Margrit Eakin v. Michael Astrue , 432 F. App'x 607 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 April 27, 2011
Decided June 30, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-3121
MARGRIT EAKIN, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 09 C 2823
MICHAEL J. ASTRUE, Commissioner
of Social Security, Young B. Kim,
Defendant-Appellee. Magistrate Judge
ORDER
Margrit Eakin suffers from arthritis in her left hip and claims that the condition has
disabled her since 2004. She applied for disability benefits at age 61, but an administrative
law judge concluded that her condition was not disabling and denied her application.
Eakin now appeals from the district court’s judgment upholding the ALJ’s decision. Eakin
asserts that the ALJ failed to adequately justify her conclusion and made improper medical
and credibility determinations. The ALJ’s opinion contains several errors and, on balance,
is too cursory to permit meaningful appellate review. Accordingly, we reverse the district
court’s denial of relief and remand for further proceedings.
No. 10-3121 Page 2
I. Background
The medical chronology in this case is brief, spanning only the two years between
the first doctor’s visit and the hearing before the ALJ. Eakin, who worked as a waitress
from 2000 to 2004 (and before then as a cashier at a currency exchange), was first diagnosed
with arthritis in 2005 by Dr. Dennis Mess, an orthopedic specialist. Eakin told Dr. Mess that
she fell the previous month and had since experienced pain in her left hip and thigh. An
examination revealed an antalgic (abnormally shortened) gait with a limp on the left side
and reduced extension in the left hip with pain on hip motion. Dr. Mess, noting that X-rays
showed deterioration in the left hip, diagnosed severe degenerative joint disease. He
prescribed 75 milligrams of Voltaren, an anti-inflammatory drug. When Eakin returned six
weeks later, she told Dr. Mess that the Voltaren had helped, but not as much as the sample
of Bextra she had received from her family physician. Eakin also said she was not ready for
surgery.
Eight months later, at the behest of the Social Security Administration, Eakin met
with Dr. Liana Palacci, an osteopathic physician, for a consultative examination. Dr. Palacci
diagnosed osteoarthritis of the left hip and poorly controlled hypertension. Dr. Palacci
found that Eakin had an antalgic gate that favored her left leg, reduced left-leg strength,
and a reduced range of motion in the left hip and lumbar spine. Eakin told the doctor that
she used a cane occasionally for balance. Dr. Palacci observed that she was overweight (226
pounds at five-foot seven) and had trouble getting on the examination table, performing
knee squats, and standing on the heel and toes of her left foot. Eakin, however, did not
have difficulty with “[s]traight leg raising,” was able to cross her legs, and could walk 50
feet without a cane.
Based on Dr. Palacci’s findings, a state-agency physician concluded that Eakin had
the residual functional capacity (“RFC”) for light work. The physician opined that Eakin
could lift 20 pounds frequently and 10 occasionally, and that she could sit for six hours in
an eight-hour day and stand or walk for six hours in an eight-hour day.
Eakin again saw Dr. Mess in August 2006 and November 2007. The records from
those visits—cursory treatment notes mostly—are spare. In the earlier visit, Eakin told Dr.
Mess that Voltaren had not improved her hip pain but that she could “live with it.” After
the next visit, Dr. Mess noted that Eakin’s left hip was slowly worsening but she still
preferred medication over a hip replacement. At the same time, Dr. Mess completed a
“Physical Capacities Assessment” in which he, like Dr. Palacci, diagnosed osteoarthritis of
the left hip. Under “significant objective and/or clinical findings,” Dr. Mess recorded
limited and painful motion of the left hip. He added that Eakin’s complaints of severe pain
were consistent with his objective findings, that her impairment would last indefinitely,
No. 10-3121 Page 3
and that she needed a left hip replacement. With respect to functional limitations, Dr. Mess
opined that over an eight-hour day Eakin could sit for one hour, stand or walk for less than
one hour, and occasionally lift up to ten pounds. He also opined that she would be unable
to use her left leg for repetitive movements and would need “complete freedom” to rest
frequently without restriction.
