# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued November 18, 2008

Decided January 7, 2009

Before

JOEL M. FLAUM, Circuit Judge

DIANE S. SYKES, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08

‐ 1533

JOLENE M. MOSS,

Plaintiff

‐ Appellant

,

v.

MICHAEL J. ASTRUE,

Commissioner Of Social Security,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Central District of Illinois.

No. 06

‐ CV

‐ 01288

Michael M. Mihm,

Judge

.

O R D E R

Jolene Moss applied for disability insurance benefits after injuring her right ankle in

a car accident. An administrative law judge (“ALJ”) concluded that Moss’s impairment is

severe but not disabling. The Social Security Appeals Council declined to review the

decision. Moss sought review in the district court, which upheld the Commissioner’s denial

of benefits. Moss now appeals to this court. We conclude that the ALJ erred in discounting

the opinions of Moss’s treating physician and in assessing Moss’s credibility. We also

conclude that the ALJ’s finding that Moss’s impairment does not meet or equal a listed 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 1533 Page 2

impairment in the Social Security regulations is not supported by substantial evidence.

Accordingly, we vacate the judgment and remand for further proceedings.

I. Background

Moss filed her application for benefits in October 2003. She had been working as a

gas

‐ station attendant for six years before she fractured and dislocated her right ankle and

suffered a severe laceration on her right knee in a car accident. At the time of the accident,

she was 43 years old, had a high

‐ school education, and had previously worked as a

housekeeper in hotels and nursing homes. After the accident, however, Moss was unable to

return to her job at the gas station.

Moss underwent immediate surgery to repair her ankle and was released from the

hospital three days after the accident. Two months later, the pins that had been used to

repair the fracture were removed. Moss’s surgeon, Dr. Asamonja Roy, an orthopedic

specialist, thought that Moss was doing well and encouraged her to begin walking and

putting weight on her right foot. Moss started physical therapy and by mid

‐ November was

walking and able to bear 60 to 70% of her weight on her right foot. By December 2003 she

was able to walk at least 600 feet with the use of a cane.

In the months following her accident, Moss also was treated by her family physician,

Dr. Steven Norris. A month after the injury, Dr. Norris detected damage to the peripheral

nervous system of her ankle as a result of the fracture. In January 2004 he reviewed x

‐ rays

of her ankle and observed a bone formation that he suspected was limiting her range of

motion, which, he reported, was generally “pretty good.” Dr. Norris also noted that Moss

was suffering from “[r]ight lower extremity neuropathy,” for which he prescribed

Neurontin and advised her to continue with physical therapy.

Five months after the accident, in March 2004, Moss was still experiencing

difficulties, so she scheduled appointments with a neurologist as well as a second

orthopedic specialist. Moss met first with the neurologist, Dr. Rakesh Garg, who was

referred to her by Dr. Roy. Following his examination, Dr. Garg concluded that Moss had a

“slight limitation” of movement in her right ankle, but he did not detect any nerve damage.

Five days later Moss met with Dr. Steven Kodros, the orthopedic specialist, who,

unlike Dr. Garg, described her range of motion as “quite limited.” Dr. Kodros noted that

Moss was experiencing pain when she flexed her ankle, and that she had stiffness,

tenderness, and diminished sensation in her right foot. He further observed that Moss was

walking with a steppage gait pattern and using a cane. Dr. Kodros reviewed an outside CT

scan and x

‐ rays of Moss’s ankle and found “some mild residual bony deformity and someNo. 08

‐ 1533 Page 3

early degenerative changes.” He noted that Moss had residual symptoms “consistent with

the natural history of her injury itself and more specifically related to residual posttraumatic

arthrofibrosis, periarticular soft tissue adhesions, and likely the early development of some

early posttraumatic arthritis.” Dr. Kodros ordered a second CT scan and several weeks later

followed up with Moss about his findings. The new CT scan confirmed that the fracture

itself had healed but not without leaving small bony fragments and debris in the ankle. He

noted some early degenerative changes and features that suggested avascular

necrosis—death of the bone tissue. Based on these findings, Dr. Kodros recommended

“conservative management” that would include use of a customized “Arizona ankle

‐ brace”

and corticosteroid injections. Should these measures fail, he indicated during this March

2004 consultation, he would recommend surgery.

Moss next saw Dr. Kodros in February 2005. The exam revealed that her condition

had not improved. Moss had not obtained the Arizona brace because her insurance would

not cover it, so Dr. Kodros gave her a temporary brace and repeated his recommendation

that she attempt conservative management before resorting to more surgery. Several weeks

later, Moss also visited Dr. Norris for a routine check

‐ up. He noted that she was wearing an

ankle brace and had a limited range of motion in her right ankle and an altered gait due to

pain.

