Charles Kastner v. Michael Astrue , 697 F.3d 642 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1166
C HARLES R. K ASTNER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Evansville Division.
No. 3:09-cv-00186—William G. Hussmann, Jr., Magistrate Judge.
A RGUED S EPTEMBER 20, 2011—D ECIDED O CTOBER 10, 2012
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Suffering from a degenera-
tive disc disorder and pain in various parts of his body,
Charles R. Kastner sought disability insurance benefits
under 42 U.S.C. § 423(d). He asserts that his disorder of
the spine constitutes a disability under the Social
Security Act. An administrative law judge (“ALJ”) deter-
mined that, though Kastner’s impairments are severe,
they do not meet listed requirements for a presump-
tively disabling condition and that Kastner has residual
2 No. 11-1166
capability to perform certain jobs in the economy. After
the Appeals Council denied review, Kastner sought
judicial review of the denial of disability benefits, and
the district court affirmed the decision of the Commis-
sioner of Social Security. Because we conclude that the
ALJ did not adequately explain why Kastner had not
met the requirements for a presumptive disability, we
reverse the judgment of the district court and remand
for further proceedings.
I. BACKGROUND
Kastner was 48 years old at the time of the ALJ’s
decision and has past work experience as a truck driver.
In 2004, he worked as a delivery manager for a hard-
ware retailer, loading heavy pieces of equipment onto
trucks for delivery to customers. On August 5, 2004, he
was helping to pull a 400-pound refrigerator when he
felt a pop in his neck. Though he did not immediately
experience discomfort, Kastner’s pain increased steadily
over the next two hours. On August 16, 2004, he visited
an occupational medicine clinic, which recommended
a regimen of neck exercises and pain reduction therapy.
On January 4, 2005, Kastner consulted Steven Rupert, a
doctor of osteopathy, complaining of pervasive pain in
his lower back, neck, buttocks, hips, shoulders, and
lower and upper extremities, as well as headaches.
Kastner told Dr. Rupert that he had first experienced
back and neck pain after an accident sixteen years ear-
lier. Kastner had fallen from a safety ladder which
broke while he was working on it. The fall caused a
No. 11-1166 3
slipped disc in his back and his pain had become pro-
gressively worse, particularly after he had moved
the refrigerator. When tested, Kastner demonstrated
clonus—muscle spasms and tremors—in his arms and
legs on both sides of his body. Kastner also reported
difficulty sleeping for more than three or four hours a
night and that he frequently reawakened. Though he
had trouble standing, stooping, and lifting, Kastner
stated that he could perform most daily activities of
living and Dr. Rupert concluded that Kastner had
normal muscle strength in his arms and legs.
Over the next two days, Kastner underwent MRI ex-
aminations of his spine and neck. These tests indicated
that Kastner was suffering from spondylosis, a degenera-
tive disease where discs and cartilage between neck
vertebrae experience abnormal wear, which can cause
chronic pain. Kastner’s MRIs also showed herniated
discs in his neck and evidence of stenosis, a narrowing
of the spinal passageway.
Following these tests, Kastner was examined by two
doctors. On January 7, 2005, a neurosurgeon, Dr. Mike
Chou, examined Kastner. He noted that Kastner’s gait
was somewhat “wobbly” and that he appeared to drag
his right side but could walk into the office without
difficulty. Kastner’s arm strength was normal but he
had muscle spasms on his right side as well as his left
ankle. After reviewing the MRIs, Dr. Chou concluded
that the discs in Kastner’s neck were “acutely herniated”
and recommended immediate surgery to correct the
problem. He also told Kastner to refrain from work in
the meantime and to halt therapeutic exercises.
4 No. 11-1166
On May 27, 2005, James Butler, a doctor at the occupa-
tional medicine clinic, gave Kastner a physical examina-
tion and reviewed his MRIs. Dr. Butler concurred with
Dr. Chou that Kastner was suffering from spinal cord
damage and degenerative disc disease. In addition,
Dr. Butler’s physical examination demonstrated limita-
tion in Kastner’s range of motion in his neck and back.