At the hearing before the ALJ, Eakin testified that her arthritis had sharply limited
her ability to stand and walk. Citing poor balance and reduced leg strength, she said that
she required a cane at all times and could not walk more than ten feet without losing her
balance. She said that the pain, which radiated from her hip to her leg and back, was severe
and prevented her from performing even the simplest daily activities. Sitting, for instance,
caused her legs to swell, and on bad days she could sit for only 15 minutes before having to
change positions. But rising, too, was painful, and since she could not readily stand from a
sitting position, she had trouble bathing in her tub at home and had to use the walk-in
shower in her son’s apartment downstairs. Eakin said that she could sleep in only short
increments, and that household chores that normally took hours now took days. To
minimize the pain, Eakin used heating pads and Bengay and often sat in a recliner to
elevate her legs. Although she considered surgery, she said Dr. Mess advised her that there
was no guarantee it would help.
A vocational expert testified that Eakin’s past work as a cashier is typically
performed at the sedentary level. He said that an individual who needs to change positions
frequently could still perform the work but would not be able to recline and would need
the strength to sit for 20 minutes and stand for five minutes at a time. The work, he
acknowledged, would be substantially more difficult if done with a cane; still, of the
roughly 19,800 cashier jobs in the region, some 8,000 would permit use of a cane.
Evaluating Eakin’s claim under the five-step analysis of 20 C.F.R. § 404.1520(a), the
ALJ found that Eakin had not engaged in gainful employment since her onset date (step
one); that her arthritis, obesity, and hypertension were severe but did not match or equal an
impairment enumerated in the regulations (step two); that Eakin had the RFC to perform
the full range of sedentary work (step three); and that Eakin could still perform her past
work as a check cashier (step four). Eakin sought review from the Appeals Council, which
declined to hear the case. The magistrate judge, presiding with the consent of the parties,
upheld the decision of the ALJ.
II. Discussion
We will uphold the Commissioner’s decision if the ALJ applied the proper legal
standard and supported her finding with substantial evidence. Castile v. Astrue, 617 F.3d
923, 926 (7th Cir. 2010). Although the ALJ need not address every piece of evidence, if her
No. 10-3121 Page 4
discussion of the issues is not developed enough to support meaningful appellate review, it
will be remanded. Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010).
Eakin’s primary argument on appeal is that the ALJ violated her duty to
substantiate the RFC determination. Specifically, she asserts that the ALJ failed to account
for Eakin’s testimony relating to the severity of her condition and her impaired ability to
function in a work setting; failed to analyze the findings of Dr. Mess and Dr. Palacci, in
terms of how their findings related to each other or how they could be reconciled with the
RFC determination; and, more broadly, failed to point to any evidence that Eakin could
perform the full range of sedentary work.
In determining an individual’s RFC, an ALJ must evaluate all limitations that arise
from a medically determinable impairment and may not ignore a line of evidence contrary
to the ruling. See Villano v. Astrue, 556 F.3d 558, 563 (7th Cir. 2009). The RFC determination
should include a discussion describing how the evidence, both objective and subjective,
supports the ultimate conclusion. Conrad v. Barnhart, 434 F.3d 987, 991 (7th Cir. 2006);
Briscoe v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005); Myers v. Apfel, 238 F.3d 617, 621 (5th Cir.
2001); SSR 96-8p. Social Security Ruling 96-8p instructs ALJ’s to assess a claimant’s work-
related abilities on a function-by-function basis, and although the ALJ need not discuss
every piece of evidence, she must still articulate, “at some minimum level,” her analysis of
the evidence, Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Brindisi v. Barnhart, 315
F.3d 783, 786 (7th Cir. 2003).
