In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3601
KENNETH OWEN SCROGHAM,
Plaintiff-Appellant,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:12-cv-00111-TWP-WGH — Tanya Walton Pratt, Judge.
ARGUED MAY 28, 2014 — DECIDED AUGUST 27, 2014
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
RIPPLE, Circuit Judge. Kenneth Owen Scrogham applied for
disability benefits under the Social Security Act, submitting
that a variety of medical conditions—including degenerative
discs, spinal stenosis, sleep apnea, hypertension, arthritis, atrial
fibrillation and restless leg syndrome—constituted a qualifying
2 No. 13-3601
disability. After his application was denied, Mr. Scrogham
participated in a hearing before an administrative law judge
(“ALJ”) for the Social Security Administration (“Administra-
tion”). The ALJ denied Mr. Scrogham’s application for benefits,
and the Administration’s Appeals Council denied his request
for review. Accordingly, Mr. Scrogham filed a complaint in the
United States District Court for the Southern District of
Indiana, seeking judicial review of the ALJ’s decision. The
district court affirmed the denial of benefits, holding that the
ALJ did not err in giving less weight to the opinion of a
treating physician than to the opinions of nontreating physi-
cians, that the ALJ permissibly found Mr. Scrogham not to be
credible and that the ALJ’s decision otherwise was supported
by substantial evidence. Mr. Scrogham timely appealed.
We now reverse the judgment of the district court and
remand for further proceedings. In our view, the ALJ’s
methodology was flawed in several respects. The ALJ
impermissibly ignored a line of evidence demonstrating the
progressive nature of Mr. Scrogham’s degenerative disc
disease and arthritis. As a result, the ALJ inappropriately
undervalued the opinions of Mr. Scrogham’s treating physi-
cians, whose longitudinal view of Mr. Scrogham’s ailments
should have factored prominently into the ALJ’s assessment of
his disability status. Second, even if we confined our review of
the record to the snapshots of evidence that the ALJ consid-
ered, we do not think that this limited evidence builds the
required logical bridge to her conclusions. Specifically, the ALJ
seems to have misapprehended or at least to have considered
only partially some of the evidence about Mr. Scrogham’s daily
activities, rehabilitation efforts and physicians’ evaluations.
No. 13-3601 3
This lapse affected both the ALJ’s credibility determination and
her residual functional capacity assessment. Because the ALJ’s
opinion reflects a flawed evaluation of the record evidence, we
reverse the judgment of the district court and remand the case
for further proceedings consistent with this opinion.
I
BACKGROUND
A.
When the Administration denied Mr. Scrogham’s request
for benefits, he was fifty-three years old and married with
adult children. He had a high school education and, until
November 2007, had been employed consistently since 1993.
He had worked as a sales manager at an automotive sales
company, as a landscaper and a landscape designer, as a sales
representative for a building supply store and as the marketing
director of a company. Most recently, he had worked from
January 2007 to November 2007 in a restaurant, where he made
pizzas and did some supervisory and managerial tasks, such
as scheduling. Mr. Scrogham claims that he had to stop
working because he had a variety of health problems, primar-
ily back and leg pain, that made working “just entirely too
rough on [him].”1
The Administrative Record contains evidence of extensive
treatment by both primary care physicians and specialists, as
well as evidence from physicians associated with the state
1
A.R. at 49.
4 No. 13-3601
disability agency. Mr. Scrogham has been receiving medical
attention for a number of conditions, including back and leg
pain, since at least 2004. An x-ray of Mr. Scrogham’s lumbar
spine in 2004 revealed, among other problems, “mild to
moderate spondylosis … from L1 through L5” and “degenera-
tive joint disease of the T10 costotransverse joints.”2 Apart from
this report, the record is relatively sparse until 2008. Reports by
Clifty Falls Chiropractic from 2008 reflect the pain that
Mr. Scrogham was experiencing due to his back issues, and
treatment notes indicate that Mr. Scrogham’s pain was increas-
ing in frequency as time went on. Mr. Scrogham also was
treated for a heart condition in 2008. In March, he was hospital-
ized with atrial fibrillation. Dr. James Jackson performed a
cardiac catheterization. Mr. Scrogham’s primary physician at
that time, Dr. Steven Adams, wrote a note when Mr. Scrogham
was discharged from the hospital indicating that Mr. Scrogham
had “severe degenerative arthritis” and morbid obesity.3
On April 8, 2008, Dr. Adams listed Mr. Scrogham’s ailments
as obstructive sleep apnea, atrial fibrillation, severe degenera-
tive arthritis in his knees and hypertension. Dr. Adams
indicated that all of these conditions were related to
Mr. Scrogham’s weight and expressed his opinion that lap-
band surgery was “medically necessary” for Mr. Scrogham.4
Mr. Scrogham then was transferred to the care of
Dr. Mark Totten, whose diagnoses corresponded with those of
2
Id. at 305.
3
Id. at 340–41.
4
Id. at 329.
No. 13-3601 5
Dr. Adams. On July 18, 2008, Dr. Totten stated that
Mr. Scrogham had hypertension, severe sleep apnea, morbid
obesity, back problems and numbness in his legs. Dr. Totten
included notes about Mr. Scrogham’s activity level; specifi-
cally, he indicated that Mr. Scrogham “has been helping work
on his sister[’]s roof recently although normally he isn’t quite
that active. He has been trying to do work on a bicycle that
seems to be tolerated by his joints and back. He has been trying
to watch his diet.”5
Dr. Totten referred Mr. Scrogham to Dr. Alcorn for evalua-
tion of his sleep apnea. In May 2008, Mr. Scrogham underwent
a sleep study, after which he was instructed to use a CPAP
device6 to treat his sleep apnea. When Dr. Alcorn saw
Mr. Scrogham on July 21, 2008, for a consultation regarding
sleep apnea, recurrent leg movement affecting his sleep apnea
treatment and lap-band surgery, Dr. Alcorn observed that
Mr. Scrogham was morbidly obese, and that he was “unable to
have a decent day.”7 On March 19, 2009, Dr. Alcorn reported
that Mr. Scrogham was experiencing numbness in his legs and
feet and that he was “unable to walk more than about a block
5
Id. at 325.
