# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 18, 2019

Decided January 17, 2020

Before

DAVID F. HAMILTON, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19

‐ 1540

CARL GEBAUER, JR.,

Plaintiff

‐ Appellant

,

v

.

ANDREW M. SAUL,

Commissioner of Social Security,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Central District of Illinois.

No. 2:17

‐ cv

‐ 02307

‐ EIL

Eric I. Long

,

M agistrate Judge

.

O R D E R

Before her death at the age of 46, Davina Gebauer battled several disorders,

including chronic fatigue, fibromyalgia, depression, and interstitial cystitis (bladder

pain). Her husband, Carl Gebauer, now challenges the denial of her two applications for

disability insurance benefits. See 42 U.S.C. § 405(g). He contends that the administrative

law judge improperly relied on a court

‐ appointed medical expert, afforded too little

weight to the opinion of Davina’s treating physician, misevaluated the severity of

Davina’s fibromyalgia, and improperly relied on testimony from a vocational expert.

We conclude that the ALJ did not commit a legal error and that substantial evidence

supports his findings. We therefore affirm the denial of benefits. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 19

‐ 1540 Page 2

Background

Davina was 42 years old in 2011 when she first applied for disability insurance

benefits, asserting that her fibromyalgia and chronic fatigue so impaired her that she no

longer could work. Four years earlier, she had been diagnosed with fibromyalgia. The

symptoms—including pain, difficulty standing and walking, and muscle cramps—

progressed until she quit her retail job due to the discomfort. Up to that point, she had

held jobs as a retail manager, a police dispatcher, an emergency

‐ 911 dispatcher, and a

switchboard operator.

Around the time that Davina stopped working, she complained of fatigue and

pain in her back, legs, and arms. In a Function Report that she submitted in connection

with her application, Davina reported that she could not sit, stand, or walk for an

extended period. She was able to attend to her own hygiene and personal care, but she

had to sit down to get dressed and could not easily lift her arms to fix her hair. She

helped with housework but often left chores unfinished. She also handled simple meal

preparation and drove a car for short errands. But at times she also had trouble just

turning the pages of a book. A few months after she submitted her application, a

cardiac stress test revealed that Davina had “poor exercise capacity,” though she could

reach 85% of the age

‐ predicted maximum heart rate and a workload of 7 METS

(equivalent to light jogging).

As part of her application, Davina presented medical records from her

primary

‐ care physician, Dr. Gregory Deters, who saw her nearly twenty times in the

two years between her application and the hearing. According to the treatment notes

during that time, Davina complained about her pain or discomfort at almost every visit,

although Dr. Deters routinely observed that she showed “no apparent physical

distress” or only “mild” discomfort and twice noted a concern of “symptom

magnification.” In one report from 2011, Dr. Deters opined (by checking “yes” next to

three attorney

‐ provided questions) that Davina’s pain prevented her from working full

time “at even a sedentary position.” By 2013, Davina was taking around a dozen

medications, including prescriptions for her anxiety, heart rate, and pain (Percocet,

Soma, Neurontin, and Toradol injections).

After a hearing in early 2013, an ALJ denied benefits, concluding that Davina’s

impairments were severe but not did not meet the demanding standard for disability

under the Social Security Act. Davina sought judicial review. The district court

remanded the case because the ALJ had not properly considered the subjective evidenceNo. 19

‐ 1540 Page 3

of Davina’s pain, see SSR 16

‐ 3p, and the ALJ had not explained why he rejected the

treating physician’s opinion evidence.

In January 2015, Davina died of sudden cardiac complications. Under the Social

Security Act, plaintiff Carl Gebauer, Jr., as her surviving spouse, could pursue a claim

for benefits that should have been paid before her death. See 42 U.S.C. § 404(d). He has

done so before the agency and in court.

The following year, the Appeals Council on remand consolidated Davina’s case

with a second application she had filed while proceedings in the district court had been

pending. Davina’s second application listed ailments—depression, bladder pain, back

pain, headaches, memory loss, and irritable bowel syndrome—in addition to the

fibromyalgia and fatigue that were the subject of her first application.

