### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 3314

ANTHONY KAMINSKI,

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, South Bend Division.

No. 16

‐ CV

‐ 514

— Jon E. DeGuilio

, Judge

.

____________________

A RGUED A PRIL 25, 2018

— D ECIDED J ULY 9, 2018

____________________

Before M ANION

, H AMILTON

, and B ARRETT

, Circuit Judges

.

H AMILTON

, Circuit Judge

. In 2000, Anthony Kaminski fell

down a flight of stairs, suffering a head wound that caused a

traumatic brain injury and a seizure disorder. Thirteen years

later, he applied under the Social Security Act for disability

insurance benefits and supplemental security income. The So

‐

cial Security Administration denied his applications, and the

district court upheld the denial. Kaminski appeals, arguing2 No. 17

‐ 3314

that the administrative law judge improperly rejected his

treating physician’s opinions. We agree with Kaminski. Be

‐

cause the treating physician’s opinions and the testimony of

the vocational expert together show that Kaminski is disa

‐

bled, we remand the case to the agency with instructions to

award benefits to Kaminski.

I. Background

After Kaminski’s fall in 2000, doctors determined that he

had suffered a seizure, was experiencing an intracerebral he

‐

matoma (bleeding in his brain), and had fractured his left jaw

‐

bone. They reported that, as a result of the fall, Kaminski had

severe cognitive deficits—including problems with memory

and a change in personality—and an inability to understand

the severity of his injury.

Kaminski began regularly seeing a neurologist, Dr. Rich

‐

ard Cristea, who monitored his seizure disorder and pre

‐

scribed him an anticonvulsant. Over the ensuing years, Ka

‐

minski, while under Dr. Cristea’s care, suffered at least four

seizures—in 2007, 2008, 2013, and 2014.

Kaminski applied in 2013 for disability benefits, alleging

that he became disabled on the date of his fall. His strongest

evidence of disability consisted of a residual functional capac

‐ ity form and medical

‐ source statements that Dr. Cristea sub

‐

mitted in the summer of 2013.

Dr. Cristea reported that brain atrophy and asymmetry

shown by a 2013 MRI were consistent with the traumatic

brain injury that Kaminski suffered in 2000. Dr. Cristea noted

that Kaminski had “frequent falls” and opined that seizures

could be triggered by physical activity, stress, inadequateNo. 17

‐ 3314 3

sleep, and dehydration, so Kaminski was incapable of per

‐ forming even low

‐ stress work. The seizures often caused Ka

‐

minski to be confused, irritable, and fatigued, and they im

‐ paired his coordination, his level of alertness, and his aware

‐

ness of his surroundings. And Kaminski’s brain damage,

Dr. Cristea wrote, impeded his ability to organize thoughts

(especially when listening to someone speak), as well as to un

‐

derstand what he saw or heard, and it “changed” his behavior

and personality. According to Dr. Cristea, Kaminski was “to

‐ tally disabled,” and it was “unsafe [for him] to work in any

capacity.”

In connection with Kaminski’s application, a state

‐ agency

physician and a state

‐ agency psychologist examined him in

the spring of 2013. Much of the physical exam was normal,

with the physician recording that Kaminski reported no feel

‐ ings of weakness, dizziness, or memory loss. He displayed a

stable mood and was able to show appropriate insight and

judgment. The psychological examination, however, noted

Kaminski’s poor hygiene; memory lapses and poor math

skills; an inability to interpret proverbs; and his bouts of de

‐ pression, moodiness, and anger. On the other hand, two con

‐

sultants for the state agency reviewed Kaminski’s file without

actually examining him. They opined that he could do

semi

‐ skilled medium work with some restrictions.

After the Social Security Administration denied Kamin

‐

ski’s claims, an administrative law judge held a hearing at

which Kaminski and his sister testified. Before his accident,

Kaminski had worked as a carpenter. When the judge asked

him why he could not work, he answered, “Because of my

seizures and me falling down and I get dizzy and I really can’t4 No. 17

‐ 3314

... be around people, too many people because I get frus

‐

trated. I’ll get aggravated and I’ll blow up with them.” Ka

‐

minski testified that he lived alone, and that the possibility of

a seizure prevented him from doing most activities. He could

not drive, and his friends helped him shop and clean his

house. Kaminski’s sister testified about his change in person

‐ ality since the accident. Before, he had been “very independ

‐

ent,” but he had become unfocused, unclean, and verbally

abusive, and did not tolerate criticism or take direction.