Before her car accident, Moss had received medical treatment for other unrelated

ailments. Medical records document treatment in early 2003 for diverticulosis, chronic

constipation, hyperthyroidism, sinusitis, and fatigue. And before that, in 2000, Moss was

diagnosed as suffering from migraine headaches.

The Social Security Administration denied Moss’s application a month after it was

filed. A month after that, the agency also denied reconsideration. Moss requested further

review, and in January 2006 an ALJ heard testimony from Moss and a vocational expert.

Moss testified that she experiences “chronic pain 24/7,” as well as stiffness, tightness,

and swelling in her right ankle. She stated that she is unable to sit or stand for extended

periods of time and cannot walk with full weight on her right foot, resulting in back and hip

pain. The pain, she said, interferes with her sleep, requiring her to take sleeping pills. She

continues to take Neurontin to alleviate the burning feeling and “pins and needles”

sensation in her ankle. She also takes Tylenol Arthritis and Motrin, which provide only

minimal relief but do not cause the drowsiness and constipation she experienced with the

prescription pain medications she had been taking.

In describing her daily activities, Moss stated that she is able to dress herself and

bathe using a stool. She tries to do housework but can no longer squat or bend; she is ableNo. 08

‐ 1533 Page 4

to make light meals and wash dishes, though standing is painful. She no longer drives or

does any yard work, laundry, or grocery shopping. Moss testified that during her

husband’s frequent business travels, her adult daughter, who lives with them, helps with

the laundry and shopping. For exercise, Moss said, she uses her cane to take occasional

walks around the block and up and down the driveway.

The ALJ asked a vocational expert (“VE”) whether there are entry

‐ level jobs available

to a 46

‐ year

‐ old high

‐ school graduate who is limited to unskilled, sedentary work that

requires no climbing and only minimal standing and walking. The VE responded that

although Moss cannot perform her past relevant work and has no transferrable skills, he

found three positions that exist in significant numbers in the national economy—cafeteria

cashier, ampule sealer, and surveillance system monitor—that Moss could perform given

the limitations described.

The ALJ concluded that Moss is not disabled because she can perform some

sedentary jobs that exist in significant numbers in the national economy. The ALJ applied

the sequential five

‐ step analysis, see 20 C.F.R. § 404.1520, and at step one found that Moss

had not been engaged in substantial gainful activity and at step two that her ankle injury

constitutes a severe impairment. The ALJ acknowledged that Moss also suffers from back

and abdominal pain, sinusitis, fatigue, and headaches. At step three, however, the ALJ

found that Moss’s ankle injury does not meet or equal a listed impairment. Moving to step

four, the ALJ found that Moss cannot perform her past relevant work as a cashier or

housekeeper but even with all of her ailments still retains the residual functional capacity to

perform some sedentary jobs.

In making these determinations, the ALJ declined to fully credit Moss’s complaints

of pain because, the ALJ said, there had been no medical finding that she needs a cane or

that she is unable to effectively ambulate. The ALJ further stated that the medical evidence

and Moss’s own account of her daily activities do not corroborate her testimony concerning

the intensity, duration, and limiting effects of her symptoms. The ALJ additionally

discounted the medical opinions of Dr. Kodros, the orthopedic specialist. The ALJ

characterized Dr. Kodros’s opinions as inconclusive and inconsistent with Dr. Garg’s

findings, and surmised that some of Dr. Kodros’s medical opinions “may have been made

to help the claimant in a pending legal matter since the doctor was reporting directly to her

attorney.” Therefore, at step five the ALJ concluded that a significant number of sedentary

jobs exist in the national economy that Moss can perform despite her limitations.No. 08

‐ 1533 Page 5

II. Analysis

Because the Appeals Council declined to review the ALJ’s decision, the ALJ’s ruling

is the final decision of the Commissioner of Social Security. Getch v. Astrue

, 539 F.3d 473,

480 (7th Cir. 2008). And while Moss raises several arguments about the district court’s

order upholding the denial of benefits, we review the district court’s decision de novo,

meaning we review the ALJ’s ruling directly. See Elder v. Astrue

, 529 F.3d 408, 413 (7th Cir.

2008). Therefore, only Moss’s challenges to the ALJ’s decision are at issue here. See Skinner

v. Astrue

, 478 F.3d 836, 841 (7th Cir. 2007). We will uphold that decision if it is supported by

substantial evidence. See 42 U.S.C. § 405(g); Skinner

, 478 F.3d at 841.

Moss raises a number of arguments, primarily that the ALJ failed to give appropriate

weight to the medical opinions of Dr. Kodros which in turn contributed to a flawed

assessment of her credibility. She also argues that at step three the ALJ failed to conduct a

legally sufficient analysis of the listings of impairments. We agree with Moss about Dr.

