In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1240
GEORGE A. PLESSINGER, II,
Plaintiff‐Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Fort Wayne Division.
No. 17‐CV‐71 — William C. Lee, Judge.
____________________
ARGUED JULY 6, 2018 — DECIDED AUGUST 20, 2018
____________________
Before SYKES, HAMILTON, and BRENNAN, Circuit Judges.
HAMILTON, Circuit Judge. George Plessinger applied for
disability insurance benefits under the Social Security Act
based on his chronic back pain. An administrative law judge
found that he was severely impaired by his lumbar degener‐
ative disc disease and stenosis, thoracic degenerative disc dis‐
ease, obesity, and systemic hypertension. Given the stringent
standard for total disability under the Social Security Act,
2 No. 18‐1240
however, the ALJ found that these impairments were not dis‐
abling. The agency’s Appeals Council denied review, and the
district court upheld the ALJ’s decision. We reverse and re‐
mand to the agency. In the face of the great weight of medical
evidence supporting Plessinger’s claims of disabling impair‐
ments, the ALJ gave undue weight to the opinion of the testi‐
fying medical expert, who did not examine Plessinger and
hedged his opinion in a critical way that was never resolved.
The ALJ and the testifying medical expert each seemed to del‐
egate to the other the job of evaluating the credibility of Ples‐
singer’s complaints of pain. The ALJ’s decision to discount the
credibility of those complaints was not supported by substan‐
tial evidence.
I. Factual and Procedural Background
Plessinger was born with congenital spinal stenosis. He
began experiencing back pain in 2010, when he was just 23
years old. He worked as a diesel mechanic, electric lineman,
fast food worker, welder, and truck driver. But in April 2012
he was in an accident that exacerbated a prior injury from fall‐
ing at work. He had epidural nerve block injections in August
2012, but they did not relieve his pain. An MRI scan revealed
a disc rupture in his lumbar spine, so he had surgery in March
2013.
In May and September 2013, in connection with Ples‐
singer’s application for Social Security disability benefits,
non‐examining consultants for the agency assessed his resid‐
ual functional capacity, meaning his abilities to do various
work‐related activities on a sustained basis. Dr. J.V. Cocoran
determined that Plessinger had the residual functional capac‐
ity to perform light work, while Dr. J. Sands determined he
could perform only sedentary work. Specifically, Dr. Cocoran
No. 18‐1240 3
found that Plessinger could stand or walk for about six hours
in an eight‐hour workday. Dr. Sands, on the other hand,
found that Plessinger could stand or walk for a total of only
two hours per day and noted that he had “objectively sup‐
ported back problems that are significant for someone his
age.”
Unfortunately, Plessinger’s 2013 surgery did not relieve
his chronic pain. He was later diagnosed with failed back sur‐
gery syndrome, which is also called post‐laminectomy syn‐
drome. Plessinger’s neurosurgeon, Dr. Jeffrey Kachmann, re‐
ferred him to a pain management doctor, Dr. Neal Coleman,
to see if more conservative treatment could forestall a second
surgery. Dr. Coleman examined Plessinger in February 2015
and noted that he could walk only 50 yards before his legs
began to tingle. Dr. Coleman’s notes indicate that Plessinger’s
four different daily pain medications reduced his symptoms,
but his pain was aggravated by daily activities, including
“lifting, lying/rest, rolling over in bed, sitting, standing and
walking.” Dr. Coleman also noted that Plessinger’s spinal ste‐
nosis was “symptomatic and function limiting” and did not
respond to injection therapies or other conservative pain man‐
agement approaches.
Dr. Coleman referred Plessinger to another neurosurgeon
to assess whether a second surgery would be appropriate. Dr.
Guatam Phookan examined him in March 2015. He noted disc
herniation in several parts of Plessinger’s spine, and diag‐
nosed “referred/radicular pain” in both legs. Dr. Phookan
noted that Plessinger was already living with failed back sur‐
gery syndrome and that his herniations were not in the same
part of the spine where he was experiencing the most pain.
4 No. 18‐1240
Dr. Phookan determined that it would be best to explore other
options for pain relief before attempting a second surgery.
Plessinger was examined by the agency’s consulting ex‐
aminer, Dr. Xavier Laurente, in July 2014. Dr. Laurente deter‐
mined that Plessinger could walk only 20 to 30 feet and could
stand for only five minutes at a time. He noted that Plessinger
had limited strength in his legs and showed “some signs of
nerve impingement (with positive straight leg raise test).”
