Cheryl Beardsley v. Carolyn Colvin

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3609

CHERYL BEARDSLEY,

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 Indiana, Fort Wayne Division.

No. 1:12-CV-75 — Joseph S. Van Bokkelen, Judge.

____________________

ARGUED MAY 28, 2014 — DECIDED JULY 10, 2014

____________________

Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. This appeal from the denial of

Social Security disability benefits is unusual because the

administrative law judge discounted the opinion of the

agency’s own examining physician to conclude that the

claimant before him was not disabled. Claimant Cheryl

Beardsley argues that the ALJ erred by giving too little

weight to the opinion of the examining doctor and too much

2 No. 13-3609

weight to an erroneous view of her daily activities, particu-

larly the care she provided for her elderly mother.

Ms. Beardsley also argues that the ALJ improperly held

against her the decision not to seek surgery without trying to

ascertain the reasons for her reluctance. We agree. These er-

rors undermined the “logical bridge” between evidence and

conclusion that is needed to affirm a denial of disability ben-

efits. See Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000). The

judgment of the district court affirming the denial of benefits

is reversed and Ms. Beardsley’s case is remanded to the

Commissioner of Social Security for proceedings consistent

with this opinion.

Ms. Beardsley was 49 years old when she fell and injured

her knee. At that time, she had a history of working as a ma-

chine operator, assembler, inspector, and cashier. After the

injury, Ms. Beardsley applied for disability insurance bene-

fits and supplemental security income. Her doctors deter-

mined that she had meniscal tears and a ruptured ligament.

The effects of these injuries were compounded by her obesi-

ty and her worsening osteoarthritis in that same knee.

Ms. Beardsley declined to have surgery for the ligament

damage but received a series of injections for the arthritis.

After Ms. Beardsley applied for disability benefits,

Dr. Larry Banyash examined her on behalf of the Social Se-

curity Administration. See 20 C.F.R. §§ 404.1519, 416.919 (es-

tablishing such consultative examinations for applicants

seeking, respectively, disability insurance benefits and sup-

plemental security income). His opinion was that the pain

and weakness in her knee restricted her ability to walk,

stand, climb stairs, crouch, and kneel. He believed she was

capable of sedentary work. Given Ms. Beardsley’s age and

No. 13-3609 3

skills, though, a finding that she was capable of only seden-

tary work would have qualified her as disabled at the time of

the ALJ’s decision under the “grid” the agency uses for mak-

ing that determination. See 20 C.F.R. Pt. 404, Subpt. P,

App. 2, § 201.12.

Ms. Beardsley’s paper record then went for review by an-

other agency physician, Dr. M. Brill. This doctor was more

sanguine about Ms. Beardsley’s capabilities. He judged her

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

workday, and he thought she could occasionally climb stairs,

crouch, kneel, or bend down. He also thought she was not at

all limited in her ability to “Push and/or pull (including op-

eration of hand and/or foot controls).”

After an evidentiary hearing, the ALJ denied

Ms. Beardsley’s application for benefits. Applying the famil-

iar five-step sequential inquiry for assessing disability, see

20 C.F.R. §§ 404.1520(a), 416.920(a), the ALJ determined at

step one that Ms. Beardsley had not engaged in substantial

gainful activity and at step two that she had a number of se-

vere impairments: chronic knee pain, depression, personality

disorder, anxiety, and obesity. These did not, however, au-

tomatically qualify her as disabled at step three under the

“Listings” in 20 C.F.R. Part 404, Subpart P, Appendix 1. The

ALJ concluded at step four that these impairments prevent-

ed Ms. Beardsley from performing her past work as a cashier

or on factory assembly lines, so her claim was decided at

step five, where the issue was whether she retained the abil-

ity to do other jobs available in the national economy. The

ALJ found that she did, concluding that Ms. Beardsley could

still perform a range of light work so long as she did not

have to stand or walk for more than 30 minutes at a time or

4 No. 13-3609

for more than six hours total in a workday. The ALJ therefore

denied Ms. Beardsley’s application for benefits. The district

court affirmed, and this appeal followed.

If the Commissioner’s decision is supported by substan-

tial evidence, the court on judicial review must uphold that

decision even if the court might have decided the case dif-

ferently in the first instance. See 42 U.S.C. § 405(g). Substan-

tial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richard-

son v. Perales, 402 U.S. 389, 401 (1971); Prochaska v. Barnhart,

454 F.3d 731, 734–35 (7th Cir. 2006). To determine whether

substantial evidence exists, the court reviews the record as a

whole but does not attempt to substitute its judgment for the

ALJ’s by reweighing the evidence, resolving material con-

flicts, or reconsidering facts or the credibility of witnesses.