6
A continuous positive airway pressure (“CPAP”) device delivers air
pressure to a mask, which prevents sleep apnea by keeping the upper
airway passages open. Continuous Positive Airway Pressure, Mayo Clinic,
http://www.mayoclinic.org/diseases-conditions/sleep-apnea/multimedia/
continuous-positive-airway-pressure-cpap/img-20007977 (last visited
August 6, 2014).
7
A.R. at 470.
6 No. 13-3601
before he cramps up.”8 Dr. Alcorn stated that Mr. Scrogham
was unable to work. About a week after that appointment, on
March 25, 2009, Mr. Scrogham underwent an MRI, which
revealed “moderate to severe bilateral neural foraminal
narrowing and moderate spinal stenosis” at his L2–L3 verte-
brae and “moderate bilateral neural foraminal narrowing and
moderate to severe spinal stenosis” at his L3–L4 vertebrae, all
due to degenerative spondylosis.9
On April 9, 2009, Dr. Alcorn saw Mr. Scrogham and wrote
that he was having “a terrible time with his morbid obesity.
He is being evaluated for morbid obesity bariatric surgery.”10
He observed that the medical findings were “consistent with
what appears to be a spinal stenosis case, symptomatic in
which he can barely walk.”11 This opinion was echoed by
Dr. John Guarnaschelli, who met with Mr. Scrogham on April
23, 2009, to evaluate him as a potential candidate for surgery
to treat his spinal stenosis. Dr. Guarnaschelli wrote that
Mr. Scrogham “has been unable to stand or walk with any
degree of confidence since November 2007, and has been
unable to be employed since that period of time.”12 He recom-
mended a nonsurgical approach to Mr. Scrogham’s condition
8
Id. at 457.
9
Id. at 279.
10
Id. at 455.
11
Id.
12
Id. at 449.
No. 13-3601 7
because of the high risk posed by his other medical problems.
On June 15, 2009, Mr. Scrogham told Dr. Alcorn that his back
was causing problems with his legs and feet. Dr. Alcorn
observed that Mr. Scrogham had lost twenty-two pounds in a
short period of time, which was “excellent,” but that he had
“increased back pain which occurred after planting a
garden.”13
On June 29, 2009, Mr. Scrogham was examined by
Dr. Richard Gardner, who was affiliated with Indiana’s
Disability Determination Bureau. Dr. Gardner recounted some
of Mr. Scrogham’s past employment and stated that he was
“let go for performance” in November 2007 from his position
as a pizzeria manager.14 According to Dr. Gardner,
Mr. Scrogham had morbid obesity; degenerative disc disease;
hypertension and hyperlipidemia, which were medically
managed; and a history of atrial fibrillation. Mr. Scrogham told
Dr. Gardner that he could only walk about twenty feet at a
time due to his lower back pain. However, Mr. Scrogham was
ineligible for surgery because of his obesity. Dr. Gardner wrote
that Mr. Scrogham had a “[f]ull range of motion of cervical
spine and nearly full range of motion of lumbar spine,”15 and
13
Id. at 545.
14
Id. at 516.
15
Id. at 517. Although his summary of the findings stated that
Mr. Scrogham had a “nearly full range of motion of lumbar spine,” the
section of his notes describing range of motion states that Mr. Scrogham’s
range of motion for forward flexion was 40, for extension was 10 and for
(continued...)
8 No. 13-3601
that he had a “[f]ull range of motion of both shoulders and
both knees.”16 He stated that Mr. Scrogham could get on and
off the exam table without assistance; had good grip strength;
and could perform activities such as buttoning, zipping and
picking up a coin. Mr. Scrogham could walk without the need
for assistive devices and could tandem walk without problems.
Mr. Scrogham’s balance, motor strength and deep tendon
reflexes appeared normal. Mr. Scrogham could stand on his
toes and do a half squat.
A month later, Dr. J. Sands, a consulting physician with the
state agency, completed a residual functional capacity assess-
ment based on the medical evidence in the record. Dr. Sands
listed degenerative disc disease as Mr. Scrogham’s primary
diagnosis and morbid obesity as his secondary diagnosis.
Dr. Sands opined that Mr. Scrogham could lift or carry twenty
pounds, frequently lift or carry ten pounds, stand or walk for
about six hours in an eight-hour work day and sit for about six
hours in an eight-hour work day. Dr. Sands also stated that
Mr. Scrogham could occasionally climb a ramp or stairs (but
not a ladder or scaffold) and that he could occasionally
balance, stoop, kneel, crouch and crawl. When asked to discuss
whether the severity of the symptoms alleged by
Mr. Scrogham was consistent with the medical and nonmedical
evidence in the record, Dr. Sands wrote that it was “credible
15
(...continued)
lateral flexion was 10. His notes also state that the normal ranges of motion
for those measurements were 90, 25 and 25, respectively.
16
Id.
No. 13-3601 9
for limitations due to obesity.”17 In September 2009,
Dr. J.V. Corcoran, another consulting physician with the state
agency, reviewed Mr. Scrogham’s case file and approved
Dr. Sands’s opinion.
