Kathy Stark v. Carolyn Colvin
Filing
Filed opinion of the court by Judge Manion. The district court's judgment is REVERSED and the case is REMANDED to the Commissioner for further proceedings. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Ann Claire Williams, Circuit Judge. [6730333-1] [6730333] [15-2352]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2352
KATHY ANN STARK,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 14-cv-00108 — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED DECEMBER 16, 2015 — DECIDED FEBRUARY 22, 2016
____________________
Before MANION, KANNE, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. Kathy Stark, aged 60, applied for
disability insurance benefits, primarily asserting that she is
disabled by degenerative disc disease that causes severe
back, neck, and hip pain. The ALJ denied her application
largely on the basis that she did not testify credibly about the
severity of her pain. We agree with Stark that the credibility
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analysis was flawed and remand the case to the agency for
further proceedings.
I. BACKGROUND
Before her back pain forced her to stop working in 2009,
Stark had worked for over ten years as a yard driver, moving pick-up trucks at a General Motors plant from the assembly line to a storage area. She earned about $38,000 per
year, presumably with benefits.
Her back pain started in 2000, when she underwent her
first of three surgeries. Her orthopedic surgeon diagnosed
her with degenerative disc disease and performed a lumbar
fusion and procedures to widen her nerve pathways. Stark
experienced persistent and continuous pain in her left leg,
and three months later, she was diagnosed with nerve root
irritation and moderate-to-severe spinal stenosis. Stark underwent a second surgery to reduce nerve compression in
her spinal canal; the procedure showed an irritable nerve
root. Her pain did not abate. An electrodiagnostic study
showed results consistent with radiculopathy. So Stark underwent a third surgery, another lumbar fusion. She also
was prescribed daily narcotic pain relievers.
At follow-up appointments, her orthopedic surgeon
found that Stark’s fusion had healed well, but he opined that
she had a neuropathic root and predicted that “she will still
always have a component of the neuropathic leg pain.” In
November 2002, the surgeon believed that any improvements in her leg pain would likely level off within a year. By
late 2004, he did not believe that any other surgical options
would alleviate her pain.
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Over the next few years Stark underwent numerous nonsurgical treatments to alleviate the pain radiating from her
nerve damage. For example, she received a series of epidural
spinal injections and underwent a nerve root block. Meanwhile, she continued on a regimen of Neurontin, Darvocet,
Celebrex, and physical exercises. In late 2007 she began a
physical therapy program to treat her lumbar pain. But she
still experienced lower back pain on lumbar-flexion exercises
after eight sessions of therapy and another epidural injection, so her physical therapist recommended follow-up with
a physician. Her family physician prescribed three injections
of local anesthetics in her spine in 2008, which Stark said offered short-term pain relief in her mid-upper back. The physician added Oxycodone and Avinza to her medication regiment, but Stark’s pain control was “fair-to-poor.” The family physician opined that her chronic low-back pain could be
due to lumbar disc disruption, a diseased nerve root, irritation of the lumbar spine, or sacroiliac joint dysfunction.
In connection with her application for benefits, Stark was
examined in 2009 by a state-agency doctor. He opined that
she was capable of engaging in sedentary-to-light physical
demand work, based on his physical exam of her and review
of her medical history. Stark reported very severe pain in her
back that radiated down her left leg and prevented her from
sitting for more than two hours. Despite Stark’s description
of pain, the state doctor assessed that Stark could do light
physical demand activities based on her full range of motion
and ability to squat, kneel, and walk. A state-agency medical
consultant also reviewed Stark’s file, and estimated that
Stark occasionally could lift or carry 20 pounds and sit for a
total of about 6 hours in an 8-hour day.
