Krystal Goins v. Carolyn Colvin , 764 F.3d 677 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3729
KRYSTAL L. GOINS,
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. 12 C 4057 — Jeffrey N. Cole, Magistrate Judge.
____________________
ARGUED AUGUST 5, 2014 — DECIDED AUGUST 19, 2014
____________________
Before BAUER, POSNER, and TINDER, Circuit Judges.
POSNER, Circuit Judge. The plaintiff filed suit in federal
district court seeking to overturn the denial of her applica-
tion for Supplemental Security Income, a disability benefit
for poor people. The Social Security Administration’s admin-
istrative law judge who adjudicated her claim found both
that she was not a credible witness and (relatedly) that med-
ical evidence did not support her testimony that she suffered
2 No. 13-3729
from acute pain as a result of having a herniated spinal disc
(colloquially a “slipped disc”). The district court affirmed
the denial of benefits, precipitating this appeal.
An MRI had revealed the herniated disc back in 1998.
The medical record is blank from then until 2007, when the
plaintiff complained to an emergency room physician that
she had been suffering from lower-back pain for several
days. She mentioned the herniated disc, and was prescribed
Vicodin. Almost a year later, shortly before she filed her ap-
plication with the Social Security Administration, she was
examined by an anesthesiologist who specializes in pain
management, to whom the plaintiff’s primary-care physician
had referred her. She told the anesthesiologist that she was
experiencing “burning and shooting” pain radiating from
her lower back to her legs and through her legs to her feet;
that on a scale of 0 to 10 the pain ranged from 5 to 10; that it
was “continuous day and night”; and that it was aggravated
by changes in position and by periods of standing, sitting, or
walking. The anesthesiologist noted the plaintiff’s “slow,
guarded gait,” and in part on the basis of the 1998 MRI di-
agnosed three conditions: the slipped disc, radiculopathy (a
pinched nerve in the spine), and myofascial pain (a chronic
pain disorder caused by repetitive motions or by muscle ten-
sion induced by stress). In both this and a subsequent visit
by her, the anesthesiologist prescribed Lyrica, a common
pain-treatment drug. The plaintiff testified in the administra-
tive proceeding that her pain, combined with the drowsiness
induced by the pain medication, limited her daily activities
to eating, caring for her dogs, taking naps, and watching tel-
evision. The anesthesiologist opined that the plaintiff was
“unable to work” because of “lumbar disc protrusion.”
No. 13-3729 3
Another anesthesiologist, a consultant to a state agency
that assists the Social Security Administration in disability
cases, interviewed (but apparently did not examine) the
plaintiff, reviewed her medical records, and concluded that
she was able to work full time. He noted the diagnoses of
lumber disk herniation, lumbar radiculopathy, and myofas-
cial plain, as well as the SSA field officer’s observation that
“she had a hard time sitting in the chair during the inter-
view,” but without questioning the diagnoses or the field
officer’s observation the consulting physician concluded that
the plaintiff can lift objects weighing 50 pounds for a third of
the workday and even can “crouch” and “crawl.” But he left
blank the section of the form on which he presented his con-
clusions that asked him to identify the evidence supporting
them. This was an important omission because his conclu-
sions were in tension with the diagnoses that he did not
question and with the plaintiff’s obesity, which he could not
have failed to notice. He stated on the form, again without
explanation, that the medical evidence “partially” supported
the plaintiff’s allegations. The report, in short, is a mess.
Another state-agency consulting physician, a pediatri-
cian, reviewed the same medical record that the first consult-
ing physician had reviewed, and endorsed that physician’s
conclusions. His report is only half a page long, and ex-
tremely unclear. He was aware that the plaintiff had com-
plained that her condition had worsened beginning in 2009,
but because there was no medical evidence in the plaintiff’s
application file he concluded illogically that this “called into
question the severity of the [plaintiff’s] allegations.” Like the
first physician, he did not examine the plaintiff.
4 No. 13-3729
We note the oddity of inviting a pediatrician to opine on
the medical condition of a 28-year-old woman (the plaintiff’s
age when the pediatrician offered his opinion)—and like-
wise the oddity of asking anesthesiologists to evaluate spi-
nal-cord problems. In fairness, we note that one of the anes-
thesiologists was a specialist in pain management, but the
plaintiff’s medical problems are not limited to pain.
In late 2009 and early 2010, while her application (filed
the previous year) for Supplemental Security Income was
pending, the plaintiff sought treatment for her back prob-
lem. She received little treatment but did have an MRI in
2010 (the first in eleven years), which revealed degenerative
disc disease, stenosis (a narrowing of the spinal canal), and a
“Chiari I” malformation, which is a condition in which brain
tissue extends into the spinal canal.
At the evidentiary hearing conducted by the administra-
tive law judge, which took place in the fall of 2010, the plain-
tiff testified that she had quit the last job she had had, work-
ing in a hospital cafeteria, in 2008 because it had been too
strenuous for her. She testified that her pain and numbness
were getting worse, and she speculated that they were being
aggravated by her migraine headaches, panic attacks, bron-
chitis, pain medications, and obesity. She testified that she is
five foot six inches tall and weighs 250 pounds and is physi-
cally nearly inactive and can’t even sit watching an hour-
long television show because of pain—although she does
watch cooking shows. She rated her pain as 8.5 on a scale of
1 to 10.
