Margaret Cullinan v. Nancy Berryhill ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1287
MARGARET CULLINAN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 15 C 11499 — Mary M. Rowland, Magistrate Judge.
____________________
ARGUED DECEMBER 12, 2017 — DECIDED DECEMBER 28, 2017
____________________
Before BAUER, RIPPLE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Margaret Cullinan appeals the denial
of her application for Disability Insurance Benefits and
Supplemental Security Income. She based her claim for
benefits on several impairments, most of which arose after
she suffered a stroke: anxiety, depression, peripheral blind-
ness in one eye, diabetes, obesity, and sleep apnea. An
administrative law judge determined that although Cullinan
2 No. 17-1287
has several impairments, she is not disabled. Cullinan
argues that the ALJ erroneously discredited both her testi-
mony and the opinion of her treating psychologist. We
vacate the judgment and remand for further administrative
proceedings.
I. Background
Cullinan applied for disability benefits and social securi-
ty income in March 2012 alleging vision problems, side
effects from a stroke, diabetes, difficulty balancing, cervical
cysts, and fatigue. The Social Security Commission denied
Cullinan’s application for benefits both initially and on
reconsideration. She requested a hearing before an adminis-
trative law judge.
Cullinan worked as a live-in-home certified nurse’s aide
for 15 years. In May of 2011, she went to the hospital for
headaches and blurred vision and was diagnosed with a
possible occipital stroke. Initial tests showed 20/40 vision in
her right eye and 20/25 in her left, and that she could walk
normally. Follow-up examinations showed reduced periph-
eral vision in her right eye.
Cullinan’s treating neurosurgeon, Dr. George Cybulski,
completed a Medical Source Statement in October 2011
describing Cullinan’s ability to work. Dr. Cybulski reported
that Cullinan suffered from blindness in her right eye and
weakness in her right arm and leg, needed a cane to walk,
could occasionally lift and carry up to ten pounds, and could
not sit, stand, or walk for more than one hour in an eight-
hour workday without needing to lie down.
No. 17-1287 3
In August 2012 two of the Social Security Administra-
tion’s consultative doctors examined Cullinan: psychologist
Michael E. Stone performed a mental status exam, and
internist Albert Osei conducted a physical exam. Based on
Cullinan’s report that she had vision and balance problems,
anxiety, depression, and diabetes that collectively prevented
her from working, Dr. Stone diagnosed her with depression
and generalized anxiety disorder with panic attacks, and
stated that she had a guarded prognosis, meaning she was
unlikely to improve. Dr. Osei determined that Cullinan
could walk up to half a block, stand, sit, and walk down
stairs without difficulty, and that she had good balance
while walking. His impression was that Cullinan had im-
paired peripheral vision in her right eye, diabetes, depres-
sion, and anxiety.
Two nonexamining state-agency consultants evaluated
Cullinan’s medical records and opined on her residual
functional capacity. Psychologist Phyllis Brister completed a
form assessment in September 2012 and opined that
Cullinan had mild restrictions in daily activities and social
functioning, and moderate difficulties maintaining concen-
tration and interacting with the general public. In March
2013 psychologist David Gilliland mostly agreed with
Dr. Brister’s conclusions, except that he found that Cullinan
had moderate difficulties in social functioning instead of
mild.
Cullinan began treatment with Dr. John Canzona, a psy-
chologist, in February 2013. (This was shortly before she
received the decision denying her request for reconsidera-
tion of the Agency’s initial denial of her claim.) During their
initial appointment, Cullinan reported that the stroke “ru-
4 No. 17-1287
ined [her] life”: she moved back in with her parents who
“pick on [her],” she cannot work, and she watches television
in her room all day. She said that because of the stroke and
her various medications, she lost peripheral vision in her
right eye, had difficulty balancing, and was often fatigued.
Dr. Canzona found Cullinan’s concentration adequate and
diagnosed her with a major depressive disorder, and he
rated her at a Global Assessment of Functioning (“GAF”)
score of 55, indicating moderate symptoms from her mental
impairments. 1 Also, in February 2013 Cullinan had a hyster-
ectomy and subsequently developed an infection.