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At a hearing before an ALJ in late 2012, Stark testified to
the severity of her pain. She reported a “tremendous amount
of pain every day,” which had worsened steadily over the
past three years, and she stopped working because of it. It is
important to note here that for many years she continued to
work at General Motors in spite of the increasing pain and
many medical and physical treatments. At the hearing, she
rated her upper and lower back pain at a 7 out of 10. When
she tried to hold her 7-pound grandson for more than a few
minutes, she said that her back erupted in pain and she
could not move the next day. She rated her right hip pain at
a 6 or 7 out of 10. She felt like a “volt of electricity” goes
through her leg, making her toes throb. Most of her days
were spent easing her pain with ice packs or heat therapy,
and alternating lying prone on the couch with performing
small tasks like doing laundry. Dinner preparation extended
for hours because she could not stand for more than 20
minutes. She continued to take Neurontin and Aleve, which
she said helped ease her pain. She could no longer take narcotic pain relievers because of a hepatitis C diagnosis that
arose out of a tainted blood transfusion.
A vocational expert testified that Stark could perform her
past work as a driver if limited to the extent described by the
ALJ: able to lift 20 pounds occasionally and 10 pounds frequently; able to sit, stand, or walk for 6 hours each in an 8hour workday; occasionally able to climb, balance, stoop,
kneel, crouch, crawl; and no limits on pulling or pushing. In
contrast to Stark’s testimony about her present need for frequent breaks, the expert testified that an employer would
tolerate two 15-minute breaks daily and fewer than 2 to 3
absences per month.
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The ALJ denied benefits using the 5-step framework.
See 20 C.F.R. § 404.1520(a)(4). The ALJ found that Stark had
not engaged in substantial gainful activity since her alleged
onset in October 2009 (Step 1); she suffered “back pain status
post remote fusion” and hepatitis C, both severe (Step 2);
and her impairments, individually or in combination, did
not satisfy a listing for presumptive disability because her
back impairments had not resulted in nerve root involvement, sensory or reflex loss, spinal arachnoiditis, or an abnormal gait (Step 3). At Step 4 the ALJ rejected Stark’s account of disabling limitations. Despite noting that she had
been treated with medication, physical therapy, joint injections, chiropractic therapy, and lumbar fusions, the ALJ concluded that “the objective evidence does not substantiate the
extreme symptoms and limitations to which she testified.” 1
The ALJ acknowledged that she experiences “some symptoms,” but her testimony regarding daily activities “demonstrates a level of daily function not inconsistent with light
work activity.” Finally at Step 5 the ALJ agreed with the vocational expert that she could perform her past work as a
driver.
II. ANALYSIS
Stark mounts a three-pronged challenge to the ALJ’s adverse credibility finding. She first argues that at Step 4 the
ALJ misconstrued her testimony about the intensity of her
1
The ALJ did not mention Stark’s inability to ingest narcotic pain relievers because of the hepatitis C. However, both attorneys brought it up
at oral argument, and at this juncture she apparently is unable to use
certain pain relief medicines.
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pain, the extent of her daily activities, and her need for frequent periods of rest.
We agree with Stark that the ALJ’s finding that Stark’s
own testimony supports the residual-functional-capacity assessment is patently wrong. The ALJ inexplicably failed to
consider objective evidence that buttressed Stark’s testimony
of disabling pain. This evidence included the nature of
Stark’s diagnoses of radiculopathy and degenerative disc
disease, evidence of prescriptions for strong pain medications, epidural injections, multiple surgeries, and physical
therapy. The ALJ cursorily mentioned Stark’s treatments,
but she did not consider how the treatments relieved Stark’s
pain. See 20 C.F.R. § 404.1529(c)(3)(v), (vi) (factors relevant to
severity of pain include treatment for pain relief and other
measures to relieve pain, like lying flat on the back). Nor did
the ALJ consider the conclusion of Stark’s treating physician
that she always will have neuropathic leg pain, which could
account for her complaints of pain, or her degenerative disc
disease, which could account for her pain progressively
worsening. Even if the ALJ thought that the objective evidence was insufficient, pain alone can be disabling, Carradine
v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004), and Stark testified that she is limited by her pain. Testimony of severe pain
cannot be disregarded simply because it is not supported by
objective medical evidence. See Hall v. Colvin, 778 F.3d 688,
691 (7th Cir. 2015); Pierce v. Colvin, 739 F.3d 1046, 1049–50
(7th Cir. 2014) (“Pain can be severe to the point of being disabling even though no physical cause can be identified …”).