Carl submitted additional medical reports from Dr. Deters. One was a 2014

report stating (this time by checking boxes and answering a couple of specific, attorney

‐ provided questions) that if Davina had tried to take on sedentary work, she would have

required breaks totaling at least an hour per day in addition to normal breaks, and that

she would have missed at least three days of work per month. Carl also presented a

2016 report in which Dr. Deters said that he had considered Davina’s symptom

magnification when he completed the earlier reports. The additional treatment notes

from 2013 to 2015 reflect that Davina’s symptoms remained largely unchanged.

A different ALJ presided over a second hearing in April 2017, at which testimony

was presented by a court

‐ appointed medical expert and vocational expert. The medical

expert, a board

‐ certified internist who had treated patients with fibromyalgia for nearly

30 years, testified that none of Davina’s impairments met or medically equaled any

impairment listed in 20 C.F.R. Part 404, Subpart P, App’x 1, which would lead to an

automatic finding of disability. As for Davina’s functional capacity, the medical expert

opined that Davina would have required five

‐ minute breaks every hour, but she could

have lifted or carried about ten pounds frequently, walked a total of four hours over an

eight

‐ hour day, and reached overhead frequently. The vocational expert then testified

that a person with those limitations and capabilities would be able to perform Davina’s

past jobs (police dispatcher and 911 dispatcher) as well as jobs in the national market

(such as a document preparer or a letter addresser). The vocational expert further

testified that there were over a thousand such jobs in Illinois. In calculating that

number, he relied upon “Job Browser Pro,” a software program that compiles data from

the Bureau of Labor Statistics and the Census Bureau to create estimates of jobs at theNo. 19

‐ 1540 Page 4

level of the Dictionary of Occupational Titles. Although this program is increasingly

relied upon by vocational experts, the expert here acknowledged that its reliability has

not been the subject of any peer

‐ reviewed studies.

The ALJ concluded that, under the demanding standard of complete disability

under the Social Security Act, Davina was not disabled before her sudden death. In his

written decision, he applied the familiar five

‐ step analysis, see 20 C.F.R. § 404.1520(a),

and found that Davina did not engage in substantial gainful activity (step one) and

suffered severe impairments of fibromyalgia, degenerative changes in the lumbar spine,

sinus tachycardia (fast heart rhythm), hypertension, osteoarthrosis in the left knee,

obesity, anxiety, and diabetes (step two). The ALJ then determined that Davina’s

impairments did not meet or equal the severity of a listed impairment (step three), and

that Davina had the residual functioning capacity to perform light work with certain

limitations (limited standing and/or walking a total of four hours during an eight

‐ hour

workday; occasional stairs, stooping, kneeling, and crouching; no ladders, ropes, or

scaffolds; no crawling; no heights; limited to frequent overhead reaching, handling,

fingering, gripping, pushing, and pulling; requiring at least a five

‐ minute break every

two hours). At step four, the ALJ relied on the vocational expert’s testimony to conclude

that Davina could perform her past work as a police dispatcher, 911

‐ emergency

dispatcher, and switchboard operator. At step five, he again relied on the expert’s

testimony to conclude that Davina could adjust to other work in the national economy

as a letter addresser, document preparer, surveillance

‐ system monitor, final assembler,

or call

‐ out operator.

In assessing Davina’s residual functioning capacity, the ALJ considered evidence

from her Function Reports and medical records, as well as expert testimony. He

acknowledged Davina’s difficulties with walking, standing, and lifting her arms but

noted that, at various times, she could still attend to her own needs, care for pets,

perform light housework, prepare simple meals, shop in stores and online, and

communicate with friends by telephone and social media. He described Davina’s

complaints to Dr. Deters of pain and discomfort but noted that the doctor characterized

her on their visits as “alert,” recorded her discomfort as “mild,” and did not record any

difficulty walking, standing, or sitting nor note any symptoms (muscle atrophy, limited

range in motion, or sensory loss) typically associated with disabling pain. The ALJ did

not assign controlling weight or even significant probative weight to Dr. Deters’s

opinion, deeming it unsupported by medically acceptable clinical or laboratory findings

and inconsistent with Davina’s reported daily activities, Dr. Deters’s own treatment

notes, a conservative course of treatment (primarily medication), and the results of herNo. 19

‐ 1540 Page 5

cardiac stress test. The ALJ afforded “great probative weight” to the medical expert’s

opinions.

