Linda Roddy v. Michael Astrue , 705 F.3d 631 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1682
L INDA K. R ODDY,
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, New Albany Division.
No. 4:11-cv-23-TWP-WGH—Tanya Walton Pratt, Judge.
A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 18, 2013
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
W OOD , Circuit Judge. Linda K. Roddy suffers from
a number of serious medical problems, including in
particular severe lower back pain attributable to degen-
erative disc disease. Eventually, when her pain became
unbearable, she stopped working and applied for dis-
ability insurance benefits under the Social Security Act.
She was unsuccessful before both the Social Security
2 No. 12-1682
Administration and an administrative law judge (ALJ),
who found that there were jobs in the national economy
within her capabilities, even though she no longer could
perform her old job as a shift manager at a Taco Bell
restaurant. The district court, reviewing the agency’s
decision under 42 U.S.C. § 405(g), found that substantial
evidence supported the Commissioner’s decision, and
so Roddy has now turned to this court. We conclude
that the ALJ made a number of errors in his considera-
tion of the record; we therefore remand Roddy’s case to
the agency for further proceedings.
I
Roddy was born in 1964 and so by now is in her late
40s. She has suffered from degenerative disc disease,
among other ailments, since 1999. From 1985 until 1999
she worked full-time, mostly as a shift manager at Taco
Bell, and was largely untroubled by health problems.
Her luck changed in 1999, when, at the age of 34, she
was in a car accident. She went to an emergency room
at that time complaining of pain in her neck, forehead,
shoulders, and back. There she received pain medica-
tion and was released the same day. Unfortunately,
however, her pain did not subside, and she began to
have difficulty doing her job and even getting dressed
in the mornings. A month later she sought treatment
from a chiropractor, Richard Hilton, who saw her for
about eight months but then referred her to a pain man-
agement specialist, Dr. Gary Wright. Before referring
Roddy, Hilton noted that she had not experienced as
much improvement as a typical patient would have.
No. 12-1682 3
Dr. Wright treated Roddy from November 1999
through 2006. During his first appointment with her,
Dr. Wright took her medical history and performed a
physical examination. Over the following year he
treated her in several ways: he scheduled her for an
assessment using magnetic resonance imaging (MRI);
and he performed both a discography (an injection pro-
cedure that identifies the source of pain by putting pres-
sure on discs in the spine) and a spinoscopy (a proce-
dure used to study the movement of the spine). The
MRI revealed mild to moderate degeneration of one of
the discs in Roddy’s lower spine as well as a tear
in the cartilage around that disc. The discography indi-
cated that the torn and degenerating disc in Roddy’s
lower back was the source of her pain. The spinoscopy
demonstrated significant functional problems with
the movement of her spine, especially as she was
asked to carry heavier loads. Based on these findings,
Dr. Wright diagnosed Roddy as suffering from several
disorders of the spine, including degenerative disc
disease and sacroiliitis (an inflammation of the joints in
the lower back, see A MERICAN M EDICAL A SSOCIATION,
C OMPLETE M EDICAL E NCYCLOPEDIA 1086 (Jerrold B. Leikin
& Martin S. Lipsky eds. 2003)).
From 1999 through 2003, Dr. Wright performed over
36 procedures on Roddy’s spine, including nerve-
block injections and prolotherapy injections, but he was
unable permanently to relieve her pain. He prescribed
various pain medications for Roddy including Methadone
and Oxycontin. At first the injections and pain medica-
tion substantially alleviated her pain for periods
4 No. 12-1682
lasting three or four months, but these procedures
became less effective over time, eventually providing
only three or four weeks of relief. Dr. Wright also rec-
ommended that Roddy undergo a procedure called
intradiscal electrothermal therapy to cauterize the
nerve endings in her damaged disc. She was unable to
do so, however, because her insurance carrier refused
to pay for the procedure and instead suggested that
she undergo spinal-fusion surgery. Dr. Wright disagreed
with that idea because of Roddy’s age, and Roddy
followed his advice.
