# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 29, 2013

Decided May 3, 2013

Before

WILLIAM J. BAUER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 12

‐ 3085

RONDA HAMILTON,

Plaintiff

‐ Appellant

,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant

‐ Appellee

. Appeal from the United States District

Court for the Northern District of Illinois,

Eastern Division.

No. 11 C 6471

Arlander Keys,

Magistrate Judge.

O R D E R

Ronda Hamilton was in a car accident in 2005 and sustained back and shoulder

injuries. These injuries, she says, cause pain that prevents her from working full time. She

sought disability insurance benefits under Title II of the Social Security Act, but an ALJ

denied her claim, finding that she is actually capable of full

‐ time sedentary work and that

she exaggerated her limitations when she testified. After the Appeals Council declined to

review this decision, Hamilton sued in federal district court, which entered summary

judgment for the Commissioner. Because the ALJ did not support her findings with NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 3085 Page 2

substantial evidence, we vacate the district court’s judgment and remand for further

proceedings consistent with this order.

Back pain is Hamilton’s chief complaint, and the length of time that she can tolerate

sitting is the primary issue in this case. If she can sit for intervals of only about 20 minutes,

as she claims, Hamilton is disabled. But if, as the ALJ found, she can sit for at least 45

‐

minute stretches, there are a significant number of sedentary jobs she can perform, and she

is not disabled.

Hamilton’s back pain started in 2005 when she was in a car accident and sustained a

compression fracture to her first lumbar vertebra, a torn rotator cuff, and pelvic injuries. Her

fractured vertebra touches her spinal cord, and she has spinal stenosis (narrowing) and

lesions in her sacral canal. Her treatment has included physical therapy, prescription pain

medications, spinal injections, surgery to repair her left rotator cuff, and medication to

minimize her “bladder spasms.” One of Hamilton’s treating physicians, pain specialist

Dr. Sheila Dugan, estimates that Hamilton can sit “in a stiff chair” for only 20 to 30 minutes.

Dr. Dugan adds that although Hamilton can handle “about two hours” of sitting on a “soft

surface,” the total sitting time that she can endure in a workday is under 6 hours. Another

treating physician, neurologist Dr. Martin Luken, opined in 2007 that Hamilton suffers from

“complex pain syndrome” and is “completely disabled from the standpoint of gainful

employment.” Dr. Luken also signed a report that was completed by a physical therapist,

Renee Spanberg, in 2009 after she gave Hamilton a “physical performance test.”

Ms. Spanberg reported that Hamilton’s “maximum sitting tolerance was 20 continuous

minutes.”

At Hamilton’s first hearing before an ALJ, she testified that her injuries have

drastically limited her daily activities. The amount of time that she can sit “depends on

what kind of chair I’m in

. . . if I’m sitting in a straight back chair it’s about 15 to 20 minutes,

if I’m in a lazy boy or something that really supports my back I can sit for maybe an hour,

hour and a half.” She testified to taking Lyrica for pain. She also acknowledged that on one

occasion, some months before the hearing, she drove from northern Illinois to Kentucky,

stopping to rest from driving only every couple of hours.

After this hearing, the ALJ denied Hamilton’s application for benefits, finding that

she was not fully credible. Hamilton had not, the ALJ wrote, sought medical treatment for

years, which led him to surmise that her pain could not be as severe as she had described.

The Appeals Council, however, noticed that the ALJ’s adverse credibility finding was

premised on a mistake—he had ignored Hamilton’s continued receipt of physicalNo. 12

‐ 3085 Page 3

therapy—and remanded the case to a different ALJ for reconsideration and further evidence

development.

At the second hearing the following year, Hamilton again described her sitting

tolerance as “20 minutes, and that’s pushing it,” and she detailed her activities: She does

some household chores but must perform them slowly and take frequent breaks; she needs

to lie down in bed four or five times a day after activity; she attends church weekly, but she

must stand at the back when she reaches her maximum sitting time. At the time of this

hearing, she was taking the prescription medications Flexeril (for pain relief) and over

‐ the

‐

counter ibuprofen. She had earlier been prescribed Lyrica, Darvocet, and Oxycontin, but she

explained that her doctors discontinued these pain medications after she complained that

they left her drowsy and disoriented.

Following Hamilton’s testimony, a medical expert, Dr. Sheldon Slodki, testified that

Hamilton’s condition limits her to “sedentary” employment. When Hamilton’s attorney

questioned him about the report of Ms. Spanberg, the physical therapist, in which she said

that Hamilton could tolerate only 20 minutes of sitting, Dr. Slodki observed that the report’s

conclusion was consistent with Hamilton’s testimony. (He did not otherwise question or

endorse it.)

