Shirley Scott v. Michael Astrue

Filing

Filed opinion of the court by Judge Tinder. The judgment affirming the denial of benefits is VACATED and the case is REMANDED with instructions that it be returned to the SSA for further proceedings consistent with this opinion. Richard A. Posner, Circuit Judge; John Daniel Tinder, Circuit Judge and David F. Hamilton, Circuit Judge. [6326486-3] [6326486] [10-2487]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 10-2487
S HIRLEY S COTT,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08 C 5882—Sidney I. Schenkier, Magistrate Judge.

A RGUED N OVEMBER 9, 2010—D ECIDED A UGUST 1, 2011

Before P OSNER, T INDER, and H AMILTON, Circuit Judges.
T INDER, Circuit Judge. Shirley Scott applied for disability
insurance benefits and supplemental security income,
claiming that she is disabled by bipolar disorder and
numerous physical impairments. The Social Security
Administration (“SSA”) denied her claim, and a
magistrate judge, presiding by consent, upheld the decision. Scott contends on appeal that the Administrative
Law Judge (“ALJ”) wrongly discounted the opinion of

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her treating psychiatrist and discredited her own testimony, and that these mistakes caused the ALJ to overstate her residual functional capacity (“RFC”). We
vacate the magistrate judge’s decision and remand with
instructions that the case be returned to the SSA for
additional proceedings.

I. Background
Scott, who is now 56 years old, suffers from mental
impairments as well as back and knee pain. Her physical
problems took center stage beginning on New Year’s Eve
in 2000, when she tripped on some stairs and landed on
her back. For ten months afterward she endured
persistent back pain that eventually made it impossible
for her to continue performing the duties of her job as a
nursing home assistant, which required that she lift and
transport elderly residents. So Scott gave up her job,
moved in with her daughter, and filed an application
for disability benefits that was denied in February 2005.
Then in August 2005 her knees gave out, and she fell
down a second set of stairs and further injured her back.
She went to the emergency room, but x-rays confirmed
that nothing was broken and no immediate surgery
was necessary. After that incident she reapplied for
disability benefits, and this second application is the
one before us.
In response to Scott’s renewed application, a stateagency internist, Dr. Norma Villanueva, examined Scott
in December 2005. During the brief, half-hour appointment, Scott told the doctor that she carries a cane for

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balance because she has bad knees, and she complained
of back pain, arthritis, depression, and vision problems.
Scott said that her back had bothered her since 2001
and that her doctor had prescribed a high dosage of
ibuprofen, which often is ineffectual. Dr. Villanueva
diagnosed Scott with osteoporosis, arthritis, and hypertension but concluded that her musculoskeletal health
was “normal.” In support of this last conclusion,
Dr. Villanueva wrote, “[Scott] uses a cane but can walk
normally 50 feet when asked to do so here in the office,
without her cane. . . . [R]ange of motion is full.” The report says nothing about Scott’s ability to lift or carry
heavy objects. Although this is the medical evaluation
upon which the ALJ ultimately relied in assessing
Scott’s physical limitations, her medical records are
replete with instances in which she complained to
other doctors about back and knee pain and said the
cane was necessary for balance. Scans and X-rays, however, did show that Scott’s knees were normal and that
she suffered from only minimal degeneration in her spine.
The state agency also evaluated Scott’s mental health
in December 2005. Scott complained to Dr. Robert
Prescott, a psychologist, about poor memory, bouts of
crying, disinterest in activities, and auditory hallucinations. Dr. Prescott observed that Scott displayed a “flat”
affect but was oriented to time and place and was able
to care for herself; he concluded that Scott was depressed
and suffered from some cognitive limitations. A different
state-agency psychologist then reviewed Dr. Prescott’s
report and concluded that Scott faced mild limitations
in her abilities to perform daily life activities and main-

