Karen Murphy v. Carolyn Colvin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3154

KAREN MURPHY,

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. 12-CV-3879 — Young B. Kim, Magistrate Judge.

____________________

ARGUED MAY 19, 2014 — DECIDED JULY 22, 2014

____________________

Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge. Karen Murphy claims that as a

result of a stroke she has impairments so severe that she has

not been able to return to her job as a secretary or work in

another capacity. She applied for Disability Insurance

Benefits (“DIB”), but the Commissioner of the Social Security

Administration (“SSA”) denied her application finding that

No. 13-3154 2

she was not disabled. The Administrative Law Judge

(“ALJ”) also agreed with the SSA.

On appeal, Murphy argues the ALJ’s credibility

determination was flawed because it was not supported by

substantial evidence, and we agree. The ALJ erred by not

questioning Murphy further about her failure to fully

comply with her home exercise program and the activities

she participated in while on vacation. Murphy also asserts,

and we agree, that the ALJ’s residual functional capacity

(“RFC”) assessment was flawed because it did not take into

account Murphy’s potential inability to do light work.

Finally, Murphy argues that the ALJ inappropriately used

the medical-vocational grids (“grids”) to find her capable of

working and we agree because the ALJ erroneously

excluded from the RFC assessment information that should

have been included. So we reverse and remand for further

proceedings.

I. BACKGROUND

Karen Murphy was hospitalized after having a stroke on

April 13, 2007. Before leaving the hospital, Murphy was

examined by Dr. Joseph Mayer, who noted her past history

of headaches and her diminished fluency in speech. Dr.

Mayer noted that although Murphy could read a simple

sentence, at times she substituted unintended words or

phrases. He also noted that she had mild weakness on her

right side, and a loss of sensation and proprioception (the

ability to sense where her hand was in relation to her body

without looking at it) in her right arm. Dr. Mayer

recommended that Murphy see a physical therapist to help

her rehabilitate.

No. 13-3154 3

Ten days after her stroke, Murphy started seeing a

physical therapist who recommended a home exercise

program to aid her rehabilitation, but instead of completing

her physical therapy, she only attended two out of the four

therapy sessions prescribed. The therapist recommended

that Murphy be discharged from the program based on her

attendance. It is unclear when Murphy returned to physical

therapy, but on June 13, 2007, the same physical therapist

wrote that Murphy had undergone seven weeks of physical

therapy. Despite returning to the program, Murphy did not

complete it and once again her therapist recommended that

she be discharged from the program.

Dr. Mayer examined Murphy again less than two weeks

after she was discharged from the hospital, at which time

she complained that she felt light-headed, dizzy, and tired,

and that she experienced occasional sharp pain in her right

hand and spots in her left eye. At a follow-up visit on May

11, 2007, she stated that while her dizziness and light-

headedness were gone, her headaches remained.

Two months after her stroke, Murphy met with Dr.

Mayer who noted that her speech had improved, that her

right foot was “essentially normal,” but that her

proprioception in her right hand remained poor. At the end

of July 2007, Murphy saw Melissa Schultz, Dr. Mayer’s

physician assistant, and reported pain on the right side of

her head. She told Dr. Mayer’s assistant that she had recently

returned from vacation and did not notice the pain while she

was away. She also reported continued numbness and

discomfort in her right forearm. Upon examination, Schultz

characterized the decreased sensation in Murphy’s right arm

and hand as “mild” and “improving.” Two months later, in

No. 13-3154 4

September 2007, Dr. Mayer noted that Murphy reported that

her left-sided headaches were better, but she experienced

periodic numbness along the right side of her face that

sometimes developed into headache pain. Dr. Mayer also

noted that Murphy’s speech had “significantly” improved.

In April 2008, a year after her stroke, Murphy followed up

with Dr. Mayer. He noted that Murphy still had difficulty

speaking and “some significant loss of sensation.” He also

noted that Murphy suffered from almost nightly headaches,

but doubted that they were related to her stroke because she

suffered from headaches before her stroke.