At his hearing before the ALJ in April 2015, Plessinger tes‐
tified about his physical limitations. He explained that he did
his best to help his wife take care of their five young children,
all under ten years old. He said that on a typical day, he would
wake up at 6:00 a.m. to wake the children up for school, then
lie back down for half an hour while they were getting ready,
then get up again to make sure they were dressed and to get
them on the school bus. After that he would lie down again
before getting up again at 11:00 to make lunch for himself and
his youngest children. He would then take care of the children
until his wife got home from work.
Plessinger also explained that he had difficulty walking
because of the “shooting pain” he experienced when moving
around. He testified that if he walked more than ten feet, his
legs went numb, so most of the time he either lay down in bed
to ease the pain or sat in his chair. He said the pain also inter‐
fered with his sleep, allowing him to sleep only two to three
hours at a time, followed by tossing and turning because of
the pain. As for daily activities, he said that it took him all day
to wash a load of dishes because he had to take frequent
breaks to allow his back to decompress and to “get the feeling
back in [his] legs.”
No. 18‐1240 5
Dr. John Pella, a physician certified in internal medicine
and specializing in pulmonary disease, also testified at the
hearing as a medical expert. He had reviewed Plessinger’s
medical records but had not examined him. Dr. Pella began
by briefly summarizing the results of Plessinger’s most recent
MRI from August 2014, which revealed several areas of disc
extrusion and root effacement. He also noted that Plessinger
had a history of hypertension and was significantly obese,
with a body‐mass index of 45.
When Dr. Pella had finished describing Plessinger’s phys‐
ical conditions, the ALJ asked whether his impairments met
or equaled any impairment listed in Social Security regula‐
tions that leads to a presumption of disability. Dr. Pella said
no. The ALJ did not ask about any particular listing or set
forth requirements for any. Dr. Pella did not explain which
listings would be most relevant or explain why he did not be‐
lieve any listed impairment was met.
Dr. Pella then concluded that Plessinger would be able to
lift and carry 20 pounds occasionally and ten pounds fre‐
quently; to sit for two hours at a time for a total of six hours
of an eight‐hour workday, with a sit/stand option; to stand for
30 minutes to one hour at a time, and to walk for 15 to 30
minutes at a time, for two to three hours total in a workday;
and to reach, push, or pull overhead frequently, but could use
his legs only occasionally.
A vocational expert also testified regarding Plessinger’s
work‐related capabilities. The expert said that Plessinger
could no longer do his past relevant work but could do un‐
skilled sedentary work with the limitations described by the
ALJ, identical to the limitations Dr. Pella had testified to ear‐
lier in the hearing. The vocational expert said the specific jobs
6 No. 18‐1240
available to Plessinger would include a surveillance systems
monitor, a parimutuel ticket checker, and a document pre‐
parer. The ALJ also asked the vocational expert whether those
jobs would still be available if the hypothetical individual, to
relieve symptoms, must lie down several times during the
day, as Plessinger testified was necessary. The vocational ex‐
pert replied that the jobs identified would not be possible and
that no competitive employment could be achieved with that
restriction.
The ALJ applied the standard five‐step analysis for as‐
sessing disability, see 20 C.F.R. § 404.1520(a), and concluded
that Plessinger was not disabled. At step one, the ALJ deter‐
mined that Plessinger had not engaged in substantial gainful
activity since his alleged onset in December 2012. At step two,
the ALJ identified as “severe” Plessinger’s lumbar degenera‐
tive disc disease and stenosis, thoracic degenerative disc dis‐
ease, obesity, and systemic hypertension. At step three, based
exclusively on Dr. Pella’s assessment, the ALJ concluded that
these impairments, individually or in combination, did not
satisfy a listing for presumptive disability.
Step four required the ALJ to determine Plessinger’s resid‐
ual functional capacity and determine whether he could do
his past relevant work. The ALJ found that his impairments
“could reasonably be expected to cause the alleged symp‐
toms,” but concluded “his purely subjective complaints are
given less than full credibility and little weight” because they
were “not reasonably consistent with the overall evidence of
record.” The ALJ then listed the factors that must be consid‐
ered when assessing the credibility of an individual’s state‐
ments, see 20 C.F.R. § 404.1529(c), but did not return to those
No. 18‐1240 7
factors to explain his finding that Plessinger was “not entirely
credible.”
The ALJ wrote that he gave “great weight” to the opinion
of Dr. Pella because his testimony showed “a careful analysis
of the claimant’s impairments” and “was based on a thorough
review of evidence.” Further, the ALJ said he found Dr. Pella’s
determinations credible because they were “supported by ob‐
jective clinical findings and treating progress notes in the rec‐
ord.” The ALJ did not specify which findings and notes he
meant.