However, Dr. Butler disagreed with Dr. Chou that
Kastner should refrain from work altogether. Dr. Butler
opined that Kastner could perform sedentary work
limited to lifting a maximum of five pounds.
In a June 8, 2005 reexamination, Dr. Chou found
Kastner to have sustained muscle spasms and pain from
prolonged irritation and compression of spinal nerves.
Dr. Chou reiterated his previous conclusion: “It is
clearly ridiculous that anyone would think that there is
no surgical indication here, particularly since he has
myelopathy with MRI evidence of spinal cord changes.
This patient should have surgery as soon as possible.”
On April 4, 2006, Kastner underwent surgery
performed by Dr. Chou to remove his most severely
herniated cervical disc. Before the surgery, Dr. Chou
had noted that Kastner’s spinal disease was not limited
to that disc. Kastner had stenosis and disc degeneration
above and below it. Nevertheless, Dr. Chou concluded
that Kastner’s spinal cord was principally affected by
the herniated, protruding disc scheduled for removal.
In the months following the surgery, Kastner appears
to have experienced both initial improvements as well as
complications to his condition. Two weeks after the
No. 11-1166 5
surgery, Kastner reported that the pain in his right arm,
neck, and left shoulder was gone. However, he was
now experiencing pain and numbness in his left arm,
which he could not completely raise. Subsequent MRI
and CT scans showed that Kastner’s spinal column
was still compressed but his condition appeared to be
improving. Kastner no longer dragged his leg and could
raise his left arm without as much pain. On July 3, 2006,
Dr. Chou arranged to observe Kastner over the next
few months but approved him for sedentary work
if Kastner could tolerate it.
Other doctors concluded that Kastner’s impairments
were continuing to cause pain following the surgery.
On June 22, 2006, Dr. Donna Lorenzo-Bueltel diagnosed
Kastner with chronic nerve damage of the left shoulder
blade after reviewing an EMG test. Following a referral
from Dr. Lorenzo-Bueltel, Dr. Rupert diagnosed Kastner
with peripheral nerve injury as well.
On August 4, 2006, Dr. John Hall conducted a consulta-
tive examination of Kastner at the request of the State
Disability Determination Services. Kastner told Dr. Hall
that he was continuing to have tremors and constant
neck and back pain, as well as numbness and weakness
in his legs. Kastner also reported that he could no
longer lift objects with his left arm without significant
pain. Dr. Hall observed that Kastner could walk with a
relatively normal gait but had difficulty with tandem
walking and squatting. In the doctor’s estimation, it
would be difficult for Kastner to stand or walk for 2 hours
in a workday. Dr. Hall conducted a range-of-motion
6 No. 11-1166
evaluation and found significant limitations in Kastner’s
ability to bend his neck and lower back. The examina-
tion chart includes Dr. Hall’s notation of “pain” beside
each measurement of Kastner’s diminished flexion.
On September 7, 2006, Dr. Andrew Reiners, a state
agency physician and medical consultant, evaluated
Kastner’s condition to assess his residual functional
capacity. Dr. Reiners concluded from the assessment
and medical evidence in the record that Kastner could
perform sedentary work.
On October 27, 2006, Kastner underwent a second
surgery. A month later, Kastner told his doctor that his
pain was almost completely gone. But in January and
March 2007, Dr. Chou determined that Kastner’s
neuropathic pain had returned and that prescription
medication could not resolve the problem. Dr. Chou
stated that he had done all he could for Kastner and
referred him for chronic pain management.
Kastner applied for disability insurance benefits on
June 22, 2006. The ALJ held a hearing on November 18,
2008, in which Kastner was represented by an attorney.
Kastner testified that he was unable to work due to
chronic neck pain. The ALJ denied the claim finding
that Kastner could perform sedentary work. The
Appeals Council denied Kastner’s request for review.