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tain concentration, persistence, and pace, but was able
to function normally in social settings and had not experienced any episodes of decompensation. A state
agency medical consultant agreed with this assessment.
In April 2006, Scott had a Comprehensive Mental
Health Assessment. She told the examiner that she is
perpetually anxious and has trouble sleeping, in part
because of the voices she hears. The examiner noted
that Scott had difficulty recalling dates, but her judgment was intact. The assessment concluded that Scott
was depressed but ruled out major depression, recommending therapy and a psychiatric evaluation.
In June 2006, Scott began therapy with Dr. Christine
Tate, a psychiatrist, on a near-monthly basis. In her treatment notes, Dr. Tate documented Scott’s complaints
that she cried daily and suffered frequent nightmares,
paranoia, and periods of insomnia, sometimes lasting
more than two days. Dr. Tate also observed that Scott
was guarded, spoke quietly and slowly, had poor
recall and concentration, and was easily distracted. Tate
diagnosed Scott with bipolar disorder and prescribed
Abilify and Zoloft, both of which are used to treat
bipolar disorder and depression. In May 2007, Scott
complained of hand tremors (a common side effect of
her medications), so Dr. Tate prescribed a third drug,
Cogentin, to reduce the tremors and ordered a neurological consultation to rule out other causes. It appears
from the record that the tremors eased with the additional medication, and Scott never went for the neurological consultation.

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Dr. Tate also completed a questionnaire about Scott’s
mental impairments. After more than a year of working
with Scott, the psychiatrist reported that Scott’s symptoms included tearfulness, auditory hallucinations, paranoia, and difficulty concentrating, and she remarked
that Scott had long been a “quiet sufferer of untreated
chronic mental illness” even though her mental status
was “within normal limits.” Dr. Tate opined that Scott
would miss work at least three times a month and that
she had no ability, or at best a “fair” ability, to perform
light work. Dr. Tate concluded that Scott is slightly
limited in daily functioning and markedly limited in
social functioning; that she frequently experiences deficiencies in concentration, persistence, or pace; and
that she suffers from repeated episodes of deterioration
and decompensation.
At her hearing before the ALJ, Scott described the
impairments she thought would interfere with her
ability to work. She explained that her bipolar disorder
made her tearful and depressed, caused her to hear
imaginary voices, hindered her concentration, and made
her feel paranoid. She remarked that, because of these
symptoms, she could “hardly keep [herself] together.”
As examples of how the disorder interferes with her
life, Scott said that she often misses her bus stop, fears
being followed, and has trouble sleeping. Regarding
her physical limitations, Scott told the ALJ that, since
her initial stairway fall, she has experienced sharp lowerback pain that lasts days at a time and that is not controlled by prescription-strength ibuprofen. She also
repeated that her knees tend to give out, so she carries

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a cane. Scott conceded that her prescription for osteoporosis helped her knees but said that she had stopped
taking the medication because she could not go to the
hospital to get the prescription refilled. (She refilled
her other prescriptions at a local pharmacy.) Finally,
Scott explained that 2 or 3 times a week her right hand
shakes for about 30 minutes, making it hard for her to
hold things, and that arm pain makes it impossible
for her to lift more than a gallon of milk.
Scott also testified about her daily routine. She told the
ALJ that she is able to help her daughter with cooking
and some cleaning, but she cannot bend to mop or
carry groceries. During the day Scott watches TV, talks
on the phone, and reads, but sometimes she cannot concentrate on these activities. Scott told the ALJ that she
can stand or sit for 30 minutes at a time, walk 2 blocks
without stopping, and climb stairs if she holds onto
a railing or uses her cane.
A psychologist, Dr. Ellen Rozenfeld, was present for
Scott’s testimony and commented on her mental health
based on her testimony and an examination of the record. Dr. Rozenfeld remarked that she had seen no
evidence in the medical record of manic episodes and
thus wondered how Dr. Tate had arrived at her
diagnosis of bipolar disorder. Although Dr. Rozenfeld
did not rule out the diagnosis, she opined that Scott had
a sound ability to remember, reason, and perform
basic calculations; that she could engage in a full range
of daily activities; and that the record did not support
a conclusion that Scott would miss three days of work

