### In the



# United States Court of Appeals

For the Seventh Circuit

No. 13

‐ 1197

R ANDY L. S CHOMAS

, Plaintiff

‐ Appellant

,

v.

C AROLYN W. C OLVIN

, Acting Commissioner of

Social Security, Defendant

‐ Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 11

‐ 1210

— Joe Billy McDade

, Judge.

A RGUED A UGUST 7, 2013

— D ECIDED O CTOBER 3, 2013

Before E ASTERBROOK

, M ANION and K ANNE

, Circuit Judges.

P ER C URIAM

. Randy Schomas is 54 years old and suffers

from scoliosis and degenerative disc disease. The Social2 No. 13

‐ 1197

Security Administration denied his application for Disability

Insurance Benefits after a hearing before an administrative law

judge. The district court upheld that determination, and in this

appeal Schomas challenges the ALJ’s credibility finding and

assessment of his residual functional capacity. The ALJ’s

decision is problematic, so this could have been a close case.

But Schomas waived most of his arguments, and the rest are

unfocused or undeveloped. Because the contentions that

Schomas properly presents are without merit, we uphold the

denial of benefits.

I. BACKGROUND

Schomas was 49 when he applied for disability benefits in

March 2008. He alleged an onset date of December 19, 2007. On

that date Schomas was working as a machine operator and

injured his back while lifting mail bags weighing 50 to 100

pounds. His application for benefits was denied initially and

on reconsideration soon after it was submitted. Schomas then

requested a hearing before an ALJ.

The evidence before the ALJ includes extensive documenta

‐

tion of Schomas’s post

‐ injury medical treatment, which we

summarize. Schomas did not immediately seek treatment, but

two days after the injury he visited the occupational health

department at Illinois Valley Community Hospital. A physi

‐

cian there diagnosed a lower back strain, recommended that he

take ibuprofen and apply ice, and restricted him to lifting no

more than 10 pounds. At his next appointment a week later,

Schomas described a “constant sharp ache” in his back that

disturbed his sleep and was aggravated by walking and sitting.

The treating physician substituted a different anti

‐ inflamma

‐3 No. 13

‐ 1197

tory for the ibuprofen and prescribed a muscle relaxant. But he

increased to 15 pounds the weight that Schomas could lift and

authorized his return to work with the caveat that he avoid

bending and stooping. After another week Schomas told the

physician that he was improving though still experiencing

discomfort in his lower back radiating into his right hip. This

time the doctor cleared Schomas to work without restriction

but recommended that he continue taking nonprescription

anti

‐ inflammatories and apply ice and heat.

Schomas was back at work full

‐ time by the first week of

January 2008, though he still complained about pain. He was

seen in January 2008 by chiropractor Elizabeth Elliot, who had

treated him sporadically for spinal problems since 1992. Her

physical examination confirmed pain and tenderness in

Schomas’s lower back and a decreased range of motion. Elliot

treated Schomas every few days through the end of March

2008 and every two weeks after that. His symptoms had

diminished with treatment, he reported, but would flare if he

sat for too long, did housework, lay in a tanning bed, went

fishing, or carried a suitcase.

Schomas was laid off from his job in February 2008, the

month before he applied for benefits. Since then has not been

employed. Before submitting his application he retained an

attorney, who recommended that he consult orthopedic

surgeon Mark Lorenz. At his appointment in March, Schomas

told Dr. Lorenz that some days were better than others but on

any given day the pain in his back ranged from 7 to 10 on a

scale of 10. An X

‐ ray revealed scoliosis, significant arthritis in

the left hip, and degenerative disc disease. Degenerative disc

disease is the label given wear on the spinal discs that can4 No. 13

‐ 1197

cause back pain radiating into the buttocks and upper thighs.

