Paul Lambert v. Nancy Berryhill ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1627
PAUL LAMBERT,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 15-C-1548 — William C. Griesbach, Chief Judge.
____________________
ARGUED FEBRUARY 28, 2018 — DECIDED JULY 19, 2018
____________________
Before MANION, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Paul Lambert appeals the denial of
Disability Insurance Benefits for chronic back pain. The
Social Security Administration denied his application initial-
ly and on reconsideration, and an administrative law judge
(“ALJ”) concluded that Lambert suffers from degenerative
disc disease that is severely impairing but not disabling.
Lambert challenges the ALJ’s decision to give little weight to
2 No. 17-1627
the most recent opinions of his treating neurosurgeon and to
discredit his own testimony about the severity of his pain
and extent of his limitations. We reverse and remand for
further agency proceedings.
I. Background
Lambert applied for benefits in 2012 at age 41 alleging
disabling lower back pain since 2011, an onset date that he
later amended to 2013. Yet his back problems started long
before then. In 2004 discs in his lumbar spine were surgically
fused with a rod. In 2008 surgeons repaired the rod. Still,
Lambert held several jobs over the years.
In 2010 Lambert began experiencing back pain “most of
the time” and thereafter also had “intermittent” pain down
his left leg that often caused him to fall. By late 2012 Lambert
had tried various treatments, including steroid injections in
his spine and pelvis, chiropractic care, medication, and
physical therapy. Nothing produced lasting relief, though
hydrocodone helped ease the pain. Medical imaging re-
vealed no postsurgical complications or other explanation
for his persistent pain. Several neurosurgeons found the
cause unclear; three said further surgery was not an option.
In September 2012 a pain specialist attributed Lambert’s
pain to degenerative disc disease or joint disease of the
lower lumbar spine. Months later he diagnosed Lambert
with failed back syndrome (meaning he experienced contin-
uous pain despite surgeries) and recommended that he
accept his chronic pain and proceed with a pain-
management program instead of seeking a surgical cure. The
pain specialist also recommended that Lambert consider
behavioral therapy to learn coping skills. Lambert followed
No. 17-1627 3
this advice, but in early 2013 the pain specialist referred him
to a neurosurgeon to find the source of the left-leg pain that
by this time was causing daily falls.
Neurosurgeon Kamajit Paul began treating Lambert in
June 2013 and initially recommended a conservative course
of steroid injections to determine if his pain was caused by
dysfunction in the left sacroiliac joint. (The sacroiliac joints
connect the pelvis to the lower spine and support the weight
of the upper body when a person stands. Sacroiliac Joints,
MAYO CLINIC, https://www.mayoclinic.org/diseases-
conditions/sacroiliiitis/multimedia/sacroiliac-joints/img-
20005962 (last visited June 28, 2018).) The pain specialist
administered three injections but continued advising
Lambert to accept his chronic pain and moderate his activi-
ties. Because the injections provided only several hours of
relief, Dr. Paul believed Lambert had dysfunction in his left
sacroiliac joint and recommended surgery to fuse it. But he
cautioned that the surgery offered no guarantee of im-
provement and that Lambert would still experience some
back and leg pain and would “never be 100%.”
Dr. Paul performed the left-joint fusion in October 2013,
and Lambert’s condition initially started to improve. In
November Lambert reported minimal pain. After a month of
physical therapy, he underwent a functional assessment in
January 2014. He was able to walk without an assistive
device and reported “improved function at home and in the
community.” His physical therapist recommended allowing
him to return to work with some lifting restrictions, and
Dr. Paul released Lambert to light-duty work.
But Lambert’s relief was short-lived. In February 2014 he
returned to Dr. Paul, now reporting pain on his right side.
4 No. 17-1627
Dr. Paul was “not sure what [was] happening” and sent
Lambert back to his pain specialist. Testing revealed poten-
tial dysfunction in the right sacroiliac joint.
In late March 2014, Dr. Paul completed an assessment of
Lambert’s functional abilities. He diagnosed bilateral joint
dysfunction and stated that Lambert experienced continued
pain in his right sacroiliac joint and lower back. He opined
that in a competitive work situation, Lambert could sit for at
least six hours out of eight, stand for 30 minutes at a time
(up to two hours total), and walk one block at a time (if
allowed to shift between these positions at will). Dr. Paul
also noted, however, that Lambert’s prognosis was guarded
and that he “may develop problems in the upper lumbar
spine.”
