NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 29, 2013
Decided May 3, 2013
Before
WILLIAM J. BAUER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3085
RONDA HAMILTON, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 11 C 6471
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, Arlander Keys,
Defendant‐Appellee. Magistrate Judge.
O R D E R
Ronda Hamilton was in a car accident in 2005 and sustained back and shoulder
injuries. These injuries, she says, cause pain that prevents her from working full time. She
sought disability insurance benefits under Title II of the Social Security Act, but an ALJ
denied her claim, finding that she is actually capable of full‐time sedentary work and that
she exaggerated her limitations when she testified. After the Appeals Council declined to
review this decision, Hamilton sued in federal district court, which entered summary
judgment for the Commissioner. Because the ALJ did not support her findings with
No. 12‐3085 Page 2
substantial evidence, we vacate the district court’s judgment and remand for further
proceedings consistent with this order.
Back pain is Hamilton’s chief complaint, and the length of time that she can tolerate
sitting is the primary issue in this case. If she can sit for intervals of only about 20 minutes,
as she claims, Hamilton is disabled. But if, as the ALJ found, she can sit for at least 45‐
minute stretches, there are a significant number of sedentary jobs she can perform, and she
is not disabled.
Hamilton’s back pain started in 2005 when she was in a car accident and sustained a
compression fracture to her first lumbar vertebra, a torn rotator cuff, and pelvic injuries. Her
fractured vertebra touches her spinal cord, and she has spinal stenosis (narrowing) and
lesions in her sacral canal. Her treatment has included physical therapy, prescription pain
medications, spinal injections, surgery to repair her left rotator cuff, and medication to
minimize her “bladder spasms.” One of Hamilton’s treating physicians, pain specialist
Dr. Sheila Dugan, estimates that Hamilton can sit “in a stiff chair” for only 20 to 30 minutes.
Dr. Dugan adds that although Hamilton can handle “about two hours” of sitting on a “soft
surface,” the total sitting time that she can endure in a workday is under 6 hours. Another
treating physician, neurologist Dr. Martin Luken, opined in 2007 that Hamilton suffers from
“complex pain syndrome” and is “completely disabled from the standpoint of gainful
employment.” Dr. Luken also signed a report that was completed by a physical therapist,
Renee Spanberg, in 2009 after she gave Hamilton a “physical performance test.”
Ms. Spanberg reported that Hamilton’s “maximum sitting tolerance was 20 continuous
minutes.”
At Hamilton’s first hearing before an ALJ, she testified that her injuries have
drastically limited her daily activities. The amount of time that she can sit “depends on
what kind of chair I’m in . . . if I’m sitting in a straight back chair it’s about 15 to 20 minutes,
if I’m in a lazy boy or something that really supports my back I can sit for maybe an hour,
hour and a half.” She testified to taking Lyrica for pain. She also acknowledged that on one
occasion, some months before the hearing, she drove from northern Illinois to Kentucky,
stopping to rest from driving only every couple of hours.
After this hearing, the ALJ denied Hamilton’s application for benefits, finding that
she was not fully credible. Hamilton had not, the ALJ wrote, sought medical treatment for
years, which led him to surmise that her pain could not be as severe as she had described.
The Appeals Council, however, noticed that the ALJ’s adverse credibility finding was
premised on a mistake—he had ignored Hamilton’s continued receipt of physical
No. 12‐3085 Page 3
therapy—and remanded the case to a different ALJ for reconsideration and further evidence
development.
At the second hearing the following year, Hamilton again described her sitting
tolerance as “20 minutes, and that’s pushing it,” and she detailed her activities: She does
some household chores but must perform them slowly and take frequent breaks; she needs
to lie down in bed four or five times a day after activity; she attends church weekly, but she
must stand at the back when she reaches her maximum sitting time. At the time of this
hearing, she was taking the prescription medications Flexeril (for pain relief) and over‐the‐
counter ibuprofen. She had earlier been prescribed Lyrica, Darvocet, and Oxycontin, but she
explained that her doctors discontinued these pain medications after she complained that
they left her drowsy and disoriented.
Following Hamilton’s testimony, a medical expert, Dr. Sheldon Slodki, testified that
Hamilton’s condition limits her to “sedentary” employment. When Hamilton’s attorney
questioned him about the report of Ms. Spanberg, the physical therapist, in which she said
that Hamilton could tolerate only 20 minutes of sitting, Dr. Slodki observed that the report’s
conclusion was consistent with Hamilton’s testimony. (He did not otherwise question or
endorse it.)