Dr. Wright also became convinced that Roddy’s job
at Taco Bell was aggravating her condition. He thus
recommended numerous work restrictions, such as lim-
iting her work and the weight she was required to
carry. Taco Bell, however, did not adopt these restric-
tions, especially during busy times of the day. Dr. Wright
imposed a final work restriction on Roddy in June 2002,
stating that the most she could work would be six hours
a day, five days a week. Over the following three
years during which he treated Roddy, Dr. Wright
never altered or revoked this restriction.
Between September 2003 and Roddy’s final appoint-
ment in January 2006, Dr. Wright treated Roddy less
frequently, because she had lost her health insurance
and no longer could afford prescriptions or further pro-
cedures. During this period, Dr. Wright provided her
with samples of Vioxx and other pain medications,
but those drugs did not alleviate her pain. Despite
her financial limitations, he scheduled her for another
No. 12-1682 5
MRI, which produced results consistent with her
first one. She also had a surgical consultation. The only
additional procedures Dr. Wright performed between
September 2003 and January 2006 were more nerve-
block injections in November 2005.
In October 2003, Dr. Wright was deposed in connec-
tion with a lawsuit Roddy had filed stemming from her
car accident. He reviewed the treatments he had given
Roddy, his diagnosis of her condition, and his opinion
about her ability to work. He also noted that her condi-
tion had deteriorated since he began treating her and
that her pain had increased. When asked why, Dr. Wright
explained that Roddy’s insurance had refused to pay
for intradiscal electrothermal therapy, and that without
that procedure she could not obtain long-term relief
from her pain. Her pain prevented her from exercising,
and thus from building strength in her back muscles;
this deconditioning in turn aggravated her existing prob-
lems. Dr. Wright predicted that Roddy’s ability to
work would diminish to the point that she would not
be able to remain in the workforce.
Roddy filed her application for Social Security disabil-
ity insurance benefits in November 2007, alleging
disability beginning in November 2005 on account of
headaches, dementia, torn discs in her spine, and pain
in her back, neck, hips, knees, and shoulders. In con-
nection with her application, Roddy was evaluated
by an internist, Dr. Larissa Dimitrov, and two clinical
psychologists, Susan Conners and Robert Kurzhals. The
psychologists identified no serious medical conditions.
6 No. 12-1682
Dr. Dimitrov examined Roddy and found that despite
a somewhat decreased range of motion in her back,
knees, and hips, she was able to walk normally, get on
and off the examining table without difficulty, and
was otherwise not disabled.
In 2008 the agency interviewed Roddy and her
friend, Sharon Kemp, about Roddy’s quality of life and
ability to perform daily activities. Roddy asserted that
because of the pain in her lower back, she had not
worked since being fired by Taco Bell in 2005. Roddy
explained that her condition had significantly impeded
her daily activities and forced her to spend most of the
day lying down on her couch and heating her back.
She stated that bending at the waist caused her pain
and that she could not sit for a long period of time or
stand continuously for more than 20 to 30 minutes. As
a result she could no longer play softball or exercise,
she was forced to stop often to stretch while driving
for more than a short distance, and her household
chores were much more difficult to complete. Before
she began experiencing back pain, Roddy was able to
clean her mobile home in one day. By 2008, she said,
she was unable to lift more than 10 pounds, had dif-
ficulty negotiating stairs, could not sweep and mop a
single room in her home in the same day, completed
her household cleaning only in intervals, and had to lie
down to rest and stretch her back for an hour or
more before finishing cleaning any one room. She
usually limited herself to making sandwiches and
microwaving meals to reduce the time she spent standing
while cooking. Even doing laundry required her to lie
No. 12-1682 7
down and rest her back between loads. She could, how-
ever, care for her dog and mow her lawn on a riding
mower. Though Roddy visited with Kemp once a
month, Kemp noted that they often had to stop
playing cards or watching a movie so that Roddy
could stretch her back.