The paucity of analysis in the ALJ’s opinion is problematic. After reciting the
medical findings, the ALJ concluded the RFC determination with a terse statement that the
record “does not provide a basis for finding limitations greater than those determined in
this decision.” This statement, however, is too perfunctory to permit meaningful appellate
review. It fails the evaluation standards of SSR 96-8p and even this court’s modest
requirement that the ALJ minimally articulate the basis for her conclusion. Briscoe, 425 F.3d
at 352; Brindisi, 315 F.3d at 786. The failure to explain how she found Eakin capable of
sedentary work is sufficient cause for reversal, Briscoe, 425 F.3d at 352; Myers, 238 F.3d at
621, but the error was compounded by the failure to address several lines of evidence
contrary to her conclusion. See Villano, 556 F.3d at 563. Specifically, the ALJ glossed over
Eakin’s testimony about limitations arising from radiating pain in her hip, about her
inability to sit and stand for extended periods of time, and about the frequency with which
she needed to alternate positions. The ALJ altogether ignored Eakin’s description of her
postural limitations, including her difficulty balancing and rising from a seated position.
And the ALJ failed to discuss the significance of Dr. Palacci’s findings, which, while hardly
decisive, still provided objective evidence (reduced muscle strength in the leg, reduced
No. 10-3121 Page 5
range of motion in the hip, antalgic gate, inability to stand on heel or toes) that the arthritis
limited Eakin’s ability to exert herself.
The Commissioner argues that medical evidence in the reports from Dr. Mess and
Dr. Palacci are consistent with a finding that Eakin can perform sedentary work. But the
ALJ did not explain what she found instructive in the findings of Dr. Mess and Dr. Palacci,
and the agency may not bolster the ALJ’s ruling with evidence the ALJ did not rely on.
Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010). The Chenery doctrine precludes a
government lawyer from invoking a new rationale to rehabilitate an administrative
decision. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). Thus, to the extent the
Commissioner’s new reasons in support of the ALJ’s ruling are even relevant, they inform
the question of harmless error, which in the administrative setting exists only if we
conclude with great confidence that the agency will reinstate its decision, id, and we do not
reach that conclusion here.
The ALJ’s failure to adequately support the RFC determination is reason enough to
vacate. See Briscoe, 425 F.3d at 352. But the RFC determination was not the only deficient
aspect of the opinion, and our conclusion is reinforced by an improper determination about
Dr. Mess’s medical opinion and a string of errors in the credibility analysis.
Eakin asserts that the ALJ failed to give appropriate weight to the opinion of Dr.
Mess, her treating physician, whose conclusions diverge from the RFC determination. The
ALJ concluded that neither the state-agency physician nor Dr. Mess reasonably estimated
Eakin’s physical limitations; according to the ALJ, Dr. Mess appeared to have “relied quite
heavily” on Eakin’s subjective reports of pain. Eakin contends that Dr. Mess’s assessment is
supported by the evidence in the record and that the ALJ misapplied the regulations
governing medical-source opinions. She further contends that the ALJ lacked a reasonable
basis for discounting Dr. Mess’s opinion on the grounds that it relied heavily on Eakin’s
subjective complaints about her functional limitations.
Eakin is correct that the ALJ gave short shrift to Dr. Mess’s opinion. A treating
physician’s opinion is entitled to “controlling weight” if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence” in the record. 20 C.F.R. § 404.1527(d)(2); Punzio v. Astrue, 630 F.3d 704,
710 (7th Cir. 2011). An ALJ who declines to give controlling weight to the opinion of a
treating physician must offer “good reasons” that are “sufficiently specific” in explaining
what weight, if any, she assigned it. 20 C.F.R. § 404.1527(d)(2); Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. 2007). Conjecture is not a proper basis for ignoring a medical opinion.
Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009); Gudgel v. Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003).
No. 10-3121 Page 6
Although the ALJ fairly observed that the notes from Dr. Mess’s examinations were
sparse, the doctor’s findings did draw upon objective evidence—his examinations of her
revealed reduced range of motion in the hip and a limp in the left leg, and an X-ray he
consulted confirmed the existence of degenerative joint disease.
But even assuming that the ALJ had legitimate reasons to discount Dr. Mess’s
opinion, she did not apply the correct legal standard in determining what weight to assign
it. See 20 C.F.R. § 404.1527(d)(2); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009); Bauer v.