A vocational expert also testified about Kaminski’s em

‐ ployment prospects. The judge asked whether work was

available for a person with Kaminski’s age, education, and ex

‐ perience, with a residual functional capacity for medium

work, appropriate physical limitations, and a number of other

limitations related to his mental status: limited to hearing and

understanding only simple oral instructions; limited to per

‐ forming simple, routine, and repetitive tasks (but not at pro

‐

duction

‐ rate pace); limited to simple work

‐ related decisions

in dealing with changes in the work setting; and limited to

having to respond appropriately only occasionally to co

‐

workers and the public.

The expert said that such a person would be unable to do

Kaminski’s past carpentry work but could work as a general

helper, laundry laborer, or dryer attendant. But if limits were

added consistent with Dr. Cristea’s opinions, so that the per

‐

son would be either off task 20 percent of the workday, unable

to accept instructions or to respond to supervisors appropri

‐ ately, or both, the person could not do any full

‐ time jobs.

The administrative law judge denied benefits using the fa

‐

miliar five

‐ step framework. See 20 C.F.R. §§ 404.1520(a),No. 17

‐ 3314 5

416.920(a). The judge determined that Kaminski had not en

‐ gaged in substantial gainful activity since September 19, 2000

(Step 1); he suffered from a seizure disorder and an organic

mental disorder, both severe (Step 2); but his impairments, in

‐ dividually or in combination, did not satisfy a listing for pre

‐ sumptive disability (Step 3).

The judge then concluded that Kaminski could not per

‐

form his past work (Step 4), but that there were jobs available

in the national economy that Kaminski could perform, as

identified by the expert (Step 5). When determining Kamin

‐

ski’s residual functional capacity, the judge rejected Kamin

‐

ski’s account of disabling limitations. The judge acknowl

‐ edged that Kaminski’s impairments “could reasonably be ex

‐ pected to cause the alleged symptoms,” but the judge did not

accept Kaminski’s statements about the extent that the symp

‐

toms limited him. The judge believed that Kaminski’s seizure

disorder was well controlled, that his mental limitations were

not as severe as reported, and that Dr. Cristea’s opinions about

Kaminski’s functionality were inconsistent with the doctor’s

own treatment notes as well as Kaminski’s testimony. The

judge gave Dr. Cristea’s opinion “little evidentiary weight,”

while giving substantial weight to the consulting (i.e., non

‐ ex

‐ amining) doctors’ reports.

The Appeals Council summarily denied review, and the

district court upheld the agency’s denial of benefits.

II. Analysis

On appeal Kaminski focuses on the administrative law

judge’s decision to discount the medical opinions of his treat

‐ ing physician, Dr. Cristea. Under the “treating physician rule”6 No. 17

‐ 3314

that applies to Kaminiski’s claim, a judge should give control

‐ ling weight to the treating physician’s opinion as long as it is

supported by medical findings and consistent with substan

‐

tial evidence in the record. See 20 C.F.R. § 404.1527(c)(2);

Gerstner v. Berryhill

, 879 F.3d 257, 261 (7th Cir. 2018). 1 Kamin

‐

ski argues that the administrative law judge erred by dis

‐ counting Dr. Cristea’s opinions, and did so by (1) misconstru

‐ ing Kaminski’s own statements as inconsistent with Dr.

Cristea’s opinions when they actually were symptomatic of

his frontal

‐ lobe injury, (2) not apprehending that the physical

limits Dr. Cristea imposed aimed to prevent seizures, and (3)

cherry

‐ picking evidence and “playing doctor.”