The next several months of treatment reflect major ups and
downs in Mr. Scrogham’s condition. For example, by his visit
with Dr. Alcorn on July 27, 2009, Mr. Scrogham had lost forty
pounds, and Dr. Alcorn noted that Mr. Scrogham was “doing
tremendous” and that his “back/spinal stenosis has improved
some.”18 On November 13, 2009, however, Mr. Scrogham told
Dr. Alcorn that he did not “feel good at all.”19 Dr. Alcorn noted
that Mr. Scrogham’s weight loss was up to seventy pounds and
that Mr. Scrogham “ha[d] done everything [Dr. Alcorn] ha[d]
asked him to do.”20 He also wrote, “This gentleman is disabled
and wants to return to active work and this is our best
chance.”21
It appears that, around this time, Mr. Scrogham’s condition
became severe enough and his weight loss was substantial
enough to consider surgery. Dr. Alcorn referred Mr. Scrogham
to a surgeon, Dr. Steven James, in order to consult with him
about the possibility of undergoing back surgery. Dr. James
17
Id. at 524.
18
Id. at 543.
19
Id. at 651 (internal quotation marks omitted).
20
Id.
21
Id.
10 No. 13-3601
examined Mr. Scrogham and observed that he could walk on
his heels, but not on his toes; that Mr. Scrogham seemed to
have good strength, with mild exceptions; that he had prob-
lems with his lower extremities; and that the straight-leg raise
and hip-rotation tests were negative on both sides. Dr. James
noted that Mr. Scrogham was unable to walk more than fifty
yards without sitting down because of his spinal stenosis and
that he “really has not had gainful employment for the last few
years because of his symptoms.”22 Dr. James sent
Mr. Scrogham to a pain management specialist, Dr. Jose Vitto,
who administered epidural steroid injections to treat
Mr. Scrogham’s back pain on November 18 and December 18,
2009, and on January 6, 2010.
Mr. Scrogham’s increased pain continued into early 2010.
On January 29, 2010, Dr. James noted that Mr. Scrogham “still
has the pain when he is up and his legs seem to want to give
out. He cannot walk any distance. He cannot stand for any
period of time.”23 On February 4, 2010, an MRI revealed
negative changes in Mr. Scrogham’s back condition, most
noticeably at the L3–L4 vertebrae, where there was “a large
bulge and facet hypertrophy which is causing near complete
obliteration of the central canal and lateral recesses and
moderate narrowing of the neuroforamen,” and secondarily at
the L2–L3 vertebrae.24 By March 2010, Mr. Scrogham was set to
have surgery. At a consultation on March 19, 2010, Dr. James
22
Id. at 615.
23
Id. at 607.
24
Id. at 622.
No. 13-3601 11
noted that Mr. Scrogham “still has quite a bit of problems
standing upright or walking any distance secondary to
neurogenic claudication along with back pain.”25 He observed
that Mr. Scrogham was “quite debilitated by his inability to get
up and walk any distance or stand for any period of time.”26
At this visit, Dr. James noted Mr. Scrogham’s continued weight
loss.
Dr. James operated on Mr. Scrogham’s back on April 21,
2010.27 According to Dr. James, Mr. Scrogham “tolerated the
procedure without difficulties.”28 Throughout the next year,
both Dr. James and Dr. Alcorn had extensive follow-up visits
with Mr. Scrogham. For a period of time, Mr. Scrogham’s
recovery appears to have proceeded smoothly. For example,
on May 21, 2010, Dr. James noted that Mr. Scrogham seemed
to be doing well, and, in particular, that Mr. Scrogham was
continuing to lose weight and was walking at least three-
quarters of a mile every day as part of his rehabilitative
regimen. By July, Mr. Scrogham was walking 1.1 miles twice a
day, although it took Mr. Scrogham twenty-eight minutes to
walk that far. Dr. James also noted, however, that throughout
25
Id. at 606.
26
Id.
27
The post-operative notes indicate that Mr. Scrogham had a
“[d]ecompressive laminotomy, L2–3, L3–4, with meso facetectomy,
interspinous fusion with the Aspen system, along with facet fusion.” Id. at
601.
28
Id.
12 No. 13-3601
this period of rehabilitation, as Mr. Scrogham increased his
activity level, his knees began to hurt more.
On August 19, 2010, Dr. Alcorn examined Mr. Scrogham;
his notes indicate that Mr. Scrogham, despite the surgery, was
still experiencing debilitating problems. Specifically, he wrote,
“This patient has had serious back problems. We have been
over everything. He appears to me otherwise to have no new
changes.”29 He elaborated: “He is still not back to work. I have
filled out his papers and there is very little else any of us can
do for him other than rehabilitation.”30 That same day,
Dr. Alcorn completed a residual functional capacity assessment
for Mr. Scrogham. Dr. Alcorn reported that Mr. Scrogham
could sit for one hour at a time, but could not stand or walk for
even one hour during an eight-hour work day. He stated that
Mr. Scrogham could not lift or carry even up to five pounds of
weight. He believed that Mr. Scrogham could use his hands for
simple grasping and fine manipulation, but not for pushing or
pulling arm controls. Further, Mr. Scrogham could not push or
pull leg controls. He reported that Mr. Scrogham could not
bend, squat, crawl, climb or reach at all. Finally, he stated that
Mr. Scrogham was completely restricted from activities
involving unprotected heights, moving machinery, driving and
changes in temperature or humidity.
Throughout the fall of 2010, Mr. Scrogham continued with
his weight loss and walking regimen, but by early 2011, it
appears that his rehabilitation efforts were slowing down. For
29
Id. at 640.
30
Id.
No. 13-3601 13
example, on February 10, 2011, Mr. Scrogham saw Dr. Alcorn,
who noted a “complex situation,” in which Mr. Scrogham had
experienced “marked improvement in his mobility,” but only
because he took Lortab, a powerful painkiller and sedative,31
three times a day.32 At that visit, Dr. Alcorn also observed
numbness and Raynaud’s phenomenon in Mr. Scrogham’s feet.
