# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued December 11, 2018

Decided January 4, 2019

Before

DIANE P. WOOD, Chief Judge

KENNETH F. RIPPLE, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-1654

J ACQUELYEN DERRY, 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
Illinois, Eastern Division.

No. 16-cv-11434

Susan E. Cox,

M agistrate Judge

.

O R D E R

Jacquelyen Derry is a 49-year-old woma n who suffers from several traumarelated mental health conditions—posttrauma tic stress disorder (PTSD), generalized anxiety disorder, military sexual trauma, panic disorder, and major depressive disorder—as well as severe migraines. She is seeking disability insurance benefits from the Social Security Administration. Thus f ar, however, her efforts have failed. An administrative law judge held a hearing and rejected her claim, and the Appeals Council declined to intervene. Derry cont ends that the ALJ improperly disregarded both key physician assessments and the find ing of the Veterans’ Administration that NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 18-1654 Page 2

she is disabled. We agree with her that substantial evidence does not support the agency’s conclusion, and so we remand for further proceedings.

I

Derry served in the U.S. Navy from 1988 until September 30, 2010, achieving the rank of E-7, Dental Tech Chief Petty Officer. In 2007, her supervising officer at the Great Lakes Naval Station began sexually harassing her. After she rejected his advances and reported his conduct, she was moved to anot her work area. But she struggled to adjust

to the culture there. As a result of her problems in the workplace, she developed migraines and had trouble sleeping. In Jun e 2009, her new supervisor accused her of dereliction of duty for leaving her post to get feminine hygiene products for her irregular menstrual bleeding. She was brought to a conduct board of six “master chiefs” who verbally abused and humiliated her. Shor tly after, in August 2009 (just before her alleged disability-onset date), Derry was admitte d to a psychiatric hospital for five days. Doctors there diagnosed her with depressive disorder and migraines related to her

work environment.

In September 2010, Derry accepted an honorable discharge from the Navy

because of her medical conditions. After her discharge, a VA doctor diagnosed her with major depressive disorder, recurrent; PTSD ; and military sexual trauma. Dr. Laura Sunn treated Derry for her mental illnesses fr om March 2011 to November 2012, when Dr.

Sunn left the VA clinic. Dr. Sunn noted th at Derry had trouble concentrating and limited short-term memory. Although Derry wa s coherent, logical, and cooperative, Dr. Sunn documented the following impairments: depression; errors on serial sevens ( i.e. counting backward from 100 by sevens); slow speech; psychomotor retardation; and a downtrodden and subdued appearance. Dr. Sunn stated that Derry was “so[] impaired that she cannot seek work and it is unlikely that she could concentrate long enough to complete tasks.” Dr. Sunn continuously report ed that Derry’s mental status and ability to function were unchanged.

Derry also began seeing a VA therapist, Lisa Storie, in early 2011. Storie noted later that year that Derry was doing bette r. But in September 2011, Derry was isolating herself and was not taking care of herself; this continued into December. Storie, Dr. Sunn, and other providers continued througho ut 2012 to report similar findings: such reports appear at no less than 15 places in the record. (Administrative Record 330, 405, 433–34, 441, 553, 649, 846, 849, 858, 893, 914, 929, 931, 985, 992.) At times Derry showed improvements, but at other times she missed appointments because, according to Dr.
Sunn, her mental conditions made it hard for her to leave the house. Derry’s newNo. 18-1654 Page 3

psychiatrist, Dr. Corrine Belsky, diagnosed Derry with panic disorder in December

2012.

Derry’s migraines with aura continued af ter she left the Navy; by early 2011, she reported having them twice a week. She continued to receive treatment for them throughout 2012. In July 2012, neurologist Dr. Hien Dang documented that most medications did not help Derry’s migraines. Dr. Dang ordered an MRI. The initial and follow-up MRIs showed signs of lesions “c onsistent with migraine headaches.” Derry began therapeutic botulinum toxin injection treatment. Dr. Dang noted that this treatment helped but that additional medi cine also was needed. In November 2012, Dr. Dang found Derry too dizzy and lightheaded to undergo her scheduled treatment and sent her to the emergency department instead.

From February to June 2013, the medical records showed a gap in treatment. In June, Derry saw her doctors for worsenin g migraines. In July 2013, Dr. Belsky wrote that Derry had been in Florida “caring for her mom” for six months and felt “better.” (When the ALJ asked Derry about this, she te stified that her family had brought her
home, and her mother was sick with bronchit is while she was there.) Dr. Belsky also reported, however, that Derry was still having panic attacks twice a week and frequent nightmares. Several times, Derry’s family memb ers in Florida drove to Illinois to bring
her home and care for her, at one time because she had suicidal thoughts.