On September 29, 2008, Murphy applied for disability

benefits, but her application was denied by the

Commissioner of the SSA. A hearing was held by an ALJ at

which Murphy, her husband, and a vocational expert (“VE”)

testified. Murphy testified about how her physical abilities—

which included difficulty making a fist with her right hand,

buttoning her shirts or jackets, picking up coins, writing or

typing, and distinguishing hot from cold—impaired her

ability to work. She also testified that her daily activities

included sweeping, dusting, making the beds, and preparing

simple meals. Murphy’s husband’s testimony largely

mirrored her testimony. The ALJ asked Murphy and her

husband about the vacation they went on in July 2007, but

they both said they did not remember going on vacation.

Vocational Expert Pamela Tucker was asked to talk about

the type of jobs that someone with certain hypothetical

limitations could perform. In response to hypothetical

questions posed by the ALJ, the VE testified that there were

no sedentary jobs in the regional economy for a person who

could neither work with the general public nor use her

No. 13-3154 5

hands more than occasionally for fine manipulation with the

dominant hand. The ALJ asked a second set of hypothetical

questions that described a person who had the capacity to

do light, unskilled work, but who could only occasionally

perform fine hand manipulation. The VE testified that there

were a significant number of jobs in the economy that this

person could perform. In evaluating Murphy’s claim, the

ALJ ruled that Murphy was not disabled because she had

the RFC to perform the full range of light, unskilled work.

Murphy sought and obtained a review before the

Appeals Council, which adopted the ALJ’s decision. The

ALJ’s decision became the final decision of the

Commissioner when the Appeals Council denied Murphy’s

request for review. She appealed the Council’s decision to

federal district court and the parties consented to a

magistrate judge conducting the proceeding. Murphy sought

review of the agency’s decision challenging the ALJ’s

credibility determination, RFC determination, and

application of the medical-vocational guidelines. The court

affirmed the Commissioner’s decision that Murphy was not

disabled and therefore was not entitled to disability

insurance benefits. This appeal followed.

II. ANALYSIS

We review de novo the magistrate court’s decision, and

reverse an ALJ’s determination only where it is not

supported by substantial evidence, which means “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)). “We will not, however, reweigh the

evidence or substitute our judgment for that of the ALJ’s.”

No. 13-3154 6

Pepper v. Colvin, 712 F.3d 351, 362 (7th Cir. 2013). In reaching

its decision, the ALJ “must build a logical bridge from the

evidence to his conclusion, but he need not provide a

complete written evaluation of every piece of testimony and

evidence.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir.

2005) (internal citations and quotation marks omitted).

A. ALJ’s Credibility Determination Patently Wrong

Murphy argues that the ALJ improperly analyzed the

credibility of her and her husband when the judge

impermissibly relied on oft-criticized boilerplate language

and that the ALJ’s credibility determination was not

supported by substantial evidence. ALJ credibility

determinations are given deference because ALJs are in a

special position to hear, see, and assess witnesses. Shideler v.

Astrue, 688 F.3d 306, 311 (7th Cir. 2012). Therefore, we will

only overturn the ALJ’s credibility determination if it is

patently wrong, which means that the decision lacks any

explanation or support. Elder v. Astrue, 529 F.3d 408, 413–14

(7th Cir. 2008). In drawing its conclusions, the ALJ must

“explain her decision in such a way that allows us to

determine whether she reached her decision in a rational

manner, logically based on her specific findings and the

evidence in the record.” McKinzey v. Astrue, 641 F.3d 884, 890

(7th Cir. 2011).

In reaching her credibility determination, the ALJ used

boilerplate language that stated:

After careful consideration of the evidence, I find that

the claimant’s medically determinable impairments

could reasonably be expected to cause the alleged

symptoms; however, the claimant’s statements

No. 13-3154 7

concerning the intensity, persistence and limiting

effects of these symptoms are not credible to the

extent that they are inconsistent with the above

residual functional capacity assessment.