On May 3, 2011, Mr. Scrogham told Dr. Alcorn that his back
pain had increased recently and that he had fallen twice in two
weeks. And on May 10, 2011, Dr. James noted that
Mr. Scrogham had experienced increased problems with back
pain over the winter and that he had more numbness and
instability than before. He also noted that Mr. Scrogham had
been very depressed and that he had gained weight since his
last visit and needed to focus on weight loss. Dr. James said
that Mr. Scrogham could still walk a mile without major
difficulties, and that he was going to attempt to do a better job
with weight loss over the summer.
B.
While undergoing the above-described treatment,
Mr. Scrogham filed an application, in April 2009, for Supple-
mental Security Income and Disability Insurance Benefits
under the Social Security Act. He stated that he became
disabled as of November 11, 2007, due to the following medical
conditions: degenerative discs, spinal stenosis, sleep apnea,
31
Dorland’s Illustrated Medical Dictionary 878, 1075 (32d ed. 2012).
32
Id. at 635.
14 No. 13-3601
hypertension, arthritis in his knees, atrial fibrillation and
restless leg syndrome. His claim was denied in July 2009.
Mr. Scrogham immediately sought reconsideration of the
denial of his application for benefits. He added chronic back
and knee pain and obesity to his list of medical conditions. In
September 2009, the Administration again denied
Mr. Scrogham’s request for benefits.
Mr. Scrogham then requested a hearing before an ALJ.33
The hearing was held by videoconference on May 24, 2011.34
The ALJ questioned Mr. Scrogham about the nature of his
education and past work. Regarding his most recent job, at a
pizza shop, Mr. Scrogham testified that he made pizza, did a
little bit of scheduling and was responsible for counting money
and making deposits. He testified that he had left the job
because he could not stand or lift as much as he was required
33
The hearing request stated:
I request a hearing before an administrative law judge. I
disagree with the determination made on my claim for
disability-worker or child benefits because I am disabled
and cannot work due to chronic back pain with
radiculopathy affecting both legs and left arm, severe sleep
apnea, HPB, arthritis in both knees, and severe obesity.
Id. at 109.
34
The ALJ and a vocational expert were in Cincinnati, Ohio. Mr. Scrogham,
his wife and his attorney were in Madison, Indiana.
No. 13-3601 15
to do: “I couldn’t perform my job is what it basically boiled
down to.”35
The ALJ also asked Mr. Scrogham about his physical
condition and his daily activities. Mr. Scrogham testified that
since the alleged onset of his disability, November 2007, his
wife usually drove him places, but he had driven to the doctor
(a distance of fourteen miles) a couple of times. Mr. Scrogham
testified that he started his day by taking pain medication and
that he sat inside for most of the day because he could not do
anything else given his leg and back pain. Mr. Scrogham
testified that he had lost one hundred pounds at the advice of
his doctors. At the time of the hearing, he recently had under-
gone back surgery, but he testified that it had not fixed all of
his problems. Although at one point while he was recovering
from surgery, Mr. Scrogham would walk over a mile twice per
day, he testified that, because of his knee pain, he had reduced
his walking in the three or four months prior to the hearing.
He testified that, at the time of the hearing, he could stand and
perform a task, such as washing dishes, for only about ten
minutes before his legs and feet would go numb. He testified
that he could not lift even relatively light items over an
extended period of time or sit longer than twenty minutes at a
time. He testified that he sometimes would mow the lawn, but
it would take him all day to mow half an acre of grass because
he could only use the lawnmower for about ten minutes at a
time before he needed to rest. He considered himself to be
mostly independent in terms of caring for himself (bathing,
dressing, etc.). Mr. Scrogham testified that he attended church
35
Id. at 50.
16 No. 13-3601
on Sundays from 10:15 a.m. to 11:00 a.m. Mr. Scrogham’s wife
also testified, primarily to explain that she did not believe that
the examination by the state agency’s physician, Dr. Gardner,
yielded an adequate picture of Mr. Scrogham’s health and
abilities.
A vocational expert, Robert Breslin, also testified. He
described Mr. Scrogham’s prior jobs in terms of the level of
physical exertion required to perform them36 and in terms of
the Department of Labor’s Dictionary of Occupational Titles.37
Breslin believed that if Mr. Scrogham had the abilities deter-
mined by Dr. Sands, he could probably perform some of his
prior jobs that required “light work,” such as working as a
sales agent or a restaurant manager. He testified that if
Mr. Scrogham were limited to sedentary work, he would not
be able to perform his previous jobs, but his skills could
transfer to positions such as telephone sales or customer
service. Breslin further testified that if Mr. Scrogham could not
sit for more than one hour out of an eight-hour work day,
could not stand or walk and could not lift or carry anything,
then he could not perform any of his prior jobs or the seden-
tary jobs discussed by Breslin. Finally, Breslin testified that if
all of Mr. Scrogham’s testimony before the ALJ were true, then
Mr. Scrogham would not be able to work at all.
36
See 20 C.F.R. § 404.1567 (defining categories of physical exertion from
“sedentary work” through “very heavy work”).
37
See U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. 1991),
available at http://www.oalj.dol.gov/libdot.htm.
No. 13-3601 17
C.
The ALJ denied Mr. Scrogham’s request for benefits. The
ALJ applied the five-step sequential evaluation process
described in 20 C.F.R. § 404.1520(a)(4)(i)–(v). At step one, the
ALJ held that Mr. Scrogham had not engaged in substantial
gainful activity since the alleged onset of his disability. At step
two, the ALJ held that Mr. Scrogham had a severe combination
of impairments: (1) “spinal stenosis, status post back surgery
on April 21, 2010;” (2) diabetes; and (3) obesity.38 The ALJ also
listed Mr. Scrogham’s other physical conditions, which she
determined were “not severe if considered singly or in combi-
nation.”39 She also found that his depression was not severe. At
step three, the ALJ held that Mr. Scrogham’s severe impair-
ments did not meet or medically equal any of the qualifying
impairments listed in the Code of Federal Regulations.
