Scott v. Astrue

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2487

S HIRLEY S COTT,

Plaintiff-Appellant,

v.

M ICHAEL J. A STRUE, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 5882—Sidney I. Schenkier, Magistrate Judge.

A RGUED N OVEMBER 9, 2010—D ECIDED A UGUST 1, 2011

Before P OSNER, T INDER, and H AMILTON, Circuit Judges.

T INDER, Circuit Judge. Shirley Scott applied for disability

insurance benefits and supplemental security income,

claiming that she is disabled by bipolar disorder and

numerous physical impairments. The Social Security

Administration (“SSA”) denied her claim, and a

magistrate judge, presiding by consent, upheld the deci-

sion. Scott contends on appeal that the Administrative

Law Judge (“ALJ”) wrongly discounted the opinion of

2 No. 10-2487

her treating psychiatrist and discredited her own testi-

mony, and that these mistakes caused the ALJ to over-

state her residual functional capacity (“RFC”). We

vacate the magistrate judge’s decision and remand with

instructions that the case be returned to the SSA for

additional proceedings.

I. Background

Scott, who is now 56 years old, suffers from mental

impairments as well as back and knee pain. Her physical

problems took center stage beginning on New Year’s Eve

in 2000, when she tripped on some stairs and landed on

her back. For ten months afterward she endured

persistent back pain that eventually made it impossible

for her to continue performing the duties of her job as a

nursing home assistant, which required that she lift and

transport elderly residents. So Scott gave up her job,

moved in with her daughter, and filed an application

for disability benefits that was denied in February 2005.

Then in August 2005 her knees gave out, and she fell

down a second set of stairs and further injured her back.

She went to the emergency room, but x-rays confirmed

that nothing was broken and no immediate surgery

was necessary. After that incident she reapplied for

disability benefits, and this second application is the

one before us.

In response to Scott’s renewed application, a state-

agency internist, Dr. Norma Villanueva, examined Scott

in December 2005. During the brief, half-hour appoint-

ment, Scott told the doctor that she carries a cane for

No. 10-2487 3

balance because she has bad knees, and she complained

of back pain, arthritis, depression, and vision problems.

Scott said that her back had bothered her since 2001

and that her doctor had prescribed a high dosage of

ibuprofen, which often is ineffectual. Dr. Villanueva

diagnosed Scott with osteoporosis, arthritis, and hyper-

tension but concluded that her musculoskeletal health

was “normal.” In support of this last conclusion,

Dr. Villanueva wrote, “[Scott] uses a cane but can walk

normally 50 feet when asked to do so here in the office,

without her cane. . . . [R]ange of motion is full.” The re-

port says nothing about Scott’s ability to lift or carry

heavy objects. Although this is the medical evaluation

upon which the ALJ ultimately relied in assessing

Scott’s physical limitations, her medical records are

replete with instances in which she complained to

other doctors about back and knee pain and said the

cane was necessary for balance. Scans and X-rays, how-

ever, did show that Scott’s knees were normal and that

she suffered from only minimal degeneration in her spine.

The state agency also evaluated Scott’s mental health

in December 2005. Scott complained to Dr. Robert

Prescott, a psychologist, about poor memory, bouts of

crying, disinterest in activities, and auditory hallucina-

tions. Dr. Prescott observed that Scott displayed a “flat”

affect but was oriented to time and place and was able

to care for herself; he concluded that Scott was depressed

and suffered from some cognitive limitations. A different

state-agency psychologist then reviewed Dr. Prescott’s

report and concluded that Scott faced mild limitations

in her abilities to perform daily life activities and main-

4 No. 10-2487

tain concentration, persistence, and pace, but was able

to function normally in social settings and had not ex-

perienced any episodes of decompensation. A state

agency medical consultant agreed with this assessment.

