Barbara Richards v. Nancy Berryhill

NONPRECEDENTIAL DISPOSITION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 August 7, 2018
Decided August 13, 2018
Before
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1109
BARBARA S. RICHARDS, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 1:17-CV-37-TLS
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, Theresa L. Springmann,
Defendant-Appellee. Chief Judge.
ORDER
An administrative law judge denied Barbara Richards’s applications for
disability insurance benefits and supplemental security income after finding that,
although she suffers from several impairments, she was not credible about her
limitations and still could perform a limited range of sedentary work. Because Richards
waived or failed to develop any tenable argument that the ALJ’s decision was not
supported by substantial evidence, we uphold the denial of benefits.
Barbara Richards, a 50-year-old woman from Northeastern Indiana, reapplied for
supplemental security income and disability insurance benefits in 2013 after a prior
No. 18-1109 Page 2
application was denied in 2010. She alleged disability based on mental
impairments—including depression, PTSD, and anxiety disorder—and physical
ones—including pain and disc disorders in her back and neck, pain and numbness in
her extremities, headaches, and carpal tunnel syndrome. These impairments had forced
her to quit her job at a nursing home in 2010. She tried to work several times after that
but was unable to keep her jobs because she was in too much pain. She did babysit
some of her friends’ children between 2011 and 2012.
Richards’s primary care doctor referred her to the Northeastern Center for
treatment of major depressive disorder and PTSD. At her intake, Richards told the
therapists that she wanted to work on trusting people. In therapy, Richards primarily
focused on her negative feelings about her previous relationship and her stress about
being able to pay bills and find work. Around the time of her second hearing,
Richards’s therapist at Northeastern opined that her mental capacity was markedly
limited in several areas that would affect her ability to work, including her capacity to
understand detailed instructions, sustain a schedule and routine, and complete a
normal workday. When she was examined by Dr. Dan Boen, a state-agency
psychologist, she said that she had never been on any medication for her psychiatric
conditions and that she felt sad and depressed “sometimes.” But at her hearing
Richards reported that she was doing better. She said that since starting a new romantic
relationship her mood had improved and she was feeling happier.
Richards’s physical impairments have been treated rather conservatively but
consistently. After her electromyography studies revealed mild carpal tunnel
syndrome, her doctor advised her to wear a wrist brace but did not impose any work
restrictions. For her back pain—caused by moderate degenerative changes to her
spine—her doctor initially prescribed stretching, exercise, and medication (Norco). But
when her back continued to hurt, she received epidural steroid injections, which
provided only temporary relief. Based on these and other ailments, her orthopedist
opined that she can lift up to 10 pounds occasionally but cannot carry anything heavier
or twist or bend. A consultative physician also observed based on the records a reduced
range of motion in her neck, spine, shoulder, knees, and hips.
At her hearing before the ALJ, Richards testified that she had tried to work after
2010, but her pain made it impossible. She said that her mood was better, but that she
could not sit or stand for more than 10 to 15 minutes at a time without becoming
uncomfortable, and that she had difficulty even lifting a carton of milk. She also
testified that the babysitting work she did after her alleged onset date did not show
No. 18-1109 Page 3
good health, because she was able to lie down and rest when she did not feel well.
Her boyfriend also testified that she can stay seated or standing for only 15 to 20
minutes at a time.
The ALJ asked a vocational expert to consider the work that would be available
to a person of Richards’s age and experience who could lift, pull, push, and carry
10 pounds frequently; stand or walk for 2 hours and sit for 6 hours of an 8-hour
workday; and maintain a posture for 30 minutes before alternating position; but who
could tolerate only a “flexible, goal oriented pace.” The VE opined that such a person
could work in sedentary jobs like addresser, surveillance system monitor, document
preparer, or assembler. The ALJ later limited her to only superficial interactions with
coworkers, but that did not alter the VE’s analysis. The ALJ asked about switching
postures more frequently (every 10 to 15 minutes, as Richards testified) and the VE
explained that “some” jobs might be available if Richards could remain on task when
changing positions every 15 to 20 minutes.
The ALJ applied the five-step analysis found in 20 C.F.R. § 404.1520(a)(4) and
found that Richards was not disabled. The ALJ determined at step one that Richards
met the insured status requirements and had not engaged in substantial gainful activity
since her alleged onset date. At step two, the ALJ found that she had many severe
impairments: degenerative disc disease in her back and neck, scoliosis, headaches,
degenerative changes in her right shoulder, obesity, carpal tunnel syndrome,
depression, anxiety, and PTSD. At step three the ALJ found that these physical
impairments did not equal a listed impairment, and that her mental impairments
caused at most moderate limitations.
At step four, the ALJ found that Richards had the residual functional capacity
(RFC) to perform sedentary work with some limitations: she could only occasionally
lift, carry, push, and pull 10 pounds; could maintain a posture for 30 minutes before
changing but could stay on task during that time; and she could occasionally bend and
stoop. The ALJ also eliminated jobs requiring fast-paced work or prolonged
conversation with coworkers. In assessing the severity of Richards’s symptoms, the ALJ
found that Richards’s testimony was not credible because it suggested greater
limitations than what the medical evidence supported. The ALJ adopted the VE’s
conclusion that Richards could perform jobs that existed in significant numbers.
Therefore, the ALJ concluded that Richards was not disabled.
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The Appeals Council denied review, making the ALJ’s decision the final decision
of the Commissioner. See Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015). Richards
sought judicial review, but the district judge rejected Richards’s two arguments—that
the ALJ erred in overemphasizing Richards’s activities of daily living and by
determining that she was not credible because her alleged onset date was one day after
her previous denial of benefits.