By contrast, the ALJ discounted the assessments of several
consulting physicians, and he did not assign any particular
weight to the assessment of Plessinger’s treating physicians.
The ALJ said he gave only little weight to the opinions of Dr.
Laurente, the agency’s consulting examiner, and to the opin‐
ions of Dr. Cocoran and Dr. Sands, the non‐examining state‐
agency physicians, because he found their opinions incon‐
sistent with the other diagnostic and clinical findings, and be‐
cause they lacked access to the longitudinal medical record.
The ALJ then briefly discussed some of the findings of
Plessinger’s treating physicians but did not assign them any
particular weight. He focused only on their findings that sup‐
ported Dr. Pella’s assessment of residual functional capacity.
For example, the ALJ mentioned that Dr. Coleman’s February
2015 examination of Plessinger revealed that his spine was
positive for posterior tenderness, but that a neurological exam
was “within normal limits” and his MRI indicated little
change from the earlier MRI. The ALJ omitted any mention of
Dr. Coleman’s clinical assessment that Plessinger “can walk
less than 50 yards” before his legs tingle, and that his spinal
8 No. 18‐1240
stenosis was “symptomatic and function limiting” and was
“not responding to conservative and injection therapies.”
Similarly, the ALJ noted that Dr. Phookan “indicated that
the claimant was not a surgical candidate.” The ALJ omitted
Dr. Phookan’s explanation for why a lumbar discectomy at the
L3‐L4 and L4‐5 hernia locations might not be the right strat‐
egy for Plessinger: he was already experiencing failed back
surgery syndrome, and his pain was mostly concentrated in
his axial low back rather than in his right leg. Dr. Phookan
also noted that if other treatment options did not work, he
would still consider a second surgery.
At step four, the ALJ thus concluded that Plessinger had
the residual functional capacity to perform sedentary work
with certain restrictions that would not allow him to perform
any of his past relevant work as a welder or truck driver. At
step five, however, the ALJ found that sedentary and un‐
skilled jobs existed in significant numbers in the national
economy that Plessinger could perform, including those that
the vocational expert identified. The ALJ therefore denied
benefits.
II. Analysis
The ALJ’s decision was based on two related errors that
require remand. First, the ALJ relied too heavily on Dr. Pella’s
testimony without explaining adequately why he was dis‐
counting the opinions of physicians who had treated and ex‐
amined Plessinger. Second, the ALJ’s decision to discount the
credibility of Plessinger’s account of his pain and its limiting
effects on him was erroneous. The ALJ relied heavily on Dr.
Pella, who qualified his opinions by signaling that he had not
taken into account Plessinger’s complaints and that someone
No. 18‐1240 9
else—the ALJ—would need to assess the credibility of those
complaints. In essence, Dr. Pella and the ALJ each deferred to
the other on that critical issue. The ALJ never fully engaged
with the evidence supporting Plessinger’s claim of disabling
pain. There is also a third problem with the ALJ’s opinion: it
failed to explain why Plessinger did not meet or equal Listing
1.04A for spinal disorders, which would lead to a finding of
presumptive disability. Because of issues of waiver and
whether Plessinger met his burden of proof on this issue, we
do not rely on this point to remand. Since the case must go
back to the agency on other grounds, the listing issue will
need to be addressed on remand.
On appeal, Plessinger argues that the ALJ relied too heav‐
ily on Dr. Pella’s testimony and gave too little weight to his
other doctors’ opinions. Plessinger points out that Dr. Pella is
not an expert in orthopedics or neurology, the areas of medi‐
cine most relevant to Plessinger’s impairments. Rather,
Dr. Pella is a career pulmonologist (lung specialist) who did
his residency in internal medicine many years ago.
An ALJ may have a medical expert assist with interpreting
the record evidence. See 20 C.F.R. § 404.1512(b)(1)(viii) (2017).
Dr. Pella’s specialty in pulmonology did not disqualify him as
a matter of law from being able to opine on the meaning of
Plessinger’s medical records. See Kepple v. Massanari, 268 F.3d
513, 516 (7th Cir. 2001). Nevertheless, the ALJ erred by giving
Dr. Pella’s testimony greater weight than was appropriate
based on the factors the regulations identify for assessing
medical opinions. See 20 C.F.R. § 404.1527(c)(2)–(5). The ALJ
said he gave Dr. Pella’s opinion “great weight” because it was
“based on a thorough review of evidence” and because, the
ALJ wrote, his determinations were supported by the record.