A vocational expert testified last. The ALJ asked her whether there are a significant
number of jobs for people who are confined to sedentary, unskilled work and cannot sit for
more than 30 minutes, and the expert replied that there are not, adding “generally I like to
see 45 minutes.” The ALJ then asked whether there are jobs for those who can tolerate
sitting for at least 45 minutes. The expert answered that there are, and she reiterated that
there are not a significant number of sedentary jobs for people who can sit fewer than 45
minutes.
The ALJ concluded that Hamilton was not disabled and issued a decision once again
denying her benefits. In the ALJ’s assessment, Hamilton has retained the ability to sit
comfortably in a standard chair for 45 to 60 minutes, which (as the vocational expert
testified) would allow her to work jobs that exist in significant numbers. In reaching this
conclusion, the ALJ followed the standard five‐step disability analysis. She found at steps
one and two that Hamilton has not engaged in substantial gainful activity since her accident
and that she has two severe, medically determinable impairments: low back pain secondary
to a vertebral fracture and a left rotator cuff injury. At step three, the ALJ found that neither
of these impairments is listed in 20 CFR 404.1520(d), meaning that the analysis must
proceed to step four.
No. 12‐3085 Page 4
Before moving to step four, the ALJ assessed Hamilton’s residual functional capacity
(RFC) to be sedentary and made the determination at the heart of this appeal: “The claimant
requires a sit/stand option allowing her to sit or stand alternatively at will every 45 to 60
minutes.” After finding that Hamilton could sit for at least 45 minutes, the ALJ discussed
Hamilton’s credibility. She began with this familiar piece of boilerplate:
After 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.
The ALJ then characterized Hamilton’s hearing testimony as internally inconsistent and
inconsistent with other evidence. She wrote that Hamilton had testified at the first hearing
that she can sit for an hour and at the second hearing that she can sit for only 20 minutes.
But the ALJ omitted Hamilton’s testimony from the first hearing where she said that in a
standard chair she can sit for only 15 to 20 minutes. The also ALJ wrote that Hamilton’s
“activities of daily living”—household chores, watching television, visiting friends, using a
computer, going to church once a week, and once driving to Kentucky with breaks only
every couple of hours—are inconsistent with her asserted limitations, but she did not
explain how. Finally, although Hamilton testified at the first hearing that she was taking the
prescription medication Lyrica for her pain, the ALJ wrote that Hamilton testified at that
hearing to taking no prescription pain medications.
The ALJ also explained how much weight she gave to the medical opinions in the
record, characterizing the opinions of Hamilton’s treating physicians, Dr. Luken and Dr.
Dugen, as “generally consistent” with the objective medical evidence and thus entitled to
“appropriate weight.” To the opinion of the medical expert, Dr. Slodki, she gave “great
weight,” describing it as “generally consistent with the evidence of record and the opinions
of Dr. Luken, Dr. Dugen, and Ms. Spanberg.” But the ALJ gave “no weight” to the 2007
letter where Dr. Luken opined that Hamilton is “disabled”; that determination, the ALJ
explained, is reserved to the Commissioner. See
20 C.F.R. § 416.927(e)(2). She also patly
dismissed the finding of Ms. Spanberg, the physical therapist, that Hamilton can sit for no
more than 20 minutes: “Based on my review of the evidence, as discussed above, I find that
the record does not support a finding that the claimant requires a sit/stand option more
frequently than every 45 to 60 minutes.”
No. 12‐3085 Page 5
After determining Hamilton’s RFC to be sedentary work with an option to stand
every 45 minutes, the ALJ completed step 4 by explaining that Hamilton is unable to return
to her previous work as a nurse’s aid because it was not sedentary work. At the fifth and
final step, the ALJ concluded that Hamilton is not disabled because sedentary jobs that
accommodate her limitations exist in the national economy in significant numbers.
This time around the Appeals Council declined to review the ALJ’s decision, making
it the Commissioner’s final decision. Hamilton filed suit in the district court, but the court
granted summary judgment to the Commissioner after concluding that substantial evidence
supports the ALJ’s decision. The court acknowledged that the ALJ’s decision is flawed and
at places even “misleading,” but it did not think these problems called for remand.
On appeal, Hamilton challenges the ALJ’s finding that she can regularly sit for 45
to 60 uninterrupted minutes. According to Hamilton, the record shows that 20 minutes is
generally her limit. She contends that the ALJ should have found her disabled given the
vocational expert’s testimony that an insignificant number of jobs accommodate this
limitation.
