Linda Roddy v. Michael Astrue

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1682

L INDA K. R ODDY,

Plaintiff-Appellant,

v.

M ICHAEL J. A STRUE,

Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. 4:11-cv-23-TWP-WGH—Tanya Walton Pratt, Judge.

A RGUED D ECEMBER 12, 2012—D ECIDED JANUARY 18, 2013

Before P OSNER, R OVNER, and W OOD , Circuit Judges.

W OOD , Circuit Judge. Linda K. Roddy suffers from

a number of serious medical problems, including in

particular severe lower back pain attributable to degen-

erative disc disease. Eventually, when her pain became

unbearable, she stopped working and applied for dis-

ability insurance benefits under the Social Security Act.

She was unsuccessful before both the Social Security

2 No. 12-1682

Administration and an administrative law judge (ALJ),

who found that there were jobs in the national economy

within her capabilities, even though she no longer could

perform her old job as a shift manager at a Taco Bell

restaurant. The district court, reviewing the agency’s

decision under 42 U.S.C. § 405(g), found that substantial

evidence supported the Commissioner’s decision, and

so Roddy has now turned to this court. We conclude

that the ALJ made a number of errors in his considera-

tion of the record; we therefore remand Roddy’s case to

the agency for further proceedings.

I

Roddy was born in 1964 and so by now is in her late

40s. She has suffered from degenerative disc disease,

among other ailments, since 1999. From 1985 until 1999

she worked full-time, mostly as a shift manager at Taco

Bell, and was largely untroubled by health problems.

Her luck changed in 1999, when, at the age of 34, she

was in a car accident. She went to an emergency room

at that time complaining of pain in her neck, forehead,

shoulders, and back. There she received pain medica-

tion and was released the same day. Unfortunately,

however, her pain did not subside, and she began to

have difficulty doing her job and even getting dressed

in the mornings. A month later she sought treatment

from a chiropractor, Richard Hilton, who saw her for

about eight months but then referred her to a pain man-

agement specialist, Dr. Gary Wright. Before referring

Roddy, Hilton noted that she had not experienced as

much improvement as a typical patient would have.

No. 12-1682 3

Dr. Wright treated Roddy from November 1999

through 2006. During his first appointment with her,

Dr. Wright took her medical history and performed a

physical examination. Over the following year he

treated her in several ways: he scheduled her for an

assessment using magnetic resonance imaging (MRI);

and he performed both a discography (an injection pro-

cedure that identifies the source of pain by putting pres-

sure on discs in the spine) and a spinoscopy (a proce-

dure used to study the movement of the spine). The

MRI revealed mild to moderate degeneration of one of

the discs in Roddy’s lower spine as well as a tear

in the cartilage around that disc. The discography indi-

cated that the torn and degenerating disc in Roddy’s

lower back was the source of her pain. The spinoscopy

demonstrated significant functional problems with

the movement of her spine, especially as she was

asked to carry heavier loads. Based on these findings,

Dr. Wright diagnosed Roddy as suffering from several

disorders of the spine, including degenerative disc

disease and sacroiliitis (an inflammation of the joints in

the lower back, see A MERICAN M EDICAL A SSOCIATION,

C OMPLETE M EDICAL E NCYCLOPEDIA 1086 (Jerrold B. Leikin

& Martin S. Lipsky eds. 2003)).

From 1999 through 2003, Dr. Wright performed over

36 procedures on Roddy’s spine, including nerve-

block injections and prolotherapy injections, but he was

unable permanently to relieve her pain. He prescribed

various pain medications for Roddy including Methadone

and Oxycontin. At first the injections and pain medica-

tion substantially alleviated her pain for periods

4 No. 12-1682

lasting three or four months, but these procedures

became less effective over time, eventually providing

only three or four weeks of relief. Dr. Wright also rec-

ommended that Roddy undergo a procedure called

intradiscal electrothermal therapy to cauterize the

nerve endings in her damaged disc. She was unable to

do so, however, because her insurance carrier refused

to pay for the procedure and instead suggested that

she undergo spinal-fusion surgery. Dr. Wright disagreed

with that idea because of Roddy’s age, and Roddy

followed his advice.

