Carolyn Myles v. Michael Astrue ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2908
C AROLYN M YLES,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 6122—Charles P. Kocoras, Judge.
A RGUED A PRIL 22, 2009—D ECIDED S EPTEMBER 9, 2009
Before M ANION, K ANNE, and S YKES, Circuit Judges.
P ER C URIAM. Carolyn Myles, who suffers from type-2
diabetes, claims that she is disabled because of symptoms
of that disease, and is seeking disability insurance bene-
fits. Her claim was rejected by an administrative law judge.
Myles argues before this court that the ALJ failed to
consider all of the facts in the record and made improper
2 No. 08-2908
medical and credibility determinations. The ALJ’s opinion
contains multiple errors, the cumulative effect of which is
to leave us without confidence that the ALJ’s decision
builds a “logical bridge” between the evidence and his
conclusion, and so we vacate and remand for further
proceedings.
Myles has had diabetes since at least 2002. Since at
least July 2004, her diabetes has been uncontrolled or
poorly controlled. In August 2004, Myles saw a physician,
Dr. Max Goldschmidt, and at that time, she reported
suffering from diarrhea, blurred vision and seeing dots
in front of her eyes, frequent urination, and headaches.
Myles reported to the doctor that she had not been taking
one of her medications, Metformin, on a daily basis,
because it gave her diarrhea. Dr. Goldschmidt
instructed her not to take it if she could not do so daily,
and adjusted her dosage of another medication.
Myles applied for disability insurance benefits in
January 2005, claiming that she was unable to work
because of her diabetes. That same month she again
saw Dr. Goldschmidt. She had been out of her med-
ication for six days and said that she was fatigued. It
appears that at this time Dr. Goldschmidt re-prescribed
Metformin. Dr. Goldschmidt also signed a letter saying
that Myles was unable to work for an “undetermined”
period, although he did not give reasons. Dr. Goldschmidt
signed several similar letters in January and early Febru-
ary.
At another appointment that January, Myles again
complained of frequent urination, and Dr. Goldschmidt
No. 08-2908 3
discovered she had a urinary tract infection, for which he
prescribed an antibiotic. Myles continued to see Dr.
Goldschmidt and other doctors regularly, and in March
2005, Dr. Goldschmidt noted that he might need to con-
sider prescribing insulin.
In 2005 a state agency physician examined Myles in
relation to her application. The agency physician, Dr. Kale,
noted that she had a history of poorly controlled
diabetes, polyuria (passage of more than 2.5 liters of
urine every 24 hours), nocturia (need to get up at night
to urinate), and occasional hand and foot numbness.
The examination did not reveal any neurological prob-
lems with Myles’s hands or feet, and her ability to grasp
and grip was not impaired.
In April 2006, Myles complained of hair loss, and
Dr. Lovinger at the Lake County Health Department
ordered her to stop taking Metformin and to substitute
Avandia, which seems to have stopped the hair loss. At
that time, Dr. Lovinger noted that Myles was not
checking her blood sugar levels regularly and that her
diabetes remained uncontrolled.
In August 2006, Myles reported to Dr. Lovinger that
she had been suffering from fatigue and muscle weak-
ness. Dr. Lovinger found no neurological problem. Dr.
Lovinger noted that Myles may need to start insulin, but
at that time he did not prescribe insulin. Instead, he left
her on her prior oral medications.
In November 2006, Myles returned to Lake County,
complaining of depression, for which she was prescribed
Zoloft. She complained again of pain in her feet and legs
4 No. 08-2908
that month, and, although an examination revealed no
motor deficits, she was diagnosed with neuropathy. The
doctor also noted that she complained of polyuria at this
time. Myles complained to doctors at Lake County of
tingling in her fingers the next month.
In May 2007, Dr. James Sims, a physician at Lake
County, completed a Medical Assessment of Condition
and Ability to Do Work Related Activities at the request
of Myles’s attorney. Dr. Sims, who had been treating
Myles for five years, opined that Myles could stand or
walk six to eight hours uninterrupted and sit six to eight
hours uninterrupted on “good” days. He also opined
that she could lift 25 pounds occasionally and 10 pounds
frequently, and prescribed no grasping limitations. But
he further opined that Myles would have trouble com-
pleting a work day and work week without interruption
from her symptoms, and that she could be expected
to have “good” and “bad” days.
In June 2007, an administrative law judge held a
hearing on Myles’s application and found that she
was not disabled. Analyzing Myles’s claim under the five-
step analysis of 20 C.F.R. § 404.1520(a), the ALJ found
Myles had not engaged in gainful employment since
her onset date; that her diabetes was severe; but that it
did not meet or equal any of the impairments listed in
Appendix 1, Subpart P, Regulation No. 4 of the Social
Security regulations. The ALJ next determined Myles’s
Residual Functional Capacity, and found that she had
marked limitations in her capacity to work and could not
continue in any of her past jobs. In assessing her RFC, the
No. 08-2908 5
ALJ found Myles not to be credible for several reasons:
Myles’s claims of urinary frequency were unbelievable
because, the ALJ noted, she had not complained about
them to a doctor since January 2005; she had exag-
gerated claims of weight loss due to medication, saying
she had lost 40 pounds when she really only lost 18; and
the ALJ stated that Myles had not complied with her
treatment, rendering her claims of severe symptoms less
credible.