In April 2014 Dr. Paul surgically fused Lambert’s right
sacroiliac joint. Lambert returned to physical therapy and in
early June reported that his preoperative pain had resolved.
But later that month Lambert told his physical therapist that
the pain on the left side of his lower back had returned; he
said it was minimal but interfered with sleep. A week later
Lambert said the pain had worsened and now prevented
him from walking as far as he could just weeks before. In
July 2014 Lambert told Dr. Paul that he had been experienc-
ing pain—exacerbated by activity—for as long as four
weeks. X-rays revealed intact surgical hardware without
abnormality, so Dr. Paul thought the pain did not stem from
the recent fusion. He directed Lambert to proceed with a
previously scheduled functional assessment.
In late July 2014, Lambert’s physical therapist performed
the functional assessment and observed a “significant de-
crease” in his capabilities since the January assessment. The
No. 17-1627 5
July assessment revealed that Lambert had “significant
limitations” in sitting, standing, and walking; he required
position changes every 15 minutes; and he had a limp that
grew more severe as he walked. The physical therapist
opined that Lambert’s work tolerance “would be low to
sedentary” and recommended that he follow up with a
physician.
Dr. Paul examined Lambert once more at the end of July
2014. Lambert had pain and restricted motion in his back but
normal coordination with no muscle atrophy or weakness.
Based on his examination and the therapist’s functional
assessment, Dr. Paul said Lambert was limited to 15 minutes
of sitting or standing at a time and needed to change posi-
tions frequently. He concluded that Lambert’s “functional
capacity [was] markedly reduced to the extent that … he
cannot do even sedentary work.” Dr. Paul again referred
Lambert to the pain specialist because his back pain could
not be controlled by surgery. In August Dr. Paul opined that
Lambert “would not be able to tolerate a work situation”
because his “persist[ent] low back pain” had worsened, is
severe, and is not expected to improve.
At an August 2014 hearing before an ALJ, Lambert testi-
fied that in 2011 he fell down the stairs in his home and his
employer laid him off so he could obtain unemployment-
insurance benefits without having to search for work while
he “figured out what was going on.” The ALJ voiced con-
cern over Lambert’s receipt of unemployment benefits after
his alleged onset date. Lambert then orally amended his
onset date to January 1, 2013.
Lambert testified that he could not sit, stand, or walk for
more than 15 minutes without a lot of pain in his lower back.
6 No. 17-1627
He said that nothing entirely relieved the pain, including
hydrocodone, Vicodin, and participation in the pain-
management program. He had stopped doing housework,
used a mounted seat while showering, and needed his wife’s
help putting on and removing his socks. Lambert testified
that around the time of his first sacroiliac joint surgery in the
fall of 2013, he had started taking college classes online in
the hope of possibly working as a music teacher—but his
pain had progressed so much since March 2014 that he could
not focus and had to withdraw from classes scheduled for
fall 2014.
The ALJ applied the standard multistep analysis, see
20 C.F.R. §§ 404.1520(a), 416.920(a), and concluded that
Lambert was not disabled after the amended onset date of
January 1, 2013. As relevant here the ALJ determined that
Lambert was severely impaired by degenerative disc dis-
ease; that he nonetheless had the residual functional capacity
(“RFC”) to perform sedentary work with specified limita-
tions; and that based on the testimony of a vocational expert,
he was capable of working as a sorter, assembler, order
clerk, or office helper.
In delineating Lambert’s RFC, the ALJ concluded that
Lambert’s alleged symptoms were caused by medically
determinable impairments, but that the severity of his pain
and his claimed functional limitations were “not substantiat-
ed by the medical and other evidence of record.” The ALJ
also said that Lambert’s receipt of unemployment benefits
after the initial alleged onset date and his subsequent at-
tempt to “moot” the issue by amending his onset date
“reflect[ed] adversely on his credibility.”
No. 17-1627 7
The ALJ gave “little weight” to Dr. Paul’s opinions from
July and August 2014. They were, in the ALJ’s view, incon-
sistent with his March 2014 opinion and his objective find-
ings. The ALJ also characterized Dr. Paul’s opinion that
Lambert would not be able to tolerate a work situation as a
legal conclusion reserved to the Commissioner. On the other
hand, the ALJ gave “considerable weight” to two opinions of
state agency consultants who reviewed Lambert’s medical
records in August 2012 (before the amended onset date) and
April 2013 (four months after the amended onset date) and
concluded that Lambert could perform sedentary work with
restrictions.