In April 2006, Scott had a Comprehensive Mental

Health Assessment. She told the examiner that she is

perpetually anxious and has trouble sleeping, in part

because of the voices she hears. The examiner noted

that Scott had difficulty recalling dates, but her judg-

ment was intact. The assessment concluded that Scott

was depressed but ruled out major depression, recom-

mending therapy and a psychiatric evaluation.

In June 2006, Scott began therapy with Dr. Christine

Tate, a psychiatrist, on a near-monthly basis. In her treat-

ment notes, Dr. Tate documented Scott’s complaints

that she cried daily and suffered frequent nightmares,

paranoia, and periods of insomnia, sometimes lasting

more than two days. Dr. Tate also observed that Scott

was guarded, spoke quietly and slowly, had poor

recall and concentration, and was easily distracted. Tate

diagnosed Scott with bipolar disorder and prescribed

Abilify and Zoloft, both of which are used to treat

bipolar disorder and depression. In May 2007, Scott

complained of hand tremors (a common side effect of

her medications), so Dr. Tate prescribed a third drug,

Cogentin, to reduce the tremors and ordered a neuro-

logical consultation to rule out other causes. It appears

from the record that the tremors eased with the addi-

tional medication, and Scott never went for the neuro-

logical consultation.

No. 10-2487 5

Dr. Tate also completed a questionnaire about Scott’s

mental impairments. After more than a year of working

with Scott, the psychiatrist reported that Scott’s symp-

toms included tearfulness, auditory hallucinations, para-

noia, and difficulty concentrating, and she remarked

that Scott had long been a “quiet sufferer of untreated

chronic mental illness” even though her mental status

was “within normal limits.” Dr. Tate opined that Scott

would miss work at least three times a month and that

she had no ability, or at best a “fair” ability, to perform

light work. Dr. Tate concluded that Scott is slightly

limited in daily functioning and markedly limited in

social functioning; that she frequently experiences de-

ficiencies in concentration, persistence, or pace; and

that she suffers from repeated episodes of deterioration

and decompensation.

At her hearing before the ALJ, Scott described the

impairments she thought would interfere with her

ability to work. She explained that her bipolar disorder

made her tearful and depressed, caused her to hear

imaginary voices, hindered her concentration, and made

her feel paranoid. She remarked that, because of these

symptoms, she could “hardly keep [herself] together.”

As examples of how the disorder interferes with her

life, Scott said that she often misses her bus stop, fears

being followed, and has trouble sleeping. Regarding

her physical limitations, Scott told the ALJ that, since

her initial stairway fall, she has experienced sharp lower-

back pain that lasts days at a time and that is not con-

trolled by prescription-strength ibuprofen. She also

repeated that her knees tend to give out, so she carries

6 No. 10-2487

a cane. Scott conceded that her prescription for osteoporo-

sis helped her knees but said that she had stopped

taking the medication because she could not go to the

hospital to get the prescription refilled. (She refilled

her other prescriptions at a local pharmacy.) Finally,

Scott explained that 2 or 3 times a week her right hand

shakes for about 30 minutes, making it hard for her to

hold things, and that arm pain makes it impossible

for her to lift more than a gallon of milk.

Scott also testified about her daily routine. She told the

ALJ that she is able to help her daughter with cooking

and some cleaning, but she cannot bend to mop or

carry groceries. During the day Scott watches TV, talks

on the phone, and reads, but sometimes she cannot con-

centrate on these activities. Scott told the ALJ that she

can stand or sit for 30 minutes at a time, walk 2 blocks

without stopping, and climb stairs if she holds onto

a railing or uses her cane.

A psychologist, Dr. Ellen Rozenfeld, was present for

Scott’s testimony and commented on her mental health

based on her testimony and an examination of the rec-

ord. Dr. Rozenfeld remarked that she had seen no

evidence in the medical record of manic episodes and

thus wondered how Dr. Tate had arrived at her

diagnosis of bipolar disorder. Although Dr. Rozenfeld

did not rule out the diagnosis, she opined that Scott had

a sound ability to remember, reason, and perform

basic calculations; that she could engage in a full range

of daily activities; and that the record did not support

a conclusion that Scott would miss three days of work

No. 10-2487 7

a month. Dr. Rozenfeld also surmised that Scott dis-

trusted others but was not paranoid, and that the

voices she heard might simply be a byproduct of

falling asleep since Scott usually heard them at night.