Dr. Wright also became convinced that Roddy’s job

at Taco Bell was aggravating her condition. He thus

recommended numerous work restrictions, such as lim-

iting her work and the weight she was required to

carry. Taco Bell, however, did not adopt these restric-

tions, especially during busy times of the day. Dr. Wright

imposed a final work restriction on Roddy in June 2002,

stating that the most she could work would be six hours

a day, five days a week. Over the following three

years during which he treated Roddy, Dr. Wright

never altered or revoked this restriction.

Between September 2003 and Roddy’s final appoint-

ment in January 2006, Dr. Wright treated Roddy less

frequently, because she had lost her health insurance

and no longer could afford prescriptions or further pro-

cedures. During this period, Dr. Wright provided her

with samples of Vioxx and other pain medications,

but those drugs did not alleviate her pain. Despite

her financial limitations, he scheduled her for another

No. 12-1682 5

MRI, which produced results consistent with her

first one. She also had a surgical consultation. The only

additional procedures Dr. Wright performed between

September 2003 and January 2006 were more nerve-

block injections in November 2005.

In October 2003, Dr. Wright was deposed in connec-

tion with a lawsuit Roddy had filed stemming from her

car accident. He reviewed the treatments he had given

Roddy, his diagnosis of her condition, and his opinion

about her ability to work. He also noted that her condi-

tion had deteriorated since he began treating her and

that her pain had increased. When asked why, Dr. Wright

explained that Roddy’s insurance had refused to pay

for intradiscal electrothermal therapy, and that without

that procedure she could not obtain long-term relief

from her pain. Her pain prevented her from exercising,

and thus from building strength in her back muscles;

this deconditioning in turn aggravated her existing prob-

lems. Dr. Wright predicted that Roddy’s ability to

work would diminish to the point that she would not

be able to remain in the workforce.

Roddy filed her application for Social Security disabil-

ity insurance benefits in November 2007, alleging

disability beginning in November 2005 on account of

headaches, dementia, torn discs in her spine, and pain

in her back, neck, hips, knees, and shoulders. In con-

nection with her application, Roddy was evaluated

by an internist, Dr. Larissa Dimitrov, and two clinical

psychologists, Susan Conners and Robert Kurzhals. The

psychologists identified no serious medical conditions.

6 No. 12-1682

Dr. Dimitrov examined Roddy and found that despite

a somewhat decreased range of motion in her back,

knees, and hips, she was able to walk normally, get on

and off the examining table without difficulty, and

was otherwise not disabled.

In 2008 the agency interviewed Roddy and her

friend, Sharon Kemp, about Roddy’s quality of life and

ability to perform daily activities. Roddy asserted that

because of the pain in her lower back, she had not

worked since being fired by Taco Bell in 2005. Roddy

explained that her condition had significantly impeded

her daily activities and forced her to spend most of the

day lying down on her couch and heating her back.

She stated that bending at the waist caused her pain

and that she could not sit for a long period of time or

stand continuously for more than 20 to 30 minutes. As

a result she could no longer play softball or exercise,

she was forced to stop often to stretch while driving

for more than a short distance, and her household

chores were much more difficult to complete. Before

she began experiencing back pain, Roddy was able to

clean her mobile home in one day. By 2008, she said,

she was unable to lift more than 10 pounds, had dif-

ficulty negotiating stairs, could not sweep and mop a

single room in her home in the same day, completed

her household cleaning only in intervals, and had to lie

down to rest and stretch her back for an hour or

more before finishing cleaning any one room. She

usually limited herself to making sandwiches and

microwaving meals to reduce the time she spent standing

while cooking. Even doing laundry required her to lie

No. 12-1682 7

down and rest her back between loads. She could, how-

ever, care for her dog and mow her lawn on a riding

mower. Though Roddy visited with Kemp once a

month, Kemp noted that they often had to stop

playing cards or watching a movie so that Roddy

could stretch her back.