A vocational expert testified that based on the ALJ’s
hypothetical questions, Myles could still work in a
bench assembly, packager, tester, clerk, or cashier
position, and that there were at least 7,500 such positions
available. But, the VE added, a person with occasional
numbness or tingling of the hands, even as little as a
sixth of the day, would not be able to perform these
jobs. Further, the VE testified, a person who needed a
restroom break at least once an hour would not be able to
maintain employment in those jobs. The ALJ determined
that Myles did not suffer from hand limitations or
frequent urination, found that she could still maintain
employment, and denied her claim. Myles sought
review from the Appeals Council, which declined to
hear the case. The district court affirmed the ALJ’s deci-
sion.
On appeal, Myles points to a number of errors made
by the ALJ. Together, these errors serve to undermine
the ALJ’s determination that she was not disabled and
persuade us that a remand is necessary. The strongest of
these arguments is that the ALJ did not analyze key
6 No. 08-2908
facts in regard to her symptoms, particularly in regard
to urinary frequency and hand problems. The VE made
it clear that if Myles’s claims of urinary frequency or
tingling in her hands were true, she could not maintain
employment. The ALJ rejected both claims. But regarding
urinary frequency, the ALJ ignored record evidence,
and regarding Myles’s complaints of hand limitations, the
ALJ simply did not perform any analysis that we can see.
As to urinary frequency, Myles argues that the ALJ was
factually wrong when he rejected her assertions that she
had to use the restroom at least once an hour. The ALJ
found that there had been no complaints of urinary
frequency since Myles was treated for a urinary tract
infection in early 2005. Myles argues that, in fact, she
complained to doctors about urinary frequency later
than that, and that an ALJ may not rely on a mistake of fact
to reject a claimant’s testimony. The ALJ stated that
although, if true, Myles’s claims that she needed to use
the restroom at least once an hour or several times an
hour would have rendered her unemployable, “[t]his is
absolutely not believable in light of the fact that the
claimant has not complained of having to use the bath-
room frequently to medical personnel.” This was a cred-
ibility finding. We will uphold an ALJ’s credibility
finding if the ALJ gives specific reasons for that finding,
supported by substantial evidence. Moss v. Astrue, 555
F.3d 556, 561 (7th Cir. 2009). But the ALJ may not
simply ignore evidence. Lopez ex rel. Lopez v. Barnhart, 336
F.3d 535, 540 (7th Cir. 2003).
The ALJ overlooked two complaints to doctors when he
asserted that Myles had not complained of urinary fre-
No. 08-2908 7
quency after early 2005. First, in June 2005, Myles com-
plained to Dr. Kale, who noted that Myles complained of
“polyuria.” Second, Myles complained to the Lake County
Health Department again in November 2006. The govern-
ment urges that Myles’s complaints did not dictate a
finding that urinary frequency caused limitations. But it
is not that the error requires a different finding; rather,
the ALJ’s basis for his credibility determination on this
issue is wrong, and so the ALJ must reconsider the credi-
bility determination in light of the evidence. See Allord
v. Barnhart, 455 F.3d 818, 822 (7th Cir. 2006).
Myles also argues that the ALJ did not analyze her
claims of fatigue and hand limitations in his opinion, as
he was required to do. See Young v. Sect’y of Health
and Human Servs., 957 F.3d 386, 393 (7th Cir. 1992); see also
SSR 96-8p, *7. The ALJ acknowledged these complaints,
but his analysis does not articulate his reasons for
rejecting them, except to say there is no objective
medical evidence to support them. However, an ALJ
may not discredit testimony of pain solely because there
is no objective medical evidence to support it. See Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Thus, the
ALJ erred in rejecting these claims as well.
Myles further argues that another basis the ALJ used
to determine that she was not credible was flawed
because the ALJ did not explore it as thoroughly as
Social Security Rulings require. She argues that the ALJ
relied upon what he said was a failure to follow her
treatment in finding her not to be credible. Myles argues
that the ALJ should have considered her reasons for
8 No. 08-2908
the instances when she did not take her medication or
test her blood sugar. The ALJ, in his opinion, cited “an
issue of compliance,” regarding three instances between
August 2004 and June 2007 where Myles did not keep
up with her treatment. This conduct, the ALJ noted, “fails
to suggest symptoms that are particularly troublesome
for the claimant.”