Cullinan continued therapy with Dr. Canzona about once
every two weeks through the end of 2013. She discussed her
daily activities, mentioning that she did her parents’ laundry
and was “helpful around the house,” cared for her cousin
who lived in a nursing home, and occasionally attended
concerts. During one session, she said that she wanted to
reconnect with her former boyfriend, and in another she said
she “met a man and spent some time with him.” She men-
tioned helping her friend care for foster children with “de-
velopmental problems” and helping to care for one of her
grandmothers. She said that she attended her parents’
anniversary party and her cousin’s wake and that she was
anxious with “chest pressure” before both events. Finally,
1 The GAF is a 100-point metric formerly used to rate overall psychologi-
cal, social, and occupational functioning. AM. PSYCHIATRIC ASS’N,
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32–34 (4th
ed., Text Rev. 2000). In 2013 the American Psychiatric Association
abandoned the flawed GAF system. See Lanigan v. Berryhill, 865 F.3d 558,
561 n.1 (7th Cir. 2017). Though noted by the ALJ, the GAF scores did not
appear to factor into her analysis.
No. 17-1287 5
she reported wanting to work as a live-in nurse for the
elderly and wanting to volunteer at an animal shelter.
In May 2013 Cullinan had a follow-up appointment with
Dr. Regina Hall-Ngorima, her psychiatrist, and reported
fatigue, pain, sleep problems, and feeling more depressed
and anxious. Dr. Hall-Ngorima diagnosed Cullinan with
insomnia and an adjustment disorder with depressed mood
and assigned a GAF score of 65, reflecting mild symptoms.
Cullinan went to the emergency room in November with
right-sided weakness and inability to walk without a walker.
An examining physician concluded these were symptoms of
Cullinan’s anxiety.
In January 2014 Cullinan’s treating internist, Dr. Lorenzo
Monterubianesi, completed a physician’s report.
Dr. Monterubianesi had seen Cullinan quarterly since May
2011, shortly after her stroke. He said that her balance had
returned to normal, she could lift up to ten pounds frequent-
ly, and she had full capacity to walk, stand, and sit. But
Dr. Monterubianesi noted that her ability to perform activi-
ties of daily living was reduced up to 20% and she had a 20%
to 50% reduced capacity for climbing and using public
transportation.
Dr. Canzona, the treating psychologist, completed a
Medical Source Statement in April 2014, and he rated
Cullinan’s ability to complete a normal workday or work-
week as poor. He reported that she was unable to maintain
attention and concentration for extended periods of time,
perform at a consistent pace, or travel in unfamiliar places
and use public transit.
6 No. 17-1287
At her administrative hearing in April 2014, Cullinan tes-
tified that twice after her stroke she tried to go back to work
but was unable to keep up with her patients and stopped
working after four days. She explained that she has no
peripheral vision in her right eye; she cannot see her right
hand when held next to her face. She testified that she could
not see her representative sitting to her right. She said that
her glasses help her keep balance, but she still stumbles
every other day. Regarding her anxiety and depression, she
stated that she suffers neck and chest pain, her legs get
weak, and she does not like to leave the house. Cullinan
explained that she naps one to four hours each day because
her medications leave her feeling groggy, she does not sleep
well at night, and her parents wake her up from sleeping on
the couch every morning between 5:30 and 6 a.m. She testi-
fied that she suffers weekly from severe headaches that last
up to five days and prevent her from being able to read or
watch television.
Cullinan also testified about her daily activities and
physical and mental limitations. She said she can only stand
for 20 minutes, sit for 40, and walk half a block. She testified
that while at home she makes beds, brews coffee, and loads
and unloads the dishwasher. She added that she visits her
cousin in the nursing home up to three nights per week and
that while visiting she tidies up but does not lift anything.
The ALJ then questioned a vocational expert, who re-
viewed the record and was present during Cullinan’s testi-
mony. The expert said that given Cullinan’s health limita-
tions, she would not be able to resume work as a nurse’s
aide. The ALJ posed a hypothetical question about the
employment options of someone who was limited to light
No. 17-1287 7
work that did not require operating heavy machinery or
driving, or climbing ladders, ropes, or scaffolding; had mild
social functioning limitations and moderate difficulty con-
centrating; and could perform only routine tasks and follow
simple instructions. Notably, the ALJ did not list peripheral
blindness as a limitation. The vocational expert answered
that such a person would be able to work as a laundry aide,
cleaner/polisher, or marker/labeler. The expert also said that
needing to take a two-hour nap every day would rule out all
work.
