Virgil Shauger v. Michael Astrue

Filing

Filed opinion of the court by Judge Bauer. We REVERSE the judgment of the district court and REMAND the case with instructions that it be returned to the SSA for further proceedings consistent with this opinion.. William J. Bauer, Circuit Judge; Ilana Diamond Rovner, Circuit Judge and Diane P. Wood, Circuit Judge. [6383637-3] [6383637] [11-3232]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-3232
V IRGIL M. S HAUGER,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:11-cv-00129-bbc—Barbara B. Crabb, Judge.

A RGUED F EBRUARY 29, 2012—D ECIDED M ARCH 22, 2012

Before B AUER, R OVNER and W OOD , Circuit Judges.
B AUER, Circuit Judge. Virgil M. Shauger, a 50-year-old
former welder who suffers from a nerve disorder that
impairs his vision, challenges the denial of his application for Social Security disability benefits. An Administrative Law Judge (“ALJ”) disbelieved Shauger’s testimony about the severity of headaches caused by his
condition, and on that basis found him not disabled.

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Because this adverse credibility determination is not
supported by substantial evidence, we return the case
to the agency for further proceedings.

I. BACKGROUND
Shauger operated a welding company in Milwaukee,
Wisconsin, from 1989 to 2004. He was forced to sell his
business in April 2004 after the symptoms of his disorder had worsened. Shauger was living in Florida in
2007 when he applied for disability insurance benefits,
alleging onset in April 2004. Medical records of his
vision problems date back to late 1988 when, at age 27,
he first sought treatment for symptoms including
double vision, eye strain, and facial numbness. Shauger
had experienced similar symptoms six months earlier,
but that initial bout had cleared after a few days and so
he did not think more about it. After a battery of tests,
Shauger was diagnosed in 1988 with abducens nerve
palsy of the left eye. This disorder, commonly known as
sixth nerve palsy, describes a paralysis of the muscle
controlling lateral eye movements. See D ORLAND’S ILLUSTRATED M EDICAL D ICTIONARY 1365 (32d ed. 2012).
The treatment for sixth nerve palsy depends on
the cause. Several causes are common among adults,
including head trauma, infection, diabetes, brain
an eu rism , multiple sclerosis, and tumors. See
Loyola University Chicago Stritch School of Medicine,
Sixth Nerve Palsy, http://www.stritch.luc.edu/depts/
ophtha/adult_strabismus/sixth_nerve_palsy.htm (last
visited Mar. 19, 2012); U.S. National Library of Medicine,

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Medline Plus, Cranial Mononeuropathy VI,
h t t p :/ /w w w .n lm .n ih .g ov /m e d lin e p l u s /e n c y /a rt ic le /
000690.htm (last visited Mar. 19, 2012). Symptoms of
sixth nerve palsy often include double vision, headaches, and pain around the eye. See The University
of California-Irvine Gavin Herbert Eye Institute,
N euro-O phthalm ology, http://www.eye.uci.edu/
neuroophthalmology.html#AbducensNerve (last visited
Mar. 19, 2012); U.S. National Library of Medicine, Medline
Plus, Cranial Mononeuropathy VI, http://www.nlm.nih.gov/
medlineplus/ency/article/000690.htm (last visited Mar. 19,
2012). Because the treatment varies by etiology, physicians
typically start by giving patients a barrage of tests to
determine the cause of the palsy. See U.S. National Library
of Medicine, Medline Plus, Cranial Mononeuropathy
VI, http://www.nlm.nih.gov/medlineplus/ency/article/
000690.htm (last visited Mar. 19, 2012). Some cases of sixth
nerve palsy go away on their own, and others may
persist. Id.
Shauger speculates that his palsy stems from head
trauma suffered in 1988 when he fell 13 or 14 feet on a
welding job, and landed on the left side of his face on
the concrete. His first symptoms surfaced after this accident. In 1988 and 1989, his doctors ran several clinical
tests to determine the cause of his palsy, including an
MRI and an angiography. No specific cause ever was
found. Shauger continued working and did not seek
treatment again until 1996, after his vision problems
had worsened and he started experiencing headaches.
Shauger had tried several types of glasses, but the headaches persisted. A neurologist confirmed the previous

