Jennifer Moore v. Carolyn Colvin

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2460

JENNIFER LEE MOORE,

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. 11 C 6153 — Susan E. Cox, Magistrate Judge.

ARGUED JANUARY 15, 2014 — DECIDED FEBRUARY 27, 2014

Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Jennifer Lee Moore filed an applica-

tion for disability benefits under the Social Security Act,

alleging that she became disabled on September 6, 2007. After

a hearing, an Administrative Law Judge (ALJ) concluded that

Moore suffered from a number of severe impairments, but that

she was capable of performing her past work and therefore

2 No. 13-2460

was not entitled to disability benefits. The district court

affirmed, and Moore appeals that determination to this court.

When the Appeals Council denies review as it did in this

case, the ALJ’s decision constitutes the final decision of the

Commissioner. Villano v. Astrue, 556 F.3d 558, 561–62 (7th Cir.

2009). Because our review of the district court’s affirmance is

de novo, we review the ALJ’s decision directly. Pepper v. Colvin,

712 F.3d 351, 361 (7th Cir. 2013). We will uphold the ALJ’s

decision if it is supported by substantial evidence, that is,

“such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402

U.S. 389, 401 (1971); McKinzey v. Astrue, 641 F.3d 884, 889 (7th

Cir. 2011); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011);

Pepper, 712 F.3d at 361–62. Although we will not reweigh the

evidence or substitute our own judgment for that of the ALJ,

we will examine the ALJ’s decision to determine whether it

reflects a logical bridge from the evidence to the conclusions

sufficient to allow us, as a reviewing court, to assess the

validity of the agency’s ultimate findings and afford Moore

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

1002 (7th Cir. 2004); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.

2013); Pepper, 712 F.3d at 362; Villano, 556 F.3d at 562. A

decision that lacks adequate discussion of the issues will be

remanded. Id.

In determining whether a person is disabled, an ALJ applies

a five-step sequential evaluation process. At step one, the ALJ

considers whether the claimant is engaged in substantial

gainful activity. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Moore

was not so engaged, and therefore the analysis proceeds to the

second step, which is a consideration of whether the claimant

No. 13-2460 3

has a medically determinable impairment, or combination of

impairments, that is “severe.” 20 C.F.R. §§ 404.1520(c) and

416.920(c).

In order for an impairment to be considered severe at this

step of the process, the impairment must significantly limit an

individual’s ability to perform basic work activities. If the

evidence indicates that an impairment is a slight abnormality

that has no more than a minimal effect on an individual’s

ability to work, then it is not considered severe for Step 2

purposes. Here, the ALJ determined that Moore had the

following severe impairments: migraine headaches; asthma;

morbid obesity; and rheumatoid arthritis. The ALJ concluded

that those impairments imposed more than minimal limita-

tions on Moore’s ability to perform basic work-related activi-

ties. The ALJ concluded that a number of other impairments

impacting Moore were not severe, including irritable bowel

syndrome, gastroesophageal reflux disease, hypertension,

hypothyroid and prolactin irregularities, carpal tunnel syn-

drome, depression, anxiety, and possible Crohn’s disease.

At Step 3, the ALJ determined that those severe impair-

ments did not meet or equal the criteria of an impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Accord-

ingly, the ALJ proceeded to Step 4, at which point the claimant

has the burden to demonstrate whether she is capable of

performing her past relevant work. Young, 362 F.3d at 1000. At

this stage, the ALJ first considers the claimant’s residual

functional capacity (RFC), which is the claimant’s ability to do

physical and mental work activities on a regular and continu-

ing basis despite limitations from her impairments. Id.; Pepper,

712 F.3d at 362. The ALJ concluded that Moore had the

4 No. 13-2460

residual functional capacity to perform sedentary work as

defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a) except that

she must avoid concentrated exposure to extreme cold,

extreme heat, noise, fumes, odors, dusts, gases, poor ventila-

tion, hazardous machinery, and heights. The ALJ’s calculations

of Moore’s RFC, and the ultimate determination at Step 4 that

Moore could perform her past relevant work as a reservation

agent, is the focus of the challenge in this appeal.