The Appeals Council denied review. A district judge af-
firmed the Commissioner’s decision and Lambert appeals.
II. Analysis
Lambert challenges the ALJ’s decision to give little
weight to the most recent opinions of his treating neurosur-
geon, Dr. Paul. He also argues that the ALJ was wrong to
discredit his testimony about the severity of his symptoms
and limitations.
A. Treating Neurosurgeon’s Opinions
Lambert contests the ALJ’s decision to give little weight
to Dr. Paul’s July and August 2014 opinions that his pain
had worsened to the point that he could not tolerate even
sedentary work. Because Dr. Paul is a treating physician, his
opinion on the nature and severity of Lambert’s medical
condition is entitled to controlling weight if it is well sup-
ported by medical findings and consistent with other record
evidence. See 20 C.F.R. §§ 404.1520c(a) (2017); Gerstner v.
Berryhill, 879 F.3d 257, 261 (7th Cir. 2018) (noting that this
8 No. 17-1627
treating-physician rule applies only to claims filed before
March 27, 2017).
Lambert identifies multiple flaws in the ALJ’s decision.
He argues that the ALJ overlooked medical evidence sub-
stantiating Dr. Paul’s most recent opinions, wrongly found
the opinions inconsistent with Dr. Paul’s earlier opinion
from March 2014, and failed to consider the relevant factors
for evaluating medical source opinions set forth in 20 C.F.R.
§ 404.1527(c). He also challenges the ALJ’s decision to dis-
count Dr. Paul’s opinion as a legal conclusion outside a
doctor’s role. Finally, Lambert asserts that the ALJ failed to
explain why Dr. Paul’s opinions were entitled to less weight
than those of the agency physicians rendered before some of
the key medical evidence was compiled.
We agree that the ALJ’s reasons for giving little weight to
Dr. Paul’s most recent opinions are inadequate to “build an
accurate and logical bridge between the evidence and the
result.” Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014).
First, the ALJ said there was no objective basis for Dr. Paul’s
opinion about Lambert’s symptoms as of July 2014 because
“x-rays revealed good fusion and good position of the
[sacroiliac] joint.” But no medical source opined that the
imaging results were inconsistent with Lambert’s complaints
of disabling pain. Indeed, throughout Lambert’s treatment
history, medical imaging ruled out specific, objective causes
of his ongoing pain—yet his doctors performed surgeries,
prescribed powerful pain medications, and recommended
long-term pain-management techniques for his suite of
chronic back problems. ALJs must rely on expert opinions
instead of determining the significance of particular medical
findings themselves. Meuser v. Colvin, 838 F.3d 905, 911
No. 17-1627 9
(7th Cir. 2016); Stage v. Colvin, 812 F.3d 1121, 1125 (7th Cir.
2016); see also Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014)
(remanding where the ALJ “play[ed] doctor” by summariz-
ing the MRI results without subjecting them to professional
medical scrutiny). The ALJ’s finding of a mismatch between
the objective evidence and the treating neurosurgeon’s
opinion failed to heed that principle.
Second, the ALJ discounted Dr. Paul’s mid-2014 opinions
because Lambert’s symptoms after the April 2014 surgery
had an “unclear” cause. But Dr. Paul’s conclusion, shared by
the pain specialist, was that Lambert has a chronic back
condition that may never be cured. Dr. Paul attempted to
treat Lambert’s pain through sacroiliac joint surgeries; after
surgical intervention failed, he returned Lambert to long-
term pain management. Degenerative conditions often get
worse over time, see Hill v. Colvin, 807 F.3d 862, 868–69 (7th
Cir. 2015), and Lambert has an extensive history of surgeries
that yielded only temporary or partial relief. Given his
chronic back condition, it was improper to reject Dr. Paul’s
mid-2014 assessment merely because he could not isolate the
source of the pain. See Cole v. Colvin, 831 F.3d 411, 416 (7th
Cir. 2016); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010).
Third, it was wrong for the ALJ to say that “no evidence”
showed that Lambert’s pain after the April 2014 surgery
would not “respond to conservative treatment.” Lambert’s
back pain was consistently classified as incurable or chronic
by Dr. Paul, by the pain specialist, and by Lambert’s
primary-care physician. And a surgical consultant who
reviewed Lambert’s records before both sacroiliac joint
surgeries rated his back and joint pain as “severe” and
unresponsive to conservative treatment.
