Jennifer Moore v. Carolyn Colvin , 743 F.3d 1118 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2460
JENNIFER LEE MOORE,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 6153 — Susan E. Cox, Magistrate Judge.
ARGUED JANUARY 15, 2014 — DECIDED FEBRUARY 27, 2014
Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Jennifer Lee Moore filed an applica-
tion for disability benefits under the Social Security Act,
alleging that she became disabled on September 6, 2007. After
a hearing, an Administrative Law Judge (ALJ) concluded that
Moore suffered from a number of severe impairments, but that
she was capable of performing her past work and therefore
2 No. 13-2460
was not entitled to disability benefits. The district court
affirmed, and Moore appeals that determination to this court.
When the Appeals Council denies review as it did in this
case, the ALJ’s decision constitutes the final decision of the
Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th Cir.
2009). Because our review of the district court’s affirmance is
de novo, we review the ALJ’s decision directly. Pepper v. Colvin,
712 F.3d 351, 361 (7th Cir. 2013). We will uphold the ALJ’s
decision if it is supported by substantial evidence, that is,
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971); McKinzey v. Astrue, 641 F.3d 884, 889 (7th
Cir. 2011); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011);
Pepper, 712 F.3d at 361–62. Although we will not reweigh the
evidence or substitute our own judgment for that of the ALJ,
we will examine the ALJ’s decision to determine whether it
reflects a logical bridge from the evidence to the conclusions
sufficient to allow us, as a reviewing court, to assess the
validity of the agency’s ultimate findings and afford Moore
meaningful judicial review. Young v. Barnhart, 362 F.3d 995,
1002 (7th Cir. 2004); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013); Pepper, 712 F.3d at 362; Villano, 556 F.3d at 562. A
decision that lacks adequate discussion of the issues will be
remanded. Id.In determining whether a person is disabled, an ALJ applies
a five-step sequential evaluation process. At step one, the ALJ
considers whether the claimant is engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Moore
was not so engaged, and therefore the analysis proceeds to the
second step, which is a consideration of whether the claimant
No. 13-2460 3
has a medically determinable impairment, or combination of
impairments, that is “severe.” 20 C.F.R. §§ 404.1520(c) and
416.920(c).
In order for an impairment to be considered severe at this
step of the process, the impairment must significantly limit an
individual’s ability to perform basic work activities. If the
evidence indicates that an impairment is a slight abnormality
that has no more than a minimal effect on an individual’s
ability to work, then it is not considered severe for Step 2
purposes. Here, the ALJ determined that Moore had the
following severe impairments: migraine headaches; asthma;
morbid obesity; and rheumatoid arthritis. The ALJ concluded
that those impairments imposed more than minimal limita-
tions on Moore’s ability to perform basic work-related activi-
ties. The ALJ concluded that a number of other impairments
impacting Moore were not severe, including irritable bowel
syndrome, gastroesophageal reflux disease, hypertension,
hypothyroid and prolactin irregularities, carpal tunnel syn-
drome, depression, anxiety, and possible Crohn’s disease.
At Step 3, the ALJ determined that those severe impair-
ments did not meet or equal the criteria of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Accord-
ingly, the ALJ proceeded to Step 4, at which point the claimant
has the burden to demonstrate whether she is capable of
performing her past relevant work. Young, 362 F.3d at 1000. At
this stage, the ALJ first considers the claimant’s residual
functional capacity (RFC), which is the claimant’s ability to do
physical and mental work activities on a regular and continu-
ing basis despite limitations from her impairments. Id.; Pepper,
712 F.3d at 362. The ALJ concluded that Moore had the
4 No. 13-2460
residual functional capacity to perform sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that
she must avoid concentrated exposure to extreme cold,
extreme heat, noise, fumes, odors, dusts, gases, poor ventila-
tion, hazardous machinery, and heights. The ALJ’s calculations
of Moore’s RFC, and the ultimate determination at Step 4 that
Moore could perform her past relevant work as a reservation
agent, is the focus of the challenge in this appeal.
