In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐3359
CAROL BATES,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, ACTING COM‐
MISSIONER OF SOCIAL SECURITY,
Defendant‐Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 12:11‐cv‐00361— William C. Lee, Judge.
ARGUED SEPTEMBER 26, 2013 — DECIDED DECEMBER 2, 2013
Before POSNER, MANION, and KANNE, Circuit Judges.
KANNE, Circuit Judge. Carol Bates has suffered from
radiating neck pain since 2004, when a truck struck her car
from behind. In the intervening years, she has continued to
care for her six adopted children, and dealt with the loss of her
fiancé and mother. These physical and personal stresses have
taken their toll, leading Bates to seek psychological and
psychiatric treatment.
2 No. 12‐3359
Because of her mental and physical impairments, Bates
sought Supplemental Security Income (“SSI”). After her initial
application was denied, Bates requested a hearing before an
Administrative Law Judge. The ALJ denied her application,
and the district court affirmed. Because we find the ALJ
improperly discounted the opinion of Bates’s treating psychia‐
trist and improperly evaluated Bates’s testimony concerning
her mental health, we reverse the decision of the district court
and remand for rehearing.
I. BACKGROUND
The proceedings underlying this appeal began in April
2007, when Bates submitted her initial SSI application. During
the intervening six years, she has worked her way through the
application and appeals process, which eventually brought her
before this court.
A. Bates’s Initial Application
In her initial application, Bates detailed the pain that had
plagued her since the 2004 car accident. She stated that her
herniated disc, spine problems, and arthritis left her in constant
pain. At that time, she had not seen a doctor for emotional or
mental problems that would have affected her ability to work.
In an accompanying questionnaire, she explained that she
could prepare a very simple meal, but that she did so rarely
and that when she did her sons would open jars for her and
she would rip packages open with her teeth. She further stated
that while she could dress herself, she would often have her
son tie her shoes. And she did not carry trash or grocery bags,
or laundry baskets, because of pain in her arms. Her six
adopted children would help her with household chores. Bates
No. 12‐3359 3
did not include any information about mental or psychological
limitations.
Bates also underwent a consultative examination as part of
the application process in August 2007. The examining
physician, Dr. Stanley Rabinowitz, described Bates as “basi‐
cally at home” because she had been told not to drive and
could no longer play golf or tennis. He reported that Bates said
she lifted nothing heavier than two or three pounds, that she
occasionally cooked, and that her daughter helped with
shopping and cleaning. Dr. Rabinowitz also noted that Bates
could walk “perhaps a mile” in the morning and again in the
evening and tried to do so for physical activity. Upon examina‐
tion, he found no evidence of joint inflammation or
paravertebral muscle spasm and described Bates’s range of
motion as within normal limits. Bates had no trouble getting on
and off the examining table and could squat with moderate
difficulty.
A consultative physician, Dr. Frank Jimenez, then reviewed
Bates’s medical records and filled out a Residual Functional
Capacity (“RFC”) assessment form. He did not personally
examine Bates. After reviewing the records, he opined that
Bates could occasionally lift and/or carry twenty pounds, and
could stand or sit for six hours each in an eight‐hour work day.
He acknowledged that straightening of her cervical spine
suggested muscle spasm, but found only one postural limita‐
tion: she could only occasionally climb ladders, ropes, or
scaffolds.
4 No. 12‐3359
B. Bates’s Medical Records
Bates’s submitted records stretch from 2004, when the pain
in her neck began, to late 2009.1 Although her first MRI found
multiple levels of disc protrusion, it found no flattening of the
cervical cord or significant spinal stenosis. A second MRI in
February 2006 demonstrated that her condition had worsened;
at this time, she had disc herniation and borderline central
canal stenosis. Her then‐primary care physician, Dr. Debra
Killingsworth, diagnosed her with cervical radiculopathy, a
condition that refers to diseased nerve roots in the neck.
Radiculopathy, Dorland’s Illustrated Medical Dictionary (32d ed.
2012). At several times, Bates reported having pain that was a
ten on a scale from one to ten. Dr. Killingsworth referred her to
a pain management clinic where she received a cervical
epidural shot that helped with the pain for about nine days.