10 No. 17-1627
Fourth, the ALJ overlooked the extent to which findings
in the July 2014 functional assessment supported Dr. Paul’s
most recent opinions. Dr. Paul opined, consistent with the
physical therapist’s July assessment, that Lambert could sit
or stand for only 15 minutes and needed frequent position
changes, and he also concluded that Lambert’s “functional
capacity [was] markedly reduced to the extent that … he
[could] not do even sedentary work.” The physical therapist
had said that Lambert’s tolerance for sedentary work would
be low and (unlike in January) did not specifically opine that
Lambert could return to work. So the functional assessment
supports Dr. Paul’s opinion. An ALJ’s failure to consider
findings that support a treating physician’s opinion is error.
Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015).
Fifth, the ALJ decided, without explanation or record
support, that Dr. Paul’s most recent opinion was inconsistent
with his earlier assessment. Dr. Paul’s treatment notes reveal
that his later views were an update—the product of repeated
failed attempts to treat Lambert’s pain through surgeries.
From his first examination of Lambert in June 2013,
Dr. Paul’s notes refer to his uncertainty about the source of
Lambert’s pain. His March 2014 opinion discusses the
likelihood of continued back problems and includes a
“guarded” prognosis. Between that opinion and the one he
issued four months later, Lambert underwent another
surgery, had trouble with physical therapy, and completed a
functional assessment—all of which supported Dr. Paul’s
July and August opinions that Lambert’s condition had
worsened. Physicians may update their views without being
inconsistent if their later opinions are based on a patient’s
changed condition. See Scrogham v. Colvin, 765 F.3d 685, 696–
No. 17-1627 11
97 (7th Cir. 2014). There is no unexplained inconsistency
here.
Relatedly, the ALJ weighed Dr. Paul’s opinions without
considering the regulatory factors listed in 20 C.F.R.
§ 404.1527(c). ALJs must evaluate a treating physician’s
noncontrolling opinion by considering the treatment rela-
tionship’s length, nature, and extent; the opinion’s support-
ing explanation and consistency with other evidence; and
any specialty of the physician. Moss v. Astrue, 555 F.3d 556,
561 (7th Cir. 2009); Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir.
2008). Dr. Paul, a neurosurgeon specializing in spinal disor-
ders, treated Lambert’s back problems for over a year,
examined him at least 15 times, and performed two
sacroiliac joint surgeries. Dr. Paul based his most recent
opinions on the physical therapist’s July functional assess-
ment and on his own contemporaneous examinations. Yet
the ALJ did not explain his view of these factors in assigning
little weight to Dr. Paul’s opinions.
Finally, the ALJ wrongly discounted Dr. Paul’s opinion
as an improper legal conclusion by a medical professional.
Whether a claimant qualifies for benefits is a question of law,
Garcia v. Colvin, 741 F.3d 758, 760 (7th Cir. 2013), but a
medical opinion that a claimant is unable to work is not an
improper legal conclusion, Bjornson v. Astrue, 671 F.3d 640,
647–48 (7th Cir. 2012) (remanding for the ALJ to consider the
opinion that the claimant “remained unable to work”) (citing
20 C.F.R. § 404.1527(e)(1)). Indeed, ALJs must consider
medical opinions about a patient’s ability to work full time
because they are relevant to the RFC determination. Garcia,
741 F.3d at 760. Here Dr. Paul’s most recent opinion is that
Lambert’s chronic back pain is so limiting that he no longer
12 No. 17-1627
can tolerate even sedentary work. That’s not an improper
legal conclusion.
The ALJ’s flawed analysis of Dr. Paul’s opinions is com-
pounded by his failure to explain why he gave considerable
weight to the opinions of the agency physicians that Lambert
could perform sedentary work. It is puzzling why the ALJ
would credit these opinions while discounting Dr. Paul’s as
an improper legal conclusion. See Bjornson, 671 F.3d at 648.
That inconsistency aside, an ALJ must weigh medical opin-
ions by applying the regulatory factors in 20 C.F.R.