Cannon v. Apfel, 213 F.3d 970, 974 (7th Cir. 2000). “Where con-

flicting evidence allows reasonable minds to differ as to

whether a claimant is entitled to benefits,” the court must

defer to the Commissioner’s resolution of that conflict.

Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997).

A reversal and remand may be required, however, if the

ALJ committed an error of law, Nelms v. Astrue, 553 F.3d

1093, 1097 (7th Cir. 2009); Nelson v. Apfel, 131 F.3d 1228, 1234

(7th Cir. 1997), or if the ALJ based the decision on serious

factual mistakes or omissions, Sarchet v. Chater, 78 F.3d 305,

309 (7th Cir. 1996). The ALJ also has a basic obligation to de-

velop a full and fair record, Nelson, 131 F.3d at 1235, and

must build an accurate and logical bridge between the evi-

dence and the result to afford the claimant meaningful judi-

cial review of the administrative findings, Blakes v. Barnhart,

331 F.3d 565, 569 (7th Cir. 2003); Zurawski v. Halter, 245 F.3d

No. 13-3609 5

881, 887 (7th Cir. 2001). If the evidence does not support the

conclusion, we cannot uphold the decision. Blakes, 331 F.3d

at 569.

The logical bridge was not sound here. The ALJ relied on

three principal grounds to find that Ms. Beardsley could do

light work: (1) her description of her own capabilities and

daily activities, (2) the opinion of Dr. Brill, and (3) Ms.

Beardsley’s conservative course of treatment, including her

decision not to seek surgery. As we explain below, none of

these factors, considered individually or collectively, pro-

vides adequate support for the ALJ’s conclusion that Ms.

Beardsley could perform work more demanding than seden-

tary work.

I. Ms. Beardsley’s Self-Reported Capabilities

Ms. Beardsley testified at her hearing that she experi-

enced moderate to extreme pain throughout her leg and into

her back. She had difficulty walking or standing for more

than about ten minutes at a time, and although she could

drive without using her injured left knee, she had trouble

getting in and out of the car and did not like going out. She

estimated that she shopped for necessities about once a

week, leaning on the grocery cart for support, and that her

pain would usually be worse the next day. Much of Ms.

Beardsley’s weekdays were spent keeping her mother com-

pany, which involved watching television, playing cards, do-

ing light housework, preparing simple meals, and helping

her mother into bed in the evening.

The ALJ acknowledged that these daily activities were

“fairly limited,” but he was not persuaded that they weighed

in favor of a disability finding because “allegedly limited

6 No. 13-3609

daily activities cannot be objectively verified with any rea-

sonable degree of certainty.” Whatever uncertainty may exist

around such self-reports is not by itself reason to discount

them—otherwise, why ask in the first place?—and the rele-

vant regulations specifically allow ALJs to consider claim-

ants’ “daily activities.” 20 C.F.R. §§ 404.1529(a), 416.929(a).

By the ALJ’s reasoning, the agency could ignore applicants’

claims of severe pain simply because such subjective states

are impossible to verify with complete certainty, yet the law

is to the contrary. See Carradine v. Barnhart, 360 F.3d 751 (7th

Cir. 2004) (reversing and remanding where ALJ improperly

discounted applicant’s claims of severe pain); 20 C.F.R.

§§ 404.1529, 416.929 (regulations governing evaluation of

symptoms, including complaints of pain). Nor was the rec-

ord lacking in evidence to corroborate Ms. Beardsley’s re-

ported activities. Her mother gave a similar account of her

daughter’s daily routine and limitations, and both of their

descriptions were consistent with the medical evidence of a

severe knee injury.

The ALJ also highlighted what he saw as inconsistencies

in Ms. Beardsley’s self-reports. To the extent we see any in-

consistencies here, they do not rise above trivial matters that

the ALJ did not inquire into during Ms. Beardsley’s hearing.

Ms. Beardsley wrote in her application for benefits that she

went to her mother’s every weekday, but also said in the

same document that she “went outside” about three times a

week. She acknowledged paying her own bills but also said

she had difficulty handling money because of her depression

and other mental difficulties. Sometimes when she went out,

she needed someone to accompany her, but sometimes not.

“An ALJ's credibility assessment will stand as long as there is

some support in the record,” Berger v. Astrue, 516 F.3d 539,

No. 13-3609 7

546 (7th Cir. 2008) (internal formatting omitted), but without

some attempt by the ALJ to explore the supposed contradic-

tions here, they do not provide a sound basis for concluding

that Ms. Beardsley’s report was inaccurate. See Zurawski,

245 F.3d at 887–88 (ALJ’s adverse credibility determination

could not be upheld because it was based solely on unsup-

ported “inconsistencies” with medical record and daily ac-

tivities); Social Security Ruling 96-7p, 1996 WL 374186 (Ju-

ly 2, 1996) (explaining process by which ALJs must evaluate

credibility of applicants).

