Michael Reinaas v. Andrew M. Saul ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1985
MICHAEL EDWARD REINAAS,
Plaintiff‐Appellant,
v.
ANDREW M. SAUL, Commissioner of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 16‐cv‐814 — William M. Conley, Judge.
____________________
ARGUED MARCH 3, 2020 — DECIDED MARCH 16, 2020
____________________
Before EASTERBROOK, KANNE, and ST. EVE, Circuit Judges.
PER CURIAM. Michael Reinaas seeks Social Security disa‐
bility benefits, asserting that he became disabled from neck
and shoulder pain in January 2013 after undergoing right
shoulder surgery. Relying on reports by two non‐examining
state‐retained doctors over a treating physician’s opinion, the
2 No. 19‐1985
administrative law judge found that Reinaas’s subjective de‐
scriptions of his pain and functional limitations were not
credible and determined that he was not disabled because he
could still perform light work with some restrictions. The dis‐
trict court upheld that determination. But substantial evi‐
dence does not support the ALJ’s decision to discount the
treating physician’s opinion, and the ALJ did not adequately
evaluate his subjective complaints. We therefore vacate the
judgment and remand for further proceedings.
I. BACKGROUND
Reinaas, now in his mid‐fifties, lives on a small farm in ru‐
ral Wisconsin and has a history of neck fusion surgeries and
cervicogenic headaches (pain perceived in the head that
comes from a source in the neck). Until 2010, he worked as a
machine operator in a factory, which entailed heavy lifting.
But he injured his spine and tore his right rotator cuff on the
job, and he stopped working while he underwent two neck
fusion surgeries—one in 2010 and the other in 2011—for his
spinal injury. He was granted benefits for a closed period of
disability that ended in July 2012.
Reinaas planned to return to work after the second neck
fusion surgery, but he continued to suffer from severe head‐
aches originating in his neck (which he treated with hydroco‐
done), shoulder pain, and a decreased range of motion in his
neck and shoulder. In July 2012, a neurologist diagnosed him
with cervicogenic headaches, and his family doctor made fur‐
ther diagnoses of “long term nuchal headaches” (headaches
originating from the nape of his neck) and “[p]ermanent pain
syndrome post cervical fusion.”
No. 19‐1985 3
Dr. Donald Bodeau, an occupational physician from the
local branch of the Mayo Clinic assisting Reinaas with a
worker’s compensation application, opined that Reinaas
could not return to his job at the factory and recommended
that he be retrained for lighter work. After determining that
Reinaas was at risk for “accelerated degenerative changes at
disk levels adjacent to the fused segments” in his neck, he sug‐
gested surgical intervention to address Reinaas’s headaches
and shoulder pain from the torn rotator cuff.
On January 11, 2013, Reinaas had right shoulder surgery.
His surgeon, Dr. Andrew Israel, explained that recovery
could take up to a year and that he could not predict whether
the surgery would completely restore functionality to
Reinaas’s arm. While recurrence of pain was a risk, he said
pain relief was a possible outcome.
After the surgery, Reinaas attended twice‐weekly physical
therapy from February to June and took naproxen and Vi‐
codin for his pain. Dr. Mark Vrieze, his physical therapist,
documented steady gains in his strength and range of motion,
and Reinaas gradually returned to some of his pre‐surgery ac‐
tivities: In March, he shoveled snow from his driveway; in
April, he moved two cords of firewood; in May, he briefly
used a chainsaw; and in June, he used a garden tiller. But he
suffered from fluctuating levels of pain and soreness in his
neck and shoulder that worsened when he was active, and he
needed Vicodin to sleep.
Four months after his surgery, Reinaas reported to Dr. Is‐
rael that he was “better than he was preoperatively” but had
ongoing soreness in his neck and shoulder. Dr. Israel
“hope[d]” Reinaas’s symptoms would improve but told him
he could not do anything more for him surgically. Reinaas
4 No. 19‐1985
then applied for disability benefits, asserting that he became
disabled again in January 2013 after his surgery. When his
physical therapy ended a few weeks later, Dr. Vrieze reported
that he had made significant progress with daily living activ‐
ities. Though Reinaas required rest periods and performed in‐
consistently because of his fluctuating symptoms, he could
tolerate “fairly heavy work” at his own pace. But his shoulder
and neck pain persisted and flared when he was active, and
he needed anti‐inflammatories and pain medication.