§ 404.1527(c)(2). The reviewing consultants rendered their
opinions before Lambert was treated by the pain specialist,
before Dr. Paul fused Lambert’s sacroiliac joints in failed
attempts to alleviate his pain, before Dr. Paul opined that
Lambert’s pain had worsened and his limitations had de-
graded since 2011, and before the physical therapist found
Lambert’s functional abilities had diminished. ALJs may not
rely on outdated opinions of agency consultants “if later
evidence containing new, significant medical diagnoses
reasonably could have changed the reviewing physician’s
opinion.” Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir.
2018).
The government responds that any error in weighing
Dr. Paul’s opinions is harmless. An error is harmless only if
we are convinced that the ALJ would reach the same result
on remand. See McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir.
2011). Here the outcome is not foreordained; at the very
least, the ALJ formulated an RFC without including
Dr. Paul’s most recent opinions.
The government also argues that under the Social Securi-
ty Act, Lambert needed to prove that he was unable to work
No. 17-1627 13
for an identifiable, continuous 12-month period. This argu-
ment misreads the statute. The Act does not specify how
long a claimant must be unable to engage in substantial
gainful activity. Instead it is the claimant’s “medically
determinable physical or mental impairment” that must
have “lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
Lambert’s impairment from degenerative disc disease
continued from at least January 2013 through August 2014,
well over a year. The government’s reading of the Act would
preclude benefits for anyone with an impairment that causes
12 months of bad days with good days interspersed. See
Bauer v. Astrue, 532 F.3d 606, 609 (7th Cir. 2008) (“A person
who has a chronic disease, whether physical or psychiatric,
and is under continuous treatment for it with heavy drugs, is
likely to have better days and worse days … . Suppose that
half the time she is well enough that she could work[] and
half the time she is not. Then she could not hold down a full-
time job.”).
B. Lambert’s Testimony
Lambert also argues that the ALJ wrongly discredited his
testimony about the severity of his back pain and related
functional limitations. We will overturn an ALJ’s adverse
credibility determination only if it is unsupported by sub-
stantial evidence or rests on legally improper analysis.
Ghiselli v. Colvin, 837 F.3d 771, 778–79 (7th Cir. 2016).
Lambert contends that the adverse credibility determina-
tion rests on a misinterpretation of the medical records. The
ALJ stressed that “imaging studies have consistently
show[n] good fusions and intact hardware,” and Lambert’s
exams revealed “normal coordination” and “no atrophy or
14 No. 17-1627
deficits in motor, strength, or sensory” abilities. But none of
Lambert’s physicians interpreted these medical findings as
inconsistent with his reports of recurrent and worsening
pain and functional limitations. Even when tests showed no
hardware malfunction, coordination issues, or strength
deficits, Lambert’s physicians continued to treat his pain.
The ALJ also failed to acknowledge that Lambert’s physical
exams showed only brief periods of coordination and
strength, which is consistent with his testimony that sitting,
standing, or walking for more than 15 minutes exacerbated
his pain. See Gerstner, 879 F.3d at 264 (noting that the claim-
ant’s performance in exams did not undermine her allega-
tion that pain was triggered by prolonged activity).
Similarly, the ALJ emphasized that Lambert had “good
responses” to surgeries, physical therapy, and medication
when the medical records actually show that these treat-
ments were ineffective at either consistently or decisively
improving his chronic pain or resolving his functional
limitations. See Stark v. Colvin, 813 F.3d 684, 687 (7th Cir.
2016) (remanding where the ALJ mentioned ongoing treat-
ments in passing but did not consider whether it relieved the
claimant’s pain). Indeed, two sacroiliac joint surgeries failed
to eliminate Lambert’s lower back and leg pain, and physical
therapy in 2013 improved his functioning for only a brief
period.
The ALJ also noted that Lambert said he had good con-
trol of pain with medication in January 2013, that he had
pain relief with hydrocodone in July 2013, and that he was
no longer taking medications on March 4, 2014. But one
physician opined that hydrocodone interferes with
Lambert’s ability to work. And Lambert resumed the hydro-
No. 17-1627 15
codone within a month of stopping it in 2014 and continued
to experience pain even when taking the medication. The
ALJ’s evaluation of Lambert’s need for narcotic pain medica-
tion omitted these important details.
The ALJ further concluded, contrary to the evidentiary
record, that Lambert’s symptoms were “only intermittent.”
The ALJ relied on an April 2013 treatment note by the pain
specialist, but that note describes Lambert’s falls and leg pain
as intermittent while characterizing his back pain as chronic.
Indeed, the ALJ’s description conflicts with many other
treatment notes in which Lambert’s pain specialist, his
primary-care physician, and Dr. Paul assessed his back
condition in chronic terms.