Based on the record we have described, the state
agency denied Roddy’s claim initially and on reconsid-
eration; Roddy then requested a hearing before an ALJ.
At that hearing, which took place in 2010, Roddy and
William J. Kiger, a vocational expert, testified. Roddy
testified about her daily activities and noted that she
now had a friend living with her to help around the
house. Roddy still did some sweeping and dusting but
no longer mopped. She could go grocery shopping, but
after 30 minutes in the store she struggled to finish her
shopping, and her friend had to assist her with putting
the groceries away at home so she could lie down.
Roddy’s friend also assisted with laundry, cooking, and
yard work, and helped Roddy dress. Roddy reported
pain from sitting or standing for longer than 20 minutes
and said that she had to lie down and stretch her back
three times a day for an hour or two. Kiger testified
that even if Roddy’s condition required her frequently
to alternate between sitting and standing, she still could
perform a wide range of sedentary work available in the
regional economy, including such jobs as a production
worker, sorter, or order clerk.
The ALJ found that Roddy was not disabled after
evaluating her claim under the five-step sequential
8 No. 12-1682
process detailed in 20 C.F.R. § 404.1520(4). He found
that she satisfied steps one and two. She was no longer
engaged in substantial gainful activity (step one), and
the medical evidence established that she had severe
medical impairments, including degenerative disc
disease, disorders of the back, left wrist pain from a
cartilage tear, cubital tunnel syndrome, headaches, and
hip pain (step two). Roddy’s alleged mental impair-
ments, he concluded, are not severe. For purposes of
step three, he found that her impairments do not meet
the criteria to show presumptive disability.
Between the third and fourth steps, the ALJ concluded
that Roddy’s residual functional capacity allows her
to perform jobs that permit her to alternate sitting
and standing on a regular basis and that do not require
carrying more than five pounds regularly, pushing,
pulling, climbing, reaching overhead, or walking over
uneven terrain. In reaching this determination the
ALJ, using boilerplate that this court has consistently
criticized, see e.g., Filus v. Astrue, 694 F.3d 863, 868 (7th
Cir. 2012); Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th
Cir. 2012); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.
2010), concluded that, though Roddy’s conditions could
reasonably be expected to cause the level of pain she
complained of, her “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 assessment.” The
ALJ discounted Roddy’s testimony because she had
not sought treatment for her condition since 2005, instead
managing to “maintain and cope” using only over-the-
No. 12-1682 9
counter medications, and was able to care for herself
and her pet and complete household chores. Although,
for step four, the ALJ determined that Roddy cannot
perform her past work, he concluded for purposes of step
five (where the Commissioner bears the burden of
proof ) that she remains able to perform a range of seden-
tary work.
II
Because the Appeals Council declined Roddy’s
request for review, the ALJ’s ruling represents the Com-
missioner’s final decision. O’Connor-Spinner v. Astrue,
627 F.3d 614, 618 (7th Cir. 2010). We review the ALJ’s
decision directly without giving deference to the
district court’s assessment and will uphold the agency’s
decision so long as it uses the correct legal standards
and the decision is supported by substantial evidence.
Id.; Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir.
2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).
Roddy’s first argument is that the ALJ failed to
give sufficient weight to Dr. Wright’s opinion, or at the
very least the ALJ did not adequately explain why
Dr. Wright’s views should be set aside. Dr. Wright had
opined that she could work at most six hours a day, five
days a week. Because, according to the Social Security
Administration, a person who cannot work eight hours
a day, five days a week, or the equivalent, is disabled,
see SSR 96-8p, 1996 WL 374184 at *1 (Jul. 2, 1996), if
Dr. Wright is correct, then a finding of disability
must follow.