In her written decision denying benefits, the ALJ applied
the five-step analysis required by 20 C.F.R. § 404.1520(a) and
concluded that Cullinan was not disabled. The ALJ deter-
mined that Cullinan had not worked since her occipital
stroke on May 3, 2011 (step 1); that only her anxiety and
depression constituted severe impairments (step 2); that
these impairments, individually or collectively, did not
equal a listed impairment (step 3); that she had the residual
functional capacity to perform light work involving simple
instruction and routine tasks that did not entail operating
heavy machinery or driving, or climbing ladders, ropes, or
scaffolds; that she could not perform her former work as a
certified nursing aide (step 4); and that she could work as a
laundry aide, cleaner/polisher, or marker/labeler (step 5).
In determining Cullinan’s residual functional capacity,
the ALJ determined that Cullinan’s testimony concerning the
intensity, persistence and limiting effects of her symptoms
was “not entirely credible.” Regarding Cullinan’s psycholog-
ical impairments, the ALJ gave no weight to her testimony
or the opinion of Dr. Canzona, the treating psychologist who
had concluded that Cullinan would be unable to complete a
8 No. 17-1287
normal workday due to her difficulties maintaining concen-
tration, traveling in unfamiliar places, and using public
transit.
The ALJ’s adverse credibility determination and her de-
cision to discount Dr. Canzona’s opinion were each based on
Dr. Canzona’s treatment notes. In discrediting Cullinan the
ALJ said that the notes show that Cullinan is “very active”:
she does household chores; cares for her cousin, grandmoth-
er, and a friend’s foster child; goes to concerts; attended her
parents’ anniversary party and her cousin’s wake; wants to
resume working and to volunteer at an animal shelter; and
goes on dates. Regarding Dr. Canzona’s credibility, the ALJ
said his report was inconsistent with his treatment notes and
so was untrustworthy.
The ALJ instead gave “great weight” to the opinion of
Dr. Brister, one of the nonexamining psychologists who had
determined that Cullinan had only mild limitations in daily
living activities and social functioning, and moderate diffi-
culty maintaining concentration. The ALJ noted that
Dr. Brister’s assessment of Cullinan’s residual functional
capacity was consistent with her own. The ALJ also gave
great weight to the other consulting psychologist,
Dr. Gilliland, to the extent that he “generally affirmed”
Dr. Brister, but she gave little weight to his finding that
Cullinan had moderate difficulties in social functioning
because, the ALJ said, it was not consistent with treatment
records and Cullinan’s activities.
Regarding Cullinan’s physical impairments, the ALJ gave
some weight to the opinions of the two state-agency physi-
cians who had physically evaluated Cullinan; the ALJ ac-
cepted their assessment that Cullinan had only nonsevere
No. 17-1287 9
physical impairments. But the ALJ gave controlling weight
to Dr. Monterubianesi’s opinion about Cullinan’s inability to
lift heavy objects, so she limited Cullinan’s residual func-
tional capacity to light exertional work.
The Appeals Council denied review, making the ALJ’s
decision the final decision of the Commissioner. See Ghiselli
v. Colvin, 837 F.3d 771, 776 (7th Cir. 2016). Cullinan sought
judicial review, and a magistrate judge, presiding by con-
sent, see 28 U.S.C. § 636(c), affirmed the decision of the
Commissioner. We review the magistrate judge’s decision de
novo and assess whether the ALJ ‘s decision is supported by
substantial evidence in the record. Lanigan v. Berryhill,
865 F.3d 558, 563 (7th Cir. 2017).
II. Analysis
Cullinan primarily argues that the ALJ erred by discred-
iting her testimony about the limitations caused by her
impairments and the opinion of her treating psychologist,
Dr. Canzona, and instead giving great weight to the Agen-
cy’s nonexamining doctors. She challenges the conclusion
that both her testimony and Dr. Canzona’s opinion were
inconsistent with Dr. Canzona’s notes, which, the ALJ said,
showed she was “very active.”
We will overturn an ALJ’s decision to discredit a claim-
ant’s alleged symptoms only if the decision is “patently
wrong,” meaning it lacks explanation or support. Murphy v.
Colvin, 759 F.3d 811, 816 (7th Cir. 2014). A credibility deter-
mination lacks support when it relies on inferences that are
not logically based on specific findings and evidence. Id.