Much of her testimony, for example about how physical-
ly inactive she had become, was uncorroborated. That was
not in itself a reason to think she was exaggerating her con-
No. 13-3729 5
dition. The reasons the administrative law judge gave for
finding that she was exaggerating were unsound.
The main reasons were four. The first was that the plain-
tiff had worked in the cafeteria for almost six months, end-
ing in November 2008, a year after the alleged onset of her
disability. But she testified that her condition had worsened
since. And the fact that someone works is not a sufficient
ground for concluding that she’s not disabled. We have ex-
plained that “even persons who are disabled sometimes
cope with their impairments and continue working long af-
ter they might have been entitled to benefits.” Shauger v.
Astrue, 675 F.3d 690, 697 (7th Cir. 2012); see also Barnett v.
Barnhart, 381 F.3d 664, 669 (7th Cir. 2004); Henderson v. Barn-
hart, 349 F.3d 434, 435 (7th Cir. 2003); Kelley v. Callahan, 133
F.3d 583, 588 (8th Cir. 1998). This is especially likely when
the work is part time—as was the plaintiff’s work in the cafe-
teria.
The second reason was that she had not sought frequent
medical treatment. The administrative law judge noted that
she had no health insurance, but thought that at least she
might have been expected to visit a hospital emergency
room more frequently than she had done. The administra-
tive law judge overlooked the fact that hospitals charge very
high prices for emergency room services for non-emergency
conditions, are assiduous in trying to collect those charges,
and “are required to treat an indigent only if the indigent is
experiencing a medical emergency.” Hughes v. Astrue, 705
F.3d 276, 278 (7th Cir. 2013). The plaintiff in this case appears
to be indigent. Remember that she applied for Supplemental
Security Income, which is a disability benefit available only
to persons who have no more than $2000 in cash or the
6 No. 13-3729
equivalent. If she had had more, her application would have
been denied without need to obtain any medical evidence.
The third reason was the administrative law judge’s un-
critical acceptance of the consulting physicians’ conclusions.
They had not examined the plaintiff. They had been vague
about the medical evidence that they thought supported
their conclusions. Most important, they had not been shown
the report of the 2010 MRI. Fatally, the administrative law
judge failed to submit that MRI to medical scrutiny, as she
should have done since it was new and potentially decisive
medical evidence. Green v. Apfel, 204 F.3d 780, 782 (7th Cir.
2000); Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001);
Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997); Boyd
v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992). That evidence
undermined the reasoning of the second consulting physi-
cian, whose ground for disregarding the plaintiff’s allegation
that her condition had worsened was the lack of new sup-
porting medical evidence in the file. Instead, playing doctor
(a clear no-no, as we’ve noted on numerous occasions; see,
e.g., Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 570 (7th Cir.
2003); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)), the
administrative law judge summarized the results of the 2010
MRI in barely intelligible medical mumbo-jumbo, noting
that it revealed degenerative disc disease and stenosis while
ignoring the Chiari I malformation.
The summary stands by itself in her opinion, unrelated to
anything else. She made no effort to compare the 2010 MRI
with the earlier one, and she did not use the report of the re-
sults of that MRI as an aid to evaluating the plaintiff’s testi-
mony. In fact the 2010 MRI shows a worsening of the plain-
tiff’s spinal problems compared to the results of the 1998
No. 13-3729 7
MRI—the only MRI report on which the two consulting
physicians relied in questioning the gravity of her condition.
The earlier MRI had revealed degenerative disease in only
one disc, while the later MRI showed degeneration all along
the cervical and lumbar regions of the spine. (The cervical
vertebrae are just below the head and the lumbar vertebrae
are in the lower back.)
Furthermore, in disbelieving that the plaintiff has mi-
graine headaches, the administrative law judge overlooked
the fact that a Chiari I malformation, visible in the 2010 MRI
but not the 1998 one, can cause severe headaches—indeed
headaches are the “classic symptom of Chiari malfor-
mation.” Mayo Clinic, “Chiari Malformation: Symptoms,”
www.mayoclinic.org/diseases-conditions/chiari-malformatio
n/basics/symptoms/con-20031115 (visited Aug. 9, 2014). Cf.
Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).
The statement by the magistrate judge in this case, in up-
holding the denial of benefits, that “while it is true that the
ALJ did not specifically mention Chiari malformation, she
was not required to recite each of [the plaintiff’s] diagnoses,”
amounts to saying that an administrative law judge is free to
ignore medical problems that may be causing the symptoms
the claimant is alleging. Having a part of one’s brain lodged
in one’s spine is not the equivalent of having a runny nose or
an ingrown toenail. The presence of a Chiari I malformation,
as we noted, supports the plaintiff’s claim to experience seri-
ous headaches.