Moore argues on appeal that the ALJ erred at Step 4 in
determining the limitations and restrictions imposed upon
Moore’s work by her chronic migraines, and that the ALJ also
erred in her credibility assessment of Moore. The ALJ’s RFC
determination in this case, and the limitations presented to the
vocational expert that followed from that determination, are
conclusory and are based on findings that failed to address the
record as a whole. Accordingly, a remand is necessary.
The ALJ acknowledged her obligation to evaluate the
intensity, persistence, and limiting effects of symptoms of
Moore’s impairments including the chronic migraines, and to
determine the degree of effect on functioning. In calculating
that residual functional capacity, she stated that whenever
statements concerning the intensity, persistence or functionally
limiting effects of pain or other symptoms are not substanti-
ated by objective medical evidence, she must make a finding
concerning the credibility of the statements based upon the
evidence in the record as a whole. The ALJ then noted that
Moore maintained that her migraines are debilitating, and
cause her to stay in bed much of the day, render her unable to
deal with light and sound, and result in a heightened sense of
smell that aggravates her nausea and headaches. Using
No. 13-2460 5
“boilerplate” language often included in disability determina-
tions, the ALJ then concluded: “[a]fter careful consideration of
the evidence, I find that the claimant’s medically determinable
impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms
are not credible to the extent they are inconsistent with the
above residual functional capacity assessment.”
We have repeatedly condemned the use of that boilerplate
language because it fails to link the conclusory statements
made with objective evidence in the record. Pepper, 712 F.3d at
367; Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012);
Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012); Shauger v.
Astrue, 675 F.3d 690, 696 (7th Cir. 2012). In short, it fails to
elucidate at all the basis for the RFC determination. Pepper, 712
F.3d at 367. It “puts the cart before the horse, in the sense that
the determination of capacity must be based on the evidence,
including the claimant’s testimony, rather than forcing the
testimony into a foregone conclusion.” Filus, 694 F.3d at 868.
We have held, however, that the use of such boilerplate
language will not automatically discredit the ALJ’s ultimate
conclusion if the ALJ otherwise identifies information that
justifies the credibility determination. Pepper, 712 F.3d at
367–68. Here, the ALJ proceeded to engage in a more detailed
credibility analysis, thus providing a basis for us to review that
assessment.
In considering Moore’s credibility, the ALJ first recited the
history of Moore’s treatment for migraines, but the ALJ related
only a narrow portion of that medical evidence. The ALJ noted
that Moore was diagnosed with intractable migraines and
6 No. 13-2460
underwent implantation of a subcutaneous occipital nerve
stimulator at the University of Illinois Hospital at Chicago
(“UIC Hospital”) in February 2007. The ALJ then stated that
the surgery worked well until the battery was depleted in May
2008, at which time the depleted battery was replaced with a
rechargeable battery. In addition, the ALJ noted that the record
was replete with emergency room visits, but that Moore’s own
doctors—Dr. Leonard Robinson and Dr. Bridgette Arnett—as
well as the emergency room physicians have questioned
Moore’s emergency room visits as problematic or drug-
seeking. The ALJ proceeded to detail the notations in the
record indicating such a concern with Moore’s drug-seeking
tendencies, including a statement that Moore’s “own parents
have observed this behavior as potential addiction to narcotic
pain medication.” The ALJ concluded “[w]hile the claimant’s
noncompliant and drug-seeking behaviors do not singularly
discount her credibility, I find persuasive the observations of
her own treating and examining providers as well as her
parents that the emergency room [visits] are related to medica-
tion seeking rather than mere migraine control.”
The ALJ did not err in considering the evidence that
Moore’s emergency room visits may have been related to an
addiction problem rather than evidence of debilitating mi-
graines, but the ALJ erred in utterly failing to even acknowl-
edge the contrary evidence or to explain the rationale for
crediting the identified evidence over the contrary evidence.
We have repeatedly held that although an ALJ does not need
to discuss every piece of evidence in the record, the ALJ may
not analyze only the evidence supporting her ultimate conclu-
sion while ignoring the evidence that undermines it. Terry v.