On appeal Richards makes two arguments about the ALJ’s credibility
determination. The first is frivolous. Richards argues that the ALJ improperly relied on
the 2011 decision to deny Richards’s applications for benefits. Specifically the ALJ
commented: “[A] new onset date … (taking place the day after the denial) does not now
enhance [Richards’s] credibility with respect to being currently disabled, especially in
the absence of persuasive evidence that the claimant’s conditions suddenly medically
deteriorated.” But the ALJ’s single remark about the unlikely “sudden[]” deterioration
of her condition, though unnecessary, is not a major component of his credibility
determination or overall reasoning.
Richards then argues that the ALJ erred in finding her testimony about her
symptoms to be exaggerated because she engaged in a “somewhat full range” of
activities of daily living. Richards’s activities of daily living (at least many of the ones
cited by the ALJ) are minimal, however, and minimal activities do not establish that a
claimant can engage in “substantial physical activity.” Clifford v. Apfel, 227 F.3d 863, 872
(7th Cir. 2000). The activities that the ALJ listed include “check[ing] Facebook” and
“us[ing] a telephone.” The most physically vigorous activity the ALJ mentioned is
“do[ing] household chores with breaks.”(Id.) The ALJ’s use of daily activities to
discredit Richards’s allegations of psychological symptoms, in particular her anxiety, is
similarly questionable. He emphasized that Richards, contrary to some evidence, can
tolerate interacting with other people because she has had boyfriends. But her therapist
opined that these relationships were dysfunctional and evinced her limited judgment.
Richards’s argument ultimately is not persuasive because we reverse a credibility
determination only if it is “patently wrong.” See Elder v. Astrue, 529 F.3d 408, 413–14
(7th Cir. 2008). The ALJ’s consideration of Richards’s activities of daily living is shaky,
but he sufficiently supported the credibility determination with other “specific reasons
supported by the record.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). The ALJ
identified meaningful discrepancies between her testimony and the statements she
made to her doctors: for example, Richards denied any symptoms of anxiety or
depression repeatedly to her pain doctors. The ALJ also appropriately based his
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determination on Richards’s failure to comply with recommended treatment and to
provide a reasonable explanation for not doing so: Richards explained that she did not
have time to attend the dialectical behavioral therapy that her providers recommended,
but the ALJ noted that she did have time to utilize other social (rather than medical)
services they offered.
The ALJ also considered Richards’s receipt of unemployment benefits and her
limited work history. We previously have noted that receiving state unemployment
benefits, which tend to require a certification that the claimant is able to work, can be
considered as part of an adverse credibility determination when the benefits overlap
with the period of alleged disability. See Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir.
2005); Lambert v. Berryhill, No. 17-1627, 2018 WL 3470994, at *7 (7th Cir. July 19, 2018).
And the ALJ did not err in considering her limited work history. Infrequent
employment before the onset date can suggest, in some circumstances, a disinclination
to work rather than a disability. See Simila v. Astrue, 573 F.3d 503, 520 (7th Cir. 2009)
(citing 20 C.F.R. § 404.1529(c)(3)). Given our deferential review of credibility
determinations, the ALJ’s analysis was sufficient. See Bates v. Colvin, 736 F.3d 1093, 1098
(7th Cir. 2013).
Richards also argues that she has significant on-task limitations and that the ALJ
failed to account for them in her RFC. In so doing, Richards argues that she cannot
maintain competitive employment because, according to the VE, employers tolerate
workers being off-task for only 10% of a workday. Richards says that she is distractible
for both physical and cognitive reasons: she cannot concentrate while she is changing
position from sitting to standing, and she has psychological symptoms such as
flashbacks to traumatic experiences. The Commissioner contends that this argument is
waived because Richards did not raise it in the district court. Richards counters that,
because she challenged the RFC generally, she did not waive the argument, citing
Arnett v. Astrue, 676 F.3d 586, 593 (7th Cir. 2012).
Richards did not preserve this argument. In Arnett, the Commissioner
maintained that the claimant’s argument was waived not because she did not raise it at
all in the district court, but rather because she did not adequately develop it. 676 F.3d
at 593. The court disagreed, noting that she had “devoted several pages of her brief” to
arguing that the RFC was erroneous. Id. That is far from what happened here. In the
district court, Richards challenged the RFC only as it related to the allegedly erroneous
credibility determination. (As the district judge aptly noted, the focus of Richards’s
argument was “not clear from the briefing” but appeared to challenge the discussion of
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living activities at steps three and four.) Richards’s argument on appeal that the RFC
was wrong for a different reason is insufficient to avert waiver. See Schomas v. Colvin,
732 F.3d 702, 708 (7th Cir. 2013).
And even if Richards had made the argument in the district court, she did not
adequately develop it in her appellate brief. Richards argues that “the hearing record
intuitively lends itself to an on-task credibility assessment.” But we cannot reasonably
expect an ALJ to “intuit” a functional limitation from the whole record, nor can we look
at the record anew to draw one out. Richards bears the burden of showing that she had
impairments that affected her ability to work. See Scheck v. Barnhart, 357 F.3d 697, 702
(7th Cir. 2004). Richards just lists a variety of symptoms (such as pain in her extremities
and headaches) that “hint” at a “larger on-task problem.” But pointing to various
diagnoses and complaints and saying that they might hinder Richards is insufficient to
establish the existence of a functional limitation. See Gentle v. Barnhart, 430 F.3d 865, 868
(7th Cir. 2005) (“The social security disability benefits program is not concerned with
health as such, but rather with ability to engage in full-time gainful employment.”).
Because Richards fails to raise any meritorious argument that the ALJ’s decision
was not supported by substantial evidence, we AFFIRM the judgment of the district
court.