A few days after Reinaas’s physical therapy ended in June
2013, Dr. Bodeau opined that Reinaas was at “10% disability
at the shoulder” and suggested that he was permanently dis‐
abled from “a number of related injuries.” He concluded that
Reinaas suffered from “moderate residual pain, weakness,
loss of motion and loss of endurance” from the surgery after
an examination. Based on these symptoms, he prescribed
Reinaas permanent work restrictions, limiting working to no
more than “four hours per day five days per week” and not
lifting more than 25 pounds. Reinaas had additional work re‐
strictions, he said, from complications with his other surger‐
ies.
Months later, the agency denied Reinaas’s application for
disability benefits when Dr. Jose Ruiz, a state‐retained physi‐
cian, reviewed his medical records and concluded that his ac‐
counts of his symptoms were not fully credible. His applica‐
tion was denied again at reconsideration, after Dr. Anne Pros‐
peri, another non‐examining state‐retained physician, re‐
viewed Reinaas’s medical records and opined that his resid‐
ual functional capacity enabled him to sit or stand with nor‐
mal breaks for most of a normal workday. Reinaas requested
a hearing.
No. 19‐1985 5
In April 2014, several months before the hearing, Reinaas
followed up with Dr. Bodeau, and Dr. Bodeau opined that
Reinaas had “deteriorated significantly,” suffered from cervi‐
cogenic headaches and residual problems with his surgeries,
and was “highly unlikely to successfully regain employment
at any physical demand level.”
Reinaas had severe headaches at least twice weekly, and
an examination revealed “significant posterior muscle
spasm[s] along the cervical paraspinals and bilateral trape‐
zius areas,” “objective signs of persistent nerve damage,” and
loss of cervical motion.
Based on these observations, Dr. Bodeau filled out a Treat‐
ing Source Inquiry form, indicating that Reinaas had spinal
disorders and nerve root compression that were presump‐
tively disabling, and that he suffered from two or more severe
migraines per month despite prescribed treatment. Reinaas
would not be a reliable worker, Dr. Bodeau wrote, and neck
and shoulder pain would cause him to be absent approxi‐
mately 4 days per month.
On a workers’ compensation form, Dr. Bodeau checked
boxes stating that Reinaas could no longer work and that his
condition had worsened.
At the hearing before the ALJ, Reinaas testified that his
migraines, neck and shoulder pain, and difficulties with daily
living since his shoulder surgery made him unable to work.
He described his head movements as limited “generally just
nipple‐to‐nipple” and explained that he took pain medication
almost daily. He suffered from severe migraines, each lasting
between half an hour to three days, 10 to 15 days a month.
6 No. 19‐1985
Because his wife worked off the farm and “stuff has to get
done,” Reinaas tried to work through his pain when he
needed to shop, mow the lawn, chop wood with a light chain‐
saw, take care of his son (a first‐grader), and feed the farm
animals. But these activities caused pain and fatigue, and he
needed frequent breaks. He did not drive or use heavy ma‐
chinery when he took pain medication.
Then a vocational expert testified, opining that Reinaas
had some employment prospects if he was restricted to doing
light work and could be off task for up to 10 percent of the
workday. He would be unemployable, however, if he re‐
quired unscheduled breaks longer than one to two minutes.
And an employer would tolerate only eight or nine unsched‐
uled absences during a year.
Following the five‐step evaluation process, see 20 C.F.R.
§ 404.1520, the ALJ concluded that Reinaas was not disabled.
She found that Reinaas suffered from obesity; degenerative
disc disease; spine disorders; major joint dysfunction; and ar‐
thropathies, which were “severe”; and longstanding mi‐
graines, which were not disabling because Reinaas infre‐
quently sought treatment for them after his alleged disability
onset.
The ALJ then concluded that none of Reinaas’s impair‐
ments, alone or in combination, met the severity of a listed
impairment presumptively establishing disability. Based on
his residual functional capacity (“RFC”), the ALJ found that
Reinaas could not return to his work but, consistent with the
vocational expert’s testimony about a claimant with his qual‐
ifications and RFC, could perform a number of jobs at the
No. 19‐1985 7
“light”1 level with additional restrictions, including being off
task up to 10 percent of the day.