After the district court found the ALJ’s decision sup-
ported by substantial evidence, Kastner appealed.
No. 11-1166 7
II. ANALYSIS
Because the Appeals Council declined Kastner’s re-
quest for review, the ALJ’s ruling is the final decision of
the Commissioner of Social Security. O’Connor-Spinner
v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). We review
this decision directly without giving deference to the
district court’s decision. Liskowitz v. Astrue, 559 F.3d
736, 739 (7th Cir. 2009). But we will uphold the ALJ’s de-
termination if it is supported by substantial evidence,
meaning evidence a reasonable person would accept
as adequate to support the decision. Prochaska v. Barnhart,
454 F.3d 731, 734-35 (7th Cir. 2006). The ALJ is not
required to address every piece of evidence or testi-
mony presented, but must provide “an accurate and
logical bridge” between the evidence and her con-
clusion that a claimant is not disabled. Craft v. Astrue,
539 F.3d 668, 673 (7th Cir. 2008). If a decision “lacks
evidentiary support or is so poorly articulated as to
prevent meaningful review,” a remand is required. Steele
v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002).
To determine whether a claimant is disabled, an ALJ
employs a five-step inquiry which asks: (1) whether
the claimant is currently employed; (2) whether the
claimant has a severe impairment; (3) whether the
claimant’s impairment is one that the Commissioner
considers conclusively disabling; (4) if the claimant does
not have a conclusively disabling impairment, whether
he can perform his past relevant work; and (5) whether
the claimant is capable of performing any work in the
national economy. See 20 C.F.R. § 404.1520. Here, the
8 No. 11-1166
ALJ found that Kastner had satisfied steps 1 and 2; he
had not engaged in substantial gainful activity and he
had severe impairments in the form of a disorder of
the spine and chronic nerve damage to the shoulder.
However, at step 3, the ALJ determined that Kastner’s
conditions did not meet the requirements for presump-
tive disability.
Kastner challenges the ALJ’s adverse determination
at step 3. 1 Under a theory of presumptive liability, a
claimant is eligible for benefits if he has a condition
that meets or equals an impairment found in the Listing
of Impairments. 20 C.F.R. §§ 404.1520(d); 404.1525(a);
20 C.F.R. pt. 404, Subpt. P, App. 1. Each listing has a set
of criteria which must be met for an impairment to
be deemed conclusively disabling. Specifically, Kastner
contends that his condition meets or equals the require-
ments for disorders of the spine found in Listings 1.04(A)
and (C). Listing 1.04 defines these impairments as:
Disorders of the spine (e.g., herniated nucleus
pulposus . . . spinal stenosis, osteoarthritis, degen-
1
At step 5, the ALJ found that Kastner had residual capacity to
perform sedentary work in the national economy. Kastner
challenges this determination as well. Because we find the
ALJ committed errors at step 3, we do not consider the par-
ties’ arguments related to step 5. See 20 C.F.R. § 404.1520(“If we can find that you are disabled or not disabled at a
step, we make our determination or decision and we do not
go on to the next step.”).
No. 11-1166 9
erative disc disease, . . . ), resulting in compromise
of a nerve root . . . or the spinal cord.
[Combined w]ith:
A. Evidence of nerve root compression character-
ized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atro-
phy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss
and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and su-
pine); or . . . .
C. Lumbar spinal stenosis resulting in pseudoclau-
dication, established by findings on appropriate
medically acceptable imaging, manifested by
chronic nonradicular pain and weakness, and
resulting in inability to ambulate effectively, as
defined in 1.00B2b.
The parties do not dispute that Kastner has satisfied
the threshold requirement for a disorder of the spine.
A range of physicians have repeatedly diagnosed
Kastner with spondylosis, spinal stenosis, and degenera-
tive disc disease which compromised nerve roots in his
spinal cord. The ALJ also found that Kastner’s disorder
of the spine constituted a severe impairment. But the
ALJ determined that Kastner had not demonstrated
§ 1.04(A) or (C)’s additional requirements for a finding
of presumptive disability.
