Ghiselli v. Colvin

• Decision Date: 16 September 2016
• Docket Number: No. 14-2380,14-2380
• Citation: 837 F.3d 771
• Parties: Debora Ghiselli, Plaintiff-Appellant, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

837 F.3d 771

Debora Ghiselli, Plaintiff-Appellant,

v.Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant-Appellee.

No. 14-2380

United States Court of Appeals, Seventh Circuit.

Argued February 9, 2015

Decided September 16, 2016

James R. Schiff, Barry Schultz, Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff-Appellant.

Catherine A. Seagle, Social Security Administration, Chicago, IL, for Defendant-Appellee.

Before Rovner and Sykes, Circuit Judges, and Wood, District Judge.^*

Wood, District Judge.

Debora Ghiselli applied for disability insurance benefits under the Social Security Act, claiming that she was unable to work due to a combination of health problems that included degenerative disc disease, asthma, and obesity. After her initial application and her request for reconsideration were denied, an administrative law judge (“ALJ”) found that she was not disabled despite her impairments. The district court, reviewing the ALJ's decision pursuant to 42 U.S.C. § 405(g), held that the decision was supported by substantial evidence and thus affirmed it. Ghiselli has now appealed that ruling to this Court, arguing that the ALJ erred by crediting the opinions of state agency medical consultants over that of her treating physician, by improperly determining without adequate explanation that she had the residual functional capacity to perform a range of light work with limitations, and by finding that she lacked credibility based on certain purportedly inconsistent statements.

We agree that the ALJ erred in his consideration of Ghiselli's credibility and therefore her case must be remanded for further proceedings.

I.

Ghiselli applied for disability benefits on June 16, 2010, alleging disability beginning on October 1, 2007. She asserted that she had been employed as a retail customer service manager, a position she later described as including responsibility for handling customer inquiries and supervising cashiers. She claimed that she was disabled by injuries she suffered at her job on August 6, 2007, when a customer struck her in the back with a shopping cart. Ghiselli's claim for disability benefits was initially denied in October 2010 and, upon her request for reconsideration, denied again in April 2011. She then requested and received a hearing before an ALJ.

The ALJ found that Ghiselli was not disabled after evaluating her claim under the five-step sequential evaluation process detailed in 20 C.F.R. § 404.1520(a)(4). At the first step, the ALJ determined that Ghiselli had not engaged in substantial gainful activity from the claimed start of her disability of October 1, 2007 through her last insured date of September 30, 2011. As a result, the ALJ proceeded to the second step, where he was required to determine whether Ghiselli had a severe medically-determinable impairment or combination of impairments. He found that she did suffer from severe impairments, including degenerative disc disease of the lumbar spine with stenosis and facet arthropathy, asthma, and obesity. These impairments, he concluded, limited her ability to perform work activities. Ghiselli's claimed mental impairment of depression, however, was not found not to be severe, as it “did not cause more than minimal limitation in [her] ability to perform basic mental work activities.” At step three, the ALJ found that Ghiselli's severe impairments did not meet the criteria for presumptive disability. Thus, he proceeded to the fourth step: assessing whether she was capable of performing her past relevant work.

At this stage, an ALJ must determine a claimant's residual functional capacity, which is her “ability to do physical and mental work activities on a regular basis despite limitations from her impairments.” Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014). To determine Ghiselli's residual functional capacity, the ALJ considered the reports and recommendations of Dr. Marjorie Delo, who began treating Ghiselli shortly after her workplace accident and examined her more than a dozen times between August 2007 and September 2010. When Ghiselli returned to work in September 2007 but reported that pain limited her activity, Dr. Delo recommended that she limit her work to shifts of no more than four hours. Dr. Delo repeated this recommendation after many of Ghiselli's subsequent treatment visits. Although Dr. Delo observed some deterioration in Ghiselli's back condition from its initial appearance in 2007, she also saw positive signs. In July 2010, she noted that Ghiselli had not been treated for back problems since January 2009 and that she had been successful in using home exercises to “keep her pain at bay.” In August 2010, she reported that Ghiselli had “no more than mild lower lumbar tenderness,” that she had normal muscle tone, and that her gait showed no signs that she was compensating for pain.