In determining Reinaas’s residual functional capacity, the
ALJ afforded great weight to the opinions of Dr. Ruiz and Dr.
Prosperi, the two non‐examining agency physicians. She
agreed with them that Reinaas’s subjective complaints were
not credible because they were “inconsistent” with the medi‐
cal evidence.
She gave little weight to Dr. Bodeau’s April 2014 opinion
that Reinaas was disabled, explaining that there was “no evi‐
dence that Dr. Bodeau had any knowledge of Social Security
disability rules and regulations,” that Reinaas had only re‐
turned to him at his disability lawyer’s request, and that the
report was based only on subjective complaints of questiona‐
ble credibility.
After the district court affirmed the denial of benefits,
Reinaas appealed.
II. ANALYSIS
This court reviews an ALJ’s decision to see if it is sup‐
ported by substantial evidence—evidence a reasonable mind
might accept as adequate to support a conclusion. See Biestek
v. Berryhill, 139 S. Ct. 1148, 1154 (2019).
A. Weight of Treating Physician’s Opinion
Reinaas first argues that the ALJ did not provide a good
reason for refusing to give controlling weight to Dr. Bodeau’s
1 “Light” work requires either “a good deal of walking or standing”
or sitting “with some pushing and pulling of arm or leg controls,” as well
as frequent lifting and carrying of objects weighing up to 10 pounds and
no lifting of more than 20 pounds at a time. See 20 C.F.R. § 404.1567.
8 No. 19‐1985
April 2014 opinion. Because Reinaas advanced this claim be‐
fore 2017, a treating source’s opinion is entitled to controlling
weight if it is supported by sound medical evidence and a
consistent record. See 20 C.F.R. § 404.1527(c)(2); Hall v. Ber‐
ryhill, 906 F.3d 640, 643 (7th Cir. 2018).
Here, the ALJ concluded that Dr. Bodeau’s opinion did not
deserve controlling weight because it was based only on
Reinaas’s subjective report of symptoms and because it was
“inconsistent” with the record. But, because the ALJ failed to
adequately support these conclusions, her decision to dis‐
count Dr. Bodeau’s opinion is not supported by substantial
evidence. See Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016).
First, the ALJ ignored the relevant regulatory considera‐
tions in assessing the weight to give Dr. Bodeau’s opinion
about Reinaas’s limitations. In declining to afford the opinion
controlling weight, the ALJ was required to, but did not, ex‐
plain her decision with reference to the nature and extent of
his treatment and his area of specialty. See 20 C.F.R.
§ 404.1527(c); Hall, 906 F.3d at 644.
She was also required to specify what weight Dr. Bodeau’s
opinion did deserve. 20 C.F.R. § 404.1527(c). Her answer ap‐
pears to have been “none,” but she did not set forth, much less
explain, that determination. In light of Dr. Bodeau’s specialty
and treatment relationship with Reinaas, the evidence to sup‐
port the ALJ’s determination is less than substantial.
Dr. Bodeau is an occupational health specialist who, as of
April 2014, had been treating Reinaas for at least four years.
He reasonably knew Reinaas’s medical history and previous
complaints and, thus, could evaluate Reinaas’s newly re‐
ported symptoms. The ALJ instead relied on the opinions of
No. 19‐1985 9
two non‐examining state‐retained physicians who did not
have firsthand knowledge of how his symptoms could have
worsened over time. See Gudgel v. Barnhart, 345 F.3d 467, 470
(7th Cir. 2003).
Second, the ALJ erred in determining that the April 2014
opinion was based solely on Reinaas’s subjective complaints.
True, Dr. Bodeau’s treatment notes catalog some subjective
complaints about pain and headaches. But those treatment
notes also show that Dr. Bodeau examined Reinaas and ob‐
served visible muscle spasms, objective signs of persistent
nerve damage, and limited range of motion in his neck before
he concluded that Reinaas had “deteriorated significantly”
and was permanently disabled.
Third, the ALJ pointed to several instances in Reinaas’s
medical records where doctors reported that he was doing
“well” in recovery – but said nothing about the accompanying
notes that he was still in pain and suffered from residual post‐
surgery complications.