Before addressing step four, the ALJ determined that
Mr. Scrogham had the residual functional capacity to perform
“light work,” which consists of “lifting no more than 20
pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds” and “a good deal of walking or
standing,” or “sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b). In
reaching this decision, the ALJ found that Mr. Scrogham’s
testimony at the hearing was not credible. In making that
finding, the ALJ noted that Mr. Scrogham’s testimony about
his capabilities conflicted with medical reports in the record
38
A.R. at 14.
39
Id. at 15.
18 No. 13-3601
and with other statements that Mr. Scrogham had made about
his daily activities. The ALJ also decided not to give
Dr. Alcorn’s opinion as much weight as it typically would
receive because it was inconsistent with other medical evidence
and with testimony presented at the hearing.
At step four, the ALJ held that because of his residual
functional capacity, Mr. Scrogham was capable of performing
past relevant work as a sales manager, a restaurant manager
and an auto sales manager and, therefore, that he was not
disabled. At step five, the ALJ found that given
Mr. Scrogham’s age, education, work history and residual
functional capacity, there were other jobs available to him in
the national economy even if he were limited to sedentary
work. The ALJ ultimately concluded, “The claimant has not
been under a disability, as defined in the Social Security Act,
from November 11, 2007, through the date of this decision (20
CFR 404.1520(f)).”40 The Administration’s Appeals Council
denied Mr. Scrogham’s request for review.
D.
Having exhausted his administrative remedies, Mr. Scrogh-
am filed a complaint in August 2011 in the United States
District Court for the Southern District of Indiana, seeking
judicial review of the ALJ’s decision. He alleged that the ALJ
had erred by not giving controlling weight to the opinion of his
treating physician, Dr. Alcorn; that the ALJ’s credibility
determination was erroneous; and that, for various reasons, the
40
Id. at 22.
No. 13-3601 19
ALJ’s determination that he was not disabled was not sup-
ported by substantial evidence.
The district court affirmed the Administration’s denial of
benefits. It held that the “ALJ’s decision to discount
Dr. Alcorn’s findings and grant significant weight to
non-treating sources was reasonable and well-supported.”41
The district court also held that the ALJ’s credibility determina-
tion was supported by substantial evidence because, as the ALJ
noted, Mr. Scrogham’s credibility was undermined by conflict-
ing medical findings, by evidence that Mr. Scrogham’s condi-
tion was improving with treatment, by discrepancies between
Mr. Scrogham’s testimony and his professed activities and by
the fact that Mr. Scrogham represented to a state unemploy-
ment agency that he was capable of and seeking full-time
work. Finally, it held that the ALJ sufficiently considered
Mr. Scrogham’s obesity and, ultimately, that there was no error
on which to reverse the ALJ.
II
DISCUSSION
Mr. Scrogham filed a timely notice of appeal and now
submits that the ALJ erred in giving more weight to
nontreating physicians’ opinions than to treating physicians’
opinions, that the ALJ’s adverse credibility determination was
not supported by substantial evidence, that the ALJ failed to
consider the combined effects of all of Mr. Scrogham’s impair-
41
R.23 at 7.
20 No. 13-3601
ments and that the ALJ ignored the dearth of evidence from
September 2009 through May 2011 supporting her conclusions.
We have jurisdiction under 28 U.S.C. § 1291, and we now
reverse.42
Because the Administration’s Appeals Council declined to
review the ALJ’s decision, we review the ALJ’s decision as the
final decision of the Administration. Schmidt v. Astrue, 496 F.3d
833, 841 (7th Cir. 2007). We review the ALJ’s legal conclusions
de novo and her factual determinations with deference. Id. If
the ALJ’s decision is supported by substantial evidence, we
will affirm. Id. We “conduct a critical review of the evidence,
considering both the evidence that supports, as well as the
evidence that detracts from, the Commissioner’s decision, and
the decision cannot stand if it lacks evidentiary support or an
adequate discussion of the issues.” Briscoe ex rel. Taylor v.
Barnhart, 425 F.3d 345, 351 (7th Cir. 2005) (internal quotation
marks omitted). “In addition to relying on substantial evi-
dence, the ALJ must also explain his analysis of the evidence
with enough detail and clarity to permit meaningful appellate
review.” Id.
A.
Mr. Scrogham submits that the ALJ ignored the fact that his
back problems were caused by a progressive disease, the
severity of which increased with time. Our review of the record
indicates that the ALJ failed to consider at least two periods of
42
The district court had jurisdiction under 42 U.S.C. § 405(g).
No. 13-3601 21
time when Mr. Scrogham’s condition was possibly more
disabling than she believed it to be: prior to his back surgery,
in early 2010,43 and just before the hearing, in early 2011.44 The
ALJ, however, never acknowledged in her opinion the waxing
and waning of Mr. Scrogham’s symptoms with time. See
Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994) (“Our cases
consistently recognize that meaningful appellate review
requires the ALJ to articulate reasons for accepting or rejecting
entire lines of evidence.”).
The ALJ’s error in ignoring evidence in the record about
how Mr. Scrogham’s condition changed over time is com-
pounded because of its apparent effect on the ALJ’s decision to
discredit the opinions of Mr. Scrogham’s treating physicians.
Under 20 C.F.R. § 404.1527(c)(1), an ALJ should “give more
weight to the opinion of a source who has examined [the
claimant] than to the opinion of a source who has not exam-
ined [the claimant].” Further, the applicable regulations state:
Generally, [the ALJ] give[s] more weight to opinions
from [the claimant’s] treating sources, since these
sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture
43
For example, in January 2010, Dr. James wrote that Mr. Scrogham “still
has the pain when he is up and his legs seem to want to give out. He cannot
walk any distance. He cannot stand for any period of time.” A.R. at 607.