Dr. Rozenfeld concluded that a diagnosis of major de-

pression was appropriate and opined that Scott could

follow short, simple instructions but was moderately

limited in social functioning and in concentration, per-

sistence, and pace. She also opined that Scott had a

marked limitation in her ability to perform complex tasks.

The ALJ then asked a vocational expert (“VE”) what

jobs Scott could do if she can lift, push, or pull

10 pounds frequently and 20 pounds occasionally; stand

or walk for 6 hours; and occasionally climb, balance,

stoop, kneel, crouch, and crawl. The ALJ instructed the

VE to exclude jobs that involve complicated tasks, a

rapid pace, or frequent interaction with others. The

VE responded that Scott could not return to her past

work but could perform light work as a hotel cleaner

or parking-lot attendant. The ALJ then asked the VE to

consider the added limitation that Scott must be able

to alternate between standing and sitting. The VE con-

cluded that, with that limitation, Scott would be limited

to jobs as a parking-lot attendant, of which he estimated

there are 2,000 in the regional economy. In both cases,

the VE added, Scott would have to concentrate for at

least 85% of the time.

The ALJ evaluated Scott’s claim under the required

five-step analysis, see 20 C.F.R. §§ 404.1520, 416.920,

and concluded that (1) Scott had not worked since

8 No. 10-2487

October 2001; (2) her depression, hypertension, osteo-

porosis, and minimal degeneration of her spine con-

stitute severe impairments but the hand tremors do not;

(3) these impairments do not collectively meet or equal

a listed impairment; (4) Scott has the RFC to perform

light work; and (5) based on this RFC she cannot

perform her previous job but can do light work as a

hotel cleaner and thus is not disabled.

The ALJ rejected Dr. Tate’s diagnosis of bipolar

disorder, and instead concluded that Dr. Rozenfeld’s

diagnosis of depression was more consistent with the

record. The ALJ refused to credit Dr. Tate on the ground

that there is no “objective evidence to support her

opinion that [Scott] would be absent more than 3 times

a month” and because Dr. Tate’s notes reflect a positive

response to medication and therapy, undermining the

conclusion that Scott is limited in her ability to work.

The ALJ also denied benefits, in part, because she

discredited Scott’s testimony on “the intensity, per-

sistence and limiting effects” of her symptoms. The

ALJ found that Scott had overstated her back and knee

pain because she can climb stairs and walk two blocks,

and because X-rays of her knees were normal and films

of her back showed only minimal degeneration. The ALJ

further doubted that the voices Scott was hearing would

keep her from working because she “heard voices in the

daytime only once.” The ALJ also characterized Scott’s

testimony as inconsistent because she had said that she

stopped taking one medicine when she could not travel

to get the prescription filled, yet she traveled to see

No. 10-2487 9

Dr. Tate and got her prescriptions filled at a local drug-

store. The ALJ also concluded that, because Scott recalled

the location of that drugstore, her memory is better

than she lets on.

II. Discussion

Scott challenges three aspects of the ALJ’s decision,

which we review as the final word from the Commis-

sioner because the Appeals Council declined review.

See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). Scott

faults the ALJ for crediting Dr. Rozenfeld instead of

Dr. Tate regarding her mental impairments, argues that

the ALJ’s credibility finding is unsupported, and dis-

putes the ALJ’s resulting determination that her RFC

allows light work. We confine our review to the rationale

offered by the ALJ, Steele v. Barnhart, 290 F.3d 936, 941

(7th Cir. 2002) (citing SEC v. Chenery Corp., 318 U.S. 80, 93-

95 (1943)), and evaluate whether that decision is sup-

ported by substantial evidence without deferring to the

district court, O’Connor-Spinner v. Astrue, 627 F.3d 614,

618 (7th Cir. 2010). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate

to support a conclusion.” Skinner v. Astrue, 478 F.3d

836, 841 (7th Cir. 2007) (quoting Richardson v. Perales,

402 U.S. 389, 401 (1971)).

As to Scott’s first argument, we agree that the ALJ

erroneously credited Dr. Rozenfeld’s opinion over the

views of Dr. Tate in evaluating her mental impairments.