Additional shots were abandoned because Bates had some
paralysis on her right side after the shot. In 2007, Bates began
using a TENS unit.2 This provided some relief, although Bates
continued to complain about her chronic pain. Over the next
two years, she visited Dr. Katrina Cordero, her new primary
care physician, a number of times for pain treatment. In
December 2008, Dr. Cordero noted that Bates’s pain was
relatively well‐controlled, but the pain returned in earnest
1
Bates’s initial application was filed in 2007; she supplemented the record
prior to her April 2010 hearing before the ALJ with medical records that
extended to December 2009.
2
TENS stands for “transcutaneous electrical nerve stimulation.” A TENS
unit provides nerve stimulation intended to reduce pain.
No. 12‐3359 5
throughout 2009. At times, Bates said the pain radiated all the
way down to her ankles.
Bates’s medical records also reference a right volar wrist
ganglion, which she first sought treatment for in 2008. Al‐
though surgery was recommended, she never followed
through.
During the time period covered by the records, Bates also
suffered several significant personal losses. Her fiancé and
mother died in 2006 and 2009, respectively. After both losses,
Bates’s primary care physicians noted that she was depressed
and recommended that she seek therapy. Both times, she did.
After her mother’s death, she also saw a psychiatrist, Dr.
Christopher Shahzaad, who began working with Bates on her
anger. Over the course of four months, Dr. Shahzaad saw Bates
four times, eventually diagnosing her with Bipolar Type 2 in
December 2009. At this time, the medication appeared to be
helping: both Dr. Shahzaad and Bates’s therapist noted that
Bates was feeling more in control of her anger.
C. The Hearing
After Bates’s initial SSI application and request for recon‐
sideration were denied, she sought a hearing before an ALJ.
The hearing took place via videoconference on April 6, 2010.
Bates argued that her cervical radiculopathy, a cyst in her right
hand, and psychological condition made it difficult for her to
sustain employment.
Bates testified that sometimes the pain was so bad she
would just take her medicine and lie down, because she
couldn’t stand to do anything else. The pain kept her from
6 No. 12‐3359
attending her adopted children’s baseball and basketball
games, and prevented her from walking more than two blocks.
Bates said she did no housework. She estimated that she could
stand for about forty‐five minutes at a time, and that she could
sit for twenty to forty‐five minutes. After that period of time,
she would have to take some medication and lay down. In a
typical day, she would have to lie down five or six times. She
would also use her TENS unit for forty‐five minutes about
three times a day.
When asked about the cyst on her hand, Bates described it
as painful and stated that she could not write for more than ten
or twenty minutes without pain. She stated that she could have
it excised but that she did not have the necessary transporta‐
tion to take her to and from the doctor’s office.
Bates said she had trouble concentrating and would get
frustrated while reading or even while listening to jazz, which
she used to enjoy. When asked if she got along with other
people, Bates responded that she would have trouble talking
to them for a long period of time because they would start
aggravating her. And she often avoided going out in public
because she knew she was going to get in a confrontation with
someone that she would feel guilty for later.
After the hearing, the ALJ issued an opinion denying
Bates’s request for SSI. She gave significant weight to the
opinion of the consultative physician, Dr. Jimenez. The ALJ
discredited the opinions from Bates’s treating physicians,
which she found inconsistent with the other medical record.
She found Dr. Cordero’s description of Bates’s capabilities
incredible because the preponderance of the evidence in
No. 12‐3359 7
Bates’s record showed normal muscle strength, normal
ambulation, and no muscle spasm. Dr. Shahzaad’s opinion was
discredited because he had been treating Bates for only 3
months and noted “fair” ability in most areas. The ALJ found
Dr. Jimenez’s opinion, rather than the Shahzaad and Cordero
opinions, to be consistent with the majority of the evidence in
the record.