44
For example, in May 2011, Dr. James wrote that Mr. Scrogham had been
having “more problems with back pain” in recent months, that he had been
depressed due to the amount of pain he was in, that he was experiencing
numbness in his feet and that he fell several times over the winter months.
Id. at 714.
22 No. 13-3601
of [the claimant’s] medical impairment(s) and may
bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical
findings alone or from reports of individual exami-
nations, such as consultative examinations or brief
hospitalizations. If [the ALJ] find[s] that a treating
source’s opinion on the issue(s) of the nature and
severity of [the claimant’s] impairment(s) is well-
supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsis-
tent with the other substantial evidence in [the
claimant’s] case record, [the ALJ] will give it control-
ling weight.
Id. § 404.1527(c)(2).
Here, the ALJ decided not to give controlling weight to
Dr. Alcorn’s August 2010 report because she believed that the
report was “inconsistent with the weight of the objective
medical evidence.”45 Specifically, she believed that it was
inconsistent with the examination conducted by Dr. Gardner
in 2009. Further, the ALJ thought that Dr. Alcorn’s report was
inconsistent with Mr. Scrogham’s activities, “including helping
to work on a roof and working on other outside projects or
walking one to one and one half miles two times a day.”46
In our view, the ALJ used faulty logic when she interpreted
these pieces of record evidence as inconsistencies. First, she
45
Id. at 20.
46
Id.
No. 13-3601 23
failed to consider that, because of the progressive nature of
Mr. Scrogham’s disease, there might have been a legitimate
difference between his physical abilities in June 2009 and his
abilities in August 2010. Relatedly, the ALJ did not explain
why she believed that events that did not occur contemporane-
ously with Dr. Alcorn’s report conflict with that report. For
example, Mr. Scrogham apparently was working on a roof in
July 2008. The “other outside projects” occurred in October
2009. The failure to acknowledge the difference in the timing
between these events and Dr. Alcorn’s report makes us
skeptical of the ALJ’s analysis.47
Additionally, the ALJ only provided reasons to discredit
one report by Dr. Alcorn. The ALJ neither considered nor
explained her decision not to consider the rest of Dr. Alcorn’s
copious records, which, upon closer review, might indicate that
Mr. Scrogham was substantially more limited in his physical
abilities than the ALJ initially concluded. The ALJ also appears
to have ignored the treatment records of several other physi-
cians who saw Mr. Scrogham on a regular basis: Dr. James,
Dr. Vitto, Dr. Adams and Dr. Totten. Because the ALJ did not
articulate her reasons for not considering the opinions of these
treating physicians, we cannot engage in meaningful review of
her decision.
Even when an ALJ decides not to give controlling weight to
a treating physician’s opinion, the ALJ is not permitted simply
to discard it. Rather, the ALJ is required by regulation to
47
The walking did occur at the same time as Dr. Alcorn’s report, but for the
reasons stated infra Part II.C, it does not necessarily contradict his report.
24 No. 13-3601
consider certain factors in order to decide how much weight to
give the opinion: (1) the “[l]ength of the treatment relationship
and the frequency of examination,” because the longer a
treating physician has seen a claimant, and particularly if the
treating physician has seen the claimant “long enough to have
obtained a longitudinal picture” of the impairment, the more
weight his opinion deserves; (2) the “[n]ature and extent of the
treatment relationship”; (3) “[s]upportability,” i.e., whether a
physician’s opinion is supported by relevant evidence, such as
“medical signs and laboratory findings”; (4) consistency “with
the record as a whole”; and (5) whether the treating physician
was a specialist in the relevant area. 20 C.F.R. § 404.1527(c)(2)–
(5).
In this case, the record contained evidence about the length
of Mr. Scrogham’s relationship with his longstanding physi-
cians, the nature of the treatment for his progressive disease,
the consistency of the doctors’ reports about Mr. Scrogham’s
back and knee pain and Dr. James’s specialty as a surgeon. The
ALJ, however, did not discuss any of these factors in her
opinion, so we cannot assess whether she appropriately chose
not to give much weight to the treating physicians’ opinions.48
48
We cannot say that the failure to consider these factors is harmless; we
have acknowledged their significance in many of our prior cases. See, e.g.,
Amax Coal Co. v. Franklin, 957 F.2d 355, 359 (7th Cir. 1992) (observing that
the opinion of a physician who has treated an individual with a progressive
disease “over a period of many years might on that ground deserve some
weight in comparison with” the opinion of someone who had seen the
individual only once); Allen v. Weinberger, 552 F.2d 781, 785 (7th Cir. 1977)
(holding that treating physician’s opinion was entitled to weight where “he
(continued...)
No. 13-3601 25
The ALJ here should have addressed these factors in her
opinion to enable us to review whether she engaged in the
correct methodology. See Elder v. Astrue, 529 F.3d 408, 415 (7th
Cir. 2008) (explaining that when an ALJ denies a treating
physician’s opinion controlling weight, she determines how
much weight to afford the opinion based on the factors now
codified at section 1527(c)); Hofslien v. Barnhart, 439 F.3d 375,
377 (7th Cir. 2006) (noting that the factors now codified at
section 1527(c) are “designed to help the administrative law
judge decide how much weight to give the treating physician’s
evidence”).
We will, therefore, remand Mr. Scrogham’s case because
the ALJ should have taken into account evidence regarding the
progressive nature of Mr. Scrogham’s ailments and the views
of Mr. Scrogham’s treating physicians.
48
(...continued)
performed surgery that permitted him to examine directly the extent of
plaintiff’s spinal disorder,” and where “he examined plaintiff on several
occasions after surgery to observe his recovery”); cf. Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234, 244 (6th Cir. 2007) (faulting the ALJ for not considering
“factors tend[ing] to support affording the opinions of [the claimant’s]
treating physicians[] significant weight,” such as the physicians’ combined
twenty years of treating the claimant, more than five hundred pages of
evidence reflecting continuous and frequent treatment by the physicians;
consistent reports of the same symptoms, which were increasing in severity;
and similar diagnoses, prescriptions and assessments of the claimant’s
activities).