A treating doctor’s opinion receives controlling weight

if it is “well-supported” and “not inconsistent with the

10 No. 10-2487

other substantial evidence” in the record. 20 C.F.R.

§ 404.1527(d)(2); see Punzio v. Astrue, 630 F.3d 704, 710 (7th

Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.

2010). An ALJ must offer “good reasons” for discounting

the opinion of a treating physician. Martinez v. Astrue,

630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627 F.3d at 306.

Here, the reasons the ALJ gave for discounting Dr. Tate’s

assessment do not meet this standard. The ALJ first

relied on Dr. Rozenfeld’s conclusion that the medical

record contains no evidence of manic episodes and thus

cannot support a diagnosis of bipolar disorder, which,

by definition, includes both manic and depressive epi-

sodes. But the record does contain evidence that could

be symptomatic of manic behavior. Dr. Tate repeatedly

noted that Scott sometimes stays awake for days at a

time, has paranoid ideations, is easily distracted, and

experiences difficulty concentrating. These symptoms

are consistent with manic episodes, see Am. Psychiatric

Ass’n, Diagnostic and Statistical Manual of Mental Disorders

357-62 (4th ed. 2000), and it is possible that Dr. Tate

considered them as such in diagnosing Scott with

bipolar disorder.

The ALJ also found Dr. Tate’s assessment internally

inconsistent because, on the one hand, she opined that

Scott is markedly limited in her ability to work and is

likely to miss three days of work per month while, on

the other hand, she also stated that Scott had responded

well to treatment. But the ALJ was too quick to read

inconsistency into these statements. There can be a

great distance between a patient who responds to treat-

ment and one who is able to enter the workforce, and

No. 10-2487 11

that difference is borne out in Dr. Tate’s treatment notes.

Those notes show that although Scott had improved

with treatment, she nevertheless continued to frequently

experience bouts of crying and feelings of paranoia.

The ALJ was not permitted to “cherry-pick” from those

mixed results to support a denial of benefits. Denton v.

Astrue, 596 F.3d 419, 425 (7th Cir. 2010); See Myles

v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). More-

over, the ALJ’s analysis reveals an all-too-common

misunderstanding of mental illness. The very nature of

bipolar disorder is that people with the disease

experience fluctuations in their symptoms, so any

single notation that a patient is feeling better or has had

a “good day” does not imply that the condition has

been treated. See Punzio, 630 F.3d at 710; Larson v. Astrue,

615 F.3d 744, 751 (7th Cir. 2010); Bauer v. Astrue, 532

F.3d 606, 609 (7th Cir. 2008).

And even if there had been sound reasons for refusing

to give Dr. Tate’s assessment controlling weight, the

ALJ still would have been required to determine

what value the assessment did merit. See 20 C.F.R.

§ 404.1527(d)(2); Larson, 615 F.3d at 751. “If an ALJ

does not give a treating physician’s opinion controlling

weight, the regulations require the ALJ to consider the

length, nature, and extent of the treatment relationship,

frequency of examination, the physician’s specialty, the

types of tests performed, and the consistency and

supportability of the physician’s opinion.” Moss v. Astrue,

555 F.3d 556, 561 (7th Cir. 2009) (citing 20 C.F.R.

§ 404.1527(d)(2)). Here, many of these considerations

favor crediting Dr. Tate’s assessment: Dr. Tate is a psy-

12 No. 10-2487

chiatrist (not a psychologist), she saw Scott on a

monthly basis, and the treatment relationship lasted

for over a year. It is not apparent that the ALJ considered

any of these factors. Based on these shortcomings,

we conclude that the ALJ’s consideration of Dr. Tate’s

evaluation is unsatisfactory and requires remand.