We have often criticized the inclusion of such boilerplate

language as “meaningless” because the language fails to

connect the conclusory statement with objective evidence in

the record or explain what the ALJ relied on when making

her determination. Pepper, 712 F.3d at 367. However, no

matter how unhelpful the language is, simply because the

ALJ “used boilerplate language does not automatically

undermine or discredit the ALJ’s ultimate conclusion if [she]

otherwise points to information that justifies [her] credibility

determination.” Id. at 367–68. Put differently, the ALJ’s use

of boilerplate language is reversible error if she did not give

sufficient reasons, grounded in evidence in the record, to

support her ultimate determination. See id.

We must remand this case for further proceedings

because the ALJ did not adequately explain its credibility

determination and it was not supported by substantial

evidence in the record. The ALJ deemed Murphy not

credible because she did not attend all of her physical

therapy sessions as instructed or fully comply with her

home exercise program. The ALJ may deem an individual’s

statements less credible if medical reports or records show

that the individual is not following the treatment as

prescribed. See SSR 96-7p, 1996 WL 374186, at *7; Craft v.

Astrue, 539 F.3d 668, 679 (7th Cir. 2008). However, such

evidence should not negatively affect an individual’s

credibility if there are good reasons for the failure to

complete the plan. Craft, 539 F.3d at 679. Therefore, an ALJ

No. 13-3154 8

may need to question the individual at the administrative

proceeding to determine whether there are good reasons the

individual did not seek medical treatment or fully comply

with prescribed treatment. See SSR 96-7p; Shauger v. Astrue,

675 F.3d 690, 696 (7th Cir. 2012).

Here, the ALJ stated that Murphy’s documented failure

to complete her prescribed medical treatment suggested that

Murphy’s symptoms were not as limiting as she claimed and

drew a negative inference as to Murphy’s credibility from

her lack of follow through. But the ALJ did not ask Murphy

why she did not attend all of her physical therapy sessions,

or why she did not comply with her home exercise program.

There may be a reasonable explanation behind Murphy’s

actions, such as she may not have been able to afford the

treatment, further treatment would have been ineffective, or

the treatment created intolerable side effects. See Shauger, 675

F.3d at 696. However, we cannot assess the validity of the

ALJ’s credibility determination because the ALJ did not ask

important questions to determine if Murphy’s actions were

justifiable.

In addition, the ALJ found Murphy’s claim less than

credible because Murphy took a vacation in July 2007, three

months after her stroke, and again in July 2008. The ALJ

stated that Murphy’s ability to go on vacation in July 2007,

so soon after her stroke, suggested that Murphy’s symptoms

were not as disabling as Murphy claimed. Once again, the

ALJ’s assessment is problematic because the evidence does

not support the inference the ALJ draws between Murphy’s

symptoms and her ability to take a vacation. The ALJ’s

assessment might have withstood scrutiny if, upon

questioning Murphy and her husband, the ALJ found

No. 13-3154 9

evidence that Murphy, for example, went on a whitewater

rafting vacation, walked with lions in Africa, or ran with the

bulls in Spain. If Murphy was able to do these types of

activities, legitimate questions would be raised as to the

veracity of her claims. Even if the record showed that

Murphy did something less strenuous, the ALJ’s

determination might have withstood scrutiny, but the record

does not indicate how going on vacation was inconsistent

with Murphy’s claimed degree of physical limitation. One

medical report from Schultz, Dr. Joseph Mayer’s physician

assistant, at the end of July 2007 stated that Murphy

reported head pain on her right side, but that Murphy had

not noticed the symptom while she was on vacation. The

report, however, does not suggest that because Murphy

went on vacation that she could work.