As to § 1.04(A), the ALJ stated simply that Kastner
“did not display limitation of motion of the spine as
10 No. 11-1166
anticipated by section 1.04A (Ex. 2F, p. 12-14).” Kastner
contends that the ALJ erred by ignoring medical evidence
that his range of motion of the spine was limited.
As noted above, ALJs need not address every piece of
evidence presented at a disability hearing. Craft, 539
F.3d at 673. Nevertheless, we have held that “[i]n con-
sidering whether a claimant’s condition meets or equals
a listed impairment, an ALJ must discuss the listing by
name and offer more than a perfunctory analysis of the
listing.” Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir.
2004). In this case, we conclude that the ALJ’s cursory
analysis and disability determination were not sup-
ported by substantial evidence in the record.
The ALJ cited one exhibit in concluding that Kastner
did not meet the requirements of § 1.04A: Dr. Rupert’s
initial examination of Kastner in 2005. But this examina-
tion did not include any range-of-motion evaluation.
The Commissioner says that the ALJ simply made an
error and intended to reference the range-of-motion
examination performed by Dr. Hall. This may well be
true. But the only two pieces of evidence in the record
involving range-of-motion tests demonstrated that
Kastner did have limited range of motion. First, in
May 2005, Dr. Butler found substantial limitations to
Kastner’s range of motion: 5 degrees of flexion and ex-
tension in the neck with some greater—but still lim-
ited—flexion in the back. Then, in August 2006, Dr. Hall
conducted a formal range-of-motion examination and
again found that Kastner could only perform
20 degrees of cervical extension versus a normal exten-
sion of 60 degrees. Similarly, Kastner was only capable
No. 11-1166 11
of 70 degrees of lumbar forward flexion versus a norm
of 90 degrees. Kastner had 90 degrees of flexion in the
hips versus a norm of 100 degrees. Dr. Hall added the
notation “pain” after each of these measurements.
Because the only evidence in the record demonstrated
significant limitations in Kastner’s range of motion, the
ALJ’s contrary conclusion is peculiar and unexplained.
An unarticulated rationale for denying disability benefits
generally requires remand.
In response, the Commissioner points to § 1.00(G) of
Appendix 1 which provides that “[m]easurements of
joint motion are based on the techniques described in
the chapter on the extremities, spine, and pelvis in
the current edition of the ‘Guides to the Evaluation of
Permanent Impairment’ [“AMA Guides”] published by
the American Medical Association.” 20 C.F.R. pt. 404,
Subpt. P, App. 1 § 1.00(G). The edition of the AMA
Guides in effect when Kastner was examined stated that
a patient’s pain could potentially limit mobility and lead
to inaccurately low or inconsistent measurement of
the patient’s actual range of motion. The Commissioner
contends that Dr. Hall’s “pain” notations indicate that
he attributed Kastner’s limited range of motion to pain
and not to a permanent impairment. This, the Commis-
sioner argues, is what the ALJ meant when she stated
that Kastner did not display the limitation of motion
“anticipated by section 1.04A.”
We are not persuaded by the Commissioner’s theory.