Based on the record we have described, the state

agency denied Roddy’s claim initially and on reconsid-

eration; Roddy then requested a hearing before an ALJ.

At that hearing, which took place in 2010, Roddy and

William J. Kiger, a vocational expert, testified. Roddy

testified about her daily activities and noted that she

now had a friend living with her to help around the

house. Roddy still did some sweeping and dusting but

no longer mopped. She could go grocery shopping, but

after 30 minutes in the store she struggled to finish her

shopping, and her friend had to assist her with putting

the groceries away at home so she could lie down.

Roddy’s friend also assisted with laundry, cooking, and

yard work, and helped Roddy dress. Roddy reported

pain from sitting or standing for longer than 20 minutes

and said that she had to lie down and stretch her back

three times a day for an hour or two. Kiger testified

that even if Roddy’s condition required her frequently

to alternate between sitting and standing, she still could

perform a wide range of sedentary work available in the

regional economy, including such jobs as a production

worker, sorter, or order clerk.

The ALJ found that Roddy was not disabled after

evaluating her claim under the five-step sequential

8 No. 12-1682

process detailed in 20 C.F.R. § 404.1520(4). He found

that she satisfied steps one and two. She was no longer

engaged in substantial gainful activity (step one), and

the medical evidence established that she had severe

medical impairments, including degenerative disc

disease, disorders of the back, left wrist pain from a

cartilage tear, cubital tunnel syndrome, headaches, and

hip pain (step two). Roddy’s alleged mental impair-

ments, he concluded, are not severe. For purposes of

step three, he found that her impairments do not meet

the criteria to show presumptive disability.

Between the third and fourth steps, the ALJ concluded

that Roddy’s residual functional capacity allows her

to perform jobs that permit her to alternate sitting

and standing on a regular basis and that do not require

carrying more than five pounds regularly, pushing,

pulling, climbing, reaching overhead, or walking over

uneven terrain. In reaching this determination the

ALJ, using boilerplate that this court has consistently

criticized, see e.g., Filus v. Astrue, 694 F.3d 863, 868 (7th

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

Cir. 2012); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.

2010), concluded that, though Roddy’s conditions could

reasonably be expected to cause the level of pain she

complained of, her “statements concerning the intensity,

persistence and limiting effects of these symptoms are

not credible to the extent they are inconsistent with

the above residual functional capacity assessment.” The

ALJ discounted Roddy’s testimony because she had

not sought treatment for her condition since 2005, instead

managing to “maintain and cope” using only over-the-

No. 12-1682 9

counter medications, and was able to care for herself

and her pet and complete household chores. Although,

for step four, the ALJ determined that Roddy cannot

perform her past work, he concluded for purposes of step

five (where the Commissioner bears the burden of

proof ) that she remains able to perform a range of seden-

tary work.

II

Because the Appeals Council declined Roddy’s

request for review, the ALJ’s ruling represents the Com-

missioner’s final decision. O’Connor-Spinner v. Astrue,

627 F.3d 614, 618 (7th Cir. 2010). We review the ALJ’s

decision directly without giving deference to the

district court’s assessment and will uphold the agency’s

decision so long as it uses the correct legal standards

and the decision is supported by substantial evidence.

Id.; Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir.

2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004).

Roddy’s first argument is that the ALJ failed to

give sufficient weight to Dr. Wright’s opinion, or at the

very least the ALJ did not adequately explain why

Dr. Wright’s views should be set aside. Dr. Wright had

opined that she could work at most six hours a day, five

days a week. Because, according to the Social Security

Administration, a person who cannot work eight hours

a day, five days a week, or the equivalent, is disabled,

see SSR 96-8p, 1996 WL 374184 at *1 (Jul. 2, 1996), if

Dr. Wright is correct, then a finding of disability

must follow.