Univ. of Md. Med. Ctr., Degenerative Disc Disease,

http://umm.edu/programs/spine/health/guides/degenerative

‐ disc

‐ disease (last updated July 3, 2013). On a work

‐ status

report Dr. Lorenz checked the box labeled “Unable to return to

work.” He prescribed an oral corticosteroid, and after that

Schomas did not return for another five months.

A nonexamining agency medical consultant, Dr. Delano

Zimmerman, reviewed Schomas’s medical records in April

2008 and assessed his residual functional capacity (or “RFC”).

Dr. Zimmerman concluded that Schomas could lift 20 pounds

occasionally and 10 pounds frequently, could climb occasion

‐ ally, and could sit, stand, or walk for 6 hours in an 8

‐ hour

workday. Another state

‐ agency physician, Dr. Bharati Jhaveri,

concurred with Dr. Zimmerman’s assessment.

In May 2008, immediately after the initial denial of benefits,

Schomas consulted a second orthopedic surgeon, Dr. Stephen

Heim. The change in physicians is not explained in the record.

Schomas told Dr. Heim that his symptoms had waxed and

waned since the December 2007 injury. Dr. Heim obtained

X

‐ rays and echoed Dr. Lorenz’s diagnoses of scoliosis, arthritis

of the hip, and disc disease; he also added a fourth malady,

lumbar radiculopathy. Lumbar radiculopathy is a painful

condition of the nerve roots in the lower spine, often caused by

disc herniation or compression. D ORLAND ’ S I LLUSTRATED

M EDICAL D ICTIONARY 1571 (32nd ed. 2012). Dr. Heim con

‐

cluded that Schomas could work so long as he did not bend,

twist, squat, or lift more than 25 pounds. The physician

prescribed physical therapy and a narcotic for pain. When

Schomas next visited a month later, he reported that any5 No. 13

‐ 1197

activity exacerbated the pain in his back and leg. Dr. Heim

ordered an MRI; that diagnostic was conducted in July 2008

and confirmed the diagnoses of scoliosis and disc degenera

‐

tion.

Schomas initially complied with the prescription for

physical therapy, and the therapist saw progress: Schomas was

reporting greater tolerance to activity and seemed to be in less

pain and have increased mobility. Yet after ten weeks of

sessions, the therapist reported to Dr. Heim that “we are

holding physical therapy at this time awaiting clarification and

any further order or advisement” because there was “some

issue with the patient in a transition of physicians.”

Meanwhile, Schomas visited Dr. Lorenz again in August

2008. He rated his pain as 7 on a scale of 10 and said that 6 was

average, 5 was best, and 9 the worst. Dr. Lorenz again checked

the box on Schomas’s work

‐ status report declaring him

“Unable to return to work,” ordered another RFC assessment,

and referred Schomas to a pain specialist because he “is not a

surgical candidate.”

Alyssa Emanuelson, a certified athletic trainer and func

‐

tional assessment specialist, evaluated Schomas’s RFC in

September 2008. She opined that he could sit or stand for 60

minutes at a stretch and lift 37 pounds occasionally and 21

pounds frequently. During an 8

‐ hour workday, Emanuelson

continued, Schomas could sit for 8 hours, stand for 5 to 6

hours, and walk for 4 to 5 hours. Schomas’s limitations, she

concluded, would prevent him from returning to his past

employment or other medium work.6 No. 13

‐ 1197

That same month Schomas visited pain specialist

Ira Goodman. Schomas reported pain of 7 on a scale of 10 and

said that the pain always was present in varying intensity,

from 5 at best to sometimes 10 with 7 the average. He said the

pain caused him to wake several times every night. He could

control it by sitting or lying down most of the day, and

walking also helped. Dr. Goodman opined that Schomas

“should be off work while under treatment.” During outpa

‐

tient procedures Dr. Goodman administered two epidural

steroid injections. Schomas reported no improvement from the

first, but Dr. Goodman observed significant functional im

‐

provement. After the second injection in late October 2008,

Schomas reported decreased pain, and Dr. Goodman declared

him “disabled” but fit to return to work at jobs that didn’t

require him to bend, twist, or continuously stand for more than

one hour. Dr. Goodman ordered a different series of steroid

injections, which Schomas received in March 2009.