A vocational expert testified last. The ALJ asked her whether there are a significant

number of jobs for people who are confined to sedentary, unskilled work and cannot sit for

more than 30 minutes, and the expert replied that there are not, adding “generally I like to

see 45 minutes.” The ALJ then asked whether there are jobs for those who can tolerate

sitting for at least 45 minutes. The expert answered that there are, and she reiterated that

there are not a significant number of sedentary jobs for people who can sit fewer than 45

minutes.

The ALJ concluded that Hamilton was not disabled and issued a decision once again

denying her benefits. In the ALJ’s assessment, Hamilton has retained the ability to sit

comfortably in a standard chair for 45 to 60 minutes, which (as the vocational expert

testified) would allow her to work jobs that exist in significant numbers. In reaching this

conclusion, the ALJ followed the standard five

‐ step disability analysis. She found at steps

one and two that Hamilton has not engaged in substantial gainful activity since her accident

and that she has two severe, medically determinable impairments: low back pain secondary

to a vertebral fracture and a left rotator cuff injury. At step three, the ALJ found that neither

of these impairments is listed in 20 CFR 404.1520(d), meaning that the analysis must

proceed to step four.No. 12

‐ 3085 Page 4

Before moving to step four, the ALJ assessed Hamilton’s residual functional capacity

(RFC) to be sedentary and made the determination at the heart of this appeal: “The claimant

requires a sit/stand option allowing her to sit or stand alternatively at will every 45 to 60

minutes.” After finding that Hamilton could sit for at least 45 minutes, the ALJ discussed

Hamilton’s credibility. She began with this familiar piece of boilerplate:

After careful consideration of the evidence, I find that the

claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms;

however, the claimant’s statements concerning the intensity,

persistence, and limiting effects of these symptoms are not

credible to the extent they are inconsistent with the above

residual functional capacity.

The ALJ then characterized Hamilton’s hearing testimony as internally inconsistent and

inconsistent with other evidence. She wrote that Hamilton had testified at the first hearing

that she can sit for an hour and at the second hearing that she can sit for only 20 minutes.

But the ALJ omitted Hamilton’s testimony from the first hearing where she said that in a

standard chair she can sit for only 15 to 20 minutes. The also ALJ wrote that Hamilton’s

“activities of daily living”—household chores, watching television, visiting friends, using a

computer, going to church once a week, and once driving to Kentucky with breaks only

every couple of hours—are inconsistent with her asserted limitations, but she did not

explain how. Finally, although Hamilton testified at the first hearing that she was taking the

prescription medication Lyrica for her pain, the ALJ wrote that Hamilton testified at that

hearing to taking no prescription pain medications.

The ALJ also explained how much weight she gave to the medical opinions in the

record, characterizing the opinions of Hamilton’s treating physicians, Dr. Luken and Dr.

Dugen, as “generally consistent” with the objective medical evidence and thus entitled to

“appropriate weight.” To the opinion of the medical expert, Dr. Slodki, she gave “great

weight,” describing it as “generally consistent with the evidence of record and the opinions

of Dr. Luken, Dr. Dugen, and Ms. Spanberg.” But the ALJ gave “no weight” to the 2007

letter where Dr. Luken opined that Hamilton is “disabled”; that determination, the ALJ

explained, is reserved to the Commissioner. See 20 C.F.R. § 416.927(e)(2). She also patly

dismissed the finding of Ms. Spanberg, the physical therapist, that Hamilton can sit for no

more than 20 minutes: “Based on my review of the evidence, as discussed above, I find that

the record does not support a finding that the claimant requires a sit/stand option more

frequently than every 45 to 60 minutes.”No. 12

‐ 3085 Page 5

After determining Hamilton’s RFC to be sedentary work with an option to stand

every 45 minutes, the ALJ completed step 4 by explaining that Hamilton is unable to return

to her previous work as a nurse’s aid because it was not sedentary work. At the fifth and

final step, the ALJ concluded that Hamilton is not disabled because sedentary jobs that

accommodate her limitations exist in the national economy in significant numbers.

This time around the Appeals Council declined to review the ALJ’s decision, making

it the Commissioner’s final decision. Hamilton filed suit in the district court, but the court

granted summary judgment to the Commissioner after concluding that substantial evidence

supports the ALJ’s decision. The court acknowledged that the ALJ’s decision is flawed and

at places even “misleading,” but it did not think these problems called for remand.

On appeal, Hamilton challenges the ALJ’s finding that she can regularly sit for 45

to 60 uninterrupted minutes. According to Hamilton, the record shows that 20 minutes is

generally her limit. She contends that the ALJ should have found her disabled given the

vocational expert’s testimony that an insignificant number of jobs accommodate this

limitation.