The ALJ also considered reports prepared by Dr. Syd Foster and Dr. Philip Cohen, two state agency medical consultants “trained and familiar with” medical standards under the Social Security Act, who reviewed Ghiselli's records to assess her residual functional capacity. In his report, Dr. Foster observed that Ghiselli reported “severe pain and limited mobility” and impaired ability to sit, stand, or walk for prolonged periods. He further noted that she did have “medically determinable impairments that could cause pain and limited mobility” but nonetheless concluded that “the medical evidence does not support such extreme limitations.” For his part, Dr. Cohen found “no indication in the medical records that claimant's functioning is limited by asthma, high blood pressure, or hip pain,” and that her statements about her limitations “are not consistent with the medical evidence and are found partially credible.”

The ALJ also reviewed the reports of two physicians who examined Ghiselli in 2010 and 2011. Dr. Ronald Garcia conducted an electrodiagnostic examination of Ghiselli in September 2010 and found her to have normal strength, sensation, muscle tone, range of motion, and reflexes in her legs. Dr. Harry Tagalakis administered a magnetic resonance imaging, or MRI, scan of Ghiselli's lumbar spine in August 2011 and characterized her spinal impairments as mild to moderate.

In summarizing his assessment of the various doctors' reports, the ALJ assigned “significant weight” to the opinions of Dr. Foster, Dr. Cohen, Dr. Garcia, and Dr. Tagalakis. As to Ghiselli's treating physician, the ALJ stated: “I generally give weight to Dr. Delo's opinions, but find that her continued restriction to 4-hour work days stems from an unsuccessful attempt to return the claimant to work in September 2007 one month after the initial injury (citation omitted) and there is no medical basis in 2011, four years later, to continue that restriction.”

The ALJ's assessment of Ghiselli's residual functional capacity also relied upon her own statements regarding her ability to work, which the ALJ found to lack credibility. He noted that Ghiselli had reported that, among other basic activities, she could do light housework, read, take care of her pets, perform personal care activities, drive her car, and shop for groceries. From this, he concluded that Ghiselli's “ability to perform significant activities of daily living is strong evidence that she is capable of performing work activities, undermining her claims in this case.”

The ALJ also felt that Ghiselli's credibility was damaged by what he considered inconsistent statements. For example, he noted that Ghiselli had stated in her January 2010 written “Function Report” that Dr. Delo had restricted her to lifting no more than fifteen pounds and would not clear her to return to work until that restriction was lifted; meanwhile, Dr. Delo's restriction actually permitted Ghiselli to lift up to twenty-five pounds and allowed her to work under that restriction for shifts of up to four hours. The ALJ was also particularly vexed by the fact that in November 2008, Ghiselli had advised Dr. Delo that she was looking for a new job, which the ALJ considered “contrary to her contentions in this case that she could not work.”

After consideration of this record, the ALJ concluded that Ghiselli had the residual functional capacity to perform a range of light work, if she were provided a sit-stand option that allowed her to be off-task for up to ten percent of the time, required no more than occasional stooping, crouching, balancing, kneeling, or crawling, and subjected her to no more than moderate exposure to extreme cold. He further found that Ghiselli had the residual functional capacity to perform past relevant work. While the past work that she could perform did not include her most recent customer service manager job, the ALJ determined that she did retain the capacity to perform some of her previous jobs, including telephone receptionist and data entry clerk.

Finally, at the fifth and final step in the sequential review process, the ALJ determined that Ghiselli could perform a number of other jobs in the regional economy that constituted substantial gainful activity, such as survey worker, automatic car wash attendant, and ticket taker.

In sum, the ALJ concluded that Ghiselli was not disabled as defined in the Social Security Act at any time during the time period October 1, 2007 and September 30, 2011, and affirmed the denial of her application for benefits. Ghiselli's request for review of the decision by the Social Security Administration's Appeals Council was denied, making the ALJ's decision the final decision of the Commissioner. See Loveless v. Colvin , 810 F.3d 502, 506 (7th Cir. 2016). She sought judicial review in the district court, which affirmed the ALJ's decision. This appeal followed.

II.

An ALJ determination not reviewed by the Appeals Council and affirmed by the district court receives direct review in this Court. Pepper v. Colvin, 712 F.3d 351, 361 (7th Cir. 2013). The ALJ's decision must be upheld if it is...