10 No. 12-1682
An ALJ must consider all medical opinions in the
record. See 20 C.F.R. § 404.1527(b), (c); Knight v. Chater, 55
F.3d 309, 313-14 (7th Cir. 1995). Yet in this case, the
ALJ never mentioned Dr. Wright’s conclusion from
2002 that Roddy could not handle a full-time job, nor
his statement in his 2003 deposition that Roddy’s ability
to work would continue to diminish to the point where
she could not remain in the workforce at all. Instead,
the ALJ briefly touched on Dr. Wright’s treatment of
Roddy in one paragraph, after he earlier alluded to the
fact that Dr. Wright’s deposition testimony was in
the record. Ultimately, the ALJ decided to credit
Dr. Dimitrov’s opinion that Roddy was capable of work-
ing. It is impossible, however, to know what the ALJ
found lacking in Dr. Wright’s testimony. This is a
serious omission. Although the ALJ was not required to
address in writing every piece of evidence or testimony
presented, he was required to provide “an accurate
and logical bridge” between the evidence and his con-
clusions, Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.
2008); McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011).
No such “bridge” appears in this opinion.
The ALJ’s failure explicitly to address Dr. Wright’s
opinion about Roddy’s ability to work is especially trou-
bling because Dr. Wright was Roddy’s treating physician.
A treating physician’s medical opinion is entitled to
controlling weight if it is well supported by objective
medical evidence and consistent with other substantial
evidence in the record. 20 C.F.R. § 404.1527(c)(2); Skarbek
v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). Even though
the ALJ was not required to give Dr. Wright’s opinion
No. 12-1682 11
controlling weight, see Ketelboeter v. Astrue, 550 F.3d
620, 625 (7th Cir. 2008); Skarbek, 390 F.3d at 503, he
was required to provide a sound explanation for his
decision to reject it and instead to adopt Dr. Dimitrov’s
view. See 20 C.F.R. § 404.1527(c)(2); Jelinik v. Astrue, 662
F.3d 805, 811 (7th Cir. 2011); Campbell v. Astrue, 627
F.3d 299, 306 (7th Cir. 2010); Schmidt v. Astrue, 496 F.3d
833, 842 (7th Cir. 2007).
The agency’s regulations shed some light on how the
ALJ should approach the question of the weight to be
given to a doctor’s opinion. They state that more
weight should be given to the opinions of doctors who
have (1) examined a claimant, (2) treated a claimant
frequently and for an extended period of time, (3) special-
ized in treating the claimant’s condition, (4) per-
formed appropriate diagnostic tests on the claimant,
(5) offered opinions that are consistent with objective
medical evidence and the record as a whole. 20 C.F.R.
§ 404.1527(c)(2)(i), (ii). All of these factors point toward
giving significant weight to Dr. Wright’s assessment of
Roddy. He specialized in treating people with back
pain resulting from spinal conditions. He examined
Roddy frequently over the approximately six years that
he treated her, and he used MRIs, discographies, and
spinoscopy as diagnostic aids. His conclusions about
Roddy’s pain were consistent with the results of these
tests, which revealed that she had degeneration and
a tear around one of the discs in her lower back
and that those abnormalities caused pain and dim-
inished function in her back. In contrast, Dr. Dimitrov
does not specialize in conditions of the spine or treating
12 No. 12-1682
pain; she examined Roddy on only one occasion; and she
did not discuss (and possibly did not even review) the
objective medical evidence from Roddy’s MRIs,
discographies, and spinoscopy.
Though the ALJ did not discuss any of these factors
explicitly, he did mention in passing two possible
reasons for rejecting Dr. Wright’s opinion: the fact that
many years had elapsed since Roddy’s car accident,
and his belief that the results of Roddy’s MRIs were
“essentially unremarkable.” But the first “reason” tells us
nothing useful. The term “degenerative” implies that
Roddy suffers from a condition that will get worse over
time, especially without proper treatment; it is not one
that will remain stable or improve. See Pablo R. Maizno &
Carl Lauryssen, Annular Repair and Barrier Technologies,
in T HE L UMBAR I NTERVERTEBRAL D ISC 113 (2009). The
ALJ did not even discuss Dr. Wright’s explanation that
Roddy’s condition had deteriorated and her pain had
increased because she was unable to exercise and
had therefore become weaker.