Moore argues on appeal that the ALJ erred at Step 4 in

determining the limitations and restrictions imposed upon

Moore’s work by her chronic migraines, and that the ALJ also

erred in her credibility assessment of Moore. The ALJ’s RFC

determination in this case, and the limitations presented to the

vocational expert that followed from that determination, are

conclusory and are based on findings that failed to address the

record as a whole. Accordingly, a remand is necessary.

The ALJ acknowledged her obligation to evaluate the

intensity, persistence, and limiting effects of symptoms of

Moore’s impairments including the chronic migraines, and to

determine the degree of effect on functioning. In calculating

that residual functional capacity, she stated that whenever

statements concerning the intensity, persistence or functionally

limiting effects of pain or other symptoms are not substanti-

ated by objective medical evidence, she must make a finding

concerning the credibility of the statements based upon the

evidence in the record as a whole. The ALJ then noted that

Moore maintained that her migraines are debilitating, and

cause her to stay in bed much of the day, render her unable to

deal with light and sound, and result in a heightened sense of

smell that aggravates her nausea and headaches. Using

No. 13-2460 5

“boilerplate” language often included in disability determina-

tions, the ALJ then concluded: “[a]fter 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 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.”

We have repeatedly condemned the use of that boilerplate

language because it fails to link the conclusory statements

made with objective evidence in the record. Pepper, 712 F.3d at

367; Bjornson v. Astrue, 671 F.3d 640, 644–45 (7th Cir. 2012);

Filus v. Astrue, 694 F.3d 863, 868 (7th Cir. 2012); Shauger v.

Astrue, 675 F.3d 690, 696 (7th Cir. 2012). In short, it fails to

elucidate at all the basis for the RFC determination. Pepper, 712

F.3d at 367. It “puts the cart before the horse, in the sense that

the determination of capacity must be based on the evidence,

including the claimant’s testimony, rather than forcing the

testimony into a foregone conclusion.” Filus, 694 F.3d at 868.

We have held, however, that the use of such boilerplate

language will not automatically discredit the ALJ’s ultimate

conclusion if the ALJ otherwise identifies information that

justifies the credibility determination. Pepper, 712 F.3d at

367–68. Here, the ALJ proceeded to engage in a more detailed

credibility analysis, thus providing a basis for us to review that

assessment.

In considering Moore’s credibility, the ALJ first recited the

history of Moore’s treatment for migraines, but the ALJ related

only a narrow portion of that medical evidence. The ALJ noted

that Moore was diagnosed with intractable migraines and

6 No. 13-2460

underwent implantation of a subcutaneous occipital nerve

stimulator at the University of Illinois Hospital at Chicago

(“UIC Hospital”) in February 2007. The ALJ then stated that

the surgery worked well until the battery was depleted in May

2008, at which time the depleted battery was replaced with a

rechargeable battery. In addition, the ALJ noted that the record

was replete with emergency room visits, but that Moore’s own

doctors—Dr. Leonard Robinson and Dr. Bridgette Arnett—as

well as the emergency room physicians have questioned

Moore’s emergency room visits as problematic or drug-

seeking. The ALJ proceeded to detail the notations in the

record indicating such a concern with Moore’s drug-seeking

tendencies, including a statement that Moore’s “own parents

have observed this behavior as potential addiction to narcotic

pain medication.” The ALJ concluded “[w]hile the claimant’s

noncompliant and drug-seeking behaviors do not singularly

discount her credibility, I find persuasive the observations of

her own treating and examining providers as well as her

parents that the emergency room [visits] are related to medica-

tion seeking rather than mere migraine control.”

The ALJ did not err in considering the evidence that

Moore’s emergency room visits may have been related to an

addiction problem rather than evidence of debilitating mi-

graines, but the ALJ erred in utterly failing to even acknowl-

edge the contrary evidence or to explain the rationale for

crediting the identified evidence over the contrary evidence.

We have repeatedly held that although an ALJ does not need

to discuss every piece of evidence in the record, the ALJ may

not analyze only the evidence supporting her ultimate conclu-

sion while ignoring the evidence that undermines it. Terry v.