Astrue, 532 F.3d 606, 608 (7th Cir. 2008). Had she considered the required factors, including
the nature of the treatment relationship, the frequency of examination, the physician’s
specialty, the type of tests performed, and the reliability of the opinion, see § 404.1527(d)(2),
she would have been compelled to give the opinion considerable weight. Not only did Dr.
Mess examine Eakin four times in just over two years, but he is the sole orthopedic
specialist on record, the only doctor with an expertise in Eakin’s condition. He also
happens to be the doctor who first diagnosed Eakin’s arthritis, and the only doctor on
record to have treated the condition and tracked its progress.
Eakin next argues that the ALJ failed to adequately support her adverse credibility
finding. She challenges each of the ALJ’s stated reasons for discrediting her: Eakin’s alleged
onset date of August 2004 was inconsistent with her statement to Dr. Mess in May 2005 that
she had been in pain since falling on her side the previous month; Eakin’s decision not to
have surgery and to continue treating the arthritis with medication, as well as her
statement that she could “live with” the pain, suggested a condition less severe than she
had alleged; her periodic trips to the doctor were inconsistent with the frequency with
which one would expect a totally disabled person to receive treatment; and the absence of
any prescription for use of a cane suggested that she overstated her need for it.
Although we afford an ALJ’s credibility determination considerable deference,
Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006), the ALJ must consider the
individual’s level of pain, treatment, daily activities, and other impairments, and must
support the finding with specific reasons consistent with the record. Larson v. Astrue, 615
F.3d 744, 752 (7th Cir. 2010).
On the whole the credibility determination does not inspire confidence that the ALJ
undertook a careful examination of the record. Three aspects of the determination were
particularly troubling. First, the ALJ unreasonably faulted Eakin for not obtaining a
prescription for her cane. As this court held in Terry v. Astrue, 580 F.3d 471, 477-78 (7th Cir.
2009), the fact that an individual uses a cane not prescribed by a doctor is not probative of
her need for the cane in the first place. Second, the ALJ should have developed the record
further before discrediting Eakin based on her choice to treat the arthritis with medication
No. 10-3121 Page 7
rather than surgery. See Moss, 555 F.3d at 561. An ALJ can base an adverse credibility ruling
on an applicant’s failure to follow prescribed treatment if the treatment is “clearly
expected” to restore her capacity to work. S.S.R. 82-59, 1982 WL 31384, at *1; see also Craft v.
Astrue, 539 F.3d 668, 678-79 (7th Cir. 2008). But there is no medical opinion on record
suggesting that a hip replacement would be “clearly expected” to work. Although Dr. Mess
noted in his report that Eakin needed a hip replacement, Eakin testified that he had
reservations about the procedure and could not guarantee its success. Third, Eakin’s
decision to “live with” the pain rather than undergo surgery was neither an admission that
she could obtain gainful employment nor a proper basis for discrediting her testimony—at
least not without analyzing the statement in light of Eakin’s daily efforts to cope with her
pain. A complete credibility analysis accounts for the applicant’s allegations about how her
symptoms affect her daily activities. 20 C.F.R. § 404.1529(c); S.S.R. 96-7p, 1996 WL 374186;
Martinez v. Astrue, 630 F.3d 693, 697 (7th Cir. 2011). Here, had the ALJ given due
consideration to Eakin’s testimony concerning her daily activities—her difficulty with
sitting and standing, her trouble with daily chores, her various coping methods—she
would have seen that living with the pain was not a decision reached lightly.
III. Conclusion
For the foregoing reasons, we VACATE the ALJ’s ruling and REMAND for further
proceedings. On remand, the ALJ should substantiate how she arrived at the conclusion
that Eakin can perform sedentary work, why she discounted Dr. Mess’s opinion, and how
much weight, if any, she assigned it under the applicable regulations. The ALJ should also
reevaluate Eakin’s credibility in accordance with this order.