Then in April 2009 Schomas consulted a third orthopedic

surgeon, Alexander Ghanayem, who recommended back

surgery. As before, the change in physicians is not explained in

the record. In July Dr. Ghanayem performed three surgical

procedures during one operation: an anterior lumbar interbody

fusion, posterior laminotomy, and partial facetectomy. The

anterior lumbar interbody fusion involved replacing one of his

spinal discs with a bone graft substitute. Am. Academy of

Orthopaedic Surgeons, Anterior Lumbar Interbody Fusion,

http://orthoinfo.aaos.org/topic.cfm?topic=A00595 (last updated

June 2010). The laminotomy and facetectomy were performed

to decompress his spinal nerve root. See S TEDMAN ’ S M EDICAL

D ICTIONARY 1046 (28th ed. 2006); Wikipedia, Facetectomy

,7 No. 13

‐ 1197

http://en.wikipedia.org/wiki/Facetectomy (last visited Aug. 7,

2013).

A month after the surgery, Dr. Ghanayem concluded that

Schomas was not ready for physical therapy or work but

decreased his narcotic pain killer and continued his walking

program. Schomas continued seeing Dr. Ghanayem on a

monthly basis. In November 2009 the doctor ordered an RFC

assessment after noting that Schomas had increased his activity

level and that X

‐ rays showed him ready to begin conditioning

for work.

A different physical therapist, Lanny Slevin, conducted this

RFC evaluation over four hours in January 2010. Slevin

concluded that Schomas could perform light work not requir

‐ ing him to lift more than 23 pounds to his shoulder, or more

than 13 to 18 pounds over his head. Slevin also limited

Schomas to work requiring no more than occasional sitting,

standing, walking, bending, squatting, stair climbing, kneeling,

or crawling. Slevin opined that Schomas’s main obstacles for

returning to work were “subjective reports of high rated pain,”

decreased tolerance to long periods of activity, and restricted

range of motion in the trunk. Dr. Ghanayem evaluated and

approved Slevin’s report, and in January 2010 cleared Schomas

to work with the limitations noted. Schomas did not see

Dr. Ghanayem again.

Dr. Ghanayem’s assessment in January was the last word

medically on Schomas’s back and related problems before his

administrative hearing in May 2010. Schomas told the ALJ that

walking more than a couple of blocks caused his right leg to

hurt, standing for more than 30 minutes triggered pain in his8 No. 13

‐ 1197

back, and sitting caused tingling in his toes and burning in his

hip. Any exertion, Schomas continued, caused pain. Schomas

said that he cooks, vacuums, and washes dishes and laundry

but not without some pain to his back. And he needs

help—which he gets from his brother and neighbors—for

lifting, shoveling snow, and cutting the grass. When the ALJ

inquired about current medical care, Schomas answered that

he was still seeing his family doctor for high blood pressure

and had an appointment scheduled for later that month. For

his pain, Schomas said, he was taking a narcotic equivalent to

Vicodin. Who prescribed that drug and when is not disclosed

in the administrative record. Schomas asserted that the drug

does not extinguish his pain but makes it bearable. When the

ALJ asked if the drug causes side effects, Schomas responded,

“Not that I’m aware of,” but then added that he cannot stay

focused and falls asleep throughout the day. Schomas’s lawyer

revisited this topic, asking how the drug makes him “feel

mentally.” Schomas replied that it makes him tired and groggy

and that he cannot maintain concentration.