A similar problem exists with the ALJ’s assessment of

Murphy’s July 2008 vacation. The record shows that Murphy

took a relaxing vacation with family members to Mexico in

July 2008 where, according to Murphy, she mostly laid in the

sun. For all we know, she could have been sunning herself

on the beach while listening to smooth jazz. The record only

indicates that Murphy regained the ability to talk, but it does

not suggest that she did any strenuous activity while on

vacation. In fact, she stated that other members of her family

carried her bags. Given the limited information available on

the record, such a vacation as described by Murphy would

not be inconsistent with her symptoms to the point where

her credibility would be diminished. Once again, we cannot

assess the validity of the ALJ’s determination because the

record is devoid of information that might support her

assessment and the ALJ did not ask follow-up questions that

might prove insightful. Therefore, we conclude that the

No. 13-3154 10

ALJ’s credibility determination is not supported by

substantial evidence.

B. ALJ’s RFC Determination Not Supported by

Substantial Evidence

Murphy also argues that the ALJ erred in crafting its RFC

assessment because, according to Murphy, the ALJ “cherry-

picked” evidence that supported her decision while

overlooking evidence that favored Murphy’s position.

Murphy maintains that the purportedly overlooked

evidence supports a finding that she has limitations that the

ALJ failed to account for in evaluating her RFC.

The ALJ must determine an individual’s RFC, or “what

an individual can still do despite his or her limitations,” SSR

96–8p, 1996 WL 374186, at *2, based upon medical evidence

as well as “other evidence, such as testimony by the claimant

or his friends and family,” Craft, 539 F.3d at 676. In making a

proper RFC determination, the ALJ must consider all of the

relevant evidence in the record, “even [limitations] that are

not severe, and may not dismiss a line of evidence contrary

to the ruling.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.

2009). However, a determination “need not contain a

complete written evaluation of every piece of evidence,”

McKinzey, 641 F.3d at 891 (quoting Schmidt, 395 F.3d at 744).

The ALJ in this case concluded that Murphy had the RFC

to perform light work, which is defined as lifting no more

than twenty pounds at a time with frequent lifting or

carrying of objects weighing up to ten pounds. A job may

also be considered light work if it requires “standing or

walking, off and on, for a total of approximately six hours of

an eight-hour workday” with intermittent sitting or

No. 13-3154 11

“involves sitting most of the time with some pushing and

pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b);

Haynes v. Barnhart, 416 F.3d 621, 627 n.1 (7th Cir. 2005).

After examining the record, we find that the ALJ’s RFC

determination was not fully grounded in Murphy’s

testimony or the medical evidence. Murphy said that in

December 2007 she was only able to lift or carry ten pounds,

walk one block, stand for fifteen minutes, and sit for only

limited periods of time. There is no medical evidence in the

record to contradict Murphy’s claim. No doctor conducted a

functional assessment, which includes a function-by-

function assessment of Murphy’s capability to perform light

work.

Nor do Dr. Mayer’s treatment notes, which the ALJ

primarily relied on, contradict Murphy’s testimony. In June

2007, two months after her stroke, Dr. Mayer noted that

Murphy had a right-side facial droop, decreased mobility

involving her entire right side, and difficulties with her

speech and the ability to place words. In July 2007, Murphy

complained of numbness and pain on the right side of her

head and stated that although she did not experience the

pain while she was on vacation, it still caused her

discomfort. She also stated that she had noticed some

improvement in her speech, but complained of numbness

and discomfort in her right forearm. By September 2007,

Murphy had noticed some improvement in her speech, but

complained that it was still negatively impacted by the

numbness she experienced on the right side of her face. She

also complained of continuing difficulty placing words. In

December 2007, Murphy once again saw Dr. Mayer and said

that while she had “both good days and bad days,” the cold

No. 13-3154 12

weather negatively affected her right side. Dr. Mayer noted

that Murphy was using her right hand fairly well and that

Murphy felt as though her condition was stable. He also

noted that she had mild proprioception deficit in her right

hand, but that she was doing better than in the past, had a

normal gait, and was able to tandem walk (walking in a

straight line where the toes of the back foot touch the heel of

the front foot at each step) without support. In April 2008,

Murphy’s speech was generally fluent, but she had

occasional difficulty finding words. Murphy also had

impaired sensation in her right hand and leg and a moderate

decrease in proprioception on her right side, which was a

little worse in her hand and foot. Finally, Murphy’s gait and

tandem gait were normal. Based on Dr. Mayer’s notes, the

ALJ concluded that Murphy was able to perform light work

because her condition improved the year following her

stroke.