First, the Commissioner gives a reason for discounting
the evidence that the ALJ never relied upon. Whether
12 No. 11-1166
by accident or oversight, the ALJ never referenced
Dr. Hall’s examination in her analysis of § 1.04(A). Even
if we assume that she intended to, the ALJ never stated
that she rejected the range-of-motion evidence due to
Kastner’s pain. We have repeatedly held that an ALJ
must provide a logical bridge between the evidence in
the record and her conclusion. Craft, 539 F.3d at 673. Here,
the Commissioner argues that by referring to motion
limitations “anticipated by section 1.04A,” the ALJ
meant to cross-reference both § 1.00(G) and a specific
section of the AMA Guides. But this is not a logical
bridge; it is a soaring inferential leap. Nothing in the
ALJ’s decision indicates that this relatively obscure cross-
reference was the basis for the determination. Under
the Chenery doctrine, the Commissioner’s lawyers cannot
defend the agency’s decision on grounds that the
agency itself did not embrace. See SEC v. Chenery Corp.,
318 U.S. 80, 87-88 (1943); Parker v. Astrue, 597 F.3d 920,
922 (7th Cir. 2010). On appeal, the Commissioner
may not generate a novel basis for the ALJ’s determina-
tion. To permit meaningful review, the ALJ was obligated
to explain sufficiently what she meant by “limitation
of motion of the spine as anticipated by section 1.04A.”
See Steele, 290 F.3d at 940.
Second, even if the ALJ had discounted Kastner’s
limited motion due to his pain, that determination
would not have been supported by substantial evidence.
It is true that Dr. Hall included a “pain” notation next
to his measurements for Kastner’s cervical, lumbar, and
hip flexion. But symptoms of pain are not mutually
exclusive with the limitations of motion anticipated by
No. 11-1166 13
§ 1.04(A). By its terms, § 1.04(A) requires a claimant to
demonstrate “limitation of motion of the spine.” It does
not require a claimant to prove that the motion limita-
tion occurs without pain. To the contrary, another re-
quirement of § 1.04(A) is “nerve root compression char-
acterized by neuro-anatomic distribution of pain.” It
would be perverse to require claimants to prove the
chronic pain that typically accompanies spinal disorders
while simultaneously demonstrating an absence of
pain when moving their spine.
The regulations explicitly anticipate that pain symp-
toms will “be present in combination with the other
criteria” for a listed impairment. 20 C.F.R. § 404.1529.
The initial section of Appendix 1, § 1.00(B)(2)(d) outlines
how the regulations define loss of function under
an impairment: “Pain or other symptoms may be an
important factor contributing to functional loss. . . .
The musculoskeletal listings that include pain or other
symptoms among their criteria also include criteria
for limitations in functioning as a result of the listed im-
pairment, including limitations caused by pain” (emphasis
added). There is no indication that a limitation of
motion caused by persistent pain would not meet the
requirement for a disorder of the spine under § 1.04(A).
The AMA Guides stated that fear of injury and other
factors could affect the accuracy and consistency of a
range-of-motion test. The Commissioner has also
noted that a patient’s lack of cooperation may affect
measurements. This is true. But there is no indication
in Dr. Hall’s examination or his accompanying narra-
14 No. 11-1166
tive account that Kastner’s motion limitations were af-
fected by temporary pain, fear of injury, or a lack of
cooperation. So there is no evidentiary support for dis-
counting the evidence on that basis. Dr. Hall signed
Kastner’s Range of Motion Chart, stating, “I attest to
the fact that this individuals [sic] active mechanical range
of motion was measured” (emphasis in original). Given
that Kastner’s condition is characterized by chronic
pain, it is unsurprising that Dr. Hall would have noted
pain in measuring limitation in motion.
It is also worth noting that impairment listings for
disorders of the spine were revised in 2001 with the
express purpose of relaxing the limitation-of-motion
requirement. The earlier version of the listing had
required limitation of motion of the spine to be “signifi-
cant.” See Revised Medical Criteria for Determination
of Disability, Musculoskeletal System and Related
Criteria, 66 Fed. Reg. 58,010 (Nov. 19, 2001). The agency
rejected the “significant” criterion as “imprecise” and
concluded that “any limitation of motion [would be]
significant if it were accompanied by the other require-
ments of the final listing.” Id. So, the agency has deter-
mined that any restriction on movement that a doctor
considers a medical limitation of motion will satisfy
this element of the listing. Even if Kastner’s pain affected
the consistency and accuracy of his range-of-motion
examinations, it is difficult to conclude on this record
that Kastner failed to demonstrate “any limitation of
motion”—the standard the agency adopted when it
revised the listing.