The ALJ posed hypothetical questions to vocational expert

Michelle Peters. She testified that a person of Schomas’s age

and education (high school plus some community college)

could not return to his past employment as a machine operator

or shipping clerk if limited to light exertional work. But that

person would be qualified, Peters said, for one of approxi

‐ mately 15,000 cashier positions, 3,000 assembly positions, and

3,500 hand

‐ packaging positions in northern Illinois. When the

ALJ further limited the jobs to those allowing the employee to

sit or stand at will without becoming off task more than 10% of

the time, Peters estimated that the suitable jobs would be9 No. 13

‐ 1197

reduced to 1,800 assembly positions and 2,000 hand

‐ packaging

positions. Finally, the ALJ inquired about a person whose

concentration and focus during work “dropped below 85%,”

and Peters responded that competitive employment could not

be sustained.

The ALJ concluded that Schomas was not disabled. At Step

1 of the applicable 5

‐ step analysis, see 20 C.F.R. § 404.1520, the

ALJ found that Schomas had not engaged in substantial gainful

activity after his alleged onset date. At Step 2 the ALJ found

that Schomas suffers from scoliosis, degenerative disc disease,

and degenerative arthritis. At Step 3 the ALJ concluded that

these impairments, although severe, do not meet or equal a

listed impairment.

The ALJ then found that Schomas had the RFC to perform

light work, 20 C.F.R. § 404.1567(b), which does not require

crawling or climbing ladders, ropes or scaffolds, and only

occasional stooping, crouching, kneeling, and climbing ramps

or stairs. The “functional capacity evaluation and finding of the

state agency,” the ALJ explained, support a determination that

Schomas can perform light work. The ALJ recounted

Schomas’s medical history and, in light of the medical evi

‐

dence, discredited his assertion of disabling pain. In particular,

the ALJ noted that Schomas had received extensive conserva

‐

tive therapy and not used strong narcotics persistently.

Moreover, the ALJ opined that someone with disabling pain

would have been hospitalized frequently or frequented

emergency rooms, which Schomas had not. Plus, the ALJ

reasoned, no doctor had declared Schomas to be totally

disabled by pain.10 No. 13

‐ 1197

At Step 4 the ALJ found that Schomas could not perform

his past work. At Step 5, though, the ALJ concluded that jobs

exist which Schomas could perform given his RFC, age,

education, and work experience.

II. ANALYSIS

Because the Appeals Council denied review, we evaluate

the ALJ’s decision as the final word of the Commissioner. See,

e.g., Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013); Shideler v.

Astrue, 688 F.3d 306, 310 (7th Cir. 2012); Jelinek v. Astrue, 662

F.3d 805, 807 (7th Cir. 2011).

A. The ALJ’s RFC Determination

Schomas, who is represented by different counsel on

appeal, first contends that the ALJ overstated his RFC.

Schomas principally argues that the ALJ failed to mention the

several doctors who restricted him from working at various

times; those restrictions, he asserts, favored granting a closed

period of disability. See 20 C.F.R. § 404.320. But prior counsel

did not raise this argument in the district court, and thus it is

waived. See Skarbek v. Barnhart, 390 F.3d 500, 505 (7th Cir.

2004); Schoenfeld v. Apfel, 237 F.3d 788, 793 (7th Cir. 2001).

Concerning his RFC, Schomas makes only one argument

that is properly before us. Even that argument is difficult to

decipher, but Schomas apparently contends that the ALJ relied

primarily on the RFC determination of physical therapist

Slevin but disregarded its most critical component. What the

ALJ ignored, Schomas insists, is the restriction to occasional

sitting, standing, and walking. That restriction means, says11 No. 13

‐ 1197

Schomas, that he cannot do the “good deal of walking or

standing” required for light work. See 20 C.F.R. § 404.1567(b).