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diagnosis of left sixth nerve palsy (he described Shauger’s
affliction as “rather remarkable”), but further testing
again failed to identify the root cause. An ocular examination in 1998 showed that Shauger’s palsy was marked
by hypertropia and diplopia. Hypertropia is a misalignment of the eye, and diplopia is double vision.
D ORLAND’S ILLUSTRATED M EDICAL D ICTIONARY 525, 898
(32d ed. 2012). In July 2007, a month before he applied
for disability benefits, Shauger consulted an optometrist
who concluded that he still suffered from double vision
and prescribed glasses. The Commissioner of Social
Security contends that this doctor prescribed prism
glasses, which can help correct double vision by shifting
the image entering the affected eye and allowing for
coordinated vision with less lateral movement in
that eye. American Optometric Association, Strabismus,
http://www.aoa.org/x4700.xml (last visited Mar. 19,
2012). The eyeglasses prescription is indecipherable,
though Shauger has not disputed the Commissioner’s
interpretation.
After Shauger filed his disability claim in August 2007,
several other doctors evaluated his condition. Dr. Martha
Pollock, an internist, examined Shauger in October at
the request of the Florida Department of Health and
confirmed the diagnosis of left sixth nerve palsy. Two
other doctors then reviewed Shauger’s medical records
for the state agency. The first, an ophthalmologist,
opined that prism glasses should minimize or eliminate
Shauger’s double vision in all gazes except directly to
the left. Even so, the ophthalmologist advised Shauger
should avoid concentrated exposure to hazardous condi-

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tions no matter how successful prism glasses might be.
The second doctor, an OB/GYN, opined that Shauger,
due to his balance difficulties, always should avoid ladders, ropes, and scaffolds and only rarely should climb
ramps or stairs. This consultant also recommended
that Shauger avoid even moderate exposure to
hazardous machinery.
The agency denied Shauger’s disability claim initially
and on reconsideration, and he received a hearing
before an ALJ in July 2009. Shauger testified that he
last worked in 2004 when he was forced to sell his company because of his impaired vision. At the time of the
hearing, Shauger still suffered from double vision, and
he explained that he must turn his head to the left in
order to focus his eyes. Looking straight ahead, he said,
causes eye strain and burning, watery eyes. Headaches
set in after 15 minutes of trying to focus, so he cannot
read or watch TV for more than brief periods. He testified
that most days he suffers two or three severe headaches
lasting 30 to 45 minutes each, which force him to lie
down and shut his eyes with a cool compress on his
forehead. Shauger explained that he relied on ibuprofen
and eye drops but did not take any prescription medications. He testified that several times he had tried
covering the affected eye with a patch but he saw no
improvement in his balance or depth perception. When
asked by his attorney whether he continued to see eye
specialists and neurologists, Shauger answered that he
did not because he had been told there was nothing
more they could do.

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The ALJ also solicited testimony from an internist and
a vocational expert. Dr. Sami Nafoosi had reviewed
Shauger’s medical records and listened while he
testified but did not examine Shauger. He asserted that
Shauger’s disorder does not meet or equal a listing
but does prevent him from taking jobs requiring depth
perception, especially positions requiring exposure to
heights, heavy machinery, or open water. Dr. Nafoosi’s
direct testimony spans less than two pages of the
hearing transcript, and he did not even mention
Shauger’s complaints of disabling headaches. When crossexamined about that subject, Dr. Nafoosi conceded
that sixth nerve palsy “could result in headache” but
asserted, without explanation, that Shauger’s headaches would not be severe enough to require unscheduled breaks during the course of the workday or “further
limit him.” The ALJ asked no follow-up questions. The
vocational expert acknowledged that Shauger cannot
perform his past work of welding but suggested that
a person of Shauger’s age, education, work experience,
and limitations is qualified for available jobs including “dining room attendant,” “kitchen helper,” and
“laundry worker.” The vocational expert conceded,
though, that Shauger is unemployable if his headaches
require unscheduled, 30-minute breaks two or three
times daily. He also conceded that there could be a significant erosion of potential job options if Shauger
has difficulty working in small, narrow places like
a kitchen.
One month after the hearing, Shauger initiated a consultation with Dr. Maxim Gorelik, an ophthalmologist.