No. 13-2460 7
Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582
F.3d 672, 678 (7th Cir. 2009); Arnett v. Astrue, 676 F.3d 586, 592
(7th Cir. 2012). The ALJ must confront the evidence that does
not support her conclusion and explain why that evidence was
rejected. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
The ALJ in this case presented only a skewed version of the
evidence.
For instance, the ALJ declared that Moore’s “own parents
have observed this behavior as potential addiction to narcotic
pain medication.” The record indeed includes evidence that the
parents were concerned with whether Moore was becoming
addicted to the pain medication that she sought for treating her
migraines. What the ALJ failed to address in relying on that,
however, is the testimony of Moore’s mother that when she
expressed such concerns, Moore’s doctors assured her that
Moore was not addicted and needed the help being given.
Moore’s mother further stated that Dr. Thomas Bartuska,
Moore’s treating psychiatrist, made that assurance three or
four years earlier, and that she subsequently received the same
message from the neurosurgeon and treating neurologist at
UIC Hospital a few months after Moore was enrolled in the
headache study and approved for the stimulator surgery. That
testimony was corroborated by treatment notes from Dr.
Bartuska from that time period, which include a statement that
“I see no evidence for opioid dependence.”
Furthermore, the ALJ’s recitation of the medical evidence
fails to recognize the years of records, from at least 2003
onward, by her treating physicians relating Moore’s chronic
painful migraines accompanied by photophobia and nausea
and vomiting. Similarly, the ALJ detailed the concerns of
8 No. 13-2460
emergency room physicians that she was drug-seeking, but did
not recognize that the vast majority of emergency room visits
in that time period reflected that she was experiencing severe
migraine pain and provided treatment for that malady,
without any corresponding concern of drug abuse. The ALJ
repeatedly references Dr. Arnett’s opinion—referring to a letter
from Dr. Arnett to Dr. Robinson in which Dr. Arnett states that
she had received calls from emergency rooms about Moore
seeking drug treatment there since she was thought to be drug-
seeking by the physicians around her—as an opinion by Dr.
Arnett that Moore’s emergency room visits are related to drug-
seeking, not migraines. In that letter, however, after recounting
those conversations, Dr. Arnett states as her “Impression” that
Moore presents with migraine headaches, exacerbated by
stress, and that Moore is under increased stress due to a need
to care for Moore’s mother who was post-surgery for cervical
stenosis, and her “Recommendation” is that Moore would
benefit from a university setting with multiple studies for
headaches because she was inadequately treating Moore’s
“very severe headaches.” To characterize that letter as an
opinion that her emergency room visits are not related to
migraine pain but drug-seeking behavior fails to acknowledge
and reconcile the actual conclusions stated. Moore subse-
quently followed up with Dr. Daniel Hier at UIC Hospital, and
the notes from that consultation reflect that Moore has weekly
headaches that can include nausea, vomiting, photophobia,
and sensitivity to smells and noises, and that the headaches can
be precipitated by stress. Dr. Hier notes that Moore is on an
aggressive regimen for her headaches and that there would be
no change in the medication at that time. In an opinion
No. 13-2460 9
submitted to the ALJ, Dr. Hier also indicated that the implanta-
tion of the nerve stimulator did not relieve the headaches and
that Moore was troubled by continuous unremitting head-
aches, which the ALJ did not mention in characterizing the
surgery as having worked well. Finally, all of the physicians
referenced by the ALJ continued to acknowledge that Moore
suffered from chronic migraines, and did not discontinue
medication or diagnose her with a dependency. The ALJ
simply cannot recite only the evidence that is supportive of her
ultimate conclusion without acknowledging and addressing
the significant contrary evidence in the record.
We want to emphasize here that we are not suggesting that
the ALJ was required to reach a certain conclusion regarding
the nature of the emergency room visits, or the severity of
Moore’s migraines. The error here is the failure to address all
of the evidence and explain the reasoning behind the decision
to credit some evidence over the contrary evidence, such that
we could understand the ALJ’s logical bridge between the
evidence and the conclusion. By failing to even acknowledge
that evidence, the ALJ deprived us of any means to assess the
validity of the reasoning process.