She also discredited Bates’s testimony with regard to
disability because of depression and pain. Specifically, the ALJ
noted several discrepancies in Bates’s testimony: although she
said at the hearing she could walk only 1‐2 blocks, she reported
at the consultative examination she could walk a mile in the
morning and a mile in the afternoon; she had previously
reported that she cooked, but at the hearing said she did no
household chores; there is no indication her doctors told her
not to exercise, nor any medical signs and findings that would
prove her limitations as severe as alleged. The ALJ also pointed
out that her treatment has been routine and conservative, and
that Bates missed several doctors’ appointments in 2008.
As a result, the ALJ found Bates capable of performing
“light work.” Light work includes the ability to occasionally
climb ladders, ropes, or scaffolds; to understand, remember,
and carry out simple, routine tasks; to concentrate, persist, and
work on a sustained basis; to interact appropriately with
others; and to tolerate ordinary job routines and changes.
Because there were a significant number of jobs in the national
economy that Bates could perform, the ALJ held that Bates was
not disabled.
8 No. 12‐3359
The Appeals Council denied review, at which point the
ALJ’s decision became the final decision of the Commissioner,
subject to judicial review. 20 C.F.R. §§ 416.1455, 416.1481. Bates
then appealed the ALJ’s decision to the district court, which
affirmed. The district court found that the ALJ adequately
considered Dr. Cordero’s opinion and reasonably rejected it
because the extreme limitations Dr. Cordero noted were not
supported by the objective medical evidence. With regard to
Dr. Shahzaad, the court found his opinion was also properly
discounted because Dr. Shahzaad’s treatment notes docu‐
mented an improvement in Bates’s condition. The district court
further found that the hypotheticals the ALJ posted to the
vocational experts were entirely consistent with the ALJ’s RFC
finding. Finally, the district court upheld the ALJ’s finding that
Bates was not credible. It stated that Bates failed to identify a
ground on which the district court could find that the ALJ’s
determination was “patently wrong.”
Bates now seeks appellate review, claiming that the ALJ did
not properly evaluate the opinions of her treating sources, that
the ALJ did not properly evaluate her credibility, and that the
ALJ did not properly account for Bates’s deficiencies in
concentration, persistence, or pace or social functioning.
II. ANALYSIS
When reviewing a denial of disability benefits, we review
the district court’s judgment affirming the Commissioner’s
decision de novo. Castile v. Astrue, 617 F.3d 923, 926 (7th Cir.
2010). We will uphold the Commissioner’s final decision if the
ALJ applied the correct legal standards and supported her
decision with substantial evidence. 42 U.S.C. § 405(g); Jelinek v.
No. 12‐3359 9
Astrue, 662 F.3d 805, 811 (7th Cir. 2011). 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).
A. The ALJ’s Credibility Determination
An ALJ’s credibility determination is entitled to deference,
and we will overturn a credibility finding only if it is “patently
wrong.” Pepper v. Colvin, 712 F.3d 351, 367 (7th Cir. 2013). We
are not allowed to reweigh the facts or reconsider the evidence.
Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). But when a
credibility finding rests on “objective factors or fundamental
implausibilities,”rather than on a claimant’s demeanor or other
subjective factors, we have greater leeway to evaluate the ALJ’s
determination. Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir.
2013).
The ALJ found Bates’s testimony incredible, both as it
related to the extent of her pain and the effects of her psycho‐
logical condition. Both determinations suffer from objective
flaws, but only the credibility determination as to Bates’s
psychological symptoms merits remand.
1. The ALJ improperly discredited Bates’s testimony concerning
the effects of her chronic pain.
The ALJ found Bates’s testimony regarding the extent of
her pain incredible, observing that Bates missed several
doctors appointments in 2008, that Bates’s condition improved
over time, that Bates’s reports of her daily activities were
inconsistent, that treatment notes contradicted what Bates said
her doctors told her, that her treatment was routine and
10 No. 12‐3359
conservative, that she did not appear to be in pain during the
hearing, and that the objective medical record did not support
Bates’s allegations of severe pain.
Not all of these reasons are legitimate. For instance, an ALJ
must inquire as to why a claimant missed an appointment
before drawing a negative inference from her failure to attend.
See Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012). And the
ALJ stated that there was no evidence surgery was ever
recommended to Bates, despite a discussion of surgery in notes
from a visit to a neurosurgeon in June 2008.
But the standard of review employed for credibility
determinations is extremely deferential, and the ALJ did
provide some evidence supporting her determination. She
noted that Bates initially reported that she did some cooking
but at the hearing testified that she did no household chores.
And she noted that Bates did not engage in any overt pain
behavior during the hearing. Even such a minor discrepancy,
coupled with the hearing officer’s observations of a claimant
during the hearing, is sufficient to support an ALJ’s finding
that a claimant was incredible. Powers v. Apfel, 207 F.3d 431, 435
(7th Cir. 2001) (holding that the hearing officer’s evaluation of
mildly inconsistent testimony, coupled with his observations
of the claimant at trial, is sufficient to avoid remand under the
“patently wrong” standard). Thus, we cannot find that the
ALJ’s credibility determination was “patently wrong.”
Bates also contends that the ALJ ignored limitations caused
by the ganglion cyst on her right hand and the side effects of
her medications. But these limitations had little support in the
record; what did appear in the record did not support limita‐
No. 12‐3359 11
tions so extreme as to establish a disability. The ALJ’s failure to
discuss them was thus not in error. See Jones v. Astrue, 623 F.3d
1155, 1162 (7th Cir. 2010) (ALJ did not err in ignoring a line of
evidence that did not suggest a disability).
2. The ALJ improperly found Bates incredible with respect to the
impact of her mental health
The ALJ further found that Bates’s allegations of disability
because of depression were not fully credible. As noted above,
an ALJ’s credibility finding is typically entitled to substantial
deference, unless it rests on objective factors that appellate
courts can reliably review. Schomas, 732 F.3d at 708.
To support her finding, the ALJ listed a number of state‐
ments from Bates’s medical records and concluded that her
mental findings were “essentially normal and intact.” But these
statements were cherry‐picked from the record, selected
without consideration of the context in which they appear. An
ALJ cannot rely only on the evidence that supports her
opinion. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). And
while an ALJ need not mention every piece of evidence in her
opinion, she cannot ignore a line of evidence that suggests a
disability. Jones, 623 F.3d at 1162. For example, the ALJ’s
opinion states that treatment notes from an August 12, 2009
appointment show “relevant thought process.” The rest of the
notes from that session, however, show that Bates was tearful,
anxious and isolated, suffering from insomnia, depressed, and
had a constricted affect. Similarly, the opinion notes that on
June 25, 2009, Bates had “linear and logical thought process
and fair insight and judgment.” The notes from that session
also state that Bates was suffering from mood swings, was
12 No. 12‐3359
extremely sad, had suicidal ideation about a month prior, and
had a global assessment of functioning (GAF) score of 42.3 And
on the date that the ALJ noted that Bates had “fair” abilities,
her concentration was poor, she was struggling with anger
issues, and Dr. Shahzaad started to consider whether Bates was
suffering from bipolar disorder. He later diagnosed her with
bipolar disorder type II. These findings are not “essentially
normal,” but reveal a claimant struggling with serious mental
health issues.
B. Bates’s Treating Physicians
Bates’s record contained opinions from two treating
physicians, Dr. Cordero and Dr. Shahzaad. Dr. Cordero opined
as to Bates’s physical limitations and Dr. Shahzaad described
her psychological limitations. The ALJ discounted both
opinions in favor of the opinion of the consultative physician,
Dr. Jimenez. Bates argues that this evaluation was in error.
3
The GAF score reflects both severity of symptoms and functional level.
Am. Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 32
(4th ed. text revision 2000). A score of 42 reflects serious symptoms or any
serious impairment in social, occupational, or school functioning. While the
American Psychiatric Association has since discontinued this metric, Am.
Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th
ed. 2013), the GAF score was still in use at the time Shahzaad examined
Bates.
We recognize that a low GAF score alone is insufficient to overturn an ALJ’s
finding of no disability. See Denton v. Astrue, 596 F.3d 419, 425 (7th Cir.