The ALJ also overread or overlooked important evidence
in discrediting Lambert’s testimony about his limited activi-
ties of daily living. The ALJ relied on a March 2014 note from
a physical therapist who reported that Lambert assessed his
recovery from left sacroiliac joint surgery as “excellent.” But
the ALJ glossed over another part of that same note in which
Lambert complained about increasing right-side lower back
pain that woke him every four to five hours, giving him a
sleep pattern that was “very disruptive” to his life. Nor did
the ALJ acknowledge that Lambert underwent another
surgery and experienced worsened symptoms in the five
months or so between his March 2014 comment and the
August 2014 hearing.
Lambert next contends that the ALJ wrongly discounted
his severe back pain after the most recent sacroiliac joint
surgery. The ALJ found that Lambert’s complaints were
unsupported by objective evidence. To be sure, a lack of
objective support from physical examinations and test
16 No. 17-1627
results is relevant, but an ALJ may not discredit pain com-
plaints solely because they lack objective corroboration.
Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014); Parker,
597 F.3d at 921–22. Indeed, the recurrence of Lambert’s
symptoms is consistent with Dr. Paul’s warning that surgery
was not guaranteed to alleviate his lower back pain and the
pain specialist’s recommendation that Lambert pursue long-
term pain-management strategies for his incurable back
condition. Lambert “has undergone painful and risky proce-
dures in attempts to alleviate his pain, actions that would
seem to support the credibility of his claims regarding the
severity of his pain.” Israel v. Colvin, 840 F.3d 432, 441 (7th
Cir. 2016).
Last, Lambert argues that the ALJ’s adverse credibility
determination rests on an improper analysis of his receipt of
unemployment benefits before his amended onset date. The
ALJ said that changing the alleged onset date to a period
after the lapse of his unemployment benefits “evidenced
either an intent to return to work as required by state unem-
ployment law or misuse of the law.” But a claimant’s desire
to work is not evidence that the claimant has embellished his
limitations, see Gerstner, 879 F.3d at 265—especially here,
where Lambert’s hopeful view of his prognosis was not
shared by his doctors, who repeatedly urged him to shift
from seeking a cure to focusing on pain management. And
although unemployment benefits may be relevant if a claim-
ant has represented to the State that he is able to work during
the period for which he has applied for federal disability
benefits, Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005),
any work-ready representation that Lambert made, person-
ally or by presumption under state law, occurred before the
amended onset date.
No. 17-1627 17
If the ALJ meant to rely on Lambert’s work-ready repre-
sentation before the amended onset date, the ALJ failed to
explain why this affected his evaluation of limitations doc-
umented more than a year later—particularly in light of the
degenerative nature of Lambert’s back condition. See
Scrogham, 765 F.3d at 699 (remanding because the ALJ relied
on receipt of unemployment benefits to discount claimant’s
symptoms without considering the progressive nature of
disease). The record reveals that when Lambert simultane-
ously received unemployment benefits and claimed disabil-
ity, he hoped that medical intervention might reduce his
back pain to the point that he could return to work. No one
knew at that time whether he would be able to work again.
Finally, we note a more fundamental problem with the
ALJ’s reliance on Lambert’s application for unemployment
compensation to discount his credibility in seeking disability
benefits. Under the Social Security Act, the line between
disabled and nondisabled can be very difficult to chart
accurately. And the Social Security system is designed to
encourage everyone who can work to do so. Consider, for
example, the first step in the five-step analysis of disability.
No matter how severe the physical or mental challenges
might be, if the person is actually working (“substantial
gainful activity”), the person is not disabled. 20 C.F.R.
§§ 404.1520(a), 416.920(a). And a person who is not certain
whether he will qualify for Social Security disability surely
has, and should have, a strong incentive to keep looking for
work and to pursue unemployment compensation as an
interim source of income. An ALJ should not discount a
claimant’s credibility based on an application for unem-
ployment compensation without taking these incentives and
18 No. 17-1627
pressures into account. The ALJ’s opinion here does not
indicate that he did.
III. Conclusion
In sum, the ALJ failed to properly assess the treating
neurosurgeon’s most recent opinions about Lambert’s
impairments and limitations and Lambert’s testimony about
his symptoms. Accordingly, we REVERSE the judgment in
favor of the Commissioner and REMAND for further proceed-
ings.