We reject, however, Moore’s argument that because the
drug being sought was pain medication and most emergency
room physicians provided it to her as treatment for migraines,
that necessarily indicates that her emergency room visits were
related to the migraines and not to unrelated drug dependence.
That argument is flawed on a number of levels. First, it would
not be at all surprising that emergency room doctors would not
always recognize a request for pain medicine as related to an
addiction. Such motivation is not always easily identifiable,
10 No. 13-2460
and factors that might aid in such a determination, such as the
pattern and frequency of emergency room visits, may appear
only after some time and could be manipulated by the patient’s
use of different emergency rooms that might camouflage those
numbers. Moreover, faced with conflicting evidence, it is
within the province of the ALJ to make that credibility determi-
nation. Given the nature of the impairment and the inability to
objectively measure the pain associated with migraines, it is a
challenge indeed to determine whether Moore’s plea for drugs
was related to a desire to alleviate severe migraine pain or a
need to satisfy an addiction—or both. We cannot conclude as
a matter of law that the visits were either related to her
migraines or to some drug-seeking. It is the province of the
ALJ to assess all of that evidence and reach a reasoned determi-
nation based on that evidence.
Even if the ALJ were to again find that the emergency room
visits reflected drug-seeking behavior, there is an added
problem here in the conclusions that the ALJ drew from that
finding. If the purpose of the emergency room visits is ambigu-
ous, the ALJ could properly conclude that those visits are not
useful in establishing the severity, persistence or frequency of
the migraines. But a finding that at least some of those emer-
gency room visits may be related to drug-seeking behavior
does not support a finding that her migraines impose no
limitations whatsoever. First, a drug addiction problem is not
inconsistent with the presence of chronic migraines—the
conditions are not mutually exclusive. The emergency room
visits may be of limited utility in establishing the severity and
frequency of her migraines given the ambiguity of purpose,
but that simply means the ALJ must look to other evidence in
No. 13-2460 11
the medical record for that determination. Significant medical
evidence in the record independent of those emergency room
visits reflects Moore’s chronic severe migraines over a long
period of time, and the ALJ in fact found that Moore suffered
from a severe impairment of chronic recurring migraines. The
ALJ, however, failed to identify any limitations that would
arise from that condition.
In so holding, the ALJ disregarded Moore’s testimony that
her migraines are debilitating, cause her to stay in bed much of
the day, render her unable to deal with light and sound, and
result in a heightened sense of smell that aggravates her
nausea and headaches. The ALJ held that two factors weigh
against crediting that testimony: first, the limitations cannot be
objectively verified with any reasonable degree of certainty;
and second, even if her activities were so limited, it would be
difficult to attribute that to a medical condition as opposed to
other evidence in view of the relatively weak medical evidence
and the other factors (presumably the drug-seeking evidence)
discussed in the decision. Inexplicably, the ALJ then states:
“Moreover, her migraines occur once to twice weekly now;
even if they did occur at the frequency and severity attested
she still has a significant amount of time during which she
would not be incapacitated.” The ALJ concludes that overall
Moore’s reported limited daily activities are “outweighed by
the other factors discussed in this decision.”
Once again, there are myriad problems with the ALJ’s
assessment of the evidence. First, the ALJ erred in rejecting
Moore’s testimony on the basis that it cannot be objectively
verified with any reasonable degree of certainty. An ALJ must
consider subjective complaints of pain if a claimant has
12 No. 13-2460
established a medically determined impairment that could
reasonably be expected to produce the pain. Carradine v.