In fact, the situation is worse than that. The ALJ misun-
derstood or mischaracterized the results of the MRI.
Rather being unremarkable, those results demonstrated
mild to moderate degeneration in one of the discs of
Roddy’s lower spine as well as a tear in the cartilage
surrounding that disc. The ALJ should have, but did not,
explain why Dr. Wright’s opinion about the severity of
Roddy’s pain is inconsistent with such findings. See
Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007); Car-
radine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
No. 12-1682 13
The Commissioner speculates that the ALJ could
have rejected Dr. Wright’s opinion because Roddy contin-
ued to work full-time after Dr. Wright told her to con-
fine herself to working no more than six hours a day,
five days a week. But the Commissioner cannot defend
the ALJ’s decision using this rationale directly, or by
invoking an overly broad conception of harmless error,
because the ALJ did not employ the rationale in his
opinion. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).
In fact, the premise of this argument is also flawed.
Had the ALJ reviewed Roddy’s work history, he would
have seen that she worked substantially less than the
six hours a day, five days a week to which Dr. Wright
restricted her, and she did not work at all after her
alleged onset date of disability in 2005. The fact that
Roddy pushed herself to work part-time and maintain
some minimal level of financial stability, despite her
pain, does not preclude her from establishing that she
was disabled. Hawkins v. First Union Corp. Long-Term
Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003).
As a final note, the Commissioner might have (but
did not) argue that Dr. Wright’s opinion concerning
Roddy’s ability to work was not the kind of “medical
opinion” that the ALJ must evaluate under 20 C.F.R.
§ 404.1527(b), (c). The agency’s regulations assign the
decision about ability to work to the Commissioner.
See 20 C.F.R. § 404.1527(d)(1); Johansen v. Barnhart, 314
F.3d 283, 288 (7th Cir. 2002); Clifford v. Apfel, 227 F.3d 863,
870 (7th Cir. 2000). But it is just as well that the Com-
missioner is not defending the decision on that
ground. Even if Dr. Wright’s opinion of Roddy’s ability to
14 No. 12-1682
work is not a “medical opinion” under the regulatory
checklist, that does not mean that the ALJ should have
ignored that statement. Bjornson, 671 F.3d at 647; Bauer v.
Astrue, 532 F.3d 606, 609 (7th Cir. 2008). Although the
ALJ does “not give any special significance” to such
opinions, he still must consider “opinions from
medical sources” in determining the claimant’s residual
functional capacity. 20 C.F.R. § 404.1527(d)(2)-(3); Bjornson,
671 F.3d at 647-48; Barnett, 381 F.3d at 669.
Roddy also argues that this court should remand
because the ALJ erred by basing his credibility finding on
two additional points: her failure to seek professional
treatment for her back after 2006, and her ability
to perform household tasks. She is correct in both re-
spects. With respect to her failure to seek treatment, the
Commissioner relies only on the broad principle that a
claimant’s “statements may be less credible if the level
or frequency of treatment is inconsistent with the level
of complaints.” SSR 96-7p, 1996 WL 374186 at *7 (Jul. 2,
1996). But at the same time, an ALJ “must not draw any
inferences about an individual’s symptoms and their
functional effects from a failure to seek or pursue
regular medical treatment without first considering
any explanations that the individual may provide.” Id.;
see also Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009);
Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); Craft,
539 F.3d at 678-79. Roddy had lost her health insurance
and could no longer afford the nearly $3000 each
procedure from Dr. Wright would cost her. The ALJ
appears to have credited this assertion, stating in his
opinion that “the last time she saw a physician was in
No. 12-1682 15
2005 because she has no insurance and cannot other-
wise afford medical care.” And the agency has expressly
endorsed the inability to pay as an explanation excusing
a claimant’s failure to seek treatment. SSR 96-7p at *8.