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Dr. Gorelik echoed the prior diagnosis of left sixth
nerve palsy, and stated that double vision and depth
perception prevent Shauger from safely working in an
environment that requires hand-eye coordination.
Dr. Gorelik also opined that prism glasses might
provide some relief. Shauger’s lawyer forwarded
Dr. Gorelik’s report to the ALJ.
In January 2010 the ALJ rejected Shauger’s disability
claim, concluding that he could transition from welding
to other work. Applying the required five-step analysis,
see 20 C.F.R. § 404.1520(a)(4), the ALJ determined that
(1) Shauger had not engaged in substantial gainful
activity from his alleged onset in 2004 through his date
last insured in 2007, (2) his left sixth nerve palsy constitutes a severe impairment, (3) this impairment does
not meet or equal a listed impairment, (4) Shauger
could not perform his past relevant work of welding
through the date last insured, and (5) there exist jobs in
the economy he still could perform. The ALJ said little
about Shauger’s headaches. She wrote that Shauger
“complains of headaches” but reasoned that they must
be “non-severe” because he was not using prescription
drugs and—so the ALJ thought—had never sought
medical care for them. The ALJ did not acknowledge
Shauger’s testimony about the severity and frequency
of his headaches, his response to those headaches, or
the effect the headaches have on his daily activities. She
opined that he had the residual functional capacity to
perform a full range of work at all exertional levels
through the date last insured and gave the “greatest
weight” to the opinion of Dr. Nafoosi. The ALJ asserted

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that Shauger’s “statements concerning the intensity,
persistence, and limiting effects” of his symptoms were
“not credible to the extent they are inconsistent with
the above residual functional capacity assessment.”
She cited what she characterized as a “sparse and sporadic” treatment history for sixth nerve palsy and his
purported failure to “ever” seek treatment for headaches. The ALJ also discredited Shauger’s testimony
that doctors had said nothing else could be done for
his condition. His testimony, the ALJ reasoned, was
contradicted by Dr. Gorelik’s opinion that Shauger
might benefit from prism glasses. Shauger challenged
the ALJ’s decision in the district court, lost, and
now appeals.

II. DISCUSSION
On appeal, Shauger argues that the ALJ erred in
finding him not credible. Because the Appeals Council
denied review, we evaluate the ALJ’s decision as the
final word of the Commissioner. See Scott v. Astrue, 647
F.3d 734, 739 (7th Cir. 2011). Our review is confined
to the rationales offered by the ALJ, see SEC v. Chenery
Corp., 318 U.S. 80, 93-95 (1943); Steele v. Barnhart, 290
F.3d 936, 941 (7th Cir. 2002), and asks whether the
ALJ’s decision is supported by substantial evidence,
42 U.S.C. § 405(g); O’Connor-Spinner v. Astrue, 627 F.3d
614, 618 (7th Cir. 2010). We give an ALJ’s credibility
determination special, but not unlimited, deference.
Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); Villano
v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). The ALJ must

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consider a number of factors imposed by regulation,
see 20 C.F.R. § 404.1529(c); S.S.R. 96-7p, 1996 WL 374186,
and must support credibility findings with evidence in
the record, Villano, 556 F.3d at 562.
Shauger begins by correctly noting that the ALJ’s
initial explanation for disbelieving his testimony—that
his “statements concerning the intensity, persistence,
and limiting effects” of his symptoms were “not credible
to the extent they are inconsistent with” the judge’s
assessment of his residual functional capacity—is meaningless boilerplate seen frequently in decisions from
ALJs. We have criticized this template as unhelpful,
Bjornson v. Astrue, No. 11-2242, 2012 WL 280736, at *4
(7th Cir. Jan. 31, 2012); Parker v. Astrue, 597 F.3d 920, 92122 (7th Cir. 2010), and explained that it backwardly
“implies that the ability to work is determined first and
is then used to determine the claimant’s credibility,”
Bjornson, 2012 WL 280736, at *5. Credibility findings
must have support in the record, and hackneyed
language seen universally in ALJ decisions adds nothing. See Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011);
Parker, 597 F.3d at 921-22.
Shauger principally argues that the ALJ could not
discredit his testimony based on a perception of unexplained gaps in his treatment history. Although a
history of sporadic treatment or the failure to follow a
treatment plan can undermine a claimant’s credibility,
an ALJ must first explore the claimant’s reasons for
the lack of medical care before drawing a negative inference. S.S.R. 96-7p, 1996 WL 374186, at *7; Moss v. Astrue,