Barnhart, 360 F.3d 751, 753 (7th Cir. 2004). Moore has estab-
lished that she suffers from chronic migraines, which are the
type of impairment that can reasonably be expected to cause
pain. Indoranto, 374 F.3d at 474. “Further, the ALJ cannot reject
a claimant’s testimony about limitations on her daily activities
solely by stating that such testimony is unsupported by the
medical evidence.” Id.; Bjornson, 671 F.3d at 646, 648; Carradine,
360 F.3d at 753; Villano, 556 F.3d at 562; SSR 96-7p(4),
www/ssa.gov/OP_Home/rulings/di/01/SSR96-07-di-01.html
(last visited February 14, 2014) (“[a]n individual’s statements
about the intensity and persistence of pain or other symptoms
or about the effect the symptoms have on his or her ability to
work may not be disregarded solely because they are not
substantiated by objective medical evidence.”)
That leads to the second basis for rejecting her credibility,
which was that limitations on her activities could not be
attributed to the migraines in light of the relatively weak
medical evidence and the other factors. As we discussed
earlier, this conclusion rests upon a skewed portrayal of the
evidence that ignores extensive evidence of chronic debilitating
migraines, including recognition of that problem by all treating
physicians. Most significant in that evidence is that Moore
enrolled in a migraine-specific program at UIC Hospital and
underwent two surgical procedures for the treatment of
migraine pain with a subcutaneous occipital nerve stimulator.
Because it was designed to eliminate the pain and therefore the
need for pain medication, that medical evidence is strong
evidence that she was experiencing severe migraine pain and
No. 13-2460 13
was not simply seeking pain medication because of an addic-
tion. See Carradine, 360 F.3d at 755 (noting the improbability
that a claimant would undergo pain treatment procedures
including heavy drugs and surgical implantation of a stimu-
lator merely to strengthen the credibility of complaints of pain,
and also the improbability that medical workers would
prescribe drugs and other treatment for her if she was not
experiencing those symptoms). That does not mean that the
ALJ was required to credit Moore’s testimony. The ALJ could
properly have considered whether Moore’s testimony was
credible and whether the evidence supported such limitations,
including assessing whether the migraines were less debilitat-
ing after the stimulator implantation. The error here is the
same failure to address the evidence in a balanced manner. See
Myles, 582 F.3d at 676.
The final statement made by the ALJ in assessing whether
Moore was credible was that “her migraines occur once to
twice weekly now; even if they did occur at the frequency and
severity attested she still has a significant amount of time
during which she would not be incapacitated.” If the ALJ is
thereby agreeing that Moore experiences incapacitating
migraines once or twice a week, then that would require a
holding that she could not perform her past work because the
vocational expert testified that Moore could not perform her
past work or any work if she would be absent once or twice a
week, and in fact stated that she could not perform her past
work if she would miss any of the training days at all. Because
the ALJ’s statement is unclear, however, we will not assume
that meaning.
14 No. 13-2460
An equally troubling aspect of that statement, however, is
the implication that incapacitation once or twice a week would
not be problematic because a significant amount of time
remains in which the claimant could work. This is an even
more extreme example of a problem we have long bemoaned,
in which administrative law judges have equated the ability to
engage in some activities with an ability to work full-time,
without a recognition that full-time work does not allow for
the flexibility to work around periods of incapacitation. See
Roddy, 705 F.3d at 639; Carradine, 360 F.3d at 755–56; Bjornson,
671 F.3d at 647. In Bjornson, we noted that the critical difference
between daily living activities and activities of a full-time job
is that in the former the person has more flexibility in schedul-
ing, can get help from others when needed, and is not held to
a minimum standard of performance. Id. We concluded that
“[t]he failure to recognize these differences is a recurrent, and
deplorable, feature of opinions by administrative law judges in
social security disability cases.” Id. Here, the ALJ appears to
have concluded that incapacitating migraines once or twice a
week would not be problematic because she would still have
most of the week without such symptoms, but that essentially
ignores the inability to schedule the incapacitating migraines.
Absent a showing that she has a completely flexible work
schedule in her past position as a reservation agent, the
existence of symptom-free days adds nothing here. The ALJ
erred in failing to account for the limitations caused by
migraines occurring with that frequency.