No. 13-2460 7

Astrue, 580 F.3d 471, 477 (7th Cir. 2009); Myles v. Astrue, 582

F.3d 672, 678 (7th Cir. 2009); Arnett v. Astrue, 676 F.3d 586, 592

(7th Cir. 2012). The ALJ must confront the evidence that does

not support her conclusion and explain why that evidence was

rejected. Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004).

The ALJ in this case presented only a skewed version of the

evidence.

For instance, the ALJ declared that Moore’s “own parents

have observed this behavior as potential addiction to narcotic

pain medication.” The record indeed includes evidence that the

parents were concerned with whether Moore was becoming

addicted to the pain medication that she sought for treating her

migraines. What the ALJ failed to address in relying on that,

however, is the testimony of Moore’s mother that when she

expressed such concerns, Moore’s doctors assured her that

Moore was not addicted and needed the help being given.

Moore’s mother further stated that Dr. Thomas Bartuska,

Moore’s treating psychiatrist, made that assurance three or

four years earlier, and that she subsequently received the same

message from the neurosurgeon and treating neurologist at

UIC Hospital a few months after Moore was enrolled in the

headache study and approved for the stimulator surgery. That

testimony was corroborated by treatment notes from Dr.

Bartuska from that time period, which include a statement that

“I see no evidence for opioid dependence.”

Furthermore, the ALJ’s recitation of the medical evidence

fails to recognize the years of records, from at least 2003

onward, by her treating physicians relating Moore’s chronic

painful migraines accompanied by photophobia and nausea

and vomiting. Similarly, the ALJ detailed the concerns of

8 No. 13-2460

emergency room physicians that she was drug-seeking, but did

not recognize that the vast majority of emergency room visits

in that time period reflected that she was experiencing severe

migraine pain and provided treatment for that malady,

without any corresponding concern of drug abuse. The ALJ

repeatedly references Dr. Arnett’s opinion—referring to a letter

from Dr. Arnett to Dr. Robinson in which Dr. Arnett states that

she had received calls from emergency rooms about Moore

seeking drug treatment there since she was thought to be drug-

seeking by the physicians around her—as an opinion by Dr.

Arnett that Moore’s emergency room visits are related to drug-

seeking, not migraines. In that letter, however, after recounting

those conversations, Dr. Arnett states as her “Impression” that

Moore presents with migraine headaches, exacerbated by

stress, and that Moore is under increased stress due to a need

to care for Moore’s mother who was post-surgery for cervical

stenosis, and her “Recommendation” is that Moore would

benefit from a university setting with multiple studies for

headaches because she was inadequately treating Moore’s

“very severe headaches.” To characterize that letter as an

opinion that her emergency room visits are not related to

migraine pain but drug-seeking behavior fails to acknowledge

and reconcile the actual conclusions stated. Moore subse-

quently followed up with Dr. Daniel Hier at UIC Hospital, and

the notes from that consultation reflect that Moore has weekly

headaches that can include nausea, vomiting, photophobia,

and sensitivity to smells and noises, and that the headaches can

be precipitated by stress. Dr. Hier notes that Moore is on an

aggressive regimen for her headaches and that there would be

no change in the medication at that time. In an opinion

No. 13-2460 9

submitted to the ALJ, Dr. Hier also indicated that the implanta-

tion of the nerve stimulator did not relieve the headaches and

that Moore was troubled by continuous unremitting head-

aches, which the ALJ did not mention in characterizing the

surgery as having worked well. Finally, all of the physicians

referenced by the ALJ continued to acknowledge that Moore

suffered from chronic migraines, and did not discontinue

medication or diagnose her with a dependency. The ALJ

simply cannot recite only the evidence that is supportive of her

ultimate conclusion without acknowledging and addressing

the significant contrary evidence in the record.