Derry applied for social security disability benefits in 2013. She underwent stateagency evaluations in connection with her ap plication. Dr. Julia Kogan diagnosed Derry with depression. Dr. Gregory Rudolph foun d that she experienced PTSD symptoms; presented vegetative symptoms; was oriented to reality; had intact memory skills; was able to use judgment and reasoning skills; ex hibited a depressed mood level; and had a limited prognosis and insight. Dr. Russell Taylor completed a remote consultative examination by video feed. He concluded that Derry could understand simple and
detailed instructions; sustain concentration an d persist well enough to carry out simple tasks for a normal work period; make work-r elated decisions; interact and communicate sufficiently in a work setting with reduce d social/interpersonal demands; could not continuously interact with the public; and could adapt to simple, routine changes and pressures. In May 2014, Dr. Thomas Low perf ormed a remote consultative examination and agreed with Dr. Taylor’s findings.

In October 2013, Derry underwent evaluati ons to determine her Navy pension and benefits. Neurologist Dr. Robert Hazelr igg examined Derry in person and found that she had “very frequent characteristic pr ostrating and prolonged attacks of migraine headache pain,” citing her medical records and the two MRIs. He concluded that herNo. 18-1654 Page 4

headache condition diminished her ability to work. Dr. Brian Lipson also reviewed medical records and examined Derry, observin g that her major depressive disorder and PTSD symptoms had increased since her prev ious evaluation in 2010. He opined that Derry’s depressive disorder, migraine head aches, and PTSD rendered her unable to secure and maintain substantially gainful employment. Dr. Mark Aghakhan examined Derry and reviewed her “documentation and reported symptomology”; he found that she demonstrated average insight, unim paired judgment, but that she showed extensive symptoms of PTSD and depression. Dr. Aghakhan opined that Derry’s mental impairments had increased since her 2010 exam, and her depressive and PTSD symptoms affected her functioning. The VA determined that Derry was disabled and

unable to secure or follow su bstantially gainful employment.

Derry continued to see Dr. Dang for migraines throughout 2013. In November 2013, Dr. Dang again sent Derry to the emerge ncy department for severe symptoms. Dr. Dang noted that while therapeutic injections helped, her “chronic recurrent migraine[s]” were “refractory” to medications.

Throughout 2014, Derry’ new therapist, Andrea Fafford, and psychiatrist Dr. Patricia Zaror both noted that Derry ha d full insight and intact judgment but also documented persistent symptoms of depr ession, military sexual trauma, and PTSD— neurovegetative symptoms, distorted thinking and perception of events, psychomotor retardation and agitation, and sleeping during the day. Fafford noted that Derry still had difficulty prioritizing specific objectiv es; her thinking was distorted; and she was not able to change too many things at on ce because her low stress tolerance caused “overwhelming and sabotage”—an assessment th at Fafford repeated many times. In June 2014, Derry told Fafford that she had not moved to Florida to be with her family only because her trust issues made her fe arful of leaving her medical providers and having to start over.

In early 2015, Derry went to Florida but kept in touch with Fafford. When she came back, Dr. Zaror noted that Derry “sai d that being [with] her family, walking, biking makes her happy.” Derry was still “sleeping a lot.” The psychiatrist recorded that Derry exhibited psychomotor retardat ion and a constricted affect. Throughout 2015, Fafford assessed no improvements in Derry’s mental state.

II

Derry applied for social security disability benefits on May 14, 2013. Her application was initially denied, and so she requested a hearing. See 20 C.F.R. § 404.929. At the hearing, she testified about her phys ical and mental health problems and the limitations they caused. Derry denied that she participated in any of her formerNo. 18-1654 Page 5

activities, such as luncheons, walking at the mall, or church. The ALJ asked about a psychiatrist’s note reporting that Derry lik ed walking and biking in Florida, but Derry denied that she had biked in the last four or five years.

Next, the vocational expert testified that jobs existed in the national economy for a hypothetical person such as Derry who, a ccording to the ALJ, retained the residual functional capacity (RFC) to perform light wo rk consistent with mild limitations for daily functioning and moderate limitations fo r social functioning and concentration, persistence, and pace. But he also stated that such a person would not be able to sustain competitive work if she missed two days a week on account of migraines or difficulties
with motivation, nor if she were off task 15% of the time or needed additional breaks to

lie down.