10 No. 12-1682

An ALJ must consider all medical opinions in the

record. See 20 C.F.R. § 404.1527(b), (c); Knight v. Chater, 55

F.3d 309, 313-14 (7th Cir. 1995). Yet in this case, the

ALJ never mentioned Dr. Wright’s conclusion from

2002 that Roddy could not handle a full-time job, nor

his statement in his 2003 deposition that Roddy’s ability

to work would continue to diminish to the point where

she could not remain in the workforce at all. Instead,

the ALJ briefly touched on Dr. Wright’s treatment of

Roddy in one paragraph, after he earlier alluded to the

fact that Dr. Wright’s deposition testimony was in

the record. Ultimately, the ALJ decided to credit

Dr. Dimitrov’s opinion that Roddy was capable of work-

ing. It is impossible, however, to know what the ALJ

found lacking in Dr. Wright’s testimony. This is a

serious omission. Although the ALJ was not required to

address in writing every piece of evidence or testimony

presented, he was required to provide “an accurate

and logical bridge” between the evidence and his con-

clusions, Craft v. Astrue, 539 F.3d 668, 673 (7th Cir.

2008); McKinzey v. Astrue, 641 F.3d 884, 891 (7th Cir. 2011).

No such “bridge” appears in this opinion.

The ALJ’s failure explicitly to address Dr. Wright’s

opinion about Roddy’s ability to work is especially trou-

bling because Dr. Wright was Roddy’s treating physician.

A treating physician’s medical opinion is entitled to

controlling weight if it is well supported by objective

medical evidence and consistent with other substantial

evidence in the record. 20 C.F.R. § 404.1527(c)(2); Skarbek

v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004). Even though

the ALJ was not required to give Dr. Wright’s opinion

No. 12-1682 11

controlling weight, see Ketelboeter v. Astrue, 550 F.3d

620, 625 (7th Cir. 2008); Skarbek, 390 F.3d at 503, he

was required to provide a sound explanation for his

decision to reject it and instead to adopt Dr. Dimitrov’s

view. See 20 C.F.R. § 404.1527(c)(2); Jelinik v. Astrue, 662

F.3d 805, 811 (7th Cir. 2011); Campbell v. Astrue, 627

F.3d 299, 306 (7th Cir. 2010); Schmidt v. Astrue, 496 F.3d

833, 842 (7th Cir. 2007).

The agency’s regulations shed some light on how the

ALJ should approach the question of the weight to be

given to a doctor’s opinion. They state that more

weight should be given to the opinions of doctors who

have (1) examined a claimant, (2) treated a claimant

frequently and for an extended period of time, (3) special-

ized in treating the claimant’s condition, (4) per-

formed appropriate diagnostic tests on the claimant,

(5) offered opinions that are consistent with objective

medical evidence and the record as a whole. 20 C.F.R.

§ 404.1527(c)(2)(i), (ii). All of these factors point toward

giving significant weight to Dr. Wright’s assessment of

Roddy. He specialized in treating people with back

pain resulting from spinal conditions. He examined

Roddy frequently over the approximately six years that

he treated her, and he used MRIs, discographies, and

spinoscopy as diagnostic aids. His conclusions about

Roddy’s pain were consistent with the results of these

tests, which revealed that she had degeneration and

a tear around one of the discs in her lower back

and that those abnormalities caused pain and dim-

inished function in her back. In contrast, Dr. Dimitrov

does not specialize in conditions of the spine or treating

12 No. 12-1682

pain; she examined Roddy on only one occasion; and she

did not discuss (and possibly did not even review) the

objective medical evidence from Roddy’s MRIs,

discographies, and spinoscopy.

Though the ALJ did not discuss any of these factors

explicitly, he did mention in passing two possible

reasons for rejecting Dr. Wright’s opinion: the fact that

many years had elapsed since Roddy’s car accident,

and his belief that the results of Roddy’s MRIs were

“essentially unremarkable.” But the first “reason” tells us

nothing useful. The term “degenerative” implies that

Roddy suffers from a condition that will get worse over

time, especially without proper treatment; it is not one

that will remain stable or improve. See Pablo R. Maizno &

Carl Lauryssen, Annular Repair and Barrier Technologies,

in T HE L UMBAR I NTERVERTEBRAL D ISC 113 (2009). The

ALJ did not even discuss Dr. Wright’s explanation that

Roddy’s condition had deteriorated and her pain had

increased because she was unable to exercise and

had therefore become weaker.