In particular, Hamilton first argues that the adverse credibility finding was improper
because the ALJ misrepresented her testimony as inconsistent. An ALJ’s credibility
determination is entitled to great deference, but it must be justified with specific reasons
and have support in the record. See SSR 96‐7p; Shauger v. Astrue,
675 F.3d 690, 696 (7th
Cir. 2012); Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009); Steele v. Barnhart,
290 F.3d 936,
941–42 (7th Cir. 2002). The ALJ wrote that Hamilton testified at the first hearing to being
able to “sit for 15 minutes to one hour” but at the second hearing to being “capable of sitting
for 20 minutes.”
Testimonial inconsistencies can indeed form the basis of an adverse credibility
finding, see SSR 96‐7p, but Hamilton convincingly argues that she did not contradict herself.
Her testimony at the first hearing was that the amount of time she can sit depends on the
chair: She can tolerate a “straight back” chair for about 20 minutes but a “lazy boy” recliner
for up to an hour and a half. She did not testify, as the ALJ represented, that she could sit in
any chair for up to an hour. Hamilton’s testimony at the first hearing thus is consistent with
her testimony at the second hearing, where she said that she can sit for “20 minutes, and
that’s pushing it,” unless she is in her recliner. We also note that the ALJ made another
misrepresentation about Hamilton’s testimony when she wrote that Hamilton denied taking
prescription pain medication at her first hearing. Hamilton actually testified that she was
taking Lyrica for pain.
No. 12‐3085 Page 6
The ALJ’s mistakes about Hamilton’s testimony are problematic on their own, but
they are compounded by the ALJ’s resort to the boilerplate passage about credibility that we
quoted earlier. In that passage, the ALJ deems Hamilton’s asserted limitations not credible
“to the extent” they are inconsistent with the RFC findings. As we have stressed repeatedly,
the passage implies that the ALJ may permissibly settle on an RFC before assessing the
claimant’s credibility when in fact credibility must be assessed first. Shauger,
675 F.3d at 696;
Bjornson v. Astrue,
671 F.3d 640, 644–45 (7th Cir. 2012).
The Commissioner responds that ALJs who employ this objectionable boilerplate can
salvage their credibility findings by providing sufficient additional analysis of the
claimant’s credibility. See Filus v. Astrue,
694 F.3d 863, 868 (7th Cir. 2012). We conclude,
however, that the rest of the ALJ’s credibility analysis, fails to efface the impression given
by the boilerplate. One problem is found in the ALJ’s primary justification for not fully
crediting Hamilton: “The claimant has described activities of daily living which are not
limited to the extent one would expect given the complaints of disabling symptoms and
limitations.” This view of Hamilton’s daily activities improperly and inexplicably ignores
her testimony that completing activities takes her much longer since the accident and that
she must spend half an hour lying in bed four to five times a day. We have admonished
ALJs to appreciate that, unlike full‐time work, the“activities of daily living” can be flexibly
scheduled, Bjornson, 671 F.3d at 647, and we have criticized “the naiveté of the Social
Security Administration’s administrative law judges in equating household chores to
employment,” Hughes v. Astrue, No. 12‐1873,
2013 WL 163477 at *3 (7th Cir. Jan. 16, 2013).
We have also recognized that a person who needs to spend much of the day lying down
cannot work. See Roddy v. Astrue, No. 12‐1682,
2013 WL 197924 at *8 (7th Cir. Jan. 18, 2013);
Bjornson, 671 F.3d at 646, 648. What is more, the activities the ALJ characterizes as
inconsistent with Hamilton’s limitations do not necessarily involve sitting for longer than 20
minutes. (The single exception is Hamilton’s one‐time drive to Kentucky, where she
managed to drive for two‐hour stretches before taking breaks, but the record contains no
evidence of the length of her breaks or whether she needed to lie down during them, and
the ALJ did not explain how this isolated recreational event means that Hamilton can do the
same thing on a full‐time basis. Simply mentioning the drive as the ALJ did is insufficient;
as this circuit puts it, the ALJ must build a “logical bridge” between the evidence and her
conclusions. See Scott v. Astrue,
647 F.3d 734, 740 (7th Cir. 2011); Terry v. Astrue,
580 F.3d 471,
475 (7th Cir. 2009).)
Turning to the medical testimony, Hamilton next argues that the ALJ, in assessing
her RFC, should have given her treating physicians’ opinions controlling weight but did
not. A treating physician’s opinion is entitled to controlling weight unless it is not
supported by the physician’s records or is inconsistent with the reports of other
No. 12‐3085 Page 7
sources.
