Lotresia Terry v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1045
L OTRESIA T ERRY,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-C-969—Rudolph T. Randa, Chief Judge.
A RGUED JULY 8, 2009—D ECIDED A UGUST 28, 2009
Before R OVNER, W OOD and W ILLIAMS, Circuit Judges.
P ER C URIAM. Lotresia Terry applied for Disability
Insurance Benefits, asserting that she cannot work because
she suffers from depression, fibromyalgia, hypertension,
pelvic floor disorder, hematuria, and severe back pain
following spinal fusion surgery. After her claim was
administratively denied, an administrative law judge
(“ALJ”) reviewed her claim and concluded that Terry’s
2 No. 09-1045
impairments did not render her disabled. The Social
Security Appeals Council denied her request for review
and the district court held that the ALJ’s decision was
supported by substantial evidence. Terry appeals. Because
the ALJ relied on an unsigned medical report that
should have been excluded from the record, failed to
consider all of Terry’s impairments, and erroneously
found her not credible, we remand the case to the agency.
Background
Terry, who was forty-one years old at the time of the
ALJ’s decision, was diagnosed with fibromyalgia in 2001
and depression in 2004. Despite these impairments, she
continued to work as a certified nurse’s assistant until the
fall of 2004, when an MRI of her spine revealed degenera-
tive disc disease. In early 2005, Terry had spinal fusion
surgery to address her chronic back pain. On February 7,
2005, she was discharged from occupational therapy
as “independent in all self-cares” so long as she wore a
back brace and a “sock aide,” used a walker, and received
assistance from her husband. During the spring of 2005,
she received follow-up CT scans of her spine, which
showed that she was recovering from surgery normally
and that her spine fusion was stable. Terry was also
diagnosed with pelvic floor disorder, hematuria (blood
in her urine), and urgency of urination; although
initially her urologist recommended that she pursue
“intense and aggressive treatment of her pelvic floor
musculature,” by May 2005, a physician’s assistant had
noted that these conditions were improving and that this
was her fifth and final visit to the doctor.
No. 09-1045 3
In June 2005, Terry applied for disability insurance
benefits and supplemental security income, claiming an
onset date of November 15, 2004. As part of the application
process, a state agency doctor reviewed her medical
records in August 2005 and concluded that she could
perform light work. Several months later, another state
agency physician, Dr. Daniel Jankins, examined Terry
and observed that, although she reported needing a
walker, she had intact reflexes, no swelling, and excellent
muscle tone in her legs. Jankins noted that he had “some-
what of a difficult time explaining why she needs the
walker” and recommended an orthopedic evaluation.
Jankins also observed that Terry reported significant
pain associated with fibromyalgia and back surgery, and
noted her positive straight leg raising test and limited
range of motion in her spine and hips. Finally, Jankins
reported that, although in 2004 Terry had been prescribed
Zoloft to treat her depression, she had stopped taking
the drug after one month.
On March 10, 2006, Terry’s treating physician,
Dr. Benjamin Tobin, completed a residual functional
capacity (“RFC”) evaluation focusing on her fibromyalgia.
Tobin opined that she could not walk more than one city
block, lift ten pounds or more, or sit or stand for more
than five minutes without changing position. He also
reported that she could sit for two hours and walk for
two hours during an eight-hour workday so long as she
had the option of shifting positions, keeping her legs
elevated while sitting, and taking unscheduled breaks.
Tobin concluded that Terry would likely miss work more
than four times a month because her illnesses produced
“good days and bad days.” He reported that, in addition
4 No. 09-1045
to fibromyalgia, Terry had been diagnosed with degen-
erative disc disease, hypertension, chronic sinusitis,
restless leg syndrome, depression, and psycho-physiologi-
cal pain. Treatment notes submitted by Tobin show that
Terry was prescribed Zoloft off and on beginning in
2004 and was consistently prescribed Paxil, another drug
used to treat depression as well as anxiety, throughout
2004, 2005, and 2006.
In February 2006, Terry had another CT scan that was
positive for a possible nonunion at disc L5-1. Her treating
surgeon, Dr. Shekar Kurpad, met with her in May 2006
to discuss the scan and her continuing back pain.