In fact, the situation is worse than that. The ALJ misun-

derstood or mischaracterized the results of the MRI.

Rather being unremarkable, those results demonstrated

mild to moderate degeneration in one of the discs of

Roddy’s lower spine as well as a tear in the cartilage

surrounding that disc. The ALJ should have, but did not,

explain why Dr. Wright’s opinion about the severity of

Roddy’s pain is inconsistent with such findings. See

Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007); Car-

radine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).

No. 12-1682 13

The Commissioner speculates that the ALJ could

have rejected Dr. Wright’s opinion because Roddy contin-

ued to work full-time after Dr. Wright told her to con-

fine herself to working no more than six hours a day,

five days a week. But the Commissioner cannot defend

the ALJ’s decision using this rationale directly, or by

invoking an overly broad conception of harmless error,

because the ALJ did not employ the rationale in his

opinion. See SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943).

In fact, the premise of this argument is also flawed.

Had the ALJ reviewed Roddy’s work history, he would

have seen that she worked substantially less than the

six hours a day, five days a week to which Dr. Wright

restricted her, and she did not work at all after her

alleged onset date of disability in 2005. The fact that

Roddy pushed herself to work part-time and maintain

some minimal level of financial stability, despite her

pain, does not preclude her from establishing that she

was disabled. Hawkins v. First Union Corp. Long-Term

Disability Plan, 326 F.3d 914, 918 (7th Cir. 2003).

As a final note, the Commissioner might have (but

did not) argue that Dr. Wright’s opinion concerning

Roddy’s ability to work was not the kind of “medical

opinion” that the ALJ must evaluate under 20 C.F.R.

§ 404.1527(b), (c). The agency’s regulations assign the

decision about ability to work to the Commissioner.

See 20 C.F.R. § 404.1527(d)(1); Johansen v. Barnhart, 314

F.3d 283, 288 (7th Cir. 2002); Clifford v. Apfel, 227 F.3d 863,

870 (7th Cir. 2000). But it is just as well that the Com-

missioner is not defending the decision on that

ground. Even if Dr. Wright’s opinion of Roddy’s ability to

14 No. 12-1682

work is not a “medical opinion” under the regulatory

checklist, that does not mean that the ALJ should have

ignored that statement. Bjornson, 671 F.3d at 647; Bauer v.

Astrue, 532 F.3d 606, 609 (7th Cir. 2008). Although the

ALJ does “not give any special significance” to such

opinions, he still must consider “opinions from

medical sources” in determining the claimant’s residual

functional capacity. 20 C.F.R. § 404.1527(d)(2)-(3); Bjornson,

671 F.3d at 647-48; Barnett, 381 F.3d at 669.

Roddy also argues that this court should remand

because the ALJ erred by basing his credibility finding on

two additional points: her failure to seek professional

treatment for her back after 2006, and her ability

to perform household tasks. She is correct in both re-

spects. With respect to her failure to seek treatment, the

Commissioner relies only on the broad principle that a

claimant’s “statements may be less credible if the level

or frequency of treatment is inconsistent with the level

of complaints.” SSR 96-7p, 1996 WL 374186 at *7 (Jul. 2,

1996). But at the same time, an ALJ “must not draw any

inferences about an individual’s symptoms and their

functional effects from a failure to seek or pursue

regular medical treatment without first considering

any explanations that the individual may provide.” Id.;

see also Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009);

Myles v. Astrue, 582 F.3d 672, 677 (7th Cir. 2009); Craft,

539 F.3d at 678-79. Roddy had lost her health insurance

and could no longer afford the nearly $3000 each

procedure from Dr. Wright would cost her. The ALJ

appears to have credited this assertion, stating in his

opinion that “the last time she saw a physician was in

No. 12-1682 15

2005 because she has no insurance and cannot other-

wise afford medical care.” And the agency has expressly

endorsed the inability to pay as an explanation excusing

a claimant’s failure to seek treatment. SSR 96-7p at *8.