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a month. Dr. Rozenfeld also surmised that Scott distrusted others but was not paranoid, and that the
voices she heard might simply be a byproduct of
falling asleep since Scott usually heard them at night.
Dr. Rozenfeld concluded that a diagnosis of major depression was appropriate and opined that Scott could
follow short, simple instructions but was moderately
limited in social functioning and in concentration, persistence, and pace. She also opined that Scott had a
marked limitation in her ability to perform complex tasks.
The ALJ then asked a vocational expert (“VE”) what
jobs Scott could do if she can lift, push, or pull
10 pounds frequently and 20 pounds occasionally; stand
or walk for 6 hours; and occasionally climb, balance,
stoop, kneel, crouch, and crawl. The ALJ instructed the
VE to exclude jobs that involve complicated tasks, a
rapid pace, or frequent interaction with others. The
VE responded that Scott could not return to her past
work but could perform light work as a hotel cleaner
or parking-lot attendant. The ALJ then asked the VE to
consider the added limitation that Scott must be able
to alternate between standing and sitting. The VE concluded that, with that limitation, Scott would be limited
to jobs as a parking-lot attendant, of which he estimated
there are 2,000 in the regional economy. In both cases,
the VE added, Scott would have to concentrate for at
least 85% of the time.
The ALJ evaluated Scott’s claim under the required
five-step analysis, see 20 C.F.R. §§ 404.1520, 416.920,
and concluded that (1) Scott had not worked since

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October 2001; (2) her depression, hypertension, osteoporosis, and minimal degeneration of her spine constitute severe impairments but the hand tremors do not;
(3) these impairments do not collectively meet or equal
a listed impairment; (4) Scott has the RFC to perform
light work; and (5) based on this RFC she cannot
perform her previous job but can do light work as a
hotel cleaner and thus is not disabled.
The ALJ rejected Dr. Tate’s diagnosis of bipolar
disorder, and instead concluded that Dr. Rozenfeld’s
diagnosis of depression was more consistent with the
record. The ALJ refused to credit Dr. Tate on the ground
that there is no “objective evidence to support her
opinion that [Scott] would be absent more than 3 times
a month” and because Dr. Tate’s notes reflect a positive
response to medication and therapy, undermining the
conclusion that Scott is limited in her ability to work.
The ALJ also denied benefits, in part, because she
discredited Scott’s testimony on “the intensity, persistence and limiting effects” of her symptoms. The
ALJ found that Scott had overstated her back and knee
pain because she can climb stairs and walk two blocks,
and because X-rays of her knees were normal and films
of her back showed only minimal degeneration. The ALJ
further doubted that the voices Scott was hearing would
keep her from working because she “heard voices in the
daytime only once.” The ALJ also characterized Scott’s
testimony as inconsistent because she had said that she
stopped taking one medicine when she could not travel
to get the prescription filled, yet she traveled to see

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Dr. Tate and got her prescriptions filled at a local drugstore. The ALJ also concluded that, because Scott recalled
the location of that drugstore, her memory is better
than she lets on.

II. Discussion
Scott challenges three aspects of the ALJ’s decision,
which we review as the final word from the Commissioner because the Appeals Council declined review.
See Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008). Scott
faults the ALJ for crediting Dr. Rozenfeld instead of
Dr. Tate regarding her mental impairments, argues that
the ALJ’s credibility finding is unsupported, and disputes the ALJ’s resulting determination that her RFC
allows light work. We confine our review to the rationale
offered by the ALJ, Steele v. Barnhart, 290 F.3d 936, 941
(7th Cir. 2002) (citing SEC v. Chenery Corp., 318 U.S. 80, 9395 (1943)), and evaluate whether that decision is supported by substantial evidence without deferring to the
district court, O’Connor-Spinner v. Astrue, 627 F.3d 614,
618 (7th Cir. 2010). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Skinner v. Astrue, 478 F.3d
836, 841 (7th Cir. 2007) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
As to Scott’s first argument, we agree that the ALJ
erroneously credited Dr. Rozenfeld’s opinion over the
views of Dr. Tate in evaluating her mental impairments.
A treating doctor’s opinion receives controlling weight
if it is “well-supported” and “not inconsistent with the