The ALJ concluded that although Derry had severe impairments, she was still able to perform certain work and thus was no t disabled. In coming to that conclusion, the ALJ dismissed the opinions of treating psychiatrists Dr. Sunn and Dr. Zaror and did not even discuss how she weighed the opinions of other treaters, such as the therapists and Dr. Dang. The ALJ also disregarded the VA’s disability rating, because she thought it relied too heavily on subjective reports and was unsupported by the medical records and gaps in treatment. She said the same of Dr. Lipson’s opinion. As for Drs. Aghakhan and Hazelrigg, the other two VA pension ex aminers, the ALJ found overall support for the former’s opinion but questioned whethe r Aghakhan had reviewed the entire record, and considered Hazelrigg’s opinion vague. The ALJ gave the agen cy’s consultative examiners’ opinions greater wei ght because they specifically addressed each of Derry’s functional capacities and were, in the ALJ’s vi ew, consistent with the medical evidence.

Last, the ALJ concluded that Derry’s impairments could reasonably be expected to produce the reported symptoms, but (using language about “credibility” that the Social Security Administration has eliminated from its regulations, see Social Security Ruling 16-3P) her statements about their intens ity, persistence, and limiting effects were not “entirely” credible. The ALJ believed that Derry minimized her efforts to go to college and had not mentioned sleeping during the day to her providers. Derry’s trips to Florida, the ALJ thought, showed that she was not severely impaired.

III

This court reviews the ALJ’s decision de novo , upholding it if it is supported by substantial evidence. Derry contends that th e ALJ improperly accorded little weight to the medical opinions of her VA physicia ns, who treated her for several years. She argues that the medical records support those opinions and correspond with the reported intensity and frequency of her symptoms.No. 18-1654 Page 6

We agree with Derry that the ALJ failed properly to explain why she rejected the opinion of Dr. Sunn, who treated Derry at len gth. Under the regulations in effect at the time of the ALJ’s decision, a treating physic ian’s opinion that is consistent with the record is generally entitled to “contr olling weight.” 20 C.F.R. § 404.1527(c)(2); Jelinek v.

Astrue , 662 F.3d 805, 811 (7th Cir. 2011). An ALJ must give more weight to the opinions of doctors who have (1) examined a claimant , (2) treated a claimant frequently and for an extended period of time, (3) specialized in treating the claimant’s condition, (4) performed appropriate diagnostic tests on the claimant, and (5) offered opinions consistent with objective medical ev idence and the record as a whole. Roddy v. Astrue

, 705 F.3d 631, 637 (7th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(2)(i), (ii)). All of these factors support giving significant weight to Dr. Sunn’s opinion that Derry was too impaired to seek work or complete tasks. See id.

Indeed, the ALJ’s opinion is confusing in its treatment of Dr. Sunn. Although the ALJ acknowledged that Dr. Sunn was a longitud inal specialist, the ALJ also stated that Dr. Sunn’s opinion was a “snaps hot” of Derry’s functioning rather than a “longitudinal, function-by-function assessment” supported by the record. The “snapshot” observation
has no basis in the record. In fact, Dr. Su nn’s treatment and examination records for the period from March 2011 to November 2012 support her assessment of Derry’s

functional limitations. We have described those records in detail above and see no reason to repeat them here. Dr. Sunn consiste ntly reported that Derry’s mental status exam was unchanged or wors e. The ALJ did not account for objective observations confirming the severity and persistence of Derry’s depression, PTSD, and military sexual trauma. Nor did the ALJ explain why or how Dr. Sunn’s assessment was not “consistent with objective medical evid ence and the record as a whole.” See Roddy , 705 F.3d at 637. She also failed to explain wh y Dr. Sunn’s 20-month course of treatment deserved less weight than the opinions of consultative examiners who each interacted with Derry one time over a video feed.

The ALJ also improperly disregarded D r. Zaror’s opinion that Derry suffered “paralyzing” migraines, stating without an y elaboration that Dr. Dang’s treatment records did not support this characterization. The record, once again, is definitively to the contrary. Dr. Dang twice brought De rry to the emergency room because her migraines were too acute for him to treat du ring a regular office visit. His entire treatment record reflects positive diagno stic testing and aggressive treatment of migraines. And during the pension review, D r. Hazelrigg, the VA neurologist, reviewed Dr. Dang’s treatment records and the MRIs and opined that De rry suffered “very frequent characteristic prostrating and prolonged attacks of migraine headache pain.” The ALJ’s failure to address the medical evidence corroborating Derry’s subjectiveNo. 18-1654 Page 7

complaints and Dr. Zaror’s assessment amount s to “cherry picking the medical record.”

See Cole v. Colvin , 831 F.3d 411, 416 (7th Cir. 2016).