We want to emphasize here that we are not suggesting that

the ALJ was required to reach a certain conclusion regarding

the nature of the emergency room visits, or the severity of

Moore’s migraines. The error here is the failure to address all

of the evidence and explain the reasoning behind the decision

to credit some evidence over the contrary evidence, such that

we could understand the ALJ’s logical bridge between the

evidence and the conclusion. By failing to even acknowledge

that evidence, the ALJ deprived us of any means to assess the

validity of the reasoning process.

We reject, however, Moore’s argument that because the

drug being sought was pain medication and most emergency

room physicians provided it to her as treatment for migraines,

that necessarily indicates that her emergency room visits were

related to the migraines and not to unrelated drug dependence.

That argument is flawed on a number of levels. First, it would

not be at all surprising that emergency room doctors would not

always recognize a request for pain medicine as related to an

addiction. Such motivation is not always easily identifiable,

10 No. 13-2460

and factors that might aid in such a determination, such as the

pattern and frequency of emergency room visits, may appear

only after some time and could be manipulated by the patient’s

use of different emergency rooms that might camouflage those

numbers. Moreover, faced with conflicting evidence, it is

within the province of the ALJ to make that credibility determi-

nation. Given the nature of the impairment and the inability to

objectively measure the pain associated with migraines, it is a

challenge indeed to determine whether Moore’s plea for drugs

was related to a desire to alleviate severe migraine pain or a

need to satisfy an addiction—or both. We cannot conclude as

a matter of law that the visits were either related to her

migraines or to some drug-seeking. It is the province of the

ALJ to assess all of that evidence and reach a reasoned determi-

nation based on that evidence.

Even if the ALJ were to again find that the emergency room

visits reflected drug-seeking behavior, there is an added

problem here in the conclusions that the ALJ drew from that

finding. If the purpose of the emergency room visits is ambigu-

ous, the ALJ could properly conclude that those visits are not

useful in establishing the severity, persistence or frequency of

the migraines. But a finding that at least some of those emer-

gency room visits may be related to drug-seeking behavior

does not support a finding that her migraines impose no

limitations whatsoever. First, a drug addiction problem is not

inconsistent with the presence of chronic migraines—the

conditions are not mutually exclusive. The emergency room

visits may be of limited utility in establishing the severity and

frequency of her migraines given the ambiguity of purpose,

but that simply means the ALJ must look to other evidence in

No. 13-2460 11

the medical record for that determination. Significant medical

evidence in the record independent of those emergency room

visits reflects Moore’s chronic severe migraines over a long

period of time, and the ALJ in fact found that Moore suffered

from a severe impairment of chronic recurring migraines. The

ALJ, however, failed to identify any limitations that would

arise from that condition.

In so holding, the ALJ disregarded Moore’s testimony that

her migraines are debilitating, cause her to stay in bed much of

the day, render her unable to deal with light and sound, and

result in a heightened sense of smell that aggravates her

nausea and headaches. The ALJ held that two factors weigh

against crediting that testimony: first, the limitations cannot be

objectively verified with any reasonable degree of certainty;

and second, even if her activities were so limited, it would be

difficult to attribute that to a medical condition as opposed to

other evidence in view of the relatively weak medical evidence

and the other factors (presumably the drug-seeking evidence)

discussed in the decision. Inexplicably, the ALJ then states:

“Moreover, her migraines occur once to twice weekly now;

even if they did occur at the frequency and severity attested

she still has a significant amount of time during which she

would not be incapacitated.” The ALJ concludes that overall

Moore’s reported limited daily activities are “outweighed by

the other factors discussed in this decision.”

Once again, there are myriad problems with the ALJ’s

assessment of the evidence. First, the ALJ erred in rejecting

Moore’s testimony on the basis that it cannot be objectively

verified with any reasonable degree of certainty. An ALJ must

consider subjective complaints of pain if a claimant has

12 No. 13-2460

established a medically determined impairment that could

reasonably be expected to produce the pain. Carradine v.

