Moore v. Colvin

• Citation: 743 F.3d 1118
• Decision Date: 27 February 2014
• Docket Number: No. 13–2460.,13–2460.
• Parties: Jennifer Lee MOORE, Plaintiff–Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

743 F.3d 1118

Jennifer Lee MOORE, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 13–2460.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 15, 2014.

Decided Feb. 27, 2014.

Joseph S. Sellers, Spector & Lenz, Chicago, IL, for Plaintiff–Appellant.

Cynthia A. Freburg, Social Security Administration, Office of the General Counsel, Chicago, IL, for Defendant–Appellee.

Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Jennifer Lee Moore filed an application 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 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 relevantevidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (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 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 limitations on Moore's ability to perform basic work-related activities. 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 syndrome, depression, anxiety, and possible Crohn's disease.

At Step 3, the ALJ determined that those severe impairments did not meet or equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Accordingly, 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 continuing basis despite limitations from her impairments. Id.;Pepper, 712 F.3d at 362. The ALJ concluded that Moore had the 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 ventilation, 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 substantiated 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 “boilerplate” language often included in disability determinations, 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 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 medication 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 migraines, but the ALJ erred in utterly failing to even acknowledge 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 conclusion while ignoring the evidence that undermines it. Terry v. 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...