The Appeals Council denied review, making the ALJ’s decision the final position

of the Commissioner. See 20 C.F.R. § 404.981. Carl sought judicial review, arguing that

the ALJ retained a medical expert for the impermissible purpose of determining a

residual functioning capacity, afforded too little weight to Dr. Deters’s opinion,

misevaluated Davina’s subjective symptoms, and relied on unreliable testimony from

the vocational expert. The district court affirmed the ALJ’s decision.

Analysis

This court directly reviews the ALJ’s decision to determine “whether it applies

the correct legal standard and is supported by substantial evidence.” Summers v.

Berryhill

, 864 F.3d 523, 526 (7th Cir. 2017); 42 U.S.C. § 405(g).

I. The Medical Expert’s Opinions

Carl first argues that the ALJ was wrong to retain a medical expert to determine

Davina’s residual functioning capacity. He maintains that, if the ALJ had concerns

about any aspect of Dr. Deters’s opinion, the ALJ should have sought clarification

directly from Dr. Deters. According to Carl, the “only possible reason” the ALJ retained

an expert was to offer another opinion about Davina’s residual functioning capacity, a

purpose which Carl argues is “simply not

... permitted.”

We find no error. An ALJ may obtain a medical expert’s opinion for several

reasons including, in relevant part, “to clarify and explain the evidence or help resolve a

conflict because the medical evidence is contradictory, inconsistent, or confusing” and

to determine the claimant’s residual functioning capacity. See HALLEX I

‐ 2

‐ 5

‐ 34(A)(2)

(2016). 1 Further, the ALJ’s retention of an expert was not only discretionary but prudent

1 Carl does not rely on any specific statutory or regulatory prohibition. “HALLEX” is the term that Social

Security cognoscenti use to describe the Social Security Administration’s “Hearings, Appeals, and

Litigation Law Manual .” As best we can tell, its provisions are not binding law independent of the

governing statutes and regulations. HALLEX says that it “communicates guiding principles and

procedures to hearing level and Appeals Council adjudicators

... [and] serves as a reference source for

staff.

. . .” HALLEX I

‐ 1

‐ 0

‐ 3 (available at https://www.ssa.gov). Circuits are split as to whether HALLEX is

binding on ALJs. Compare, e.g., Lockwood v. Comm’r

, 616 F.3d 1068, 1072 (9th Cir. 2010) (HALLEX is

merely a non

‐ binding, internal administrative guide); Ferriell v. Comm’r

, 614 F.3d 611, 618 n. 4 (6th Cir.No. 19

‐ 1540 Page 6

in this case. The use of a medical expert can help ALJs resist the temptation to “play

doctor,” a label that usually produces a remand on judicial review, by evaluating

medical evidence on his or her own. E.g., McHenry v. Berryhill

, 911 F.3d 866, 871 (7 th Cir.

2018) (reversing denial of benefits based on ALJ’s own assessment of medical evidence,

without testimony from medical expert); Myles v. Astrue

, 582 F.3d 672, 677 (7 th Cir. 2009);

Kurth v. Astrue

, 568 F. Supp. 2d 1020, 1031 (W.D. Wis. 2008) (remanding where ALJ

failed to seek evidence from qualified medical expert about severity of claimant’s

fibromyalgia). A medical expert may be especially helpful when evaluating the severity

of a condition—like fibromyalgia—marked by subjective and fluctuating symptoms.