But the ALJ was required by Social Security Rulings to
consider explanations for instances where Myles did not
keep up with her treatment, and he did not do so. See
SSR 96-7p, *7; see also Moss, 555 F.3d at 562. Inability to
pay for medication or negative side effects from medica-
tion may excuse failure to pursue treatment. SSR 96-7p
at *8. In one instance, the ALJ noted that Myles did not
take Metformin daily. But Metformin caused Myles
diarrhea and hair loss, and eventually her doctors in-
structed her to stop taking it. The ALJ does not explain
why this was an invalid explanation. The ALJ also notes
that in one instance Myles was out of medication for
six days, and in another she reported not testing her
blood glucose regularly. But Myles was on public aid,
and at least at one point, her blood glucose test strips
were not covered. Again, the ALJ failed to consider
whether this was a valid explanation for these isolated
incidents. We will remand an ALJ’s determination that
lacks adequate discussion of the issues. Villano, 556 F.3d
at 562.
Myles next argues that the ALJ diminished the severity
of her symptoms by drawing his own, unsupported
medical inference as to her treatment. She is correct. The
No. 08-2908 9
ALJ decided, absent any medical evidence, that Myles’s
condition was less serious because it was treated only
with oral medication and not with insulin therapy.
The government argues that Myles failed to present this
argument to the district court, and so waived it. But the
argument is preserved for review. Myles argued to the
district court that the ALJ “diminished the severity of
Ms. Myles’ condition by his statement that ‘the Claimant
does not even take insulin.’”
The ALJ impermissibly “played doctor” and reached
his own independent medical conclusion when he deter-
mined that “[t]he level of treatment received also fails
to infer limitations beyond the limitations described
above in this decision. The claimant does not even take
insulin.” See Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565,
570 (7th Cir. 2003); see also Schmidt v. Sullivan, 914 F.2d 117,
118 (7th Cir. 1990) (“Common sense can mislead; lay
intuitions about medical phenomena are often wrong.”).
He also stated that “[t]he claimant’s own doctors do not
indicate significant problems at this point, as they do not
even prescribe insulin medication.” But no doctor gave
any reason why insulin was not prescribed. The inference
that it was not prescribed because Myles was not experi-
encing significant problems appears to be the ALJ’s own
inference, and is wholly unsupported by the record.
Myles further argues that the ALJ impermissibly ana-
lyzed only the evidence in her treating physician’s report
which supported his ultimate conclusion while ignoring
the evidence that undermined it. The ALJ accepted por-
tions of the report of her treating physician, Dr. Sims, but
10 No. 08-2908
failed to address the report’s conclusion that Myles could
not engage in sustained activity because of her symptoms.
The government argues that Dr. Sims is not a treating
physician, because the only evidence in the record that
supports his claim that he has treated Myles is his own
assertion that he has done so since 2002. But the
record contains evidence, such as lab work from 2006, that
shows Dr. Sims treated Myles. Furthermore, Dr. Sims is
a physician at the Lake County Health Department,
where Myles has been receiving treatment for years.
The ALJ failed to analyze portions of Dr. Sims’s report
that stated that Myles had marked limitations in her
abilities “to perform at a consistent pace without an
unreasonable number and length of rest periods,” and “to
complete a normal workday and workweek without
interruptions.” An ALJ may not selectively consider
medical reports, especially those of treating physicians,
but must consider “all relevant evidence.” See Clifford v.
Apfel, 227 F.3d 863, 871 (7th Cir. 2000); Books v. Chater,
91 F.3d 972, 979 (7th Cir. 1996). It is not enough for the
ALJ to address mere portions of a doctor’s report. Godbey
v. Apfel, 238 F.3d 803, 808 (7th Cir. 2000). The ALJ at-
tempted to dispose of Dr. Sims’s report by saying that
the report “contains limitations that are far less restric-
tive” than the ALJ’s determination. The ALJ noted that
Dr. Sims stated that Myles could be expected to have
“good” and “bad” days, but dismissed this conclusion
by stating that the doctor did not state how many bad
days Myles had. He does not appear to have inquired
further into how often these “bad” days might occur.
No. 08-2908 11
Although the ALJ did find lifting and postural restric-
tions more significant than Dr. Sims recommended, he
failed to address Dr. Sims’s conclusions about interrup-
tions in the workday altogether.
In light of the ALJ’s questionable credibility findings,
cursory analysis of symptoms, improper medical deter-
mination regarding medication, and selective discussion
of the evidence, his determination that Myles is not
disabled is not supported by substantial evidence. The
record does not command a determination that Myles
should be awarded benefits, but the ALJ has not ade-
quately supported his conclusions. We V ACATE and
R EMAND the decision of the district court. On remand, the
ALJ should consider all of the evidence in the record, and,
if necessary, give the parties the opportunity to expand
the record so that he may build a “logical bridge” between
the evidence and his conclusions.
9-9-09