Kodros and about the ALJ’s adverse credibility determination, and further conclude that the

ALJ’s determination that Moss’s impairment does not meet or equal a listed impairment is

not supported by substantial evidence.

Moss is correct that the ALJ failed to appropriately consider the medical opinions of

Dr. Kodros, one of her treating physicians. A treating physician’s opinion about the nature

and severity of the claimant’s impairment is normally given controlling weight so long as it

is “well

‐ supported by medically acceptable clinical and laboratory diagnostic techniques”

and is consistent with substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); Bauer v.

Astrue

, 532 F.3d 606, 608 (7th Cir. 2008). Dr. Kodros’s opinions support Moss’s complaints

of pain and physical limitation given his findings that her ankle exhibited bony defects,

bony fragments and debris, early degenerative changes, and residual symptoms from her

ankle fracture “specifically related to residual posttraumatic arthrofibrosis, periarticular soft

tissue adhesions, and likely the early development of some early posttraumatic arthritis.”

The ALJ, however, discounted the opinions of Dr. Kodros based on speculation that

Moss was referred to him by her attorney and that his findings “may have been made to

help the claimant in a pending legal matter since the doctor was reporting directly to her

attorney.” And the ALJ altogether failed to address whether Dr. Kodros’s medical opinions

are supported by medically acceptable clinical and laboratory diagnostic techniques. See

Bauer

, 532 F.3d at 608. An ALJ’s conjecture is never a permitted basis for ignoring a treating

physician’s views, see Gudgel v. Barnhart

, 345 F.3d 467, 470 (7th Cir. 2003); Rohan v. Chater

,

98 F.3d 966, 971 (7th Cir. 1999), and it is further questionable whether the ALJ’s basis for

discounting Dr. Kodros’s medical opinion would be legitimate, even if not speculative, see

Reddick v. Chater

, 157 F.3d 715, 726 (9th Cir. 1998) (“[T]he mere fact that a medical report isNo. 08

‐ 1533 Page 6

provided at the request of counsel or, more broadly, the purpose for which an opinion is

provided, is not a legitimate basis for evaluating the reliability of the report.”).

Additionally, the ALJ failed to determine the weight to be accorded Dr. Kodros’s

opinion in accordance with Social Security Administration regulations. See 20 C.F.R.

§ 404.1527(d)(2). If an ALJ does not give a treating physician’s opinion controlling weight,

the regulations require the ALJ to consider the length, nature, and extent of the treatment

relationship, frequency of examination, the physician’s specialty, the types of tests

performed, and the consistency and supportability of the physician’s opinion. Id. ; Bauer

, 532

F.3d at 608; Books v. Chater

, 91 F.3d 972, 979 (7th Cir. 1996). The ALJ apparently thought that

Dr. Kodros’s assessment of Moss’s medical condition conflicted with Dr. Garg’s opinion and

that Dr. Garg’s view should carry the day. But the choice to accept one physician’s opinions

but not the other’s was made by the ALJ without any consideration of the factors outlined in

the regulations, such as the differing specialties of the two doctors, the additional diagnostic

testing conducted by Dr. Kodros, or the consistency of Dr. Kodros’s findings over the course

of a year. Moreover, the perceived conflict between the two medical opinions is illusory.

Dr. Garg, a neurologist, was looking only for nerve damage, while Dr. Kodros, an

orthopedic specialist, evaluated entirely different aspects of Moss’s injury after reviewing x

‐

rays and two CT scans, and after examining Moss twice over the course of a year. The fact

that Dr. Garg did not find a neurological cause for Moss’s condition does not undercut the

opinions of Dr. Kodros, whose specialty is the function of the musculoskeletal system,

extremities, spine, and associated structures. See S TEDMAN ’ S M EDICAL D ICTIONARY

, 1277

(27th ed. 2000). Therefore, in discounting the medical opinions of Dr. Kodros, the ALJ failed

to apply the correct legal standard and further failed to support that decision with

substantial evidence.

Moss is also correct that the ALJ’s failure to give appropriate weight to Dr. Kodros’s

testimony resulted in a flawed determination that her complaints of pain are not credible.

We will uphold an ALJ’s credibility determination if the ALJ gave specific reasons for the

finding that are supported by substantial evidence. Arnold v. Barnhart

, 473 F.3d 816, 823 (7th

Cir. 2007). But as the regulations state, an ALJ cannot disregard subjective complaints of

disabling pain just because a determinable basis for pain of that intensity does not stand out

in the medical record. See S.S.R. 96

‐ 7p; Johnson v. Barnhart

, 449 F.3d 804, 806 (7th Cir. 2006).