2010). In this case, however, taking the GAF scores in context helps reveal
the ALJ’s insufficient consideration of all the evidence Bates presented.
No. 12‐3359 13
A treating physician’s opinion is entitled to controlling
weight if it is supported by medical findings and consistent
with substantial evidence in the record. Elder, 529 F.3d at 415.
If this opinion “is well supported and there is no contradictory
evidence, there is no basis on which the administrative judge,
who is not a physician, could refuse to accept it.” Bauer v.
Astrue, 532 F.3d 606, 608 (7th Cir. 2008) (quoting Hofslien v.
Barnhart, 439 F.3d 375, 376 (7th Cir. 2006)). But “once well‐
supported contradicting evidence is introduced, the treating
physician’s evidence is no longer entitled to controlling
weight” and becomes just one more piece of evidence for the
ALJ to consider. Id. Thus, to the extent a treating physician’s
opinion is consistent with the relevant treatment notes and the
claimant’s testimony, it should form the basis for the ALJ’s
determination.4
1. Dr. Cordero
While Dr. Cordero thought Bates could sit for only two
hours total during a work day, Dr. Jimenez, the consultative
4
We note here that the “treating physician rule” does not apply to RFC
determinations by physicians; the extent of what a claimant can do despite
her limitations is committed to the exclusive discretion of the ALJ. 20 C.F.R.
§ 404.1545(a)(1) (defining RFC); 20 C.F.R § 404.1527(d) (the final responsibil‐
ity for determining your RFC is reserved to the commissioner). That being
said, statements within a document labeled as an RFC that do not state what
a claimant can or cannot do in a given day constitute a treating physician’s
opinion to which the ALJ must defer. See 20 C.F.R. § 404.1527(a)(2) (defining
medical opinions). And although the ALJ need not defer to a doctor’s
opinion about a claimant’s ability to work, it still cannot ignore the doctor’s
opinion when determining a claimant’s RFC. Roddy v. Astrue, 705 F.3d 631,
638 (7th Cir. 2013).
14 No. 12‐3359
physician, thought she could do so for six hours total. Dr.
Cordero also said Bates would have to change positions
frequently, while Dr. Jimenez left unchecked a box stating that
the claimant must alternate sitting and standing to alleviate
discomfort. In resolving this conflict, the ALJ credited Dr.
Jimenez’s opinion, stating that it was consistent with the
objective medical evidence, which showed normal muscle
strength and ambulation and included no evidence of muscle
spasm.
The doctors’ reports primarily differ as to their descriptions
of Bates’s pain, a question that depends on their interpretation
of Bates’s subjective complaints. And where a treating physi‐
cian’s opinion is based on the claimant’s subjective complaints,
the ALJ may discount it. Ketelboeter v. Astrue, 550 F.3d 620, 625
(7th Cir. 2008). The question of which physician’s report to
credit thus collapses into the credibility issue; because the ALJ
found that Bates was not credible in her reports of pain, she
also gave Dr. Cordero’s opinion, which relied heavily on these
reports, little weight. Cf. Schaaf v. Astrue, 602 F.3d 869, 876 (7th
Cir. 2010) (ALJ gave little weight to treating physician’s
opinion because he also discredited claimant’s testimony).
Because we find that the ALJ’s credibility determination with
respect to pain was not patently wrong, her assessment of Dr.
Cordero’s opinion is also not in error.
2. Dr. Shahzaad
In this case, the only evidence in the record concerning
Bates’s psychological difficulties were the treatment notes of
her therapist, the treatment notes of Dr. Shahzaad, Dr.
Shahzaad’s opinion, and the testimony of Bates herself. Dr.
No. 12‐3359 15
Rabinowitz did not do a full psychological assessment,5 and
Dr. Jimenez filled out a physical RFC form, not a mental one.