See, e.g., Castile v. Astrue

, 617 F.3d 923, 927 (7 th Cir. 2010) (affirming denial of benefits

based in part on medical expert’s opinion that claimant’s chronic fatigue syndrome did

not render her disabled).

Carl argues next that the ALJ erred in affording “great weight” to the medical

expert’s opinion. He contends that the expert’s opinion was not entitled to such weight

because it was at best “speculative” in that it relied on the results of a cardiac stress test,

even though fibromyalgia cannot be assessed by objective tests, see Gerstner v. Berryhill

,

879 F.3d 257, 264 (7th Cir. 2018), and no studies have proven a correlation between a

cardiac test and fibromyalgia.

The expert here, however, relied on the results of the cardiac stress test not as

direct evidence of Davina’s fibromyalgia but rather to demonstrate Davina’s overall

physical condition. Carl’s attorney cross

‐ examined the expert about her opinions and

the evidence used to support it. The ALJ pointed to more than the expert’s testimony

about the cardiac stress test when giving her opinion great weight. He highlighted her

specialization in rheumatology, her experience treating fibromyalgia, her familiarity

with Davina’s medical record, her knowledge of the relevant listings of impairments

from almost 30 years testifying at disability hearings, and the consistencies between the

expert’s opinion and Davina’s medical record

. See C.F.R § 404.1527(c) (listing factors to

consider when assigning weight to a medical opinion).

2010) (same); Power v. Barnhart

, 292 F.3d 781, 785–86 (D.C. Cir.2002) (same); DeChirico v. Callahan

, 134 F.3d

1177, 1184 (2d Cir.1998) (same), with S have v. Apfel

, 238 F.3d 592, 596–97 (5th Cir. 2001) (prejudicial

violations of the HALLEX entitle a claimant to relief); N e wton v. Apfel

, 209 F.3d 448, 459–60 (5th Cir. 2000)

(same). But we would expect at least an explanation if an ALJ departed from its instructions in a material

way.No. 19

‐ 1540 Page 7

As the other side of the same coin, Carl argues that the ALJ afforded too little

weight to Dr. Deters’s opinion, particularly his view that Davina could not work at all.

Carl contends that the ALJ erred in finding that Dr. Deters’s opinion was inconsistent

because the evidence relied upon by the ALJ in making that determination (namely, the

cardiac stress test and the lack of symptoms typically associated with pain) is

“unrelated” to fibromyalgia. Carl further argues that the ALJ ignored other evidence—

Davina’s roster of medications and the results of two musculoskeletal exams showing

tenderness—which supported Dr. Deters’s opinion.

In claims like this that were filed before 2017, a treating source’s opinion is

entitled to controlling weight if it is supported by sound medical evidence and a

consistent record. See 20 C.F.R. § 404.1527(c)(2); SSR 96

‐ 8p. When an ALJ does not give a

treating source’s opinion controlling weight, then that opinion should be weighed

based on the nature and extent of the treatment, the treating source’s area of specialty,

and the degree to which the opinion is consistent with the record and supported by

other evidence. See 20 C.F.R. § 404.1527(c)(2); SSR 96

‐ 8p.

Here, the ALJ did not make a outcome

‐ determining legal error in deciding not to

give Dr. Deters’s opinions controlling or probative weight. On one hand, we agree with

Carl that the ALJ wrongly discounted Dr. Deters’s opinions as not being supported by

medically acceptable tests, given the absence of such evidence in fibromyalgia cases.

See, e.g., Gerstner

, 879 F.3d at 264 (fibromyalgia “cannot be measured with objective

tests”). On the other hand, an opinion is entitled to controlling weight only if it is

supported both by medical findings and a consistent record. See 20 C.F.R.

§ 404.1527(c)(2). Here, the ALJ described at length how Dr. Deters’s opinions conflicted

with his own treatment notes, Davina’s daily activities, the cardiac stress test, and a lack

of symptoms typically associated with pain. He also discounted Dr. Deters’s reports

because they consisted of simple forms where the doctor checked “yes” next to

attorney

‐ provided questions, not open

‐ ended assessments of Davina’s capacities and

limitations.