No. 11-1166 15
Next, the Commissioner contends that Kastner has
provided no evidence of “motor loss (atrophy with associ-
ated muscle weakness or muscle weakness),” an addi-
tional requirement of Listing 1.04(A). This argument
fails for the same reasons as before; the ALJ never refer-
enced motor loss as a basis for the determination at step 3.
The Commissioner’s theory is speculation barred by
the Chenery doctrine.
And in any event, the record does contain evidence of
Kastner’s motor loss. The Commissioner points to
Kastner’s initial examinations in 2005 where Dr. Rupert
measured normal muscle strength. But this ignores the
2006 examination where Dr. Hall found reduced
strength in Kastner’s left arm and stated: “He cannot
lift well with his left arm.” 2 The Commissioner also refer-
ences a May 9, 2006 examination with Dr. Chou where
Kastner stated that his pain was getting much better
since his surgery and he could lift his left arm. But this
occurred three months before Dr. Hall’s examination
during the period when Kastner showed initial signs
of improvement after his first surgery. “An ALJ may not
selectively consider medical reports . . . but must consider
all relevant evidence.” Myles v. Astrue, 582 F.3d 672, 678
(7th Cir. 2009) (internal quotation marks and citations
2
The Commissioner also disregards other evidence including
Dr. Chou’s January 7, 2005 examination where he noted that
Kastner was experiencing “bilateral arm numbness” and the
April 19, 2006 visit where Dr. Chou stated that Kastner “is
completely weak in his left deltoids . . . and he is numb in
the shoulder patch and the deltoids feel a little bit flaccid to me.”
16 No. 11-1166
omitted). Dr. Hall’s August 2006 examination may be
better evidence of Kastner’s long-term condition.
Furthermore, Kastner’s arm strength is not the only
evidence of motor loss. Under “Examination of the
Spine,” § 1.00(E)(1) of Appendix 1 states: “Inability to
walk on the heels or toes, to squat, or to arise from a
squatting position, when appropriate, may be considered
evidence of significant motor loss.” In his examination,
Dr. Hall observed that Kastner could walk on heels and
toes but that he had “difficulty with tandem walking
[and] squatting. He gets down but nearly cannot get
back up without use of the arms.” In the January 4, 2005
examination, Dr. Butler also observed that Kastner had
“trouble with standing, stooping and lifting.” This evi-
dence supports a finding of motor loss and the ALJ
never articulated any contrary conclusion.
Kastner also challenges the ALJ’s determination as to
Listing 1.04(C). The ALJ concluded that Kastner did not
meet or equal the requirements of the listing “because
he was able to ambulate effectively, which was generally
well enough to perform basic activities of daily living.
For example, the claimant testified that he was able to
walk around his house, to clean, to bathe, attend
basketball games, and perform volunteer work at
school . . . .” Under § 1.00(B)(2)(b)(2) of Appendix 1,
“[i]nability to ambulate effectively means an extreme
limitation of the ability to walk; i.e., an impairment(s)
that interferes very seriously with the individual’s
ability to independently initiate, sustain, or complete
activities.” This level of impairment “is defined generally
No. 11-1166 17
as having insufficient lower extremity functioning . . .
to permit independent ambulation without the use of
a hand-held assistive device(s) that limits the functioning
of both upper extremities” such as a walker, two
crutches, or two canes. Id. It is not clear from this record
that Kastner has demonstrated such “extreme limita-
tion” to his ability to walk, and the ALJ correctly consid-
ered evidence of his household activities to determine
whether he met the requirement. On remand, however,
we would encourage the ALJ to consider and account
for the medical evidence along with Kastner’s personal
statements about his symptoms. See 20 C.F.R. § 404.1529(b).
III. CONCLUSION
We R EVERSE the judgment of the district court and
R EMAND the case to the Social Security Administration
for further proceedings consistent with this opinion.
10-10-12