If the medical record does not corroborate the level of pain reported by the claimant, the

ALJ must develop the record and seek information about the severity of the pain and its

effects on the applicant. Clifford v. Apfel

, 227 F.3d 863, 871

‐ 72 (7th Cir. 2000). In this case,

however, the ALJ simply marginalized Dr. Kodros’s opinions without a sound explanation

and then went on to conclude that neither Moss’s own testimony nor the remaining medical

evidence supported her subjective complaints of pain. The ALJ specifically noted the lack of

medical findings addressing Moss’s ability to ambulate or her need for a cane. Not only didNo. 08

‐ 1533 Page 7

the ALJ fail to seek an explanation for this lack of medical evidence, but, more importantly,

the perceived gaps in the medical evidence vanish when Dr. Kodros’s assessment of Moss’s

condition is properly considered.

There are two other troubling features about the ALJ’s assessment of Moss’s

credibility. First, the ALJ’s recitation of the administrative record is misleading or

inaccurate on several significant points. With respect to Moss’s treatment history, the ALJ

represents that her doctors had not recommended further surgery and that she had gone a

relatively long period of time without seeing her family doctor. In fact, however,

Dr. Kodros said that another surgery was a real possibility if Moss did not respond to his

recommended course of conservative treatment. And while infrequent treatment or failure

to follow a treatment plan can support an adverse credibility finding, we have emphasized

that “the ALJ ‘must not draw any inferences’ about a claimant’s condition from this failure

unless the ALJ has explored the claimant’s explanations as to the lack of medical care.”

Craft v. Astrue

, 539 F.3d 668, 679 (7th Cir. 2008) (quoting S.S.R. 96

‐ 7p). The ALJ failed to

question Moss about this gap in treatment or the evidence showing that she was unable to

obtain the customized ankle brace because of problems with her insurance coverage.

Moreover, the ALJ states that Moss is able to live independently while her husband is out of

town, but Moss testified that her adult daughter, who lives with Moss, helps her while her

husband is away. Similarly, the ALJ incorrectly states that Moss refuses to take prescription

pain medications because of information she read in a book, but in fact Moss testified that

she has been avoiding prescription pain medications because they cause side effects,

including drowsiness and constipation.

The second aspect that gives us pause about the ALJ’s credibility assessment is the

undue weight placed on Moss’s household activities in assessing her ability to work outside

the home. An ALJ cannot disregard a claimant’s limitations in performing household

activities. See Craft

, 539 F.3d at 680; Mendez v. Barnhart

, 439 F.3d 360, 362 (7th Cir. 2006).

The ALJ here ignored Moss’s numerous qualifications regarding her daily activities: while

washing dishes she shifts her weight to the left but still experiences pain; when she last

went to the store she had to use the cart for support and was unable to stay long; and when

she last tried to drive the family vehicle more than a year before the evidentiary hearing, she

had difficulty pushing the pedals because of a lack of control or feeling in her foot.

Finally, the ALJ’s determination that Moss’s impairment does not meet a listed

impairment is not supported by substantial evidence. In evaluating Listing 1.03, the ALJ

found that Moss had failed to establish an inability to ambulate effectively, one of the

necessary elements of that listing. The regulations state that “ineffective ambulation” is

“defined generally” as requiring the use of a hand

‐ held assistive device that limits the

functioning of both upper extremities. See 20 C.F.R. pt. 404P, app. 1, § 1.00(B)(2)(a). But theNo. 08

‐ 1533 Page 8

regulations further provide a nonexhaustive list of examples of ineffective ambulation, such

as the inability to walk without the use of a walker or two crutches or two canes; the

inability to walk a block at a reasonable pace on rough or uneven surfaces; the inability to

carry out routine ambulatory activities, like shopping and banking; and the inability to

climb a few steps at a reasonable pace with the use of a single handrail. Id.

Here, the ALJ concluded that Moss had failed to establish her inability to effectively

ambulate because Moss uses just one cane and because according to the ALJ, the medical

evidence does not point to ineffective ambulation and Moss herself testified that she is “able

to live independently” and occasionally walks around the block. As previously noted,

however, the ALJ’s determinations regarding the medical evidence and Moss’s credibility

are not supported by substantial evidence. Consequently, the ALJ failed to adequately

consider whether Moss in fact meets the listing based on the provided examples such as an

inability to walk a block at a reasonable pace on rough or uneven surfaces, or the inability to

carry out routine activities, like shopping and banking. See 20 C.F.R. pt. 404P, app. 1,

§ 1.00(B)(2)(a).

III. Conclusion

Accordingly, we VACATE the judgment of the district court and REMAND with

instructions to remand the case to the agency for further proceedings.