26 No. 13-3601
B.
Even reviewing the ALJ’s opinion on its own terms—
looking at the evidence on which she chose to base her
opinion—it appears to us that the ALJ was inappropriately
selective in choosing the evidence on which she based her
opinion. Specifically, the ALJ identified pieces of evidence in
the record that supported her conclusion that Mr. Scrogham
was not disabled, but she ignored related evidence that
undermined her conclusion. This “sound-bite” approach to
record evaluation is an impermissible methodology for
evaluating the evidence. See Whitney v. Schweiker, 695 F.2d 784,
788 (7th Cir. 1982) (“But it is equally clear that an ALJ must
weigh all the evidence and may not ignore evidence that
suggests an opposite conclusion.”). As a result of the ALJ’s
failure to follow the proper methodology, we have reason to
doubt the accuracy of her credibility determination and of her
residual functional capacity assessments.
For example, the ALJ discredited Dr. Alcorn’s residual
functional capacity report in part because it conflicted with
Dr. Gardner’s report finding that Mr. Scrogham had a “full
range of motion of the cervical spine, [and] nearly full range of
motion of the lumbar spine.”49 The ALJ based this decision on
notes that Dr. Gardner prepared following his examination of
Mr. Scrogham. However, the ALJ ignored contradictory
evidence in the same report. The report listed the normal
ranges of motion for forward flexion, extension and lateral
flexion of the lumbar spine as 90, 25 and 25, respectively. It
49
See A.R. at 20 (referencing id. at 517).
No. 13-3601 27
then noted that Mr. Scrogham’s ranges of motion for those
tests were 40, 10 and 10, respectively. The ALJ did not address
the apparent discrepancy between the two parts of the report;
rather, she erred by taking the part of the report that favored
her opinion and ignoring the part that did not. Myles v. Astrue,
582 F.3d 672, 678 (7th Cir. 2009) (“It is not enough for the ALJ
to address mere portions of a doctor’s report.”). Additionally,
the ALJ appears to have based her entire residual functional
capacity assessment on the report prepared by Dr. Sands.
However, she ignored the part of Dr. Sands’s report that
opined that Mr. Scrogham’s statements about the extent of his
symptoms were likely credible due to his obesity.
Similarly, our review of the record indicates that the ALJ
considered evidence about Mr. Scrogham’s activities selec-
tively, ignoring evidence that contradicted her findings. For
example, throughout her opinion, the ALJ cited
Mr. Scrogham’s operation of a riding lawnmower as proof that
he was not as disabled as he claimed or that he overstated the
extent of his symptoms. However, the testimony that
Mr. Scrogham gave was that he could use a riding lawnmower
for approximately ten minutes at a time, after which he would
be incapacitated for a couple of hours.
The ALJ also wrote that Mr. Scrogham had been “exercising
on a bicycle.”50 The original report, by Dr. Totten, actually
stated that “[Mr. Scrogham] has been trying to work on a
50
Id. at 19.
28 No. 13-3601
bicycle that seems to be tolerated by his joints and back.”51 The
ALJ observed that Mr. Scrogham “had been helping work on
his sister’s roof.”52 However, the original source qualifies that
statement: “He has been helping work on his sister[’]s roof
recently although normally he isn’t quite that active.”53 The
ALJ frequently used Mr. Scrogham’s walking about a mile
twice per day as evidence that he was not disabled. Physicians’
notes indicate that Mr. Scrogham’s ability to walk was ham-
pered by back and knee pain and that it took up to twenty-
eight minutes to walk that far. The ALJ relied on a physician’s
note that Mr. Scrogham was “let go for performance,” from his
job at the pizzeria, without acknowledging that
Mr. Scrogham’s wife, about whom the ALJ made no adverse
credibility finding, testified that Mr. Scrogham quit that job
because it put “[t]oo much pain and strain on his back, yes. He
was just physically not able to be on his feet and doing the
things that he was doing there.”54 We do not state that the
ALJ’s view of the facts is ultimately wrong, we simply hold
that her apparent selection of only facts from the record that
supported her conclusion, while disregarding facts that
undermined it, is an error in analysis that requires reversal.
We also note that the ALJ discounted Mr. Scrogham’s
credibility because he had applied for, and received, unem-
51
Id. at 325.
52
Id. at 19.
53
Id. at 325.
54
Id. at 68.
No. 13-3601 29
ployment compensation during a portion of the period for
which he now claims disability payments. The case law of this
circuit clearly permits the ALJ to give some consideration to
such activity on the part of the applicant when assessing his
credibility. Schmidt v. Barnhart, 395 F. 3d 737, 746 (7th Cir.
2005). But attributing a lack of credibility to such action is a
step that must be taken with significant care and circumspec-
tion. All of the surrounding facts must be carefully considered.
In the case of a progressive disease, it is especially possible that
an applicant might, at the early stages of the disease’s manifes-
tation, be unsure of the limits of his physical capabilities and
only later determine that his inability to find work was due to
the fact that the physical toll taken by the disease was greater
than he had thought. The decision of the ALJ in this case does
not contain any discussion of these considerations. On remand,
this issue ought to be revisited and the reasons for Mr.
Scrogham’s action explored in more depth. We express no
view on the outcome of such an analysis; that determination is
for the ALJ.
Finally, we also note that the record reflects that Mr.
Scrogham lost, at the direction of his physicians, a great deal of
weight during the time at issue. To the degree that the sur-
rounding facts and circumstances might suggest that this high
degree of cooperation with his physicians is an indication that
Mr. Scrogham also might not be inclined to overemphasize his
pain or other physical limitations, the ALJ should take such
cooperation into consideration in assessing his credibility. This
determination is, of course, one for the ALJ.