The Commissioner also suggests that the ALJ might

have rejected Roddy’s justification for her infrequent

visits to the doctor because she received a $500,000 settle-

ment from her lawsuit. This, the Commissioner thinks,

might have provided her with the means to seek treat-

ment; he points out also that Roddy stated in 2008 that

she was doing “okay” financially because of her settle-

ment. But once again, the Commissioner runs up against

the Chenery rule: although the ALJ mentioned Roddy’s

settlement in passing, he did not connect this statement

to any conclusion that Roddy could afford treatment.

Moreover, the ALJ could not have relied on the settle-

ment without additional information; the record does not

include such crucial facts as when Roddy settled her

lawsuit or how much money she actually received after

paying any medical bills and attorney’s fees. The agency

requires ALJs to inquire about a claimant’s reasons for

not seeking treatment. SSR 96-7p at *7-8. Had the ALJ

been concerned about the significance of the settlement,

he could have questioned Roddy about it at the hear-

ing. Instead the ALJ merely asked her why she had

not sought treatment, and asked no further questions

after she explained that she could not afford treatment

after having lost her insurance. In short, the ALJ

should not have rested his credibility determination

on Roddy’s failure to seek treatment after 2006, at least

as supported in this record.

16 No. 12-1682

The ALJ’s reliance on Roddy’s ability to perform house-

hold tasks was also mistaken. Once again, although it

is appropriate for an ALJ to consider a claimant’s

daily activities when evaluating their credibility, SSR 96-7p

at *3, this must be done with care. We have repeatedly

cautioned that a person’s ability to perform daily

activities, especially if that can be done only with sig-

nificant limitations, does not necessarily translate into

an ability to work full-time. See, e.g., Bjornson, 671 F.3d at

647; Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011);

Gentle v. Barnhart, 430 F.3d 865, 867-68 (7th Cir.

2005); Hawkins, 326 F.3d at 918. Roddy testified in

2008 and again at her hearing that she must struggle

to complete even the simplest and least strenuous of

household activities. In 2008 Roddy reported that she

could not clean even a single room of her mobile home

on any given day, could not sweep and mop on the

same day, limited herself to making sandwiches

because standing to cook causes her pain, and had to

lie down for more than an hour at a time on multiple

occasions throughout the day to rest and stretch her

back. A friend confirmed that Roddy could not finish a

movie or card game without lying down to stretch

her back. Roddy testified that by 2010 her condition

had gotten worse, but that luckily she had a friend

living with her to assist with household chores.

Faced with this evidence, the ALJ said only that, by

taking over-the-counter medications, Roddy was able to

remain self-sufficient and complete household chores,

albeit by taking longer to do so. The ALJ criticized

Roddy’s testimony because he found her statements

No. 12-1682 17

from 2008 to be inconsistent with her testimony at her

hearing in 2010. We do not see the conflict. By 2010,

Roddy was fortunate enough to have a friend around

to help with chores that she had described as causing

her significant pain in 2008. Moreover, even if the ALJ’s

characterization of Roddy’s statements was accurate,

Roddy’s condition was degenerative, meaning that it

was likely that she had more limitations in 2010 than

she did in 2008. Roddy’s inability to get through the day

without lying down three to four times for an hour, or

to complete even simple chores requiring standing, like

cooking, does not indicate an ability to work even a

sedentary job full-time. See Moss, 555 F.3d at 562; Craft,

539 F.3d at 680; Mendez v. Barnhart, 439 F.3d 360, 362-63

(7th Cir. 2006). As this court has noted, “one does seden-

tary work sitting . . . but not lying down,” and no

employer is likely to hire a person who must stop

working and lie down two or three times a day for an

hour at a time, or who requires multiple days to

complete tasks other employees might finish in one

workday. Bjornson, 671 F.3d at 646, 648.

For all these reasons, we V ACATE the judgment of

the district court and R EMAND with instructions to

remand the case to the Social Security Administration

for further proceedings consistent with this opinion.

1-18-13