The ALJ also failed to explain why she ga ve the VA’s disability rating such little weight. Even though the VA’s evaluation of disability gives the benefit of the doubt to the claimant, a VA rating that a claimant’s impairments prevent her from engaging in substantially gainful employment is “practi cally indistinguishable” from the Social Security Administration’s disability determination. See Bird v. Berryhill , 847 F.3d 911, 913 (7th Cir. 2016). The ALJ said the VA’s rat ing was of “limited evidentiary value”

because it was inconsistent with records of “primarily normal objective physical and mental findings,” but she did not point to an y of these “normal” findings, and so there is no way to know what medical records sh e believed conflicted with the VA rating.

Also troubling are some leaps of logic the ALJ made that are difficult to justify. For example, she discounted Dr. Hazelrigg’s opinion about Derry’s migraines affecting her ability to work because “her station an d gait were normal.” The connection between those factors and the migraines is nowhere explained. The years of treatment notes documenting Derry’s severe depression and PTSD meant little to the ALJ because Derry had “good hygiene, [and was] cooperative, polite and alert.” Again, that supposed conflict is unexplained. The ALJ’s failure appropriately to account for the VA’s disability determination and the medical opinions supporting it ( e.g. , those of Drs. Aghakhan, Lipson, and Hazelrig g) requires a remand. See Hall v. Colvin , 778 F.3d 688, 691 (7th Cir. 2015).

Yet another problem lies in the ALJ’s failure logically to connect the evidence in the record to her determination of Derry’s mental RFC. As discussed above, the ALJ erroneously analyzed the medical record. She also relied on incorrect information. In rejecting Derry’s statement that she sleeps most of the day, for example, the ALJ stated that Derry never reported this degree of impairment to her examiners or treatment providers. The record is otherwise. Derry told numerous different providers throughout the years that she stays in bed mo st of the day. Dr. Zaror also documented that Derry presented neurovegetative sympto ms of trouble sleeping at night. This evidence could support limitations on daily functioning and concentration, persistence, and pace, but the ALJ did not consider it.

The RFC determination was further marre d when the ALJ set an impractically high and legally incorrect bar for esta blishing disabling mental illness. See Voight v.

Colvin , 781 F.3d 871, 878 (7th Cir. 2015). The ALJ st ated that Derry had only moderate

difficulties in social functioni ng because she had no history of being fired for not getting along with others and had no history of mu ltiple arrests or incarcerations. Where thatNo. 18-1654 Page 8

standard came from is a mystery. Moreove r, the ALJ overlooked evidence that Derry does have trouble interacting with other pe ople. The treatment records show that Derry had conflicts with her supervisors resultin g in discipline, and her 2009 hospitalization was partially because of these conflicts. An d the ALJ did not discuss any of the medical evidence showing that Derry has trouble tr usting others and processing change, and that she experienced social anxiety and te nded to isolate herself because of her childhood and military sexual trauma. Th e ALJ should have explained why this evidence mattered less than the fact that, in 22 years of Navy service, Derry was never
fired, arrested, or incarcerated and achi eved the rank of Chief Petty Officer. See Craft v.

Astrue , 539 F.3d 668, 676–78 (7th Cir. 2008).

The ALJ also undercut the severity of Derry’s problems with concentration, persistence, and pace without discussing most of the relevant evidence, primarily from Derry’s treating physicians. Derry’s providers repeatedly noted her concentration problems, her difficulty completing tasks an d goals, and her distorted thinking and perception. The ALJ was required properly to reconcile this evidence with her own thinly supported conclusions about Derry ’s residual functional capacity. See Clifford v. Apfel , 227 F.3d 863, 873–74 (7th Cir. 2000).

The ALJ’s adverse credibility determinat ion suffers from the same flaws of overlooking or misstating parts of the me dical record and giving, without proper explanation, dispositive weight to the opinions of consultative doctors over treaters. Further, the ALJ discounted Derry’s reported mental limitations by stating that Derry tried to minimize that she went to college, but the ALJ was silent about the fact that Derry received a disability accommodation and was unable to complete her original program. Moreover, Derry’s mere “ desire to work”—or attend school—“is not

inconsistent with her inability to work because of a disability.” Hill v. Colvin , 807 F.3d 862, 868 (7th Cir. 2015) (emphasis in original). The ALJ also does not explain why she interpreted Derry’s trips to Florida as evid ence that she was capable of work, rather than as reflecting her family’s belief that she needed to be in their care.

IV

Because the ALJ provided inadequate explanations for rejecting the VA’s disability rating and the opinions of Derry’s treating physicians, while neglecting to address substantial evidence contrary to her conclusion, we VACATE and REMAND for further proceedings.