30 No. 13-3601
C.
Even if we were confident that the ALJ had selected
evidence representative of the record as a whole on which to
base her opinion, to the extent that the ALJ relied on evidence
of Mr. Scrogham’s daily activities to determine that he was
capable of returning to work, those activities do not appear to
us to constitute “substantial evidence that [he] does not suffer
disabling pain,” and they “do not establish that [he] is capable
of engaging in substantial physical activity.” Clifford v. Apfel,
227 F.3d 863, 872 (7th Cir. 2000). In Clifford, the claimant
testified
that her typical household chores took her only
about two hours to complete. Clifford indicated that
she had to rest while doing household chores. She
stated that she cooks, but only simple meals. She
also indicated that she could vacuum, but it hurts
her back. She stated that she goes grocery shopping
about three times a month and “sometimes” carries
groceries from the car to the apartment. She further
stated that she could lift a twenty pound sack of
potatoes, but she “wouldn’t carry it long.” Clifford
testified that her husband helps her with the house-
hold chores whenever possible. While she babysits
her grandchildren, she indicated that her depression
is aggravated while watching them. In regard to
walking, Clifford stated that she walked to get
exercise at her doctor’s suggestion. However, she
stated that she must rest after walking anywhere
between three and five blocks. Clifford further
No. 13-3601 31
indicated that she plays cards (two rounds) about
twice a month.
Id. We held in Clifford that the claimant’s “testimony on her
daily activities d[id] not undermine or contradict her claim of
disabling pain.” Id.
Mr. Scrogham’s activities were significantly more limited
than the claimant’s in Clifford. Where she could regularly
perform household tasks, go shopping and lift up to twenty
pounds, Mr. Scrogham testified that he could do none of those
things. Apart from his walking, the activities cited by the ALJ,
such as driving, mowing the lawn or working in the yard,
appear to have occurred only rarely. And the “sporadic
performance [of household tasks or work] does not establish
that a person is capable of engaging in substantial gainful
activity.” Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.
1993) (alteration in original) (internal quotation marks omit-
ted). Further, at least one of the activities was a precipitating
event that led to one of Mr. Scrogham’s doctor’s visits.55
Surely, this type of ill-advised activity cannot support a
conclusion that Mr. Scrogham was capable of performing full-
time work. Cf. Matchen v. Apfel, No. 99-3746, 2000 WL 562196,
at *4 (7th Cir. May 5, 2000) (faulting the ALJ for considering the
claimant’s driving as evidence of his abilities where the
55
Id. at 578 (stating that Mr. Scrogham went in for a consultation because
of right foot pain that he noticed while he “ha[d] been doing a project in his
back yard and he ha[d] been on his feet,” and the pain “gradually got to the
point where it became difficult for him to walk”); see also id. at 304 (noting
that Mr. Scrogham went to the chiropractor to seek relief for pain that
started when he bent down to pick up a towel).
32 No. 13-3601
claimant had gotten into several car accidents because his
conditions prevented him from driving well).
Reports of Mr. Scrogham’s walking simply are too thin a
reed on which to rest a determination that there is substantial
evidence supporting the ALJ’s conclusion that he could return
to full-time work. In Carradine v. Barnhart, 360 F.3d 751 (7th Cir.
2004), we held that the claimant’s daily activities, which
included walking two miles, could not support the ALJ’s
conclusion that she could work. Id. at 756 (“The weight the
administrative law judge gave to Carradine’s ability to walk
two miles was perverse: not only is it a form of therapy, but it
is not a form of therapy available at work.”). We also cited with
approval a decision of our colleagues in the Ninth Circuit,
which determined that rehabilitative efforts such as walking
for an hour and swimming were “not necessarily transferable
to the work setting with regard to the impact of pain.” Vertigan
v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). The Ninth Circuit
observed that “[a] patient may do these activities despite pain
for therapeutic reasons, but that does not mean she could
concentrate on work despite the pain or could engage in
similar activity for a longer period given the pain involved.” Id.
Finally, the ALJ’s finding that Mr. Scrogham’s surgery and
medications indicated that his symptoms were not as severe as
he claimed them to be seems to us to be misguided. We
previously have acknowledged that a claimant’s election to
undergo serious treatment, such as having surgery and taking
“heavy doses of strong drugs,” indicates that the claimant’s
complaints of pain are likely credible. Carradine, 360 F.3d at
755. Further, the fact that physicians willingly prescribed drugs
No. 13-3601 33
and offered other invasive treatment indicated that they
believed the claimant’s symptoms were real. Id. Instead of
showing that Mr. Scrogham’s limitations were not as severe as
he alleged, evidence that he was willing to undergo risky
surgery and take powerful pain medication—and that physi-
cians were wiling to prescribe this course of treatment—reflects
that Mr. Scrogham’s symptoms caused him real problems.
We think that these three logical errors—overstating the
significance of Mr. Scrogham’s daily activities, overrelying on
his rehabilitative efforts as proof of his fitness for full-time
work and misinterpreting the significance of Mr. Scrogham’s
extensive treatment—had a material effect on the ALJ’s
credibility and residual functional capacity assessments. We
emphasize, however, that we do not decide here that
Mr. Scrogham is entitled to benefits. See id. at 756. It may be
that he has exaggerated his symptoms or that more in-depth
study of his condition would show that he could perform some
work. Id. These issues are for the ALJ to decide, using the
agency’s expertise. Id. We reverse today only because “an
administrative agency’s decision cannot be upheld when the
reasoning process employed by the decision maker exhibits
deep logical flaws, even if those flaws might be dissipated by
a fuller and more exact engagement with the facts.” Id. (cita-
tions omitted).
34 No. 13-3601
Conclusion
For the foregoing reasons, we reverse the judgment of the
district court and remand the case for further proceedings
consistent with this opinion.
REVERSED and REMANDED