Terry Pierce v. Carolyn Colvin

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1525
TERRY A. PIERCE,
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. 11 C 4157 — Jeffrey N. Cole, Magistrate Judge.
ARGUED NOVEMBER 19, 2013 — DECIDED JANUARY 13, 2014
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Terry Pierce, a former waitress
with back problems, seeks judicial review of the denial of her
application for disability insurance benefits and supplemental
security income. Because the ALJ’s assessment of Pierce’s
credibility was flawed in several respects, we reverse and
remand for further proceedings.
2 No. 13-1525
Pierce claims that she injured her lower back at her
waitressing job in 2004 while moving cases of glassware. In too
much pain to continue working, she quit her job and sought
medical treatment. An MRI showed signs of disc degeneration,
and she received chiropractic and electric-shock treatments to
her back. She also took prescription pain medication. Her
treating osteopathic physician, Dr. Jason Franklin, advised
Pierce in 2005 that she should not lift more than 40 pounds,
and after a few months, her back improved and she felt well
enough to start a new job at a small café.
In March 2006 (her alleged onset date for disability),
however, Pierce re-injured her back to the point that she could
no longer sit or stand comfortably, and she had to quit her new
job. The injury, she testified before the ALJ, disrupted her
sleep, caused numbness in her legs, and prevented her from
being able to sit, stand, lift, or bend for long periods. She added
that she could not work for more than five hours without pain.
Her doctors had trouble definitively identifying the cause of
the pain. An MRI in 2006 revealed a small disc protrusion, mild
disc bulging, and spinal arthritis, but no neural compression.
She received chiropractic treatments, physical therapy, cold
and hot therapy, and both prescription and over-the-counter
pain medication. Her chiropractor, Manuel Duarte, advised her
in 2006 not to return to work because of her lumbar injury, and
he opined that her ability to bend, stand, and stoop had been
reduced by more than 50 percent.
Pierce stopped treatment in 2006, she testified, because she
had no insurance, but she continued to do at-home therapy
and took pain medication. In late 2006 she took a job working
mornings as a cashier in a high school cafeteria. Still unable to
No. 13-1525 3
make ends meet, she also worked some evenings at a Subway
restaurant, but she was fired from that job after back pain
forced her to call in sick too many times.
In 2007, two consulting physicians for the agency found
that Pierce’s pain was not disabling. First, Pierce received a
consultative physical examination from agency examiner Dr.
ChukwuEmeka Ezike, who noted that her spinal range of
motion was normal with only mild pain, but also observed that
she had “chronic low back pain,” could not squat without
support, and had a “guarded gait.” Second, Dr. Francis Vincent
assessed Pierce’s residual functional capacity based on her
medical records. Dr. Vincent found that Pierce could lift 50
pounds occasionally and 25 pounds frequently, and could
stand or walk for six hours in an eight-hour work day and sit
for six hours over the same period.
In 2008 Pierce continued to seek treatment by visiting a
physical therapist who observed that she had mild lumbar
tenderness, only 60 percent strength in her left side, and a 50
percent reduction in her ability to bend to the left.
At her administrative hearing in 2009, Pierce elaborated on
the difficulties that her back pain caused. She testified that she
suffered regular leg numbness even though she could sit and
stand at work as needed, and that she could not get through an
entire work day pain-free. She explained that she would be
“crunched over” at the end of a “rough” day with lots of
moving and lifting, and she used heat and ice to alleviate her
pain after she returned home. She still experienced pain at her
cafeteria job even though she did no heavy lifting or carrying.
As for her daily activities, Pierce explained that she could
4 No. 13-1525
perform basic chores slowly and babysit her grandchildren as
long as she could sit down regularly and did not have to pick
them up.
A vocational expert was asked about the types of jobs that
would be available to a person of “advanced age” (55 years or
older under a Social Security regulation, 20 C.F.R.
§ 404.1563(e)) who was limited to light work with only
occasional bending, stooping, and twisting, and who needed
the option to alternate between sitting and standing. The
vocational expert testified that such a person would be able to
work full-time as a cashier or information clerk—options
particularly viable for Pierce, in the vocational expert’s view,
because of the customer service skills she had acquired in her
previous jobs.