Finally, in determining Moore’s RFC, the ALJ erred in her
treatment of opinion evidence by Dr. Hier, who was Moore’s
treating neurologist at UIC Hospital where she had a subcuta-
No. 13-2460 15
neous occipital nerve stimulator implanted in February 2007.
Dr. Hier submitted an opinion to the ALJ indicating that
Moore’s headaches are refractory to medical and surgical
treatment including an occipital nerve stimulator, and that
“she is troubled with continuous unremitting headaches and
is disabled from working.” The ALJ determined that Dr. Hier’s
opinion as treating neurologist should be given no special
significance because, in concluding that Moore was disabled
from working, Dr. Hier opined on an issue reserved to the
Commissioner. The ALJ found the limited rationale problem-
atic, stating that Dr. Hier provided very little explanation of the
evidence relied upon as the basis for that conclusion, citing
only subjective pain, and found it inconsistent with the
opinions of other treating sources including Dr. Arnett and the
emergency room physicians. That dismissive approach to the
treating neurologist’s opinion was improper because the
medical records submitted by all of Moore’s treating physi-
cians including Dr. Arnett also indicated that she suffered from
chronic migraines, and Dr. Hier’s statement that she experi-
enced “continuous unremitting headaches” was not an opinion
on a matter reserved to the Commissioner. In addition, Moore
herself testified as to the limitations imposed by the migraines,
and her mother with whom she lived testified as to that impact
as well. The ALJ also erred in dismissing Dr. Hier’s opinion
because it was based on Moore’s subjective pain. As the ALJ
acknowledged, Moore suffered from a severe impairment of
chronic migraines, and the patient’s pain level is a relevant
consideration in determining the effectiveness of the treatment.
The ALJ’s disregard for Moore’s allegations of pain is particu-
larly inappropriate in the context of treatment by Dr. Hier,
16 No. 13-2460
given that the nerve stimulator implanted at UIC Hospital was
an effort to provide pain management not based on drugs, and
therefore did not implicate the concern with exaggeration for
drug-seeking purposes. See Simila v. Astrue, 573 F.3d 503, 514
(7th Cir. 2009) (regulations require that the ALJ give the
opinions of a treating physician controlling weight as long as
they are supported by medical findings and consistent with
substantial evidence in the record); Scott, 647 F.3d at 739 (“[a]n
ALJ must offer ‘good reasons’ for discounting the opinion of a
treating physician”); Young, 362 F.3d at 1002. If the ALJ was
unable to discern the basis for the treating physician’s determi-
nation, then the proper course would have been to solicit
additional information from Dr. Hier. See Simila, 573 F.3d at516–17 (ALJ has a duty to solicit additional information where
the medical support is not readily discernible); Scott, 647 F.3d
at 741.
In conclusion, significant medical and testimonial evidence
independent of the questionable emergency room visits
established a history of severe recurrent migraines. In light of
that evidence, the ALJ erred in disregarding the migraines as
a factor in determining Moore’s ability to perform her past
work. Specifically, the ALJ should have at least included in the
RFC determination the likelihood of missing work. The ALJ’s
decision did not reflect any likelihood of absences or breaks at
work related to migraines, and that is simply unsupported by
the record. As to the limitations imposed by that severe
impairment, the ALJ recognized in the RFC only that she
should be limited to sedentary work in which she could avoid
concentrated exposure to extreme cold, extreme heat, noise,
fumes, odors, dusts, gases, poor ventilation, hazardous
No. 13-2460 17
machinery and heights. The ALJ never related those specific
limitations to certain impairments. It is possible to postulate
which were related to migraines as opposed to the other severe
or non-severe impairments such as obesity, asthma and
rheumatoid arthritis, but the reviewing court should not have
to speculate as to the basis for the RFC limitations. Nor is the
basis otherwise apparent in the record. Accordingly, the case
must be remanded for the ALJ to articulate with clarity the
limitations related to the impairments based on an examination
of the evidence in the record as a whole, and to present those
limitations to the vocational expert to determine whether
Moore is capable of performing her past relevant work. For
these reasons, we REVERSE the district court and REMAND
this case to the agency for further proceedings.