Here the ALJ’s decision to discredit Cullinan and
Dr. Canzona is unsupported by the record because the ALJ’s
10 No. 17-1287
examples of Cullinan’s daily activities and social interactions
do not remotely describe a “very active” lifestyle. In Murphy
we decided that the ALJ erred in concluding that the claim-
ant’s vacation undermined her claim of stroke-related
impairments. Id. at 817. We noted that the ALJ did not
determine what the claimant did on vacation, and we sug-
gested a vacation relaxing on the beach would have been
consistent with the claimant’s testimony regarding the
severity of her impairments. Id.
The ALJ in Cullinan’s case drew similar impermissible
inferences from her activities. For example:
• Cullinan performed household chores. The treatment
notes say that Cullinan did her parents’ laundry and
was “helpful around the house.” At the hearing she
testified that she made beds, brewed coffee, and load-
ed and unloaded the dishwasher. Daily activities may
be used to discredit a claimant’s testimony. See Love-
less v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016) (citing
20 C.F.R. § 404.1529(c)(3)(i); SSR 96–7P, 1996 WL
374186, at *3; Pepper v. Colvin, 712 F.3d 351, 368–69
(7th Cir. 2013)). But the ALJ did not explain why do-
ing these household chores was inconsistent with
Cullinan’s description of her pain and limited mobili-
ty. Nor is any inconsistency obvious, so the ALJ did
not substantiate the finding that Cullinan’s daily ac-
tivities reveal any exaggeration of Cullinan’s limita-
tions. See Ghiselli, 837 F.3d at 777–78; see also Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The fail-
ure to recognize [the] differences [between activities
of daily living and activities of a full-time job] is a re-
No. 17-1287 11
current … feature of opinions by administrative law
judges in social security disability cases.”).
• Cullinan cared for her cousin in the nursing home.
Dr. Canzona’s notes do not contain what Cullinan did
for her cousin other than to encourage him to eat
healthily; she added at the hearing that she straight-
ened up his room but did not do anything that re-
quired lifting. This is similar to the work she did
around the house. The dearth of information about
what Cullinan did, how she got to the nursing home,
and how long a period of time she assisted her cousin
renders the ALJ’s reliance on this activity unreasona-
ble. See Murphy, 759 F.3d at 817; see also Clifford v.
Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (requiring the
ALJ assessing the claimant’s credibility to “build an
accurate and logical bridge from the evidence to [the]
conclusion”).
• Cullinan helped a friend care for young foster chil-
dren. Again, the record is silent about how Cullinan
helped her friend, so this activity gave the ALJ no in-
formation to factor into a credibility determination.
• Cullinan provided care for her ill grandmother who
required “total care.” Dr. Canzona’s note contradicts
this point: Cullinan did not attend to the grandmother
who required total care because she was already car-
ing for another grandmother. The record does not de-
scribe what this care entailed, so there was no basis
upon which to infer that it was “total” care.
• Cullinan attended concerts. The record suggests that
Cullinan attended two concerts in 2013, but again the
12 No. 17-1287
record provides no details suggesting that this was
particularly “active” or social behavior, or that
Cullinan used public transportation.
• Cullinan attended her parents’ anniversary party and
her cousin’s wake. The record does not describe these
family events, how Cullinan traveled to them, or her
activity when there. Moreover, she expressed having
chest pressure before each occasion. Going to these
two events to fulfill family obligations is not indica-
tive of a high level of social or physical activity.
• Cullinan discussed looking for work and wanting to
volunteer at an animal shelter. Cullinan testified that
twice after her stroke she tried to resume working as a
nursing aide but stopped after four days each time
because she was unable to keep up with the patients.
A positive work history makes a claimant more credi-
ble, Stark, 813 F.3d at 689, and a desire to resume
work similarly makes a claimant more credible, not
less, see Ghiselli, 837 F.3d at 778 (“Persisting in looking
for employment even while claiming to suffer from a
painful disability might simply indicate a strong work
ethic or overly-optimistic outlook rather than an ex-
aggerated condition.”); see also Hill v. Colvin, 807 F.3d
862, 868 (7th Cir. 2015) (noting that a desire to work is
consistent with an inability to work). The expressed
desire to do volunteer work is simply unenlightening.
• Cullinan went on dates. The record says that Cullinan
wanted to reconnect with her ex-boyfriend and that at
one point she “met a man and spent some time with
him.” These statements do not describe a pattern of
dating that demonstrates a “very active” lifestyle.