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555 F.3d 556, 562 (7th Cir. 2009); Craft v. Astrue, 539 F.3d
668, 679 (7th Cir. 2008). An ALJ may need to “question
the individual at the administrative proceeding in order
to determine whether there are good reasons the
individual does not seek medical treatment or does not
pursue treatment in a consistent manner.” S.S.R. 96-7p,
1996 WL 374186, at *7. The claimant’s “good reasons”
may include an inability to afford treatment, ineffectiveness of further treatment, or intolerable side effects. Id.
at *8. Here, the ALJ made no effort to question Shauger
about the perceived gaps in his treatment history
between 1988 and 2009.
More importantly, the reason for the “gaps” is obvious.
Shauger suffers from a condition that, by definition,
may wax and wane. See U.S. National Library of Medicine, Medline Plus, Cranial Mononeuropathy VI,
h t t p : / / w w w .n lm .n ih .g ov /m e d lin e p l u s /e n c y /a rt ic le /
000690.htm (last visited Mar. 19, 2012). Shauger has not
claimed that his condition was disabling before 2004.
After he was diagnosed in 1988, he submitted to a full
regimen of diagnostic tests, but the underlying cause
was never discovered. He continued working and
dealt with his impairment. It was not until 1996 that
Shauger’s impairment became more pronounced. As
noted in his medical records, Shauger had “remained
about stable” for eight years but now suffered from “a
rather remarkable left sixth palsy” that was precipitating
headaches. Again Shauger had a battery of tests, including an angiogram and a Tensilon test with their
associated risks, and again no cause was determined.
Even so, he pressed on with his job, treated his head-

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aches with over-the-counter medications, and tried to
live a normal life. It was not until 2004 that, by his
account, Shauger no longer could cope, and only then
did he apply for disability.
On the ALJ’s logic, a person suffering from an impairment that has not become disabling must act and seek
treatment as if the condition is disabling or else run the
risk that any future assertion that the impairment has
worsened will be viewed as a lie. We have recognized
that even persons who are disabled sometimes cope
with their impairments and continue working long
after they might have been entitled to benefits. See Gentle
v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2005); Hawkins v.
First Union Corp. Long-Term Disability Plan, 326 F.3d 914,
918 (7th Cir. 2003). Shauger emphasizes this point particularly with his purported lack of treatment history
for his headaches. Not only did the ALJ fail to seek an
explanation for the perceived lack of treatment, but
her analysis rests on a misreading of the administrative
record. In discrediting Shauger’s testimony about the
severity of his headaches, the ALJ asserts that “there is
no indication from the medical evidence of record that
the claimant ever sought treatment for headaches.” To
the contrary, Shauger’s medical records leave no room
for doubt that he initiated the second round of neurological testing in 1996 because he had serious headaches
stemming from his left sixth nerve palsy.
Shauger further disputes the ALJ’s conclusion that
he undermined his credibility by testifying that doctors
could do nothing else for his condition. This statement