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other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(d)(2); see Punzio v. Astrue, 630 F.3d 704, 710 (7th
Cir. 2011); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010). An ALJ must offer “good reasons” for discounting
the opinion of a treating physician. Martinez v. Astrue,
630 F.3d 693, 698 (7th Cir. 2011); Campbell, 627 F.3d at 306.
Here, the reasons the ALJ gave for discounting Dr. Tate’s
assessment do not meet this standard. The ALJ first
relied on Dr. Rozenfeld’s conclusion that the medical
record contains no evidence of manic episodes and thus
cannot support a diagnosis of bipolar disorder, which,
by definition, includes both manic and depressive episodes. But the record does contain evidence that could
be symptomatic of manic behavior. Dr. Tate repeatedly
noted that Scott sometimes stays awake for days at a
time, has paranoid ideations, is easily distracted, and
experiences difficulty concentrating. These symptoms
are consistent with manic episodes, see Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders
357-62 (4th ed. 2000), and it is possible that Dr. Tate
considered them as such in diagnosing Scott with
bipolar disorder.
The ALJ also found Dr. Tate’s assessment internally
inconsistent because, on the one hand, she opined that
Scott is markedly limited in her ability to work and is
likely to miss three days of work per month while, on
the other hand, she also stated that Scott had responded
well to treatment. But the ALJ was too quick to read
inconsistency into these statements. There can be a
great distance between a patient who responds to treatment and one who is able to enter the workforce, and

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that difference is borne out in Dr. Tate’s treatment notes.
Those notes show that although Scott had improved
with treatment, she nevertheless continued to frequently
experience bouts of crying and feelings of paranoia.
The ALJ was not permitted to “cherry-pick” from those
mixed results to support a denial of benefits. Denton v.
Astrue, 596 F.3d 419, 425 (7th Cir. 2010); See Myles
v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009). Moreover, the ALJ’s analysis reveals an all-too-common
misunderstanding of mental illness. The very nature of
bipolar disorder is that people with the disease
experience fluctuations in their symptoms, so any
single notation that a patient is feeling better or has had
a “good day” does not imply that the condition has
been treated. See Punzio, 630 F.3d at 710; Larson v. Astrue,
615 F.3d 744, 751 (7th Cir. 2010); Bauer v. Astrue, 532
F.3d 606, 609 (7th Cir. 2008).
And even if there had been sound reasons for refusing
to give Dr. Tate’s assessment controlling weight, the
ALJ still would have been required to determine
what value the assessment did merit. See 20 C.F.R.
§ 404.1527(d)(2); Larson, 615 F.3d at 751. “If an ALJ
does not give a treating physician’s opinion controlling
weight, the regulations require the ALJ to consider the
length, nature, and extent of the treatment relationship,
frequency of examination, the physician’s specialty, the
types of tests performed, and the consistency and
supportability of the physician’s opinion.” Moss v. Astrue,
555 F.3d 556, 561 (7th Cir. 2009) (citing 20 C.F.R.
§ 404.1527(d)(2)). Here, many of these considerations
favor crediting Dr. Tate’s assessment: Dr. Tate is a psy-

