In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2380
DEBORA GHISELLI,
Plaintiff‐Appellant,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13‐CV‐00354 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED FEBRUARY 9, 2015 — DECIDED SEPTEMBER 16, 2016
____________________
Before ROVNER and SYKES, Circuit Judges, and WOOD,
District Judge.*
WOOD, District Judge. Debora Ghiselli applied for disabil‐
ity insurance benefits under the Social Security Act, claiming
that she was unable to work due to a combination of health
* Of the Northern District of Illinois sitting by designation.
2 No. 14‐2380
problems that included degenerative disc disease, asthma,
and obesity. After her initial application and her request for
reconsideration were denied, an administrative law judge
(“ALJ”) found that she was not disabled despite her impair‐
ments. The district court, reviewing the ALJ’s decision pursu‐
ant to 42 U.S.C. § 405(g), held that the decision was supported
by substantial evidence and thus affirmed it. Ghiselli has now
appealed that ruling to this Court, arguing that the ALJ erred
by crediting the opinions of state agency medical consultants
over that of her treating physician, by improperly determin‐
ing without adequate explanation that she had the residual
functional capacity to perform a range of light work with lim‐
itations, and by finding that she lacked credibility based on
certain purportedly inconsistent statements.
We agree that the ALJ erred in his consideration of Ghis‐
elli’s credibility and therefore her case must be remanded for
further proceedings.
I.
Ghiselli applied for disability benefits on June 16, 2010, al‐
leging disability beginning on October 1, 2007. She asserted
that she had been employed as a retail customer service man‐
ager, a position she later described as including responsibility
for handling customer inquiries and supervising cashiers. She
claimed that she was disabled by injuries she suffered at her
job on August 6, 2007, when a customer struck her in the back
with a shopping cart. Ghiselli’s claim for disability benefits
was initially denied in October 2010 and, upon her request for
reconsideration, denied again in April 2011. She then re‐
quested and received a hearing before an ALJ.
No. 14‐2380 3
The ALJ found that Ghiselli was not disabled after evalu‐
ating her claim under the five‐step sequential evaluation pro‐
cess detailed in 20 C.F.R. § 404.1520(a)(4). At the first step, the
ALJ determined that Ghiselli had not engaged in substantial
gainful activity from the claimed start of her disability of Oc‐
tober 1, 2007 through her last insured date of September 30,
2011. As a result, the ALJ proceeded to the second step, where
he was required to determine whether Ghiselli had a severe
medically‐determinable impairment or combination of im‐
pairments. He found that she did suffer from severe impair‐
ments, including degenerative disc disease of the lumbar
spine with stenosis and facet arthropathy, asthma, and obe‐
sity. These impairments, he concluded, limited her ability to
perform work activities. Ghiselli’s claimed mental impair‐
ment of depression, however, was not found not to be severe,
as it “did not cause more than minimal limitation in [her] abil‐
ity to perform basic mental work activities.” At step three, the
ALJ found that Ghiselli’s severe impairments did not meet the
criteria for presumptive disability. Thus, he proceeded to the
fourth step: assessing whether she was capable of performing
her past relevant work.
At this stage, an ALJ must determine a claimant’s residual
functional capacity, which is her “ability to do physical and
mental work activities on a regular basis despite limitations
from her impairments.” Moore v. Colvin, 743 F.3d 1118, 1121
(7th Cir. 2014). To determine Ghiselli’s residual functional
capacity, the ALJ considered the reports and
recommendations of Dr. Marjorie Delo, who began treating
Ghiselli shortly after her workplace accident and examined
her more than a dozen times between August 2007 and
September 2010. When Ghiselli returned to work in
September 2007 but reported that pain limited her activity, Dr.
4 No. 14‐2380
Delo recommended that she limit her work to shifts of no
more than four hours. Dr. Delo repeated this recommendation
after many of Ghiselli’s subsequent treatment visits. Although
Dr. Delo observed some deterioration in Ghiselli’s back
condition from its initial appearance in 2007, she also saw
positive signs. In July 2010, she noted that Ghiselli had not
been treated for back problems since January 2009 and that
she had been successful in using home exercises to “keep her
pain at bay.” In August 2010, she reported that Ghiselli had
“no more than mild lower lumbar tenderness,” that she had
normal muscle tone, and that her gait showed no signs that
she was compensating for pain.
The ALJ also considered reports prepared by Dr. Syd
Foster and Dr. Philip Cohen, two state agency medical
consultants “trained and familiar with” medical standards
under the Social Security Act, who reviewed Ghiselli’s records
to assess her residual functional capacity. In his report, Dr.