The ALJ concluded that Pierce was not disabled under the
Social Security Act. Applying the requisite five-step analysis,
see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), the ALJ found (1)
that Pierce had not engaged in substantial gainful activity since
the alleged onset date; (2) that her back problems constituted
a severe impairment; (3) that her back problems did not equal
a listed impairment that would be deemed disabling without
further inquiry; (4) that she had the residual functional
capacity to perform light work except that she could only
occasionally bend, stoop, and twist, and would need the option
to sit or stand at will; and (5) that her age, education, work
experience, and residual functional capacity allowed her to
work in occupations with jobs existing in significant numbers,
such as a cashier or information clerk.
No. 13-1525 5
The ALJ found that Pierce’s statements about her symp-
toms were not credible because they conflicted with several
doctors’ objective assessments of her pain, including a normal
electrodiagnostic test and an MRI that showed no neural
compression. The ALJ also gave little weight to chiropractor
Duarte’s opinions because they were unsupported by objective
evidence.
The Appeals Council denied review, and Pierce sought
judicial review. In the district court, the magistrate judge
presiding by consent granted summary judgment for the
Commissioner. The judge focused on the ALJ’s credibility
determination. He acknowledged that the ALJ had used often-
criticized boilerplate in discounting Pierce’s statements as “not
credible to the extent that they are inconsistent with the above
residual capacity assessment.” But the judge found that this
sort of boilerplate did not invalidate the adverse credibility
finding because the ALJ substantiated his decision by citing
ample evidence that undermined Pierce’s alleged symptoms.
On appeal Pierce argues that the ALJ wrongly discounted
her credibility by drawing inappropriate inferences from the
lack of objective support for her claims, misstating her testi-
mony, neglecting to discuss her attempts to work full-time, and
improperly relying on Dr. Franklin’s evaluation of her ability
to lift weights before the second injury that actually forced her
to stop working.
An ALJ may not discount a claimant’s credibility just
because her claims of pain are unsupported by significant
physical and diagnostic examination results. See SSR 96-7p(4);
Bjornson v. Astrue, 671 F.3d 640, 646 (7th Cir. 2012); Myles v.
6 No. 13-1525
Astrue, 582 F.3d 672, 676–77 (7th Cir. 2009); Carradine v.
Barnhart, 360 F.3d 751, 753 (7th Cir. 2004). Pain can be severe to
the point of being disabling even though no physical cause can
be identified, though in such cases, the claimant’s credibility
becomes pivotal. E.g., Sims v. Barnhart, 442 F.3d 536, 537–38
(7th Cir. 2006); Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir.
2006); Carradine, 360 F.3d at 753–54. Also, the lack of objective
support from physical examinations and test results is still
relevant even if an ALJ may not base a decision solely on the
lack of objective corroboration of complaints of pain. See
20 C.F.R. § 404.1529(c); Prochaska v. Barnhart, 454 F.3d 731, 738
(7th Cir. 2006).
The ALJ found that Pierce had been “fairly consistent in
terms of her complaints regarding her symptoms and their
limiting effects,” but the ALJ ultimately discounted her
credibility. The ALJ’s credibility finding included a familiar
statement: “the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above
residual functional capacity.” When there is no further expla-
nation, we have often criticized such language as “meaningless
boilerplate.” See Pepper v. Colvin, 712 F.3d 351, 367–68 (7th Cir.
2013); Bjornson, 671 F.3d at 644–45; Parker v. Astrue, 597 F.3d
920, 922 (7th Cir. 2010). Without further explanation, the
boilerplate fails to specify which statements are not credible.
Martinez v. Astrue, 630 F.3d 693, 695 (7th Cir. 2011). In this case,
though, the ALJ followed the boilerplate conclusion with a
detailed explanation of the evidence and his reasoning about
credibility, so the boilerplate phrases are not the problem. The
problem is that the explanation shows that the ALJ’s credibility
No. 13-1525 7
finding misstated some important evidence and misunder-
stood the import of other evidence.
First, the ALJ inappropriately rested his credibility determi-
nation too heavily on the absence of objective support for
Pierce’s complaints without digging more deeply. See SSR 96-
7p(4); Bjornson, 671 F.3d at 646; Myles, 582 F.3d at 676–77;
Carradine, 360 F.3d at 753. That was particularly erroneous
because the ALJ knew that her lack of insurance prevented her
from seeking medical attention and thus could explain her lack
of objectively quantifiable test results. (AR 48–49, 63). In its
brief to this court, the government took this argument a step
further, pointing to Pierce’s limited treatment history itself as
proof that her condition was not serious. Not only is the
government’s argument an impermissible post hoc rationale,
see SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943); Stewart v.