No. 17-1287 13
Moreover, Cullinan was likely “spending time with”
several people during her alleged period of disabil-
ity—her parents, for example. Perhaps the ALJ be-
lieved this interaction with one person was evidence
of social functioning, but she did not say so; and in
any case spending time with someone is too vague a
descriptor to contradict Cullinan’s alleged impair-
ments.
In citing these questionable examples of a “very active”
lifestyle to discredit Cullinan’s account of how she is limited
by her impairments, the ALJ did not rely on substantial
evidence. Moreover, the ALJ did not discuss any of
Cullinan’s testimony in analyzing her residual functional
capacity, so it appears that she gave the testimony no weight
despite implying that it was at least partially credible (i.e.,
“not entirely credible”).
Relatedly, Dr. Canzona’s opinion of Cullinan’s limita-
tions, contrary to what the ALJ said, was not inconsistent
with his own treatment notes, so the ALJ should not have
ignored it. A treating doctor’s opinion is entitled to control-
ling weight unless it is unsupported by the record.
Vanprooyen v. Berryhill, 864 F.3d 567, 572 (7th Cir. 2017). An
inadequate evaluation of a treating physician’s opinion
requires remand. See Meuser v. Colvin, 838 F.3d 905, 912 (7th
Cir. 2016); Scott v. Astrue, 647 F.3d 734, 739–40 (7th Cir. 2011).
Dr. Canzona treated Cullinan every other week for almost
all of 2013. The ALJ said that Dr. Canzona’s opinion should
not carry controlling weight because it was contradicted by
Cullinan’s level of activity and thus lacked support in the
record. Instead, the ALJ gave great weight to the opinions of
nonexamining agency consultants.
14 No. 17-1287
But just as Dr. Canzona’s treatment notes did not show
that Cullinan was “very active” and therefore not believable,
the notes also do not contradict Dr. Canzona’s opinion of
Cullinan’s limitations. Attending concerts and family func-
tions and spending some time with a man does not show
that she is able to work, travel, or use public transportation.
Further, his notes that she was able to focus during sessions
do not conflict with his opinion that she cannot focus “for
extended time periods.” Because the ALJ did not adequately
explain the conclusion that Dr. Canzona’s notes were incon-
sistent with his opinion, the ALJ’s decision to assign no
weight to Dr. Canzona’s opinion was error.
We are also troubled by the fact that the ALJ did not con-
sider Cullinan’s daily extended naps and frequent debilitat-
ing headaches in determining her residual functional capaci-
ty. No evidence in the record contradicted Cullinan’s testi-
mony about these limitations, so only the adverse credibility
determination could explain the ALJ’s omission. But if the
credibility finding was erroneous, Cullinan could well be
adjudged disabled: the vocational expert said that needing
to take a two-hour nap every day would rule out all work.
And no one mentioned the headaches, but if they were
factored in, the case for disability would be stronger still.
The ALJ has the burden to develop the record and assess
whether symptoms are disabling. See Yurt v. Colvin, 758 F.3d
850, 860 (7th Cir. 2014).
Cullinan’s remaining arguments are unpersuasive. First,
she argues that the ALJ did not consider her sleep apnea
when determining her RFC, but the ALJ expressly incorpo-
rated this limitation into her evaluation of Cullinan’s atten-
tion and concentration. Cullinan also argues that the ALJ
No. 17-1287 15
should have given more weight to Dr. Cybulski, another
treating physician, but Dr. Cybulski examined Cullinan only
shortly after her stroke in 2011, and a treating physician
without a longitudinal view is not entitled to controlling
weight. 20 C.F.R. § 404.1527(c)(2); see Scheck v. Barnhart,
357 F.3d 697, 702 (7th Cir. 2004). Cullinan’s status soon after
her stroke does not shed light on her physical and mental
limitations years later. Finally, Cullinan challenges the
hypothetical question posed to the vocational expert as
incomplete because it did not include her partial blindness.
To the extent the ALJ’s exclusion of partial blindness from
the RFC and hypothetical question was based on the flawed
credibility assessment, the ALJ should reconsider the effect
of Cullinan’s partial blindness on remand.
To conclude, the ALJ’s determinations that neither
Cullinan nor her treating psychologist were credible are not
based on substantial evidence. Because the determinations
led the ALJ to deny Cullinan’s application for benefits, they
are not harmless errors. See Ghiselli, 837 F.3d at 778–79.
We VACATE the judgment and REMAND for further pro-
ceedings.