Stark’s persistence in struggling through household
chores despite her pain does not mean, as the ALJ extrapolated, that she can manage the requirements of the work-
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place. See Spiva v. Astrue, 628 F.3d 346, 352 (7th Cir. 2010);
see also Engstrand v. Colvin, 788 F.3d 655, 661 (7th Cir. 2015).
We have repeatedly rejected that reasoning as “naïve,”
see Hughes v. Astrue, 705 F.3d 276, 278 (7th Cir. 2013), because
a person performing chores has flexibility in scheduling, can
receive help, and is not held to a minimum standard of performance, unlike an employee. See Bjornson v. Astrue,
671 F.3d 640, 647 (7th Cir. 2012).
And Stark’s need for frequent breaks is not consistent
with light work activity, also contrary to the ALJ’s finding.
See, e.g., Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013)
(criticizing ALJ’s reliance on claimant’s ability to perform
household tasks because inability to get through the day
without lying down every hour does not indicate ability to
work even sedentary job). Stark testified that she presently
requires long breaks between tasks, uses extra time to complete short tasks, and experiences immobilizing pain for a
full day after holding her 7-pound grandson. But the ALJ
arrived at an RFC that presumes that Stark could take only
two fifteen-minute breaks daily, perform tasks 85% of the
time, and frequently lift 10 pounds. Thus Stark’s testimony
reflects that she cannot do her past job.
Stark’s second challenge to the adverse credibility finding rests on the ALJ’s use of language that this court routinely has condemned as “meaningless boilerplate” and “backwards” analysis. See Bjornson, 671 F.3d at 645; Martinez v.
Astrue, 630 F.3d 693, 696 (7th Cir. 2011); Parker v. Astrue,
597 F.3d 920, 921–22 (7th Cir. 2010). The ALJ used boilerplate
language to find that Stark’s “medically determinable impairments could reasonably be expected to cause the alleged
symptoms,” but her “statements concerning the intensity,
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persistence and limiting effects of these symptoms are not
entirely credible.” Use of boilerplate is not automatically
ground for remand, see Murphy v. Colvin, 759 F.3d 811, 816
(7th Cir. 2014), but it captures a deeper problem in the ALJ’s
analysis: the ALJ based her credibility finding on her finding
about Stark’s ability to work, but a proper assessment requires the reverse. A finding about Stark’s ability to work
depends on the credibility of her statements about severe
pain. See Bjornson, 671 F.3d at 645. The ALJ first assessed
Stark’s residual functional capacity with postural, carry and
lift, and stand and walk restrictions that the ALJ opined
would accommodate Stark’s chronic back pain. And only
then did the ALJ assess and discredit Stark’s testimony about
her extreme back pain and inability to sit for extensive periods.
Stark’s third challenge to the credibility finding rests on
the ALJ’s disregard for her work history. Stark points out
that she had a long, steady work history, and that she earned
a much greater monthly income (and presumably other benefits like health insurance) while working than the payment
benefits she would receive under disability. This work history, says Stark, shows that she is not a malingerer; she suffered through pain and operations to continue working and
earning a good income. Although not mentioned, we could
probably assume that she also received the benefits of good
medical benefits at GM.
An ALJ is not statutorily required to consider a claimant’s work history, but “a ‘claimant with a good work record
is entitled to substantial credibility when claiming an inability to work because of a disability.’” Hill v. Colvin, 807 F.3d
862, 868 (7th Cir. 2015) (quoting Rivera v. Schweiker, 717 F.2d
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719, 725 (2d Cir. 1983)). In assessing Stark’s credibility about
the disabling effects of her pain, the ALJ should have
acknowledged Stark’s efforts to continue work while experiencing significant pain and undergoing numerous surgeries
and other treatments to relieve it. See Pierce, 739 F.3d at 1051
(criticizing ALJ for failing to consider claimant’s “dogged
efforts” to work in deciding claimant’s credibility); Flores v.
Massanari, 19 F. App’x 393, 404 (7th Cir. 2001) (criticizing
ALJ for failing to acknowledge claimant’s solid work history
of 13 years).
III. CONCLUSION
We REVERSE the district court’s judgment and
REMAND this case to the Commissioner for further proceedings.
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