Dr. Kurpad recommended waiting three months and, if
her pain had not abated, considering a second spinal
fusion surgery at that point. When Terry returned to
Dr. Kurpad in August 2006, x-rays showed that she had
healed “extremely well” from the surgery, but Kurpad
could not tell whether the x-ray showed a second non-
union. He again recommended waiting six months to see
if her pain decreased before scheduling a second surgery.
In December 2006, Terry was examined by an orthope-
dist, Dr. Sean Tracy, at the request of the state agency.
Tracy concluded that she had no orthopedic issues
and could lift and carry less than ten pounds, stand and
walk less than two hours in an eight-hour workday,
and sit less than six hours in an eight-hour workday.
Because Terry told him that her treating physician had
recommended a second back surgery, Tracy instructed her
to avoid heavy bending, lifting, pulling, or twisting until
she could see her doctor again.
No. 09-1045 5
That same month Terry also underwent a psychological
evaluation at the request of the state agency. Dr. Phillip
Ruppert opined that, although Terry reported suffering
from depression and taking Zoloft, he believed that she
might have been exaggerating the degree of impairment
she experienced. Ruppert noted that she was able to
understand, remember, and carry out simple instruc-
tions, and her capacity to maintain concentration and
pace was between fair and good. He concluded that
Terry suffered from “depression, not otherwise specified.”
The record also contains an unsigned, undated RFC
form from the state agency which concluded that Terry
could perform work at the sedentary level. The RFC form
states that Terry could occasionally lift ten pounds, fre-
quently lift less than ten pounds, stand or walk at least
two hours in an eight-hour workday, and sit for six hours
in an eight-hour workday.
At a hearing before an ALJ, Terry testified that
she lived with her aunt, who performed most daily
tasks for her because her pain prevented her from doing
household chores. She explained that, because of her
fibromyalgia and back pain, she experienced “burning
and throbbing” pain all over. On most days, she re-
ported a pain level of ten out of ten. She also described her
symptoms of depression, explaining that she cried fre-
quently, avoided people, and only left the house when
she had a doctor’s appointment.
A vocational expert (“VE”), Allen Searles, also testified.
The ALJ asked Searles to assume that Terry was limited
to sedentary, unskilled work and would have to stand
6 No. 09-1045
for one or two minutes every half hour. Searles opined
that, given those limitations, she would not be able to
perform her past work as a certified nurse’s assistant or
home health care aide but would be able to work as a
surveillance system monitor (10,570 jobs in Wisconsin), an
order clerk (11,260 jobs), or a “callout operator” performing
credit checks for mortgage companies (950 jobs). When
the ALJ asked him whether someone who was off pace
five percent of the time could perform these jobs, Searles
replied yes, but cautioned that someone who was off
pace ten percent of the time or who was absent more
than two days per month would not be able to find
work. The ALJ then, apparently as an intended joke,
asked Searle, “And I suppose if she arrived at work in
a body bag that wouldn’t be good either?” When Searle
replied, “No,” the ALJ continued, “Yeah, we call these
the dead claimant RFCs.” The ALJ also asked Terry’s
counsel, “What’s my job here, you know, write checks?”
After considering all the evidence, the ALJ concluded
that Terry was not disabled. In so finding, the ALJ
applied the five-step analysis described in 20 C.F.R.
§ 404.1520(a)(4)(i)-(v). He found that although Terry
had previously worked as a certified nurse’s assistant,
she had not engaged in substantial gainful employment
since the alleged onset of her disability. The ALJ next
found that her fibromyalgia, depression, and post-surgical
changes to her spine constituted severe impairments, but
that those impairments did not qualify as any listed
impairment. The ALJ chose not to credit Terry’s testi-
mony regarding the disabling effects of her pain and
depression because her reports were inconsistent and
No. 09-1045 7
uncorroborated by the medical record. He also reasoned
that Dr. Tobin’s assessment of her limitations relied
heavily on her subjective reports and was contradicted
by the state agency reports. Relying heavily on the un-
signed state agency form, the ALJ concluded that Terry
retained the residual functional capacity to perform
“simple, unskilled work at the sedentary exertional level
with the option to stand for one to two minutes every one-
half hour.” The ALJ reasoned that these limitations pre-
vented her from returning to her past work, but con-
cluded that because there were other jobs that she could
perform with these restrictions, she was not disabled.