The same is true of the ALJ’s assessment of Scott’s

physical impairments. The ALJ asked the VE to consider

what jobs would be available to Scott if she can stand for

6 hours in a regular day and lift 10 to 20 pounds, but

the ALJ did not identify any medical evidence to sub-

stantiate her belief that Scott is capable of meeting

those physical requirements. The ALJ said that her con-

clusion is based on Dr. Villanueva’s examination, but

nothing in that report suggests that Scott can stand for

6 hours or lift up to 20 pounds. Dr. Villanueva noted

that Scott successfully walked 50 feet without a cane

within the confines of her office, but that brief excursion

hardly demonstrates an ability to stand for 6 hours

(and neither does Scott’s testimony that she could

walk 2 blocks). Additionally, there is no evidence in

Dr. Villanueva’s report that she even tested Scott’s

ability to lift heavy objects, so the ALJ could not legiti-

mately have relied on that examination to conclude

that Scott can occasionally lift 20 pounds. The ALJ

needed to explain how she reached her conclusions

about Scott’s physical capabilities, see Briscoe ex rel.

Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005);

Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004),

but the primary piece of evidence that she relied on

does not support the propositions for which it is cited.

No. 10-2487 13

We therefore must conclude that the ALJ failed to build

the requisite “logical bridge” between the evidence and

her conclusion. See Terry v. Astrue, 580 F.3d 471, 475

(7th Cir. 2009).

The Commissioner asserts that, apart from one state-

ment at the hearing that Scott was unable to lift more

than one gallon of milk, there is no evidence that she

has any limitation on her lifting ability, and the ALJ

was therefore entitled to determine her RFC without

reference to a more-substantial lifting restriction. It is

true that Scott bears the burden of producing evidence

of her impairments, see Eichstadt v. Astrue, 534 F.3d 663,

668 (7th Cir. 2008), but she did produce evidence in the

form of her own testimony as well as medical evidence

that tremors make it difficult for her to use her hands.

If the ALJ found this evidence insufficient, it was her

responsibility to recognize the need for additional

medical evaluations. See Golembiewski v. Barnhart, 322

F.3d 912, 918 (7th Cir. 2003); Smith v. Apfel, 231 F.3d 433,

437 (7th Cir. 2000).

These flaws are enough to require us to remand the

case to the Agency for further proceedings. We therefore

needn’t decide whether the reasons the ALJ gave in

support of her adverse credibility finding regarding

Scott were so “patently wrong” as to separately require

remand. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.

2010); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009).

Nonetheless, we point out several of the most serious

flaws in the ALJ’s credibility assessment so that the

SSA does not repeat them on remand. First is the ALJ’s

14 No. 10-2487

suggestion that Scott’s auditory hallucinations won’t

interfere with her ability to work because she hears

voices only at night. The ALJ did not limit Scott to

daytime work (parking lots often employ night-time

attendants), and this reasoning fails to account for the

reality that hearing voices at night could interfere with

Scott’s ability to sleep and thus her ability to function

during the day. Moreover, there must be a reason that

Scott hears voices, a subject that should be explored

rather than used as a reason to doubt her credibility.

Also troubling is the ALJ’s finding that when Scott

testified she must have exaggerated her difficulties

with concentration and memory since she was able to

recall the location of the pharmacy that she regularly

utilized. Drs. Prescott, Tate and Rozenfeld did not dis-

pute Scott’s complaints about memory and concentra-

tion problems, and her husband also provided corrob-

orating testimony. That Scott can find her way back

to a pharmacy to fill needed prescriptions is hardly

enough to discount concerns about her memory and

concentration.

III. Conclusion

The judgment affirming the denial of benefits is

V ACATED and the case is R EMANDED with instructions

that it be returned to the SSA for further proceedings

consistent with this opinion.

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