The Commissioner also suggests that the ALJ might
have rejected Roddy’s justification for her infrequent
visits to the doctor because she received a $500,000 settle-
ment from her lawsuit. This, the Commissioner thinks,
might have provided her with the means to seek treat-
ment; he points out also that Roddy stated in 2008 that
she was doing “okay” financially because of her settle-
ment. But once again, the Commissioner runs up against
the Chenery rule: although the ALJ mentioned Roddy’s
settlement in passing, he did not connect this statement
to any conclusion that Roddy could afford treatment.
Moreover, the ALJ could not have relied on the settle-
ment without additional information; the record does not
include such crucial facts as when Roddy settled her
lawsuit or how much money she actually received after
paying any medical bills and attorney’s fees. The agency
requires ALJs to inquire about a claimant’s reasons for
not seeking treatment. SSR 96-7p at *7-8. Had the ALJ
been concerned about the significance of the settlement,
he could have questioned Roddy about it at the hear-
ing. Instead the ALJ merely asked her why she had
not sought treatment, and asked no further questions
after she explained that she could not afford treatment
after having lost her insurance. In short, the ALJ
should not have rested his credibility determination
on Roddy’s failure to seek treatment after 2006, at least
as supported in this record.
16 No. 12-1682
The ALJ’s reliance on Roddy’s ability to perform house-
hold tasks was also mistaken. Once again, although it
is appropriate for an ALJ to consider a claimant’s
daily activities when evaluating their credibility, SSR 96-7p
at *3, this must be done with care. We have repeatedly
cautioned that a person’s ability to perform daily
activities, especially if that can be done only with sig-
nificant limitations, does not necessarily translate into
an ability to work full-time. See, e.g., Bjornson, 671 F.3d at
647; Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011);
Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th Cir.
2005); Hawkins, 326 F.3d at 918. Roddy testified in
2008 and again at her hearing that she must struggle
to complete even the simplest and least strenuous of
household activities. In 2008 Roddy reported that she
could not clean even a single room of her mobile home
on any given day, could not sweep and mop on the
same day, limited herself to making sandwiches
because standing to cook causes her pain, and had to
lie down for more than an hour at a time on multiple
occasions throughout the day to rest and stretch her
back. A friend confirmed that Roddy could not finish a
movie or card game without lying down to stretch
her back. Roddy testified that by 2010 her condition
had gotten worse, but that luckily she had a friend
living with her to assist with household chores.
Faced with this evidence, the ALJ said only that, by
taking over-the-counter medications, Roddy was able to
remain self-sufficient and complete household chores,
albeit by taking longer to do so. The ALJ criticized
Roddy’s testimony because he found her statements
No. 12-1682 17
from 2008 to be inconsistent with her testimony at her
hearing in 2010. We do not see the conflict. By 2010,
Roddy was fortunate enough to have a friend around
to help with chores that she had described as causing
her significant pain in 2008. Moreover, even if the ALJ’s
characterization of Roddy’s statements was accurate,
Roddy’s condition was degenerative, meaning that it
was likely that she had more limitations in 2010 than
she did in 2008. Roddy’s inability to get through the day
without lying down three to four times for an hour, or
to complete even simple chores requiring standing, like
cooking, does not indicate an ability to work even a
sedentary job full-time. See Moss, 555 F.3d at 562; Craft,
539 F.3d at 680; Mendez v. Barnhart, 439 F.3d 360, 362-63
(7th Cir. 2006). As this court has noted, “one does seden-
tary work sitting . . . but not lying down,” and no
employer is likely to hire a person who must stop
working and lie down two or three times a day for an
hour at a time, or who requires multiple days to
complete tasks other employees might finish in one
workday. Bjornson, 671 F.3d at 646, 648.
For all these reasons, we V ACATE the judgment of
the district court and R EMAND with instructions to
remand the case to the Social Security Administration
for further proceedings consistent with this opinion.
1-18-13