Foster observed that Ghiselli reported “severe pain and
limited mobility” and impaired ability to sit, stand, or walk
for prolonged periods. He further noted that she did have
“medically determinable impairments that could cause pain
and limited mobility” but nonetheless concluded that “the
medical evidence does not support such extreme limitations.”
For his part, Dr. Cohen found “no indication in the medical
records that claimant’s functioning is limited by asthma, high
blood pressure, or hip pain,” and that her statements about
her limitations “are not consistent with the medical evidence
and are found partially credible.”
The ALJ also reviewed the reports of two physicians who
examined Ghiselli in 2010 and 2011. Dr. Ronald Garcia
conducted an electrodiagnostic examination of Ghiselli in
No. 14‐2380 5
September 2010 and found her to have normal strength,
sensation, muscle tone, range of motion, and reflexes in her
legs. Dr. Harry Tagalakis administered a magnetic resonance
imaging, or MRI, scan of Ghiselli’s lumbar spine in August
2011 and characterized her spinal impairments as mild to
moderate.
In summarizing his assessment of the various doctors’
reports, the ALJ assigned “significant weight” to the opinions
of Dr. Foster, Dr. Cohen, Dr. Garcia, and Dr. Tagalakis. As to
Ghiselli’s treating physician, the ALJ stated: “I generally give
weight to Dr. Delo’s opinions, but find that her continued
restriction to 4‐hour work days stems from an unsuccessful
attempt to return the claimant to work in September 2007 one
month after the initial injury (citation omitted) and there is no
medical basis in 2011, four years later, to continue that
restriction.”
The ALJ’s assessment of Ghiselli’s residual functional
capacity also relied upon her own statements regarding her
ability to work, which the ALJ found to lack credibility. He
noted that Ghiselli had reported that, among other basic
activities, she could do light housework, read, take care of her
pets, perform personal care activities, drive her car, and shop
for groceries. From this, he concluded that Ghiselli’s “ability
to perform significant activities of daily living is strong
evidence that she is capable of performing work activities,
undermining her claims in this case.”
The ALJ also felt that Ghiselli’s credibility was damaged
by what he considered inconsistent statements. For example,
he noted that Ghiselli had stated in her January 2010 written
“Function Report” that Dr. Delo had restricted her to lifting
no more than fifteen pounds and would not clear her to return
6 No. 14‐2380
to work until that restriction was lifted; meanwhile, Dr. Delo’s
restriction actually permitted Ghiselli to lift up to twenty‐five
pounds and allowed her to work under that restriction for
shifts of up to four hours. The ALJ was also particularly vexed
by the fact that in November 2008, Ghiselli had advised Dr.
Delo that she was looking for a new job, which the ALJ
considered “contrary to her contentions in this case that she
could not work.”
After consideration of this record, the ALJ concluded that
Ghiselli had the residual functional capacity to perform a
range of light work, if she were provided a sit‐stand option
that allowed her to be off‐task for up to ten percent of the time,
required no more than occasional stooping, crouching,
balancing, kneeling, or crawling, and subjected her to no more
than moderate exposure to extreme cold. He further found
that Ghiselli had the residual functional capacity to perform
past relevant work. While the past work that she could
perform did not include her most recent customer service
manager job, the ALJ determined that she did retain the
capacity to perform some of her previous jobs, including
telephone receptionist and data entry clerk.
Finally, at the fifth and final step in the sequential review
process, the ALJ determined that Ghiselli could perform a
number of other jobs in the regional economy that constituted
substantial gainful activity, such as survey worker, automatic
car wash attendant, and ticket taker.
In sum, the ALJ concluded that Ghiselli was not disabled
as defined in the Social Security Act at any time during the
time period October 1, 2007 and September 30, 2011, and
affirmed the denial of her application for benefits. Ghiselli’s
request for review of the decision by the Social Security
No. 14‐2380 7
Administration’s Appeals Council was denied, making the
ALJ’s decision the final decision of the Commissioner. See
Loveless v. Colvin, 810 F.3d 502, 506 (7th Cir. 2016). She sought
judicial review in the district court, which affirmed the ALJ’s
decision. This appeal followed.
II.
An ALJ determination not reviewed by the Appeals
Council and affirmed by the district court receives direct
review in this Court. Pepper v. Colvin, 712 F.3d 351, 361 (7th
Cir. 2013). The ALJ’s decision must be upheld if it is
supported by substantial evidence, which has been defined as
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. at 361–62.
As detailed above, in conducting its disability analysis, the
ALJ considered five main inquiries: (1) whether Ghiselli was
unemployed; (2) whether she had a severe impairment; (3)
whether the impairment met or medically equaled one of a
list of specific impairments in the regulations accompanying
the Social Security Act; (4) whether she was unable to perform
her former occupation; and (5) whether she was unable to
perform any other work. As the claimant, Ghiselli had the
burden of proof for the first four inquiries; the Commissioner
had the burden of proof for the fifth. See Butera v. Apfel, 173
F.3d 1049, 1054 (7th Cir. 1999). The ALJ found that Ghiselli
was not employed, that she had severe impairments, and that
those impairments did not meet or equal those listed in the
applicable regulations. The parties do not dispute the findings
on those first three inquiries. With respect to the remaining
two, Ghiselli contends that the ALJ erred in several ways.