Unhappy with the ALJ’s decision, Terry asked the
Appeals Council to reconsider the Commissioner’s deter-
mination in light of new evidence documenting her
treatment for depression during the spring of 2007. The
Appeals Council denied the request, however, making
the ALJ’s ruling the Commissioner’s final decision. Terry
next turned to federal district court, but the district
judge concluded that the ALJ’s decision was supported
by substantial evidence.
Analysis
We review the ALJ’s decision deferentially, upholding it
if it is supported by substantial evidence. Skinner v.
Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Substantial evi-
dence means “ ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclu-
sion.’ ” Id. at 841 (quoting Richardson v. Perales, 402 U.S. 389,
401 (1971)). The ALJ is not required to address every
8 No. 09-1045
piece of evidence or testimony presented, but must pro-
vide a “logical bridge” between the evidence and his
conclusions. Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir.
2000). We view the record as a whole but do not reweigh
the evidence or substitute our judgment for that of the
ALJ. Schmidt v. Apfel, 201 F.3d 970, 972 (7th Cir. 2000).
Terry first argues that the ALJ’s RFC determination is
unsupported by substantial evidence because he was not
entitled to rely on an unsigned, undated medical opinion.
And, continues Terry, once the unsigned report is set
aside, no other evidence supports the ALJ’s conclusion
that she could perform sedentary work.1 Although Terry
does not cite it, 20 C.F.R. § 404.1519o provides that an
unsigned examination report may not be used to deny
benefits.2 The reason for this is that the signature verifies
1
“Sedentary work” is defined as involving lifting no more
than ten pounds at a time and occasionally carrying articles
such as docket files, ledgers, and small tools. Haynes v. Barnhart,
416 F.3d 621, 627 n.2 (7th Cir. 2005) (citing SSR 83-10). In
addition, walking and standing are required only occasionally
(no more than two hours in an eight-hour workday). Id.2
“We will not use an unsigned or improperly signed consulta-
tive examination report to make [a decision to deny benefits].
When we need a properly signed consultative examination
report to make these determinations or decisions, we must
obtain such a report. If the signature of the medical source
who performed the original examination cannot be obtained
because the medical source is out of the country for an ex-
tended period of time, or on an extended vacation, seriously
(continued...)
No. 09-1045 9
that “the medical source doing the examination or testing
is solely responsible for the report contents and for the
conclusions, explanations or comments provided with
respect to the history, examination and evaluation of
laboratory test results.” 20 C.F.R. § 404.1519n(e). An
agency is bound by its own regulations. See Allen v. Comm’r
of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009); Dugan v.
Sullivan, 957 F.2d 1384, 1388 n.5 (7th Cir. 1992).
Moreover, the ALJ’s reliance on the unsigned opinion
was not harmless error. None of the other doctors stated
that Terry was capable of sedentary work. Dr. Jankins
apparently did not render an opinion on her ability to
work, while Dr. Tobin’s evaluation suggests that she is
incapable of any work at all. Dr. Tracy also did not com-
ment on whether Terry could perform sedentary work, but
did note some restrictions that might limit her capacity
to do so, including the facts that she could lift less than
ten pounds, sit for less than six hours, and stand or walk
for less than two hours. And although another state
agency doctor concluded that Terry could perform light
work, the ALJ did not discuss this opinion at all or
resolve the conflict between it and the opinions of the
other physicians. The ALJ’s decision makes it clear that
the unsigned report carried significant weight:
In reaching this conclusion regarding the claimant’s
residual functional capacity, the undersigned has also
2
(...continued)
ill, deceased, or for any other reason, the consultative exam-
ination will be rescheduled with another medical source.”