The administrative law judge gave meager attention to
the plaintiff’s obesity, on the ground that “the record does
not support an inability to ambulate effectively.” We keep
telling the Social Security Administration’s administrative
8 No. 13-3729
law judges that they have to consider an applicant’s medical
problems in combination. Yurt v. Colvin, 2014 WL 3362455, at
*9 (7th Cir. July 10, 2014); Arnett v. Astrue, 676 F.3d 586, 592
(7th Cir. 2012); Terry v. Astrue, 580 F.3d 471, 477 (7th Cir.
2009); see also Gentry v. Commissioner of Social Security, 741
F.3d 708, 726 (6th Cir. 2014); Cunningham v. Apfel, 222 F.3d
496, 501 (8th Cir. 2000); Loza v. Apfel, 219 F.3d 378, 393 (5th
Cir. 2000); Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996).
Like most obese people, the plaintiff can walk. Her obesity is
not disabling in itself. But it is an added handicap for some-
one who has degenerative disc disease, a narrowed spinal
canal, bronchitis, and a Chiari I malformation. Pain and
numbness in the legs caused by spinal disease are bound to
be aggravated by obesity. The administrative law judge may
also have misstated the plaintiff’s weight, saying she weighs
220 pounds, which would give her a BMI of “only” 35.5. But
remember that the plaintiff testified that she weighs 250
pounds. That would give her a BMI of 40.3, making her not
merely obese (BMI > 30), but morbidly so (BMI > 40). Pro-
gress notes from her SSA file indicate that her weight ranged
from 236 to 240 between February and July 2008, implying a
BMI of between 38.1 and 38.7—close to morbidly obese. Yet
the 220-pound figure seems to date from the same year,
2008, which was when she applied for disability benefits.
The administrative law judge should have arranged for her
to be weighed shortly before the hearing.
The neglect of the plaintiff’s obesity is one factor, though
not the only one, in the administrative law judge’s unsup-
ported conclusion regarding the plaintiff’s ability to work.
The opinion repeats the oft-criticized (see, e.g., Bjornson v.
Astrue, 671 F.3d 640, 644–46 (7th Cir. 2012)) boilerplate that
although “the claimant’s medically determinable impair-
No. 13-3729 9
ments could reasonably be expected to cause the alleged
symptoms … , the claimant’s statements … are not credible
to the extent they are inconsistent with the above residual
functional capacity assessment.” The implication is that the
assessment (of the claimant’s residual functional capacity—
that is, ability to work) precedes and may invalidate the
claimant’s testimony about his or her ability to work. Actual-
ly that testimony should be an input into a determination of
ability to work. It seems that the administrative law judge
improperly and irrevocably decided, on the basis of the in-
adequate reports of the two consulting physicians, that the
plaintiff was capable of full-time work, and having made
that decision naturally had to brush aside the plaintiff’s tes-
timony, including her testimony about the difficulty she has
in walking and in standing as a result of her obesity. The
consulting physicians hadn’t mentioned obesity; for all we
know, had they been asked how her obesity affected her
ability to work their bottom-line evaluation would have
been that she can’t work.
A further problem with the boilerplate passage is that if
the plaintiff’s “medically determinable impairments could rea-
sonably be expected to cause the alleged symptoms” (em-
phasis added), why is the plaintiff’s credibility important?
No one doubts the accuracy of the 2010 MRI, or that the
plaintiff is obese, or that the spinal conditions revealed by
that MRI are grave. Even the administrative law judge did
not deny these things, which is an additional reason to doubt
the validity of her denial of benefits.
The plaintiff’s residual functional capacity as determined
by the administrative law judge included the ability to do
jobs that involve lifting 50-pound objects for a third of an
10 No. 13-3729
eight-hour workday and 25-pound objects for the other two-
thirds, implying capacity to hold a job in which the worker is
standing throughout the entire workday. Inconsistently, the
administrative law judge also determined that the plaintiff’s
residual functional capacity is limited to standing or walking
for six hours in an eight-hour workday. How she could be
thought capable of either standing or walking for six out of
eight hours eludes us. Given her obesity and the serious spi-
nal problems revealed by the 2010 MRI, we can’t understand
how the administrative law judge could have concluded that
the plaintiff has a capacity for such hard physical labor.
If we thought the Social Security Administration and its
lawyers had a sense of humor, we would think it a joke for
its lawyer to have said in its brief that the administrative law
judge “accommodated [the plaintiff’s] obesity by providing
that she could never [be required as part of her work duties
to] climb ladders, ropes, or scaffolds, and could only occa-
sionally climb ramps or stairs, balance, kneel, crawl, stoop,
and/or crouch.” (The administrative law judge must have
forgotten that the primary consulting physician thought the
plaintiff can crawl and crouch at work.) Does the SSA think
that if only the plaintiff were thin, she could climb ropes?
And that at her present weight and with her present symp-
toms she can, even occasionally, crawl, stoop, and crouch?
The administrative law judge’s critical failure, however,
was the failure to obtain a medical report on the results of
the 2010 MRI.
The plaintiff deserves a more careful evaluation than she
has received to date. The judgment of the district court is re-
versed with instructions to remand the case to the Social Se-
curity Administration.