Schomas’s argument misses the mark. The ALJ acknowl

‐ edged the RFC determination by Slevin in 2010 but so did the

ALJ acknowledge the RFC assessments made in April 2008 by

the state

‐ agency reviewer, Dr. Zimmerman, and in September

2008 by Emanuelson. Yet in concluding that Schomas can

perform light work, the ALJ explicitly linked his decision to the

“functional capacity evaluation and finding of the state

agency.” Schomas interprets this reference to mean the RFC

assessments from Dr. Zimmerman and physical therapist

Slevin, but that reading ignores what the ALJ said. We under

‐

stand the ALJ to have credited Dr. Zimmerman’s assessment

over the others. Yet, if that is so, says Schomas, then the ALJ’s

silence about why he gave controlling weight to one assess

‐

ment over another requires us to remand the case because the

ALJ did not “provide an accurate and logical bridge” from the

evidence to his finding. But this kind of error is subject to

harmless

‐ error review, and we will not remand a case to the

ALJ for further explanation if we can predict with great

confidence that the result on remand would be the same. See

McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011); Parker, 597

F.3d at 924; Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010);

Keys v. Barnhart, 347 F.3d 990, 994–95 (7th Cir. 2003);

see also Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003).

Our review of the record convinces us that the result would

not change. There are three RFC assessments in the medical

record. The earliest, by Dr. Zimmerman, does not impose any

restriction on sitting, standing, or walking that would preclude

light work. Neither does the second assessment by12 No. 13

‐ 1197

Emanuelson, the assessment specialist, who gave her opinion

several months later at the request of one of Schomas’s own

physicians. Only the most

‐ recent assessment, performed in

January 2010 by Slevin, is possibly inconsistent with light

work. That RFC determination looks like an outlier, however,

and substantial evidence supports Dr. Zimmerman’s assess

‐

ment. Shortly after Schomas’s injury the physicians at Illinois

Valley Community Hospital told him he could return to work

without restriction. The second orthopedist that Schomas

consulted, Dr. Heim, prescribed work restrictions but none

pertained to sitting, standing, or walking. And after Schomas

received a series of steroid injections from Dr. Goodman, that

doctor told him he could work but should refrain from

standing continuously for more than an hour. Thus, even

though the ALJ should have better articulated his reasoning,

we cannot see how a different conclusion possibly could be

reached on remand.

B. The ALJ’s Adverse Credibility Finding

Schomas also challenges the ALJ’s credibility determina

‐

tion. He complains that the ALJ’s decision includes boilerplate

language that is never connected to any analysis of the evi

‐

dence. And where the decision does include analysis, Schomas

continues, the analysis is limited to the medical evidence and

excludes consideration of many factors outlined in 20 C.F.R.

§ 404.1529(c) that were relevant in evaluating his allegation of

disabling pain. S.S.R. 96

‐ 7p, at *2. Many of those factors, he

insists, demonstrate his credibility.

Schomas’s concern about the format of the ALJ’s decision

is unfounded. The use of boilerplate is innocuous when, as13 No. 13

‐ 1197

here, the language is followed by an explanation for rejecting

the claimant’s testimony. See Pepper v. Colvin, 712 F.3d 351,

367–68 (7th Cir. 2013 ); Filus v. Astrue, 694 F.3d 863, 868 (7th Cir.

2012). The boilerplate is not problematic.

Other claimed errors might have been. Yet in Schomas’s

brief to the district court, he contested only the ALJ’s use of

boilerplate and, citing generally to SSR 96

‐ 7, argued that the

ALJ’s credibility finding must be supported by the entire

record. Schomas did not point to a single factor outlined in SSR

96

‐ 7 that the ALJ omitted or how the corresponding evidence

would support his argument. And though he elaborates in his

appellate brief, now is too late; his argument to the district

court was undeveloped and, thus, is waived on appeal.

See Schoenfeld, 237 F.3d at 793 (7th Cir. 2001); United States v.

Lanzotti, 205 F.3d 951, 957 (7th Cir. 2000). Even so, much of the

reasoning behind the ALJ’s credibility finding is troubling, and

so we add a few observations.