20 C.F.R. § 404.1519o.
10 No. 09-1045
considered the opinions of the State Agency medical
consultants who evaluated this issue . . . . In Exhibit 4F
[the unsigned opinion], the State Agency medical
consultants determined that the claimant could per-
form work at the sedentary exertional level with
exertional limitations. . . . [B]ased on the reasons set
forth in the text of this decision, the undersigned
concurs with the State Agency’s overall conclusion
that the claimant can perform sedentary work.
If we exclude the unsigned report from the record, we
cannot identify any evidence the ALJ could have relied
on to conclude that Terry could perform sedentary
work. The agency responds that we may infer that a
physician who signed the state agency’s reconsideration
determination authored the unsigned opinion, but this is
pure conjecture. There is nothing in the record itself
that suggests the report is authored by a physician at all,
let alone the specific doctor proposed by the govern-
ment. More importantly, the agency seems to be unaware
of 20 C.F.R. § 404.1519o’s signature requirement. An
unsigned medical evaluation cannot be the kind of sub-
stantial evidence we would need to uphold the ALJ’s
RFC determination, and so this issue requires remand to
the agency.
Some of Terry’s other arguments warrant remand as
well. Terry argues that the ALJ did not consider the
impact on her functional limitations of her pelvic floor
disorder, urinary urgency, and hematuria. Although an
ALJ need not discuss every piece of evidence in the
record, the ALJ may not ignore an entire line of evidence
No. 09-1045 11
that is contrary to the ruling. See Villano v. Astrue, 556
F.3d 558, 563 (7th Cir. 2009); Indoranto v. Barnhart, 374
F.3d 470, 474 (7th Cir. 2004). Notably, the ALJ’s opinion
does not even mention Terry’s pelvic floor and urinary
disorders, impairments that must be considered to deter-
mine whether an applicant is disabled. See Golembiewski
v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (citing Crowley
v. Apfel, 197 F.3d 194, 198-99 & n.17 (5th Cir. 1999) (collect-
ing cases)). Although these impairments may not on their
own be disabling, that would only justify discounting
their severity, not ignoring them altogether. Moreover,
we have frequently reminded the agency that an ALJ
must consider the combined effects of all of the claimant’s
impairments, even those that would not be considered
severe in isolation. Villano, 556 F.3d at 563; Getch v. Astrue,
539 F.3d 473, 483 (7th Cir. 2008); Golembiewski, 322 F.3d
at 918 (citing 20 C.F.R. § 404.1523).
The government notes that there are no records from
Terry’s urologist after 2005, and asks us to conclude
from this that her urinary and pelvic floor problems
have been cured. However, the record is silent on this
point, and it was the ALJ’s obligation to develop the
record. See Nelms v. Astrue, 553 F.3d 1093, 1098 (7th Cir.
2009); Barnett v. Barnhart, 381 F.3d 664, 669 (7th Cir. 2004).
Moreover, the ALJ did not reach the conclusion the gov-
ernment urges. Rather, he ignored these diagnoses alto-
gether. On remand, the ALJ should evaluate whether
Terry’s additional impairments affect her ability to work.
Terry is also correct that the ALJ failed to support his
conclusion that her testimony was not credible. Although
12 No. 09-1045
we afford an ALJ’s credibility finding “considerable
deference” and will overturn it only if “patently wrong,”
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006), the
ALJ must consider the claimant’s level of pain, medication,
treatment, daily activities, and limitations, 20 C.F.R.
§ 404.1529(c), and must justify the credibility finding
with specific reasons supported by the record, Villano,
556 F.3d at 562. And here, the ALJ repeatedly mischarac-
terized the record in identifying purported “inconsis-
tencies” in Terry’s testimony. For instance, the ALJ stated
that the record contained no evidence of treatment for
depression before May 2006, and concluded that Terry’s
claims of a depression diagnosis before 2006 were an
attempt to mislead the agency. But recurring prescrip-
tions for antidepressants appear in Terry’s treatment
notes beginning in 2004. The ALJ also concluded that
Terry’s claims of disabling pain were not credible
because she had not reported any side effects from her
medications. To begin with, we are skeptical that a claim-
ant’s failure to identify side effects undermines her credi-
bility—after all, not everyone experiences side effects from
a given medication, and some patients may not complain
because the benefits of a particular drug outweigh its side
effects. But even if we accepted this conclusion, the ALJ
was wrong. Terry did tell her physicians that her medica-
tions made her drowsy. The ALJ additionally thought that
no objective medical evidence supported Terry’s report
that she might require a second spinal surgery, but her
account is corroborated by Dr. Kurpad’s notes showing
that her CT scans possibly showed another nonunion.