10 No. 18‐1240
Dr. Pella’s opinion was certainly admissible, but there are
several problems here. Dr. Pella never examined Plessinger,
had no treatment relationship with him, see § 404.1527(c)(2)(i)
(more weight given to doctors with a longer treatment rela‐
tionship), and is not an expert in orthopedics or neurology,
see § 404.1527(c)(5) (more weight given to opinion of special‐
ist about medical issues related to area of specialty). The ALJ
assumed that Dr. Pella was familiar with all of the medical
evidence, both supporting and undermining the claim of dis‐
ability, but did not point to the corroborating record evidence.
The most fundamental error is that the ALJ accepted Dr.
Pella’s opinions without recognizing the limits that Dr. Pella
himself imposed on them. Dr. Pella acknowledged that his
opinions did not take into account Plessinger’s own account
of the disabling effects of his pain. Dr. Pella concluded his
opinion on Plessinger’s residual functional capacity by saying
that “any further impairment would be related to credibility
of pain on his function, Your Honor.” A few minutes later,
Plessinger’s attorney asked Dr. Pella why he believed Ples‐
singer was capable of longer periods of sitting, standing, and
walking than the agency’s consultative examiners did. Dr.
Pella answered: “ … I think that would be based on a credibil‐
ity of, of pain on his function.”
These answers indicated honestly what seems obvious.
Having not even examined Plessinger, Dr. Pella was not in a
position to evaluate the credibility of his account of the pain
he suffered. Dr. Pella was saying, in other words, that some‐
one else—presumably the ALJ—would need to assess those
issues to make a sound decision based on all the evidence in
the case. The ALJ cannot delegate to any doctor, and certainly
No. 18‐1240 11
not to a non‐examining doctor, the task of evaluating the
claimant’s credibility.
By contrast, the ALJ referred only briefly in his opinion to
the clinical findings of Dr. Coleman, the doctor who had one
of the longest treatment relationships with Plessinger, from
July 2013 to February 2015. Dr. Coleman’s assessment of Ples‐
singer’s ability to walk (only 50 yards before his legs started
to tingle) was not consistent with Dr. Pella’s testimony that
Plessinger could walk for 15 to 30 minutes at one time. The
ALJ did not explain why he favored Dr. Pella’s opinion over
Dr. Coleman’s. See Vanprooyen v. Berryhill, 864 F.3d 567, 572
(7th Cir. 2017) (“A treating physician’s opinion trumps the
conclusions of agency consultants—in particular those who
never examined the claimant—unless the limitations articu‐
lated by the treating physician are not supported by the rec‐
ord.”).
The ALJ also seemed to have misconstrued (or worse,
“cherry‐picked”) the evidence from Dr. Phookan’s March
2015 assessment that surgery might not be the best treatment
option for Plessinger. The ALJ treated this opinion as if it
showed that Plessinger’s condition was not severe enough for
surgery. Actually, Dr. Phookan’s full assessment undermines
that view. He pointed out that Plessinger was suffering from
failed back surgery syndrome, which meant that surgery was
less promising than it would otherwise be, despite the pain
Plessinger was suffering. Dr. Phookan also pointed out that
surgery where Plessinger’s herniated discs were located
might not address the part of the back where he reported ex‐
periencing the most pain. ALJs are not permitted to cherry‐
pick evidence from the record to support their conclusions,
12 No. 18‐1240
without engaging with the evidence that weighs against their
findings. See Yurt v. Colvin, 758 F.3d 850, 859 (7th Cir. 2014).
Approaching the case in terms of the ALJ’s credibility find‐
ing, we also find we must reverse and remand. Plessinger’s
own account of his pain and resulting limitations showed, if
believed, pain and effects that rendered him totally disabled
and eligible for benefits.
The ALJ recognized correctly that Plessinger’s “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms,” but the ALJ found that his
“purely subjective complaints are given less than full credibil‐
ity” because they were not consistent with the overall evi‐
dence in the record. The ALJ also stated in his opinion the
proper test for analyzing a claimant’s credibility.
The ALJ failed, however, to actually conduct that analysis
himself. He instead deferred entirely to the testimony of
Dr. Pella. The ALJ’s only explanation for finding Plessinger
“not entirely credible” was that his “subjective complaints”
were “not reasonably consistent with the overall evidence of
record.” This is language that this court has criticized as
“meaningless boilerplate” if the ALJ does not offer more of an
explanation for the purported inconsistencies. Stark v. Colvin,
813 F.3d 684, 688 (7th Cir. 2016).
The ALJ did not really explain, for example, why he did
not believe Plessinger’s testimony that he could not walk
more than a very short distance and had to lie down several
times during the day to manage his pain—testimony which,
if believed, would preclude competitive employment accord‐
ing to the vocational expert. The ALJ also did not address the
fact that Plessinger’s allegations of pain were consistent with
No. 18‐1240 13
the strong prescription pain medication he was taking. See,
e.g., Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004)
(finding doctor’s prescription for strong pain medications cor‐
roborated claimant’s credibility regarding pain).