The ALJ’s main reason for discounting the evidence of

Ms. Beardsley’s physical limitations was the care she provid-

ed for her mother. The ALJ commented that such care “can

be quite demanding both physically and emotionally.” As

we have said, it is proper for the Social Security Administra-

tion to consider a claimant’s daily activities in judging disa-

bility, but we have urged caution in equating these activities

with the challenges of daily employment in a competitive

environment, especially when the claimant is caring for a

family member. See Mendez v. Barnhart, 439 F.3d 360, 362 (7th

Cir. 2006) (“The pressures, the nature of the work, flexibility

in the use of time, and other aspects of the working envi-

ronment as well, often differ dramatically between home

and office.”); Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir.

2005) (“Gentle must take care of her children, or else aban-

don them to foster care or perhaps her sister, and the choice

may impel her to heroic efforts.”); Clifford v. Apfel, 227 F.3d

863, 872 (7th Cir. 2000) (“minimal daily activities” such as

preparing simple meals, weekly grocery shopping, taking

care of family member, and playing cards “do not establish

that a person is capable of engaging in substantial physical

activity”); SSR 96-p7 (claimants may sometimes have struc-

8 No. 13-3609

tured daily activities to minimize symptoms and avoid phys-

ical and mental stressors).

The ALJ’s reliance was especially troublesome in this case

because most of what Ms. Beardsley did at her mother’s

house was sedentary: playing cards, watching television,

and preparing sandwiches or simple meals on the stove.

These tasks “differ dramatically” from the type of jobs the

ALJ believed Ms. Beardsley was capable of performing, see

Mendez, 439 F.3d at 362, and lend no support to the conclu-

sion that she would be able to spend six hours a day, every

day, on her feet working.

The ALJ cited additional activities, such as taking care of

pets, doing laundry, cleaning, and shopping, that might

support a more robust residual functional capacity. But un-

disputed evidence in the record undermines the ALJ’s reli-

ance on each of these activities. Ms. Beardsley did not say

that she took care of the animals at her mother’s house—

only that she pet them to help with her depression and that

her daughter fed and cleaned up after them. Ms. Beardsley

did say she could clean and do laundry, but also that it took

her several days to complete each chore. And while she went

shopping once a week, those trips lasted only half an hour

and often left her knee in worse pain the next day, despite

leaning on the shopping cart. The fact that she helped lift her

mother’s legs into bed each evening, which the ALJ singled

out in his decision, is likewise miles removed from the de-

mands and pressures of a regular workplace where

Ms. Beardsley would be required, according to the ALJ, to

stand or walk around for most of the workday. Like the oth-

er evidence of Ms. Beardsley’s daily activities, it did not sup-

port the ALJ’s conclusion.

No. 13-3609 9

II. Opinions of Drs. Brill and Banyash

The ALJ placed “great weight” on the opinion of Dr. Brill,

who reviewed Ms. Beardsley’s records and concluded that

she was capable of performing a range of light work. The

judge gave only “some weight” to Dr. Banyash’s report al-

though he examined Ms. Beardsley in person on behalf of

the agency.

As a general rule, an ALJ is not required to credit the

agency’s examining physician in the face of a contrary opin-

ion from a later reviewer or other compelling evidence. Not

even the claimant’s treating physician, who presumably is

the expert most familiar with the claimant’s condition, is giv-

en such complete deference. See Hofslien v. Barnhart, 439 F.3d

375, 376–77 (7th Cir. 2006); 20 C.F.R. §§ 404.1527(c)(2),

416.927(c)(2). But rejecting or discounting the opinion of the

agency’s own examining physician that the claimant is disa-

bled, as happened here, can be expected to cause a review-

ing court to take notice and await a good explanation for this

unusual step. See Gudgel v. Barnhart, 345 F.3d 467, 470 (7th

Cir. 2003) (“An ALJ can reject an examining physician's opin-

ion only for reasons supported by substantial evidence in the

record; a contradictory opinion of a non-examining physi-

cian does not, by itself, suffice.”); 20 C.F.R. §§ 404.1527(c)(1),

416.927(c)(1) (“Generally, we give more weight to the opin-

ion of a source who has examined you than to the opinion of

a source who has not examined you.”). The problem in this

case is that the ALJ did not provide a valid explanation for

preferring the record reviewer’s analysis over that of the

agency’s examining doctor.