Finally, the ALJ placed considerable weight on the fact that
No. 09-1045 13
no doctor had prescribed a walker for Terry, concluding
that this showed she had exaggerated her symptoms.
But given her fibromyalgia and history of back surgery,
Terry’s use of a walker, even if a doctor did not recom-
mend it, is not on its own enough to make her testimony
regarding her pain unbelievable. The ALJ’s adverse
credibility determination is simply not supported by the
record, and so on remand the agency must reassess
Terry’s credibility in light of all the evidence of record.
See Ribaudo v. Barnhart, 458 F.3d 580, 584-85 (7th Cir.
2006) (remanding where ALJ’s adverse credibility deter-
mination was not supported by record); Steele v. Barnhart,
290 F.3d 936, 940 (7th Cir. 2002) (remanding where ALJ
mischaracterized record).
Terry’s remaining argument is less persuasive. She
contends that the ALJ did not ask the VE if his testimony
conflicted with the Dictionary of Occupational Titles
(“DOT”) as required by Social Security Ruling 00-4p. Terry
notes that the jobs listed by the VE require a General
Educational Development (“GED”) reasoning level of
three, which, she says, conflicts with the ALJ’s conclusion
in his written opinion that she retained the capacity to
perform only “simple” work. Under SSR 00-4p, Terry
correctly observes, the ALJ has an “affirmative responsi-
bility” to ask if the VE’s testimony conflicts with the
DOT, and if there is an “apparent conflict,” the ALJ must
obtain “a reasonable explanation.” SSR 00-4p; see also
Overman v. Astrue, 546 F.3d 456, 462-63 (7th Cir. 2008);
Prochaska, 454 F.3d at 735.
Terry is correct that the ALJ did not ask the VE if his
testimony conflicted with the DOT. However, the error
14 No. 09-1045
is harmless unless there actually was a conflict. See
Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007). Here,
there was not. A GED reasoning score of three means
that the claimant must be able to “apply commonsense
understanding to carry out instructions furnished in
written, oral, or diagrammatic form. Deal with problems
involving several concrete variables in or from standard-
ized situations.” D EP’T OF L ABOR, D ICTIONARY OF O C -
CUPATIONAL T ITLES, App’x C(III). Tellingly, Terry does
not argue that she cannot perform these skills, perhaps
because the record suggests she can: she finished high
school, completed training to become a certified nurse’s
assistant, and has the cognitive capacity to follow simple
instructions. See Renfrow, 496 F.3d at 921 (job requiring
level three reasoning was not inconsistent with
claimant’s ability to follow only simple, concrete instruc-
tions).
Moreover, to the extent that there was a conflict, SSR 00-
4p requires the ALJ to obtain an explanation only when the
conflict between the DOT and the VE’s testimony is
“apparent.” Overman, 546 F.3d at 463. Because Terry did
not identify any conflict at the hearing, she would have
to show that the conflict was “obvious enough that the
ALJ should have picked up on [it] without any assistance.”
Id. Terry’s educational background and cognitive
abilities appear to match the requirements of GED rea-
soning level three, and so any conflict is not so obvious
that the ALJ should have pursued the question.
Finally, we are concerned by the ALJ’s inappropriate
“jokes” about dead Social Security claimants, which
No. 09-1045 15
suggest that he may be incapable of evaluating Terry’s
case fairly. We therefore urge the Commissioner to
transfer the case to a different administrative law judge
on remand. See Golembiewski, 322 F.3d at 918; Sarchet v.
Chater, 78 F.3d 305, 309 (7th Cir. 1996).
V ACATED AND R EMANDED.
8-28-09