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chiatrist (not a psychologist), she saw Scott on a
monthly basis, and the treatment relationship lasted
for over a year. It is not apparent that the ALJ considered
any of these factors. Based on these shortcomings,
we conclude that the ALJ’s consideration of Dr. Tate’s
evaluation is unsatisfactory and requires remand.
The same is true of the ALJ’s assessment of Scott’s
physical impairments. The ALJ asked the VE to consider
what jobs would be available to Scott if she can stand for
6 hours in a regular day and lift 10 to 20 pounds, but
the ALJ did not identify any medical evidence to substantiate her belief that Scott is capable of meeting
those physical requirements. The ALJ said that her conclusion is based on Dr. Villanueva’s examination, but
nothing in that report suggests that Scott can stand for
6 hours or lift up to 20 pounds. Dr. Villanueva noted
that Scott successfully walked 50 feet without a cane
within the confines of her office, but that brief excursion
hardly demonstrates an ability to stand for 6 hours
(and neither does Scott’s testimony that she could
walk 2 blocks). Additionally, there is no evidence in
Dr. Villanueva’s report that she even tested Scott’s
ability to lift heavy objects, so the ALJ could not legitimately have relied on that examination to conclude
that Scott can occasionally lift 20 pounds. The ALJ
needed to explain how she reached her conclusions
about Scott’s physical capabilities, see Briscoe ex rel.
Taylor v. Barnhart, 425 F.3d 345, 352 (7th Cir. 2005);
Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004),
but the primary piece of evidence that she relied on
does not support the propositions for which it is cited.

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We therefore must conclude that the ALJ failed to build
the requisite “logical bridge” between the evidence and
her conclusion. See Terry v. Astrue, 580 F.3d 471, 475
(7th Cir. 2009).
The Commissioner asserts that, apart from one statement at the hearing that Scott was unable to lift more
than one gallon of milk, there is no evidence that she
has any limitation on her lifting ability, and the ALJ
was therefore entitled to determine her RFC without
reference to a more-substantial lifting restriction. It is
true that Scott bears the burden of producing evidence
of her impairments, see Eichstadt v. Astrue, 534 F.3d 663,
668 (7th Cir. 2008), but she did produce evidence in the
form of her own testimony as well as medical evidence
that tremors make it difficult for her to use her hands.
If the ALJ found this evidence insufficient, it was her
responsibility to recognize the need for additional
medical evaluations. See Golembiewski v. Barnhart, 322
F.3d 912, 918 (7th Cir. 2003); Smith v. Apfel, 231 F.3d 433,
437 (7th Cir. 2000).
These flaws are enough to require us to remand the
case to the Agency for further proceedings. We therefore
needn’t decide whether the reasons the ALJ gave in
support of her adverse credibility finding regarding
Scott were so “patently wrong” as to separately require
remand. Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010); Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009).
Nonetheless, we point out several of the most serious
flaws in the ALJ’s credibility assessment so that the
SSA does not repeat them on remand. First is the ALJ’s

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suggestion that Scott’s auditory hallucinations won’t
interfere with her ability to work because she hears
voices only at night. The ALJ did not limit Scott to
daytime work (parking lots often employ night-time
attendants), and this reasoning fails to account for the
reality that hearing voices at night could interfere with
Scott’s ability to sleep and thus her ability to function
during the day. Moreover, there must be a reason that
Scott hears voices, a subject that should be explored
rather than used as a reason to doubt her credibility.
Also troubling is the ALJ’s finding that when Scott
testified she must have exaggerated her difficulties
with concentration and memory since she was able to
recall the location of the pharmacy that she regularly
utilized. Drs. Prescott, Tate and Rozenfeld did not dispute Scott’s complaints about memory and concentration problems, and her husband also provided corroborating testimony. That Scott can find her way back
to a pharmacy to fill needed prescriptions is hardly
enough to discount concerns about her memory and
concentration.

III. Conclusion
The judgment affirming the denial of benefits is
V ACATED and the case is R EMANDED with instructions
that it be returned to the SSA for further proceedings
consistent with this opinion.

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