The problem with the ALJ’s determination is that none of

Dr. Mayer’s notes address the legal requirements one must

be able to perform before the ALJ can determine that the

individual is able to do light work. There was no

commentary in Dr. Mayer’s notes that addressed Murphy’s

ability to lift or carry any weight, let alone the weight that

one must carry in order to be capable of doing light work.

Similarly, there was no evidence that suggested that Murphy

was able to walk or stand six hours of an eight-hour

workday with intermittent sitting, which one must be able to

do. Admittedly, Dr. Mayer noted that Murphy’s gait and

tandem gait had returned to normal, but that description is

not informative as to whether Murphy could perform light

work.

No. 13-3154 13

The government argues Dr. Mayer’s statements that

characterize Murphy as medically improving and

“neurologically stable” support the ALJ’s decision, but we

disagree because those characterizations do not give us an

accurate description of Murphy’s true neurological state. For

example, Murphy could have been in terrible condition

immediately after her stroke and still be characterized as

“stable” by her doctor if her condition had not changed over

a period of time. Moreover, one’s medical condition could

improve drastically, but still be incapable of performing

light work. The key is not whether one has improved

(although that is important), but whether they have

improved enough to meet the legal criteria of not being

classified as disabled.

Although the ALJ stated the medical notes showed

Murphy’s health consistently improved the twelve months

after her stroke, there is no evidence to suggest that she had

improved to the point where she could perform light work.

Simply because one is characterized as “stable” or

“improving” does not necessarily mean that she is capable of

doing light work. The ALJ noted that Murphy still suffered

from considerable limitations as a result of the stroke. For

example, Murphy experienced difficulty knowing where her

right hand was spatially located without looking at it in

April 2008 and she still had issues related to her speech.

Based on the record, we conclude that the ALJ failed to

build the accurate and logical bridge from the evidence to

her conclusion so that, we as a reviewing court, could assess

the validity of her ultimate findings and afford Murphy

meaningful judicial review. Young v. Barnhart, 362 F.3d 995,

1002 (7th Cir. 2004). The ALJ’s RFC determination is

No. 13-3154 14

inadequate because it is not supported by substantial

evidence, such as a doctor’s functional assessment, or Dr.

Mayer’s notes and Murphy was not discredited to the point

where the ALJ could not rely on her testimony. Based on

these facts, the RFC assessment does not take into account

Murphy’s asserted inability to lift no more than twenty

pounds at a time, carry objects weighing up to ten pounds,

or stand or walk for six hours of an eight-hour workday.

C. ALJ’s Application of Vocational Grids Flawed

At the final step of the disability analysis, the ALJ

concluded that Rule 202.21 governed her decision and that

based on Murphy’s age, education, work experience, and

ability to perform a full range of light work activity, Murphy

was not disabled. According to Rule 202.21 of the medical-

vocational guidelines, or “grids,” an individual with

Murphy’s characteristics and a residual functional capacity

for light work is “not disabled.” See 20 C.F.R. pt. 404, subpt.

P, app. 2, tbl. No. 2, Rule 202.21.

There are two broad types of limitations that may affect a

claimant’s ability to work: exertional and non-exertional.

Exertional imitations, such as sitting, standing, walking, and

lifting affect only an individual’s ability to meet the strength

demands of jobs. Haynes v. Barnhart, 416 F.3d 621, 628 (7th

Cir. 2005). Non-exertional limitations, on the other hand,

relate to a person’s ability to climb, balance, stoop, kneel, or

crouch. Id. When a person has only exertional limitations, or

when her non-exertional limitations are insignificant, the

grids are dispositive on the issue of disability, and an ALJ

may rely on the grids to determine whether a person is

disabled. McKinzey, 641 F.3d at 892. But if the claimant has

No. 13-3154 15

exertional and non-exertional limitations, an ALJ cannot rely

solely on the grids. Haynes, 416 F.3d at 628–29.