Barnhart, 360 F.3d 751, 753 (7th Cir. 2004). Moore has estab-

lished that she suffers from chronic migraines, which are the

type of impairment that can reasonably be expected to cause

pain. Indoranto, 374 F.3d at 474. “Further, the ALJ cannot reject

a claimant’s testimony about limitations on her daily activities

solely by stating that such testimony is unsupported by the

medical evidence.” Id.; Bjornson, 671 F.3d at 646, 648; Carradine,

360 F.3d at 753; Villano, 556 F.3d at 562; SSR 96-7p(4),

www/ssa.gov/OP_Home/rulings/di/01/SSR96-07-di-01.html

(last visited February 14, 2014) (“[a]n individual’s statements

about the intensity and persistence of pain or other symptoms

or about the effect the symptoms have on his or her ability to

work may not be disregarded solely because they are not

substantiated by objective medical evidence.”)

That leads to the second basis for rejecting her credibility,

which was that limitations on her activities could not be

attributed to the migraines in light of the relatively weak

medical evidence and the other factors. As we discussed

earlier, this conclusion rests upon a skewed portrayal of the

evidence that ignores extensive evidence of chronic debilitating

migraines, including recognition of that problem by all treating

physicians. Most significant in that evidence is that Moore

enrolled in a migraine-specific program at UIC Hospital and

underwent two surgical procedures for the treatment of

migraine pain with a subcutaneous occipital nerve stimulator.

Because it was designed to eliminate the pain and therefore the

need for pain medication, that medical evidence is strong

evidence that she was experiencing severe migraine pain and

No. 13-2460 13

was not simply seeking pain medication because of an addic-

tion. See Carradine, 360 F.3d at 755 (noting the improbability

that a claimant would undergo pain treatment procedures

including heavy drugs and surgical implantation of a stimu-

lator merely to strengthen the credibility of complaints of pain,

and also the improbability that medical workers would

prescribe drugs and other treatment for her if she was not

experiencing those symptoms). That does not mean that the

ALJ was required to credit Moore’s testimony. The ALJ could

properly have considered whether Moore’s testimony was

credible and whether the evidence supported such limitations,

including assessing whether the migraines were less debilitat-

ing after the stimulator implantation. The error here is the

same failure to address the evidence in a balanced manner. See

Myles, 582 F.3d at 676.

The final statement made by the ALJ in assessing whether

Moore was credible was that “her migraines occur once to

twice weekly now; even if they did occur at the frequency and

severity attested she still has a significant amount of time

during which she would not be incapacitated.” If the ALJ is

thereby agreeing that Moore experiences incapacitating

migraines once or twice a week, then that would require a

holding that she could not perform her past work because the

vocational expert testified that Moore could not perform her

past work or any work if she would be absent once or twice a

week, and in fact stated that she could not perform her past

work if she would miss any of the training days at all. Because

the ALJ’s statement is unclear, however, we will not assume

that meaning.

14 No. 13-2460

An equally troubling aspect of that statement, however, is

the implication that incapacitation once or twice a week would

not be problematic because a significant amount of time

remains in which the claimant could work. This is an even

more extreme example of a problem we have long bemoaned,

in which administrative law judges have equated the ability to

engage in some activities with an ability to work full-time,

without a recognition that full-time work does not allow for

the flexibility to work around periods of incapacitation. See

Roddy, 705 F.3d at 639; Carradine, 360 F.3d at 755–56; Bjornson,

671 F.3d at 647. In Bjornson, we noted that the critical difference

between daily living activities and activities of a full-time job

is that in the former the person has more flexibility in schedul-

ing, can get help from others when needed, and is not held to

a minimum standard of performance. Id. We concluded that

“[t]he failure to recognize these differences is a recurrent, and

deplorable, feature of opinions by administrative law judges in

social security disability cases.” Id. Here, the ALJ appears to

have concluded that incapacitating migraines once or twice a

week would not be problematic because she would still have

most of the week without such symptoms, but that essentially

ignores the inability to schedule the incapacitating migraines.

Absent a showing that she has a completely flexible work

schedule in her past position as a reservation agent, the

existence of symptom-free days adds nothing here. The ALJ

erred in failing to account for the limitations caused by

migraines occurring with that frequency.