Dr. Shahzaad opined that Bates had mood disturbances,
difficulty thinking or concentrating, social withdrawal or
isolation, and decreased energy. He explained that she had
difficulty dealing with depression and was easily frustrated
with others. He also estimated that she had a present GAF
score of 50, and that her highest GAF score within the past year
was a 55. His treatment notes indicate a diagnosis of bipolar
type 2 disorder. The therapist’s notes track Dr. Shahzaad’s
neatly, frequently noting a flat affect and depressed mood. At
one appointment, the therapist found that Bates was angry and
dysphoric, and in an irritable mood. Bates’s own testimony
corroborates these findings. She stated that she was frequently
angry with others, and that she struggled to concentrate on
activities she previously enjoyed, like reading and listening to
jazz. Bates’s primary care physicians also frequently noted that
Bates was depressed.
5
Dr. Rabinowitz’s notes do include a section titled “Mental Status
Examination.” At the time, however, Bates had not been diagnosed with
bipolar disorder or depression, and Bates’s chief complaint was cervical
spine pain. Dr. Rabinowitz’s mental status notes focus on memory and
outward behavior and conclude with the statement that Bates “would
appear to be able to handle their own funds.” This statement thus does not
contradict Dr. Shahzaad’s opinion; Dr. Jimenez was looking primarily for
physical limitations. There was no opinion, other than Dr. Shahzaad’s, that
provided a comprehensive view of Bates’s depression and bipolar disorder.
Cf. Jelinek, 662 F.3d at 812. Further, the ALJ did not rely on Dr. Jimenez’s
opinion in rejecting Dr. Shahzaad’s opinion; thus, we cannot affirm the
ALJ’s determination on this ground. See id. (citing Spiva v. Astrue, 628 F.3d
346, 353 (7th Cir. 2010)).
16 No. 12‐3359
The ALJ, however, gave little weight to Dr. Shahzaad’s
opinion, stating that “Dr. Shahzaad had been treating the
claimant for only 3 months and noted fair ability in most
areas.” Neither of these are the “good reasons” an ALJ must
provide in order to discount a treating physician’s opinion. See
Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011). While
length of the treatment relationship is relevant for evaluating
how much weight to accord a treating physician’s evaluation,
see 20 C.F.R. § 1527(c)(2)(I), in this case there was no other
medical opinion for the ALJ to fall upon. The state agency
examining and consultative physicians did not examine Bates
for psychological illness; at the time they reviewed her record,
Bates had only seen a therapist briefly after the death of her
fiancé. While Bates did bear the burden of producing evidence
of her impairments, if the ALJ thought this evidence insuffi‐
cient—as she apparently did—it was her responsibility to
recognize the need for additional evaluations. Scott v. Astrue,
647 F.3d 734, 741 (7th Cir. 2011).
Moreover, the fact that Dr. Shahzaad noted fair ability in
most areas does not qualify as a good reason for discounting
his opinion. It is unclear from the ALJ’s opinion what she
meant by this statement. The statement could be interpreted to
mean that she thought Dr. Shahzaad’s estimations were overly
skeptical of Bates’s ability to work. Alternately, it could mean
that she thought a “fair” prognosis meant Bates’s mental
problems did not really affect her ability to work. Without
knowing what the ALJ meant by this statement, we cannot
affirm on this ground. See Roddy, 705 F.3d at 637; see also Steele
v. Barnhart, 290 F.3d 936, 940 (7th Cir. 2002) (where opinion is
No. 12‐3359 17
“so poorly articulated as to prevent meaningful review,” case
must be remanded).6
III. CONCLUSION
Because the ALJ improperly discredited Bates’s testimony
considering the limitations caused by her mental illness and
failed to grant Dr. Shahzaad’s medical opinion the weight it
deserved under the treating physician rule, we REVERSE the
decision of the district court and REMAND for proceedings
consistent with this opinion.
6
Bates also argues that under O’Connor‐Spinner v. Astrue, 627 F.3d 614,
618–19 (7th Cir. 2010), her case should be remanded because the ALJ did not
include deficiencies in concentration, persistence, and pace in her final RFC.
That case, however, dealt with whether the ALJ had posed appropriate
hypotheticals to the vocational expert—not whether the ALJ’s RFC
determination was correct. Id. Thus, this argument is essentially a challenge
to the ALJ’s RFC determination, which, as explained above, must be
reconsidered on remand.