8 No. 14‐2380
Ghiselli contends that the ALJ should have afforded
conclusive weight to the opinion from Dr. Delo, her treating
physician. She claims that Dr. Delo restricted her to a work
shift of no more than four hours, and a person who cannot
work eight hours a day, five days a week, or the equivalent,
is disabled. See Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir.
2013). Indeed, a treating physician’s medical opinion is
entitled to controlling weight in the disability analysis if it is
“well supported by objective medical evidence and consistent
with other substantial evidence in the record.” Id.; see also
Loveless, 810 F.3d at 507 (“A treating physician’s opinion is
entitled to controlling weight unless it is inconsistent with the
other substantial evidence.”) (citing 20 C.F.R. §
404.1527(c)(2)). A treating doctor’s opinion may be properly
discounted, however, if it is based upon the claimant’s
subjective complaints rather than objective medical evidence.
Ketelboeter v. Astrue, 550 F.3d 620, 625 (7th Cir. 2008); White v.
Barnhart, 415 F.3d 654, 659 (7th Cir. 2005).
The notes of Ghiselli’s initial post‐accident treatments do
not suggest that a medical diagnosis of her condition
mandated a restriction from full‐time work. She was first
examined by Dr. David Madenburg on August 9, 2007. His
notes show that she was cleared to return to work on the same
day with the restrictions that she alternate between sitting
and standing every two hours, that she stand for no more than
twenty percent of her shift, that she walk for no more than
thirty minutes, and that she lift no more than ten pounds. Dr.
Madenburg’s notes do not recommend any restriction on the
duration of her shift.
Dr. Delo saw Ghiselli less than a week later on August 13,
2007. Her treatment notes reflect a plan that Ghiselli return to
No. 14‐2380 9
work on “light duty,” with a lifting restriction of no more than
ten pounds and a prohibition on squatting and bending. Like
Dr. Madenburg’s notes, the notes from Dr. Delo’s initial
treatment of Ghiselli make no reference to any restriction on
the length of her shift upon her return to work. After a
September 28, 2007 examination, Dr. Delo reported that
Ghiselli’s sacroiliitis and lumbar degenerative disc disease
were improving, but “[t]he patient does not feel she is able to
work. She did do a trial of 4 hour return to work previously
and the patient’s symptoms restarted, so this time we will
keep her out of work for the next 7 to 10 days and re‐evaluate
at that time. I hope to return her at that time to a 4‐hour shift.”
Ghiselli visited Dr. Delo again on October 11, 2007. The
treatment notes from that date state that “[t]he patient
previously seemed to improve; however, at this time she
states that she is no longer getting improvement and does not
feel that she is able to return to work.” At that time, Dr. Delo
decided that Ghiselli could not be cleared to return to work
until after she was evaluated by a pain management
specialist, Dr. Randall Nemerovski. Ghiselli saw Dr.
Nemerovski in December 2007 but, for non‐medical reasons,
elected to delay the treatment he suggested. Thereafter, Dr.
Delo began recommending a four‐hour shift limit. She
examined Ghiselli on January 3, 2008 and her report of the
visit, in a section headed “Return To Work Capabilities,”
included “4 hr shift” along with the directive that Ghiselli
alternate sitting and standing and refrain from lifting more
than twenty pounds or walking more than fifteen minutes at
a time. The notes do not link the restrictions to any medical
diagnosis. Subsequent notes regarding restrictions are
similarly unaccompanied by any reference to objective
medical evidence.
10 No. 14‐2380
On this record, Dr. Delo’s routinely‐repeated restriction to
a four‐hour shift does not constitute an opinion well‐
supported by objective medical evidence that Ghiselli’s
medical condition prevented her from working on a full‐time
basis. The record reveals little support for the effects from
which Ghiselli claimed to suffer other than her own subjective
complaints. And the other medical opinions reviewed by the
ALJ did not find an objective medical basis for the debilitating
effects she reported. Thus, we cannot find that the ALJ erred
in declining to give Dr. Delo’s shift restrictions conclusive
weight on the question of Ghiselli’s disability. Ketelboeter, 550
F.3d at 625.
But the absence of objective medical corroboration for a
complainant’s subjective accounts of pain does not permit an
ALJ to disregard those accounts. To the contrary, an ALJ
“must consider subjective complaints of pain if a claimant has
established a medically determined impairment that could
reasonably be expected to produce the pain.” Moore, 743 F.3d
at 1125; see also Villano v. Astrue, 556 F.3d 558, 562 (7th Cir.
