United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
October 24, 2014
Before
RICHARD A. POSNER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐3636
LATESHA MOON, Appeal from the United States District
Plaintiff‐Appellant. Court for the Northern District of
Illinois, Eastern Division.
v.
No. 12‐CV‐05593
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, Susan E. Cox,
Defendant‐Appellee. Magistrate Judge.
O R D E R
The appellee‐Commissioner’s petition for panel rehearing is granted to the extent
that the panel’s opinion shall be amended to remove the assertion that the
Commissioner’s argument to this court violated the principles of SEC v. Chenery Corp.,
318 U.S. 80 (1943). The final three paragraphs of the panel opinion issued on August 14,
2014 are hereby amended as follows, with the deletion indicated by strikeout and the
addition indicated in bold:
The government attempts to support the ALJ’s analysis of the migraine
evidence by contending that the report of Dr. Kim and the interrogatory answers
of Dr. Francis (the evidence that the ALJ relied upon most heavily) took Moon’s
No. 13‐3636 2
migraines into account sufficiently, thus relieving the ALJ of any further
obligation to account for the migraines. Since the ALJ did not mention Moon’s
migraines in his discussion of the opinions of Drs. Kim and Francis, the
government’s argument violates the principle established in SEC v. Chenery Corp.,
318 U.S. 80, 87–88 (1943), that an agency’s lawyers cannot defend an agency
decision in court on a ground the agency did not itself invoke. See Kastner v.
Astrue, 697 F.3d 642, 648 (7th Cir. 2012).
Apart from Chenery concerns, the The doctors’ opinions cannot provide the
needed logical bridge. Dr. Kim did not actually specify how Moon’s migraines
relate to the residual functional capacity she found. She did not address the
possibility that a migraine could keep Moon at home in bed, apparently
understanding Moon’s “history of frequent migraines” to have implications only
for her ability to lift, stoop, and stand. Dr. Francis’s report provides even less
support for the government’s position. He noted: “There is not enough
information [in the medical records] on the frequency of [Moon’s] migraines to
determine how much these contribute to her overall impairment.” Unlike Dr. Kim
and Dr. Francis (who, remember, never even met Moon), the ALJ had the
opportunity to hear Moon’s own account about how her migraines limit her
activities, and as explained above, his apparent disbelief of her testimony is not
justified in his decision.
Once the ALJ’s unsupported assessment of Moon’s migraines is set aside, the
question becomes just how serious her migraines were beginning in August 2008.
If her testimony about needing to remain in bed multiple days per week is
credited, she could not have held a full‐time job. We do not decide that her
testimony must be credited. We conclude only that the ALJ failed to build a
logical bridge between substantial evidence and his conclusion that Moon was
capable of a limited range of sedentary work after August 2008. The judgment of
the district court is REVERSED and the case is REMANDED to the agency for
further proceedings consistent with this opinion.
Accordingly, the final three paragraphs of the opinion shall be combined into two
paragraphs that read as follows:
The government attempts to support the ALJ’s analysis of the migraine
evidence by contending that the report of Dr. Kim and the interrogatory answers
No. 13‐3636 3
of Dr. Francis (the evidence that the ALJ relied upon most heavily) took Moon’s
migraines into account sufficiently, thus relieving the ALJ of any further
obligation to account for the migraines. The doctors’ opinions cannot provide the
needed logical bridge. Dr. Kim did not actually specify how Moon’s migraines
relate to the residual functional capacity she found. She did not address the
possibility that a migraine could keep Moon at home in bed, apparently
understanding Moon’s “history of frequent migraines” to have implications only
for her ability to lift, stoop, and stand. Dr. Francis’s report provides even less
support for the government’s position. He noted: “There is not enough
information [in the medical records] on the frequency of [Moon’s] migraines to
determine how much these contribute to her overall impairment.” Unlike Dr. Kim
and Dr. Francis (who, remember, never even met Moon), the ALJ had the
opportunity to hear Moon’s own account about how her migraines limit her
activities, and as explained above, his apparent disbelief of her testimony is not
justified in his decision.
Once the ALJ’s unsupported assessment of Moon’s migraines is set aside, the
question becomes just how serious her migraines were beginning in August 2008.
If her testimony about needing to remain in bed multiple days per week is
credited, she could not have held a full‐time job. We do not decide that her
testimony must be credited. We conclude only that the ALJ failed to build a
logical bridge between substantial evidence and his conclusion that Moon was
capable of a limited range of sedentary work after August 2008. The judgment of
the district court is REVERSED and the case is REMANDED to the agency for
further proceedings consistent with this opinion.
To the extent the petition for rehearing sought any further relief, it is denied.