Astrue, 561 F.3d 679, 684 (7th Cir. 2009), but it also erroneously
implies that an ALJ can rely on an uninsured claimant’s sparse
treatment history to show that a condition was not serious
without exploring why the treatment history was thin. SSR 96-
7p; Myles, 582 F.3d at 677; Craft v. Astrue, 539 F.3d 668, 678–79
(7th Cir. 2008); Dominguese v. Massanari, 172 F. Supp. 2d 1087,
1097 (E.D. Wis. 2001).
The ALJ’s credibility assessment was also flawed for other
reasons. First, the ALJ erred by concluding that Pierce should
be able to work full-time because she “often” worked for
longer than five hours per day. But in fact she testified that she
worked a six-hour day only occasionally. An occasional six-
hour day is a far cry from full-time work day-in and day-out.
Second, the ALJ erred by overlooking Pierce’s unsuccessful
attempt to hold a second job at a Subway sandwich shop. In a
8 No. 13-1525
different context, the ALJ noted later in the opinion that the
Subway job was at a medium exertional level and thus beyond
Pierce’s residual functional capacity. But a claimant’s dogged
efforts to work beyond her physical capacity would seem to be
highly relevant in deciding her credibility and determining
whether she is trying to obtain government benefits by
exaggerating her pain symptoms. Finally, the ALJ made a basic
factual error by justifying his finding in part on Dr. Franklin’s
2005 assessment that Pierce could lift up to 40 pounds. Dr.
Franklin made that assessment one year before Pierce’s second
back injury—the injury that Pierce says actually disabled her.
Her physical abilities a year before the alleged onset date
therefore tell us little if anything about the credibility of her
later complaints of disabling pain.
We disagree with one of Pierce’s challenges to the ALJ’s
credibility assessment. Pierce argues that the ALJ did not
accord sufficient weight to the opinions of her treating chiro-
practor, Duarte. The ALJ did not err in this respect. For
purposes of social security disability determinations, a chiro-
practor is not an “acceptable medical source,” cannot offer
“medical opinions,” see 20 C.F.R. § 404.1513(a); S.S.R. 06–3p,
and is not considered a “treating physician,” see Cole v. U.S.
R.R. Ret. Bd., 182 F.3d 921 (7th Cir. 1999) (distinguishing
chiropractors from “treating physicians”); see also McDade v.
Astrue, 720 F.3d 994, 999 (8th Cir. 2013). An ALJ may consider
a chiropractor’s opinions, of course, but the weight they will be
given will depend on a number of factors, including the degree
to which they are supported by objective evidence. 20 C.F.R.
§§ 404.1527(c)(3), 416.913(d)(1); S.S.R. 06–3p; Simila v. Astrue,
573 F.3d 503, 515 (7th Cir. 2009). The ALJ gave sufficient
No. 13-1525 9
consideration here by summarizing Duarte’s findings and
noting that they were not corroborated by any objective
evidence in the record. Pierce has pointed to no objective
evidence from any other medical source that would support
Duarte’s opinions.
The ALJ’s flawed credibility assessment cannot be deemed
harmless. An erroneous credibility finding requires remand
unless the claimant’s testimony is incredible on its face or the
ALJ explains that the decision did not depend on the credibility
finding. Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006); see
also McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011);
Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010). The ALJ did
not provide a justification for his decision beyond that in his
credibility finding, and Pierce’s account of her pain was not so
contradicted by medical evidence as to be incredible. Nor can
we be sure that the ALJ would have reached the same conclu-
sion about Pierce’s credibility if the information he considered
had been accurate. See McKinzey, 641 F.3d at 892; Spiva,
628 F.3d at 353.
We need not address Pierce’s remaining arguments, but on
remand the determination of residual functional capacity and
the questions to the vocational expert will need a fresh look
after a new evaluation of the credibility of Pierce’s complaints
of disabling pain. The judgment is VACATED and the case is
REMANDED to the Commissioner for further proceedings
consistent with this opinion.