We agree with Kaminski that the judge improperly dis

‐

counted Dr. Cristea’s opinion in each of these ways. First,

Dr. Cristea’s findings about Kaminski’s limitations were con

‐

sistent with Kaminski’s statements that he did not have

memory loss, problems with concentration, or mood and per

‐ sonality changes. In fact, these statements actually corrobo

‐

rate Dr. Cristea’s opinion that Kaminski was significantly lim

‐

ited yet did not recognize his limitations

.

Kaminski suffered a left frontal

‐ lobe injury that is con

‐

firmed by extensive medical evidence. A paradoxical effect of

the injury is that it made him unable to understand the mag

‐

nitude of his impairments. His denials of impairments and

limits were in fact some of the symptoms of the serious brain

injury that he suffered. Other so

‐ called inconsistencies the

1 The treating

‐ physician rule has been modified to eliminate the “con

‐ trolling weight” instruction for newer claims, but the old rule still applies

to Kaminski’s claim. Compare 20 C.F.R. § 404.1527 (for claims filed before

March 27, 2017), with 20 C.F.R. § 404.1520c (for claims filed on or after

March 27, 2017).No. 17

‐ 3314 7

judge seized upon, like Kaminski’s denials of fatigue in regu

‐

lar doctor visits, also were consistent with Dr. Cristea’s opin

‐

ions. Dr. Cristea reported that Kaminski felt fatigued after a

seizure, and in hospital records from visits immediately after

seizures, Kaminski reported fatigue.

Next, the judge misunderstood that Dr. Cristea placed

physical limits on Kaminski only to prevent seizures. On his

residual functional capacity form, the doctor described activ

‐

ities that Kaminski should avoid—i.e., reaching, handling ob

‐ jects, bending, squatting, and kneeling. The judge misinter

‐ preted the report to say that Kaminski was not physically ca

‐ pable of these activities, when he actually can perform them,

but at dangerously increased risk of seizures. The mistake led

the judge to make too much of an apparent inconsistency with

Kaminski’s ability to perform the prohibited activities at his

state

‐ agency physical examination. This was error. Where a

judge rejects a treating physician’s opinion because it does not

align with the judge’s own “incorrect interpretation of the

medical evidence,” that decision is not supported by substan

‐

tial evidence. Meuser v. Colvin

, 838 F.3d 905, 912 (7th Cir.

2016).

The judge also impermissibly cherry

‐ picked evidence.

See Gerstner

, 879 F.3d at 261–63; Cole v. Colvin

, 831 F.3d 411,

416 (7th Cir. 2016). Specifically, the judge appears to have

overlooked the consulting psychologist’s report that Kamin

‐

ski had diminished cognitive abilities, yet relied heavily on

the reports of doctors who did not examine Kaminski but who

opined that he could work with some restrictions.

The judge also erred when he relied on his own interpre

‐

tation of Kaminski’s MRI instead of Dr. Cristea’s. “ALJs are re

‐ quired to rely on expert opinions instead of determining the8 No. 17

‐ 3314

significance of particular medical findings themselves.” Moon

v. Colvin

, 763 F.3d 718, 722 (7th Cir. 2014); see Hill v. Colvin

, 807

F.3d 862, 869 (7th Cir. 2015) (remanding denial of benefits

where ALJ “played doctor”). In this case the judge concluded

from Kaminski’s MRI in 2013 that his brain abnormalities

were not disabling. The relevant expert on this issue is not the

judge but Dr. Cristea, the neurologist who had treated Kamin

‐

ski for years. Dr. Cristea explained that the MRI’s results

showed conditions—generalized atrophy, ischemic disease,

and scarring in the left temporal lobe—consistent with a sei

‐

zure disorder and cognitive limits. The judge supported his

conclusion primarily by crediting Kaminski’s own, more pos

‐

itive views about his abilities. As explained above, Kaminski’s

mistaken views of his own abilities are actually symptomatic

of his frontal

‐ lobe injury. They do not provide a sound basis

for discounting Dr. Cristea’s opinions.