Reinaas cannot prevail by arguing that the ALJ improp‐
erly weighed the evidence, but he correctly notes that the ALJ
overlooked entire swaths of it. An ALJ “cannot simply cherry‐
pick facts supporting a finding of non‐disability while ignor‐
ing evidence that points to a disability finding.” Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010).
The record shows that, despite Reinaas’s progress in phys‐
ical therapy, he continued to report pain to Dr. Bodeau, as
well as Dr. Vrieze (his physical therapist) and Dr. Israel (his
surgeon). And, as counsel points out, the worsening symp‐
toms noted in Dr. Bodeau’s 2014 report are consistent with
Reinaas’s diagnosis of chronic shoulder impingement, his
10 No. 19‐1985
history of fusion surgeries, and Dr. Bodeau’s pre‐surgery cau‐
tion that the cervical discs in his neck were at risk of degener‐
ating.
Finally, the ALJ discounted Dr. Bodeau’s 2014 opinion be‐
cause Reinaas visited the doctor that year only in connection
with his disability application. But the mere fact that a medi‐
cal opinion has been solicited to support a disability applica‐
tion is not a sufficient reason to ignore it. See Punzio v. Astrue,
630 F.3d 704, 712 (7th Cir. 2011). Dr. Bodeau already had a
treating relationship with him and knew his history. Thus, the
ALJ’s reasoning on this point does not logically support her
conclusion.
B. Reinaas’s Subjective Complaints
Reinaas also argues that the ALJ erred by discrediting his
subjective complaints of pain and its limiting effects on his
physical capabilities. He insists that his RFC should have been
more restrictive because complaints of pain were credible in
light of his multiple impairments, and that the ALJ improp‐
erly assessed his abilities with respect to daily activities. As a
result, he says, her conclusion that he could still perform light
work in spite of his impairments is not supported by substan‐
tial evidence.
We agree with Reinaas that the ALJ did not properly as‐
sesses the intensity and limiting effects of Reinaas’s subjective
symptoms. See 20 C.F.R. § 404.1529; SSR 16‐3P, 2017 WL
5180304 (Oct. 25, 2017). First, the ALJ ignored the connection
between his migraines and his substantial history of spinal
problems and surgeries—which could reasonably be ex‐
pected to produce disabling migraine‐like headaches. See id.at § 404.1529; Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
No. 19‐1985 11
2009). The ALJ only briefly acknowledged Reinaas’s spinal in‐
jury and his neck fusion surgery, and she scarcely addressed
the previous diagnoses of cervicogenic headaches. And she
did not credit Dr. Bodeau’s April 2014 opinion, which corrob‐
orates the testimony at hearing.
Second, the ALJ cited Reinaas’s ability to use a chainsaw,
mow the lawn, and care for his child but ignored his testi‐
mony about the pain and fatigue these activities cause him
and his limitations with them. ALJs need not address every
piece of evidence in the record, see Villano, 556 F.3d at 562, but
an ALJ may not ignore an entire line of evidence contrary to
her ruling. Meuser, 838 F.3d at 912. Here, the ALJ discussed
Reinaas’s ability to perform some heavy activities on his few
“good” days every month but failed to address his conten‐
tions that he could only do twenty minutes of activity at a
time before he needed rest and that he had 10 to 15 bad days
in a month. Again, the problem is not that the ALJ weighed
the evidence in a certain way; it is that she cited only evidence
favorable to her decision without discussing any contrary ev‐
idence.
Finally, because Reinaas lived on a farm in rural Wiscon‐
sin and his wife worked away from the farm, many of his ac‐
tivities were routine acts of daily living on a small farm. He
testified that “stuff has to get done” and that he frequently
“work[ed] through the pain.” We have previously cautioned
ALJs that there are critical differences between keeping up
with activities of daily living and holding down a full‐time
job. See Beardsley v. Colvin, 758 F.3d 834, 838 (7th Cir. 2014);
Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). And here,
Reinaas’s ability to do limited work to maintain his small farm
12 No. 19‐1985
does not adequately support the ALJ’s conclusion that he
would be able to work full time.
For the foregoing reasons, we VACATE the judgment and
REMAND to the district court with instructions to remand to
the agency for further proceedings.