2009).
The ALJ considered Ghiselli’s subjective accounts of her
pain and found them not credible. His credibility
determination was based in part on his conclusion that
Ghiselli could successfully perform numerous life activities.
But without acknowledging the differences between the
demands of such activities and those of a full‐time job, the ALJ
was not entitled to use Ghiselli’s successful performance of
life activities as a basis to determine that her claims of a
disabling condition were not credible. See Moore, 743 F.3d at
1126; Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012). As
this Court has previously explained, “the critical differences
No. 14‐2380 11
between activities of daily living and activities in a full‐time
job are that a person has more flexibility in scheduling the
former than the latter, can get help from other persons … and
is not held to a minimum standard of performance, as she
would be by an employer.” Bjornson, 671 F.3d at 647 (also
collecting cases); see also Stage v. Colvin, 812 F.3d 1121, 1126
(7th Cir. 2016) (finding that the ALJ improperly based his
adverse credibility determination on, among other things, the
claimant’s ability to care for herself and her grandchildren);
Roddy, 705 F.3d at 639 (observing that “[w]e have repeatedly
cautioned that a person’s ability to perform daily activities,
especially if that can be done only with significant limitations,
does not necessarily translate to an ability to work full‐time”).
The ALJ failed to acknowledge and account for those crucial
differences with respect to Ghiselli, or at least there is no
indication in the record that he did. Nor did he identify a basis
for his conclusion that the life activities Ghiselli reported were
inconsistent with the physical impairments she claimed.
The ALJ’s focus on the inconsistency he perceived
between Ghiselli’s claim of disability and her November 2008
statement to Dr. Delo that she was looking for another job,
which he described as the most significant of her inconsistent
statements, suffers from a similar logical defect. There is no
inherent inconsistency in being both employed and disabled.
See Wilder v. Chater, 64 F.3d 335, 337–38 (7th Cir. 1995) (‘The
fact that someone is employed is not proof positive that he is
not disabled, for he may be desperate and exerting himself
beyond his capacity, or his employer may be law or
altruistic.”). And here, Ghiselli was not actually working but
merely said that she was looking for work. While a claimant’s
statements in applying for work following a disability claim
might be relevant to her credibility when the statements
12 No. 14‐2380
undermine the basis for her claim, such is not the case here.
Persisting in looking for employment even while claiming to
suffer from a painful disability might simply indicate a strong
work ethic or overly‐optimistic outlook rather than an
exaggerated condition. In any case, the ALJ here provided no
support for his conclusion that looking for a new job was
inconsistent with Ghiselli’s disability claim. This is not a
situation where the claimant told prospective employers that
her pain issues were in the past or otherwise denied suffering
from the symptoms that formed the basis for her disability
claim. See, e.g., Knox v. Astrue, 327 Fed. Appx. 652, 656 (7th Cir.
2009).
Although an ALJ’s credibility determinations are
generally entitled to deference, this Court has “greater
freedom to review credibility determinations based upon
objective factors or fundamental implausibilities, rather than
subjective considerations” such as the claimant’s demeanor.
Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 354 (7th Cir.
2005). The ALJ’s unsupported judgments regarding Ghiselli’s
ability to perform the activities of daily living and her
statement that she was looking for a new job are not the sort
of credibility determinations entitled to deference.
As the main factors identified by the ALJ as informing his
negative assessment of Ghiselli’s credibility were either
improperly analyzed or unsupported by substantial
evidence, the determination itself must be considered
patently wrong. See Craft v. Astrue, 539 F.3d 668, 680 (7th Cir.
2008). We cannot deem the error harmless, as it informed
several aspects of the ALJ’s findings with respect to Ghiselli’s
residual functional capacity and consequently her ability to
perform past relevant work or to adjust to other work.
No. 14‐2380 13
Ghiselli’s case must therefore be remanded to the agency for
further proceedings.
In light of the remand, one additional argument raised by
Ghiselli merits brief attention. She faults the ALJ for failing to
explain how he determined that she would be off‐task for no
more than ten percent of the workday while changing
positions as frequently as required by her work limitations.
While we tend to agree with the district court that any such
deficiency in the ALJ’s decision was a harmless error, on
remand the agency should take care to ensure that it builds a
logical bridge from the medical evidence to its conclusions,
see Pepper, 712 F.3d at 362, regarding this (and any other)
limitation attendant to its residual functional capacity
determinations.
III.
For the reasons stated above, the judgment of the district
court is VACATED and the case REMANDED with instructions
to remand the case to the Social Security Administration for
further proceedings consistent with this opinion.