20 C.F.R. § 404.1527(d)(2); Scott,
647 F.3d at 739. An ALJ who concludes that such
an opinion is not entitled to controlling weight must give good reasons for that conclusion.
Martinez v. Astrue,
630 F.3d 693, 698 (7th Cir. 2011); Punzio v. Astrue,
630 F.3d 704, 710 (7th
Cir. 2011); Larson v. Astrue,
615 F.3d 744, 749 (7th Cir. 2010).
We agree with Hamilton that the ALJ did not properly evaluate the medical opinions
in this case. The most obvious problem is that the ALJ said she was giving the doctors’
opinions “appropriate weight” without specifying how much weight is appropriate. But
even if we put that issue aside, the ALJ’s analysis falls short because she erroneously called
the opinions of Hamilton’s doctors and her physical therapist “generally consistent” with an
RFC limited to sedentary work with the option to stand every 45 minutes. The ALJ’s
announced RFC conflicts with the medical opinions of Hamilton’s medical providers on the
pivotal question of how long Hamilton can sit in a standard chair. Dr. Dugan’s opinion was
that Hamilton can sit in a firm chair for no more than 20 to 30 minutes, and the physical
therapist, Ms. Spanberg, in a report signed on to by Dr. Luken, opined that Hamilton has a
maximum sitting time of 20 minutes. The vocational expert testified that a person must be
able to sit for at least 45 minutes—presumably in whatever kind of chair the employer
chooses to provide—in order to hold a full‐time, sedentary job. Therefore, the physicians’
opinions that she can sit at most for only 30‐minute intervals cannot be glossed over as
“generally consistent” with a conclusion that she can work full time. (Although Dr. Dugan
agreed that Hamilton can sit for up to two hours in a “soft” chair, nothing in the record
suggests that something equivalent to Hamilton’s “lazy boy” recliner, which she uses for
sittings that exceed 20 minutes, is typically available in the work settings that the vocational
expert considered.)
Another problem with calling the physicians’ opinions “generally consistent” with
the RFC finding is that Dr. Luken opined that Hamilton is “disabled.” This opinion, too,
conflicts with the RFC finding that she can keep working. While the ALJ is right that the
ultimate question of disability is reserved to the Commissioner, see
20 C.F.R. § 416.927(e)(2),
a treating physician’s opinion that a claimant is disabled “must not be disregarded,”
SSR 96‐5p; see also Roddy v. Astrue, No. 12‐1682, slip op. at 10–11, 13–14 (7th Cir. Jan. 18,
2013) (explaining that ALJ must address treating physician’s opinion that claimant cannot
“handle a full‐time job”). Here, the ALJ’s description of Dr. Luken’s opinion as “generally
consistent” with her RFC determination disregards his opinion that Hamilton is disabled.
Finally, the ALJ also inadequately justified rejecting the conclusion of the physical
therapist, Ms. Spanberg, that Hamilton can sit for only 20 minutes. Even if Ms. Spanberg’s
report cannot be attributed to Dr. Luken (who signed it but did not write it) and thus cannot
be given the controlling weight of a treating physician’s opinion, a physical therapist’s
No. 12‐3085 Page 8
report is entitled to consideration and cannot be arbitrarily rejected. See Barrett v. Barnhart,
355 F.3d 1065, 1067 (7th Cir. 2004). The ALJ gave no explanation for rejecting Ms.
Spanberg’s opinion other than to say that “the record does not support [her] finding . . . .”
This is an empty explanation, and it is in tension with the testimony of Dr. Slodki, the
medical expert, who repeated Ms. Spanberg’s opinion that Hamilton can sit for only 20
minutes without suggesting that he disagreed or that the opinion was unsupported by the
medical record. Last, although Dr. Slodki assessed Hamilton’s RFC to be “sedentary” (an
opinion to which the ALJ gave “great weight”), this means that Hamilton can work only
while seated; it is not an opinion about how long she can sit.
Thus neither the medical nor non‐medical evidence in the record supports the ALJ’s
conclusion that Hamilton exaggerated her limitations and that she actually can sit regularly
for 45‐minute stretches. In fact the only reference to “45 minutes” in the record is from the
vocational expert who informed the ALJ that jobs are not available for people who cannot
sit for at least that long. Because the ALJ’s key findings were not supported by substantial
evidence, we VACATE the judgment of the district court and REMAND this case to the
agency for proceedings consistent with this opinion. In those proceedings, the agency shall
award benefits unless it determines that additional findings and conclusions still need to be
made.