We give special deference to an ALJ’s credibility determina

‐

tion and will not overturn it unless it is patently wrong. Jones

v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); Larson v. Astrue,

615 F.3d 744, 751 (7th Cir. 2010). But if “the determination rests

on objective factors or fundamental implausibilities rather than

subjective considerations” like demeanor, we “have greater

freedom” in reviewing the decision. Indoranto v. Barnhart, 374

F.3d 470, 474 (7th Cir. 2004) (internal quotation marks and

citation omitted). In making a credibility finding the ALJ must

evaluate the claimant’s pain level, medication, treatment, daily

activities, and limitations. See 20 C.F.R. § 404.1529(c); Terry v.

Astrue, 580 F.3d 471, 477 (7th Cir. 2009).14 No. 13

‐ 1197

Schomas briefly complains that the ALJ did not mention the

severity of his pain or his mental and physical limitations from

his medication. Had it been preserved, this contention might

have had traction. The ALJ noted that Schomas acknowledged

that his pain medication helps. But that observation does not

accurately reflect Schomas’s testimony. He testified that his

prescription drug makes his pain bearable, but still he is in

pain any time he exerts himself. The ALJ also stated that

Schomas testified that he was not experiencing side effects.

True enough, Schomas said no when the ALJ asked if he was

experiencing side effects. Yet when his lawyer asked how the

medication makes him “feel mentally,” Schomas explained that

it makes him tired and groggy. He already had said that he

cannot stay focused throughout the day and is constantly

napping. These statements are particularly relevant given the

vocational expert’s conclusion that a person whose focus drops

below 85% could not sustain competitive employment (another

point the ALJ neglected to mention). If the ALJ disbelieved

Schomas, he needed to explain that finding in order to build a

logical bridge between the evidence and his conclusion.

See Shauger v. Astrue, 675 F.3d 690, 697–98 (7th Cir. 2012);

Villano v. Astrue, 556 F.3d 558, 562–63 (7th Cir. 2009). The ALJ

should have evaluated Schomas’s subjective reports of pain,

fatigue, and concentration.

Other pieces of the ALJ’s credibility determination also rest

on shaky grounds. The ALJ reasons that Schomas received

extensive conservative therapy and that, had he really been

disabled by pain, he would have been hospitalized or at least

visited the emergency room more frequently. This reasoning,

Schomas asserts, impermissibly substitutes the ALJ’s personal15 No. 13

‐ 1197

observations for the considered judgment of medical profes

‐

sionals. See Myles v. Astrue, 582 F.3d 672, 677–78 (7th Cir. 2009);

Blakes ex rel. Wolfe v. Barnhart, 331 F.3d 565, 569–70 (7th Cir.

2003). We might agree. Schomas indeed began with conserva

‐

tive therapy, such as over

‐ the

‐ counter anti

‐ inflammatories,

chiropractic treatment, and physical therapy. But over time his

treatment became more aggressive. Schomas was prescribed

narcotic pain relievers, submitted to steroid injections, and

finally underwent major surgery. Those treatments belie the

ALJ’s conclusion that Schomas was treated conservatively.

The Commissioner counters that “because many claimants

are hospitalized and/or receive emergency room treatment, it

is logical and appropriate to consider the number and fre

‐

quency of the claimant’s hospitalizations and emergency room

visits.” And, the Commissioner insists, the ALJ’s reasoning

rests “on the commonsense idea that a person who is disabled

by pain might seek medical treatment for that pain beyond that

provided by ordinarily scheduled visits with his doctors.” But

we do not understand the Commissioner’s point; a person

suffering continuous pain might seek unscheduled treatment

if that pain unpredictably spikes to a level which is intolerable,

but otherwise why would an emergency

‐ room visit be sensi

‐

ble? Unless emergency treatment can be expected to result in

relief, unscheduled treatment in fact makes no sense.

III. CONCLUSION

Again, had Schomas developed these contentions in the

district court, there might be something to this appeal. As it

stands, though, we uphold the denial of benefits.