The ALJ considered Dr. Brill’s opinion more persuasive

because it was “consistent with the record as a whole.” But

10 No. 13-3609

as explained above, Ms. Beardsley’s daily activities and re-

ported capabilities were inconsistent with Dr. Brill’s recom-

mendations. Beyond noting that Ms. Beardsley exhibited

normal range of motion in her joints, Dr. Brill provided no

explanation for thinking that she was able to spend so much

time on her feet (let alone climbing, operating foot controls,

or crouching down). The ALJ’s conclusory statement that

these findings were consistent with the record when in fact

they are contradicted by it was not enough to justify elevat-

ing Dr. Brill’s opinion over all others. See Gudgel, 345 F.3d at

470.

The record also does not support the ALJ’s explanation

for discounting Dr. Banyash’s opinion: that the doctor

seemed not to have considered the full extent of the care

Ms. Beardsley provided for her mother. Although it is un-

clear what exactly Dr. Banyash knew about Ms. Beardsley’s

mother, his report shows he was aware that Ms. Beardsley

prepared meals, shopped, washed dishes, swept, and did a

number of other chores. These limited activities were the

most demanding that Ms. Beardsley undertook. They fell

well short of an ability to do full-time light work. Since

Dr. Banyash knew of these tasks, it would not have mattered

whether he was also aware that Ms. Beardsley spent time at

her mother’s house performing less strenuous activities such

as watching television. His knowledge or ignorance of

Ms. Beardsley’s care for her mother thus does not support

giving less weight to Dr. Banyash’s views. See Knight v.

Chater, 55 F.3d 309, 313–14 (7th Cir. 1995) (“The ALJ must

give substantial weight to the medical evidence and opinions

submitted, unless specific, legitimate reasons constituting

good cause are shown for rejecting it.”).

No. 13-3609 11

III. Conservative of Treatment

The third ground for the ALJ’s decision was that Ms.

Beardsley’s medical records, her decision not to undergo

surgery, and the lack of restrictions placed on her by a treat-

ing physician showed that her knee condition was substan-

tially under control and did not render her disabled. The

ALJ’s reliance on Ms. Beardsley’s initial examination in July

2008, when her doctor saw no sign of swelling or redness, is

misplaced because of the later evidence that her condition

had become more painful. Nor should Ms. Beardsley be pe-

nalized by the lack of restrictions placed on her by a treating

doctor because her knee was not being treated by any doctor

for much of the time at issue here. Even taken together, these

two factors are not sufficient to build a logical bridge that

would justify discounting the opinion of the agency’s exam-

ining doctor that Ms. Beardsley was limited to sedentary

work.

The ALJ also erred by relying on the fact that Ms. Beards-

ley did not seek surgery to treat her knee. It is true that “in-

frequent treatment or failure to follow a treatment plan can

support an adverse credibility finding where the claimant

does not have a good reason for the failure or infrequency of

treatment.” Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008),

citing Social Security Ruling 96–7p. But the ALJ may not

draw any inferences “about a claimant’s condition from this

failure unless the ALJ has explored the claimant’s explana-

tions as to the lack of medical care.” Craft, 539 F.3d at 679;

SSR 96-7p.

The ALJ here made no evident attempt to determine why

Ms. Beardsley elected not to have expensive and invasive

surgery on her knee and instead opted for the injections. He

12 No. 13-3609

relied entirely on two notes from her treating physician sug-

gesting that Ms. Beardsley was not bothered enough by her

symptoms to seek surgery. But the ALJ overlooked the fact

that Ms. Beardsley then returned to her doctor one year after

the injury, complaining that the pain had significantly wors-

ened and that she was ready to reconsider the operation. The

record also reveals that Ms. Beardsley was uninsured and

uncertain how surgery could be paid for. The failure to ex-

plore this evidence was a legal error. Social Security Ruling

96-7p instructs that an ALJ “must not draw any inferences”

against claimant for lack of treatment without inquiring into

factors such as the claimant’s ability to pay and whether she

has structured daily activities “so as to minimize symptoms

to a tolerable level.” The ALJ did not do that in this case, so

the fact that Ms. Beardsley decided not to have surgery was

not a sufficient basis to discount Dr. Banyash’s opinion.

In short, the finding that Ms. Beardsley maintained the

capacity to perform a range of light work on a full-time ba-

sis, including standing and walking for most of the workday,

cannot be upheld for the reasons given in the ALJ’s decision.

Whether considered individually or collectively, Ms. Beards-

ley’s descriptions of her day-to-day routine, the opinion of

Dr. Brill, and her supposedly conservative treatment were

not enough to support a logical bridge from the evidence to

the ALJ’s conclusion. The judgment is REVERSED and the

case is REMANDED to the Commissioner for further pro-

ceedings consistent with this opinion.