The ALJ’s unsupported credibility assessment provides by
itself sufficient reason to remand here. Pierce v. Colvin, 739
F.3d 1046, 1051 (7th Cir. 2014) (“An erroneous credibility find‐
ing requires remand unless the claimant’s testimony is incred‐
ible on its face or the ALJ explains that the decision did not
depend on the credibility finding.”). We must repeat here that
Dr. Pella twice qualified his own opinion about Plessinger’s
residual capacity. He concluded his opinion by saying that
“any further impairment would be related to credibility of
pain on his function,” and he repeated the same qualification
when Plessinger’s attorney challenged his opinion. These an‐
swers indicated that Dr. Pella was leaving to the ALJ the job
of determining how credible Plessinger’s complaints of pain
were. As noted, Dr. Pella had not examined Plessinger. He
was not in any position to offer his own opinion about credi‐
bility or possible exaggeration or even malingering. (There is
no indication from any physician who examined or treated
Plessinger that he has been malingering or exaggerating his
symptoms.) That qualification of Dr. Pella’s opinion made
clear that the ALJ would need to make his own assessment of
Plessinger’s credibility before accepting Dr. Pella’s opinion
about residual functional capacity.
On appeal, Plessinger also argues that the ALJ erred by re‐
lying on Dr. Pella’s testimony to find that he was not pre‐
sumptively disabled under Listing 1.04A for “Disorders of the
spine,” including spinal stenosis and degenerative disc dis‐
ease. See 20 C.F.R. Part 404, Subpart P, App’x 1, § 1.04A.
14 No. 18‐1240
The Commissioner contends that Plessinger waived any
argument based on the listings because he did not raise the
issue before the district court. Plessinger argued broadly in
the district court that the ALJ failed to explain his analysis of
the evidence with enough detail to permit meaningful appel‐
late review. We have treated such arguments as enough to
preserve more specific arguments. See Arnett v. Astrue,
676 F.3d 586, 593–94 (7th Cir. 2012) (finding claimant’s argu‐
ment regarding specific part of the ALJ’s residual functional
capacity analysis was not waived on appeal because claimant
raised issue of the ALJ’s overall residual functional capacity
finding in district court). We need not reach a definitive con‐
clusion on the issue of waiver, though, because the case must
be remanded on other grounds.
Listing 1.04 requires a spinal disorder, such as degenera‐
tive disc disease or spinal stenosis “resulting in compromise
of a nerve root … or the spinal cord,” plus one of three alter‐
natives. Alternative A is “Evidence of nerve root compression
characterized by neuro‐anatomic distribution of pain, limita‐
tion of motion of the spine, motor loss (atrophy with associ‐
ated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower
back, positive straight‐leg raising test.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.04. Dr. Coleman noted that Plessinger
had a positive straight‐leg test in February 2015, as well as
“new left L4 radiculopathy with numbness and motor weak‐
ness for the past 4 weeks.” And Dr. Laurente noted in his July
2014 exam of Plessinger that he had “some signs of nerve im‐
pingement (with positive straight leg raise test).”
No. 18‐1240 15
Here was the ALJ’s entire explanation for finding that Ples‐
singer did not have an impairment meeting a listed impair‐
ment:
John Pella, M.D., a board certified internist and
an impartial medical expert, had the oppor‐
tunity to review the medical evidence of record
and testify at the hearing. Dr. Pella testified that
the physical impairments, considered singly or
in combination, do not meet or equal any sec‐
tion of the listed impairments.
Given the substantial evidence from treating and examining
physicians tending to show that Plessinger may have met or
equaled Listing 1.04A, this was not a sufficient explanation of
the ALJ’s reasoning. It would not allow this court to under‐
take a “meaningful review” of the ALJ’s finding that Ples‐
singer did not satisfy Listing 1.04A. Kastner v. Astrue, 697 F.3d
642, 648 (7th Cir. 2012). We could not “discern from the ALJ’s
scant analysis whether [he] considered and dismissed, or
completely failed to consider, this pertinent evidence,” so the
ALJ did not “build a logical bridge” from the evidence to his
conclusion. Minnick v. Colvin, 775 F.3d 929, 936 (7th Cir. 2015),
citing Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005).
This issue will need a fresh look on remand.
The judgment of the district court upholding the ALJ’s de‐
nial of benefits is REVERSED and the case is REMANDED to
the agency for further proceedings consistent with this opin‐
ion.