Murphy first argues that she had non-exertional

limitations, such as forgetfulness, dizziness, depression,

anxiety, and aphasia that precluded application of the grids

and that the ALJ erred by using the grids exclusively. An

RFC determination must account for all impairments, even

those that are not severe in isolation. Terry v. Astrue, 580 F.3d

471, 477 (7th Cir. 2009). If the ALJ had properly assessed

Murphy’s credibility and found that she did not have non-

exertional limitations, then applying the vocational

guidelines would not amount to reversible error. See

McKinzey, 641 F.3d at 892–93. However, as we previously

discussed, the ALJ found Murphy less than credible. Since

this decision was erroneous and the ALJ excluded Murphy’s

non-exertional limitations based on this erroneous finding,

Murphy’s RFC assessment did not include information that

should have been included. Therefore, the ALJ could not

solely rely on the vocational guideline grids, but rather

needed to consult a vocational expert.

Though the ALJ asked a VE a number of hypothetical

questions that pertained to Murphy’s ability to work, she

ultimately did not rely on the VE’s opinion. However, even

if the ALJ had relied on the VE’s opinion, we would have to

remand the case because the ALJ excluded important

information regarding Murphy’s ability to work. We have

stated repeatedly that ALJs must provide VEs with a

complete picture of a claimant’s residual functional capacity.

Jelinek v. Astrue, 662 F.3d 805, 813 (7th Cir. 2011). The

hypothetical question posed to a VE need not include every

physical limitation of a claimant, provided that the VE had

No. 13-3154 16

the opportunity to learn of the claimant’s limitations

through, for example, an independent review of the medical

records or through other questioning at the hearing. See

Young, 362 at 1003. However, if the hypothetical posed to the

VE does not include all of the claimant’s limitations, there

must be some amount of evidence in the record indicating

that the VE knew the extent of the claimant’s limitations. Id.

We require the VE to know about a claimant’s limitations so

that the VE does not refer to work that the claimant is not

capable of undertaking. Steele v. Barnhart, 290 F.3d 936, 942

(7th Cir. 2002).

Murphy also argues that the hypothetical questions the

ALJ asked of the VE excluded information the VE needed to

make an accurate assessment, and we agree. The ALJ is only

required to incorporate into her hypotheticals those

impairments and limitations that she accepts as credible. See

Schmidt v. Astrue, 496 F.3d 833, 846 (7th Cir. 2007). Here, the

ALJ’s flawed credibility determination affected the ALJ’s

RFC findings about the extent of Murphy’s limitations,

which led the ALJ to ask more restrictive hypotheticals of

the ALJ based upon only some, as opposed to all, of

Murphy’s complaints. As noted above, Murphy alleged she

was only able to lift or carry ten pounds, walk one block,

stand for fifteen minutes, and sit for only limited periods of

time, but the ALJ did not find her claims credible because

they were inconsistent with the ALJ’s assessment of

Murphy’s RFC. Therefore, the ALJ excluded those facts from

the hypothetical questions she asked the VE. But as we

stated above, the ALJ’s RFC was not supported by

substantial evidence, nor was Murphy so discredited to the

point that the ALJ could find her claims to be not credible.

Since Murphy’s claims were not inconsistent with the RFC,

No. 13-3154 17

the ALJ should have included them in the hypothetical

questions she posed to the VE. The lack of such evidence did

not focus the VE’s attention on jobs Murphy could perform.

Moreover, there is nothing in the record that reflects that the

VE independently knew of all the limitations related to

Murphy’s inabilities. Because the ALJ did not include in her

hypotheticals information that should have been included,

this case warrants remand.

III. CONCLUSION

The judgment of the magistrate court is REVERSED and

the case is REMANDED to the magistrate court with

instructions to return the case to the Social Security

Administration for further proceedings consistent with this

opinion.