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is false, the ALJ surmised, because “in the 2009 treatment note, his doctor recommended a special type of
glasses to help with his malpositioning.” Shauger
correctly points out that it was July 2009 when he
testified that his treatment options had been exhausted,
and not until August 2009 that he consulted with
Dr. Gorelik, who recommended prism glasses. The ALJ
received Dr. Gorelik’s report after the hearing. When
issuing her decision in January 2010, the ALJ apparently
overlooked the timing of Shauger’s consultation with
Dr. Gorelik and thus, in effect, labeled Shauger’s hearing
testimony as false because he did not anticipate the
result of a medical visit that would not occur until the
following month. The Commissioner argues that this
miscue should not matter because Shauger had been
prescribed the same type of glasses in July 2007, but the
ALJ did not mention the 2007 prescription, and the
agency may not bolster the ruling with evidence the
ALJ did not rely on. See Chenery, 318 U.S. at 93-95;
Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir. 2010).
Finally, Shauger challenges the ALJ’s evaluation of his
headaches, arguing that she failed to properly consider
the relevant evidence including his daily activities, the
timing and duration of his headaches, and the measures
taken to treat the headaches. See 20 C.F.R. § 404.1529(c);
S.S.R. 96-7p, 1996 WL 374186, at *3. We agree. The ALJ
ignored several of the factors listed in Social Security
Ruling 96-7p, including that Shauger testified that (1) he
could not read or look at a computer screen for more
than 10 to 15 minutes without getting a headache, (2) he
dealt with the pain by lying down with a cold compress
and closing his eyes for 30 to 45 minutes, (3) the head-

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aches occurred at unscheduled times, two or three times
a day, (4) his wife handles all household accounts
because he cannot, and (5) he sought treatment for headaches as far back as 1996. See 20 C.F.R. § 404.1529(c); S.S.R.
96-7p, 1996 WL 374186, at *3. Without any discussion
of these relevant factors, the ALJ failed to build a
logical bridge between the evidence and her conclusion that Shauger’s testimony was not credible. See
Villano, 556 F.3d at 562.
In response to this argument, the Commissioner
asserts that the ALJ reasonably considered Dr. Nafoosi’s
representation that Shauger’s headaches had not been
severe. We reject this contention. The ALJ did not
mention this aspect of Dr. Nafoosi’s testimony despite
saying that she had given the greatest weight to his
opinion. Moreover, reliance on Dr. Nafoosi’s superficial
testimony in general, and this statement in particular,
would have been problematic. Dr. Nafoosi did not hint
that he had experience with patients afflicted with
sixth nerve palsy, nor did he say anything suggesting
knowledge of the severity of headaches typically
associated with this affliction. He had not personally
examined Shauger, and, like the ALJ, said nothing about
the extensive testing conducted in 1996 after Shauger
had complained about severe headaches. No factual
evidence in the record contradicts Shauger’s testimony
about the severity of his headaches, and Dr. Nafoosi
offered no medical reason for doubting Shauger’s statements. Instead, it seems to us that Dr. Nafoosi went
beyond the permissible bounds of a medical expert and
usurped the ALJ’s role by making his own credibility
assessment after observing Shauger testify. See Allen v.

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Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(“[C]redibility determinations with respect to subjective
complaints of pain rest with the ALJ.”); Hacker v. Barnhart,
459 F.3d 934, 936 (8th Cir. 2006) (“It [is] the ALJ’s task
to resolve conflicts in the evidence and issues of credibility.”); S.S.R. 96-7p, 1996 WL 374186, at *4 (“The adjudicator must then make a finding on the credibility of
the individual’s statements.”). Without any basis for
Dr. Nafoosi’s opinion, the ALJ had the duty to develop
a full and fair record. See Nelms v. Astrue, 553 F.3d 1093,
1098 (7th Cir. 2009). And yet the ALJ did not ask
Dr. Nafoosi any follow-up questions to determine
what medical explanation, if any, he had for his
skepticism about the severity of Shauger’s headaches.
See Bjornson, 2012 WL 280736, at *7-*8 (concluding that
it was impossible to discern basis for non-examining
doctor’s expressed skepticism about claimant’s complaints of pain); Campbell, 627 F.3d at 308-09 (concluding
that ALJ did not adequately explain reason for relying
on opinion of non-examining medical expert who
testified that claimant was still drinking daily when
records showed claimant was sober).

III. CONCLUSION
For the reasons stated herein, we R EVERSE the
judgment of the district court and R EMAND the case
with instructions that it be returned to the SSA for
further proceedings consistent with this opinion.

3-22-12