Finally, in determining Moore’s RFC, the ALJ erred in her

treatment of opinion evidence by Dr. Hier, who was Moore’s

treating neurologist at UIC Hospital where she had a subcuta-

No. 13-2460 15

neous occipital nerve stimulator implanted in February 2007.

Dr. Hier submitted an opinion to the ALJ indicating that

Moore’s headaches are refractory to medical and surgical

treatment including an occipital nerve stimulator, and that

“she is troubled with continuous unremitting headaches and

is disabled from working.” The ALJ determined that Dr. Hier’s

opinion as treating neurologist should be given no special

significance because, in concluding that Moore was disabled

from working, Dr. Hier opined on an issue reserved to the

Commissioner. The ALJ found the limited rationale problem-

atic, stating that Dr. Hier provided very little explanation of the

evidence relied upon as the basis for that conclusion, citing

only subjective pain, and found it inconsistent with the

opinions of other treating sources including Dr. Arnett and the

emergency room physicians. That dismissive approach to the

treating neurologist’s opinion was improper because the

medical records submitted by all of Moore’s treating physi-

cians including Dr. Arnett also indicated that she suffered from

chronic migraines, and Dr. Hier’s statement that she experi-

enced “continuous unremitting headaches” was not an opinion

on a matter reserved to the Commissioner. In addition, Moore

herself testified as to the limitations imposed by the migraines,

and her mother with whom she lived testified as to that impact

as well. The ALJ also erred in dismissing Dr. Hier’s opinion

because it was based on Moore’s subjective pain. As the ALJ

acknowledged, Moore suffered from a severe impairment of

chronic migraines, and the patient’s pain level is a relevant

consideration in determining the effectiveness of the treatment.

The ALJ’s disregard for Moore’s allegations of pain is particu-

larly inappropriate in the context of treatment by Dr. Hier,

16 No. 13-2460

given that the nerve stimulator implanted at UIC Hospital was

an effort to provide pain management not based on drugs, and

therefore did not implicate the concern with exaggeration for

drug-seeking purposes. See Simila v. Astrue, 573 F.3d 503, 514

(7th Cir. 2009) (regulations require that the ALJ give the

opinions of a treating physician controlling weight as long as

they are supported by medical findings and consistent with

substantial evidence in the record); Scott, 647 F.3d at 739 (“[a]n

ALJ must offer ‘good reasons’ for discounting the opinion of a

treating physician”); Young, 362 F.3d at 1002. If the ALJ was

unable to discern the basis for the treating physician’s determi-

nation, then the proper course would have been to solicit

additional information from Dr. Hier. See Simila, 573 F.3d at

516–17 (ALJ has a duty to solicit additional information where

the medical support is not readily discernible); Scott, 647 F.3d

at 741.

In conclusion, significant medical and testimonial evidence

independent of the questionable emergency room visits

established a history of severe recurrent migraines. In light of

that evidence, the ALJ erred in disregarding the migraines as

a factor in determining Moore’s ability to perform her past

work. Specifically, the ALJ should have at least included in the

RFC determination the likelihood of missing work. The ALJ’s

decision did not reflect any likelihood of absences or breaks at

work related to migraines, and that is simply unsupported by

the record. As to the limitations imposed by that severe

impairment, the ALJ recognized in the RFC only that she

should be limited to sedentary work in which she could avoid

concentrated exposure to extreme cold, extreme heat, noise,

fumes, odors, dusts, gases, poor ventilation, hazardous

No. 13-2460 17

machinery and heights. The ALJ never related those specific

limitations to certain impairments. It is possible to postulate

which were related to migraines as opposed to the other severe

or non-severe impairments such as obesity, asthma and

rheumatoid arthritis, but the reviewing court should not have

to speculate as to the basis for the RFC limitations. Nor is the

basis otherwise apparent in the record. Accordingly, the case

must be remanded for the ALJ to articulate with clarity the

limitations related to the impairments based on an examination

of the evidence in the record as a whole, and to present those

limitations to the vocational expert to determine whether

Moore is capable of performing her past relevant work. For

these reasons, we REVERSE the district court and REMAND

this case to the agency for further proceedings.