Carl’s contention that the ALJ should not have relied on that evidence because it

was “unrelated” to fibromyalgia is rooted in misapprehension. The Social Security

Administration’s guidance on evaluating fibromyalgia, see SSR 12

‐ 2P, limits only the

evidence used to diagnose the disease as a medically determinable impairment (step two

in the five

‐ step analysis). It does not limit the evidence an ALJ can consider in

evaluating the severity of fibromyalgia for purposes of determining a residual

functioning capacity. Further, the Social Security Administration’s guidance on how toNo. 19

‐ 1540 Page 8

evaluate pain (fibromyalgia’s chief symptom) directs ALJs to consider the very

symptoms that the ALJ considered here. See 20 C.F.R. § 404.1529(c)(2) (“[E]vidence of

reduced joint motion, muscle spasm, sensory deficit or motor disruption

... is a useful

indicator to assist us in making reasonable conclusions about the intensity and

persistence of your symptoms.”)

Finally, the ALJ did not ignore evidence that supported Dr. Deters’s opinion. He

considered Davina’s medications and pointed to evidence that the medications offered

relief. He also discussed evidence of the musculoskeletal exams that Carl asserts were

“wholly omit[ted]” from the opinion. The ALJ explained that the results of the first

exam showed only some tenderness and acknowledged that, although the second exam

showed tenderness wherever Davina was touched, the medical notes from that visit

also reflected that her joints had good range of motion and that her medications

provided pain relief. The ALJ also considered that, in a follow

‐ up exam, her results

were “within normal limits.”

II. Severity of Davina’s Condition

Next, Carl argues that the ALJ improperly evaluated the severity of Davina’s

condition by cherry

‐ picking details from her daily activities and citing evidence that

was “disconnected” from fibromyalgia itself. Without identifying any specific examples

of activities overlooked by the ALJ, Carl argues that the ALJ did not “cite the source of

his findings” and “did not paint a full picture” of her daily activities.

But the ALJ’s evaluation was not inappropriate for evaluating the severity of

fibromyalgia. An ALJ must consider the longitudinal record of a fibromyalgia patient

because symptoms can wax and wane. See SSR 12

‐ 2P(VI)(D). The ALJ’s opinion—taken

as a whole—did not ignore Davina’s reports that she struggled daily with getting

dressed, could not walk or stand for extended periods, and often left chores unfinished

due to fatigue and pain. The ALJ considered the evidence of Davina’s daily activities in

balance with the rest of her record, including evidence that her doctors noted “no

apparent physical distress,” even on the days when she complained of pain, and a lack

of evidence that she had “significant sensation loss, significantly reduced joint motion,

muscle spasms, muscle atrophy, motor weakness,” or other symptoms “associated with

the pain that would prevent her from performing sedentary work.” See 20 C.F.R.

§ 404.1529(c)(1), (3).No. 19

‐ 1540 Page 9

III. The Vocational Expert’s Database

Finally, Carl argues that the ALJ erred in considering testimony from a

vocational expert who relied on the Job Browser Pro software that he acknowledged

had not been studied for reliability by any peer

‐ reviewed publication. However, any

weight that the ALJ placed on that testimony was not decisive for his ultimate decision

to deny Davina benefits. In evaluating disability claims under 20 C.F.R. § 404.1520(a)(4),

an ALJ considers in step five whether a claimant’s residual functioning capacity makes

it possible for her to adjust to a different job, and, if so, the ALJ will find that she is not

disabled. See id. at (a)(4)(v). But an ALJ reaches this part of the analysis only if the ALJ

first concludes in step four that a claimant could not perform any of her past jobs.

See id. at (g)(1). Here, the ALJ determined that Davina could have. Further, when Carl

objected to the vocational expert’s testimony at the hearing, the ALJ offered him an

opportunity to bring in an expert to testify about Job Browser Pro’s supposed

unreliability. Carl declined to do so.

Accordingly, we affirm the judgment of the district court affirming the denial of

benefits.