In addition to assessing the contents of Dr. Cristea’s opin

‐

ions, it was incumbent on the judge to “determine what

weight his opinion was due under the applicable regula

‐

tions.” Larson v. Astrue

, 615 F.3d 744, 751 (7th Cir. 2010), citing

20 C.F.R. § 404.1527(d)(2). “An ALJ must consider the length,

nature, and extent of the treatment relationship; frequency of

examination; the physician’s specialty; the types of tests per

‐

formed; and the consistency and support for the physician ʹ s

opinion.” Id.

All of these factors support Dr. Cristea’s expertise: He

treated Kaminski regularly over many years after his 2000 ac

‐

cident and frontal

‐ lobe injury; he is a neurologist; and con

‐

trary to the judge’s findings, his opinion is consistent with the

other evidence in the record. Besides saying he was assigningNo. 17

‐ 3314 9

Dr. Cristea’s opinions “little evidentiary weight,” the judge

did not address any of these factors.

The administrative law judge’s failure to give controlling

weight to Dr. Cristea’s opinions was an error requiring re

‐

mand. When a reviewing court remands to the Appeals

Council, the ordinary remedy is a new hearing before an ad

‐

ministrative law judge. In unusual cases, however, where the

relevant factual issues have been resolved and the record re

‐ quires a finding of disability, a court may order an award of

benefits. E.g., Larson

, 615 F.3d at 749 (awarding benefits);

Maresh v. Barnhart

, 438 F.3d 897, 901 (7th Cir. 2006) (awarding

benefits where evidence showed that listing was met); Hick

‐

man v. Apfel

, 187 F.3d 683, 690 (7th Cir. 1999) (same); Wilder

v. Chater

, 153 F.3d 799, 804 (7th Cir. 1998) (evidence required

finding of disability); Micus v. Bowen

, 979 F.2d 602, 609

(7th Cir. 1992) (awarding benefits); Vargas v. Sullivan, 898 F.2d

293, 296 (2d Cir. 1990) (awarding benefits where ALJ had “ig

‐

nored or misinterpreted” treating physician’s opinions);

Woody v. Secretary

, 859 F.2d 1156, 1162–63 (3d Cir. 1988)

(awarding benefits where no evidence rebutted case for disa

‐ bility); King v. Barnhart

, 2007 WL 968746, at *7 (S.D. Ind.

Feb. 26, 2007) (awarding benefits where findings showed that

listing was met).

This is one of those unusual cases. The judge found that

the five

‐ step analysis of a disability claim had to proceed to

the fifth step. At the fifth step, the burden of proof and per

‐

suasion is on the agency. To deny benefits, the agency must

show that even though the claimant could no longer perform

his past relevant work, he was capable of performing some

other work in the national economy. See 20 C.F.R.

§ 404.1520(g); Overman v. Astrue

, 546 F.3d 456, 464 (7th Cir.10 No. 17

‐ 3314

2008); Young v. Barnhart

, 362 F.3d 995, 1000 (7th Cir. 2004) ; Her

‐

ron v. Shalala

, 19 F.3d 329, 333 n.8 (7th Cir. 1994); Stiles v. Ber

‐ ryhill

, 242 F. Supp. 3d 773, 777 (S.D. Ind. 2017).

The agency did not meet that burden here. Once the treat

‐ ing physician’s opinions are given the proper weight, the rec

‐

ord compels the conclusion that Kaminski was unable to work

and thus was disabled under the relevant statutes and regu

‐

lations. 20 C.F.R. § 404.1520(a)(4)(v); see also Larson

, 615 F.3d

at 749; Vargas, 898 F.2d at 296. We base this conclusion primar

‐ ily on the combination of Dr. Cristea’s opinions and the testi

‐

mony of the vocational expert. The vocational expert testified

that a person with the limits that Dr. Cristea had ascribed to

Kaminski simply would not be able to sustain full

‐ time em

‐ ployment. There is no sound basis in the record to dispute that

opinion. Thus, “all factual issues involved in the entitlement

determination have been resolved and the resulting record

supports” the conclusion “that the applicant qualifies for dis

‐ ability benefits.” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir.

2011) (summarizing standard but then remanding for further

hearing where record did not compel finding of disability).

We REVERSE the judgment of the district court, and

REMAND the case to the agency with the instruction to cal

‐

culate and award benefits to Mr. Kaminski.