substantial evidence.
Moss is also correct that the ALJ’s failure to give appro-
priate weight to Dr. Kodros’s testimony resulted in a
flawed determination that her complaints of pain are not
credible. We will uphold an ALJ’s credibility determina-
tion if the ALJ gave specific reasons for the finding that
are supported by substantial evidence. Arnold v. Barnhart,
473 F.3d 816, 823 (7th Cir. 2007). But as the regulations
No. 08-1533 11
state, 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.
See S.S.R. 96-7p; Johnson v. Barnhart, 449 F.3d 804, 806 (7th
Cir. 2006). 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. Clifford
v. Apfel, 227 F.3d 863, 871-72 (7th Cir. 2000). In this case,
however, the ALJ simply marginalized Dr. Kodros’s
opinions without a sound explanation and then went on
to conclude that neither Moss’s own testimony nor the
remaining medical evidence supported her subjective
complaints of pain. The ALJ specifically noted the lack
of medical findings addressing Moss’s ability to ambulate
or her need for a cane. Not only did the ALJ fail to seek
an explanation for this lack of medical evidence, but,
more importantly, the perceived gaps in the medical
evidence vanish when Dr. Kodros’s assessment of
Moss’s condition is properly considered.
There are two other troubling features about the ALJ’s
assessment of Moss’s credibility. First, the ALJ’s recitation
of the administrative record is misleading or inaccurate
on several significant points. With respect to Moss’s
treatment history, the ALJ represents that her doctors
had not recommended further surgery and that she had
gone a relatively long period of time without seeing her
family doctor. In fact, however, Dr. Kodros said that
another surgery was a real possibility if Moss did not
respond to his recommended course of conservative
treatment. And while infrequent treatment or failure to
12 No. 08-1533
follow a treatment plan can support an adverse cred-
ibility finding, we have emphasized that “the ALJ ‘must
not draw any inferences’ about a claimant’s condition
from this failure unless the ALJ has explored the
claimant’s explanations as to the lack of medical care.”
Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008) (quoting
S.S.R. 96-7p). The ALJ failed to question Moss about
this gap in treatment or the evidence showing that she
was unable to obtain the customized ankle brace because
of problems with her insurance coverage. Moreover, the
ALJ states that Moss is able to live independently while
her husband is out of town, but Moss testified that
her adult daughter, who lives with Moss, helps her while
her husband is away. Similarly, the ALJ incorrectly states
that Moss refuses to take prescription pain medications
because of information she read in a book, but in fact
Moss testified that she has been avoiding prescription
pain medications because they cause side effects, in-
cluding drowsiness and constipation.
The second aspect that gives us pause about the ALJ’s
credibility assessment is the undue weight placed on
Moss’s household activities in assessing her ability to
work outside the home. An ALJ cannot disregard a claim-
ant’s limitations in performing household activities. See
Craft, 539 F.3d at 680; Mendez v. Barnhart, 439 F.3d 360, 362
(7th Cir. 2006). The ALJ here ignored Moss’s numerous
qualifications regarding her daily activities: while
washing dishes she shifts her weight to the left but still
experiences pain; when she last went to the store she
had to use the cart for support and was unable to stay long;
and when she last tried to drive the family vehicle more
No. 08-1533 13
than a year before the evidentiary hearing, she had diffi-
culty pushing the pedals because of a lack of control or
feeling in her foot.
Finally, the ALJ’s determination that Moss’s impair-
ment does not meet a listed impairment is not supported
by substantial evidence. In evaluating Listing 1.03, the
ALJ found that Moss had failed to establish an inability
to ambulate effectively, one of the necessary elements of
that listing. The regulations state that “ineffective am-
bulation” is “defined generally” as requiring the use of a
hand-held assistive device that limits the functioning of
both upper extremities. See 20 C.F.R. pt. 404P, app. 1,
§ 1.00(B)(2)(a). But the regulations further provide a
nonexhaustive list of examples of ineffective ambulation,
such as the inability to walk without the use of a walker
or two crutches or two canes; the inability to walk a block
at a reasonable pace on rough or uneven surfaces; the
inability to carry out routine ambulatory activities, like
shopping and banking; and the inability to climb a
few steps at a reasonable pace with the use of a single
handrail. Id.
Here, the ALJ concluded that Moss had failed to
establish her inability to effectively ambulate because
Moss uses just one cane and because according to the
ALJ, the medical evidence does not point to ineffective
ambulation and Moss herself testified that she is “able to
live independently” and occasionally walks around the
block. As previously noted, however, the ALJ’s deter-
minations regarding the medical evidence and Moss’s
credibility are not supported by substantial evidence.
14 No. 08-1533
Consequently, the ALJ failed to adequately consider
whether Moss in fact meets the listing based on the pro-
vided examples such as an inability to walk a block at a
reasonable pace on rough or uneven surfaces, or the
inability to carry out routine activities, like shopping
and banking. See 20 C.F.R. pt. 404P, app. 1, § 1.00(B)(2)(a).
III. Conclusion
Accordingly, we V ACATE the judgment of the district
court and R EMAND with instructions to remand the case
to the agency for further proceedings.
2-5-09