In particular, Hamilton first argues that the adverse credibility finding was improper

because the ALJ misrepresented her testimony as inconsistent. An ALJ’s credibility

determination is entitled to great deference, but it must be justified with specific reasons

and have support in the record. See SSR 96

‐ 7p; Shauger v. Astrue

, 675 F.3d 690, 696 (7th

Cir. 2012); Villano v. Astrue

, 556 F.3d 558, 562 (7th Cir. 2009); Steele v. Barnhart

, 290 F.3d 936,

941–42 (7th Cir. 2002). The ALJ wrote that Hamilton testified at the first hearing to being

able to “sit for 15 minutes to one hour” but at the second hearing to being “capable of sitting

for 20 minutes.”

Testimonial inconsistencies can indeed form the basis of an adverse credibility

finding, see SSR 96

‐ 7p, but Hamilton convincingly argues that she did not contradict herself.

Her testimony at the first hearing was that the amount of time she can sit depends on the

chair: She can tolerate a “straight back” chair for about 20 minutes but a “lazy boy” recliner

for up to an hour and a half. She did not testify, as the ALJ represented, that she could sit in

any chair for up to an hour. Hamilton’s testimony at the first hearing thus is consistent with

her testimony at the second hearing, where she said that she can sit for “20 minutes, and

that’s pushing it,” unless she is in her recliner. We also note that the ALJ made another

misrepresentation about Hamilton’s testimony when she wrote that Hamilton denied taking

prescription pain medication at her first hearing. Hamilton actually testified that she was

taking Lyrica for pain.No. 12

‐ 3085 Page 6

The ALJ’s mistakes about Hamilton’s testimony are problematic on their own, but

they are compounded by the ALJ’s resort to the boilerplate passage about credibility that we

quoted earlier. In that passage, the ALJ deems Hamilton’s asserted limitations not credible

“to the extent” they are inconsistent with the RFC findings. As we have stressed repeatedly,

the passage implies that the ALJ may permissibly settle on an RFC before assessing the

claimant’s credibility when in fact credibility must be assessed first. Shauger

, 675 F.3d at 696;

Bjornson v. Astrue

, 671 F.3d 640, 644–45 (7th Cir. 2012).

The Commissioner responds that ALJs who employ this objectionable boilerplate can

salvage their credibility findings by providing sufficient additional analysis of the

claimant’s credibility. See Filus v. Astrue

, 694 F.3d 863, 868 (7th Cir. 2012). We conclude,

however, that the rest of the ALJ’s credibility analysis, fails to efface the impression given

by the boilerplate. One problem is found in the ALJ’s primary justification for not fully

crediting Hamilton: “The claimant has described activities of daily living which are not

limited to the extent one would expect given the complaints of disabling symptoms and

limitations.” This view of Hamilton’s daily activities improperly and inexplicably ignores

her testimony that completing activities takes her much longer since the accident and that

she must spend half an hour lying in bed four to five times a day. We have admonished

ALJs to appreciate that, unlike full

‐ time work, the“activities of daily living” can be flexibly

scheduled, Bjornson

, 671 F.3d at 647, and we have criticized “the naiveté of the Social

Security Administration’s administrative law judges in equating household chores to

employment,” Hughes v. Astrue, No. 12

‐ 1873, 2013 WL 163477 at *3 (7th Cir. Jan. 16, 2013).

We have also recognized that a person who needs to spend much of the day lying down

cannot work. See Roddy v. Astrue

, No. 12

‐ 1682, 2013 WL 197924 at *8 (7th Cir. Jan. 18, 2013);

Bjornson

, 671 F.3d at 646, 648. What is more, the activities the ALJ characterizes as

inconsistent with Hamilton’s limitations do not necessarily involve sitting for longer than 20

minutes. (The single exception is Hamilton’s one

‐ time drive to Kentucky, where she

managed to drive for two

‐ hour stretches before taking breaks, but the record contains no

evidence of the length of her breaks or whether she needed to lie down during them, and

the ALJ did not explain how this isolated recreational event means that Hamilton can do the

same thing on a full

‐ time basis. Simply mentioning the drive as the ALJ did is insufficient;

a s this circuit puts it, the ALJ must build a “logical bridge” between the evidence and her

conclusions. See Scott v. Astrue

, 647 F.3d 734, 740 (7th Cir. 2011); Terry v. Astrue

, 580 F.3d 471,

475 (7th Cir. 2009).)

Turning to the medical testimony, Hamilton next argues that the ALJ, in assessing

her RFC, should have given her treating physicians’ opinions controlling weight but did

not. A treating physician’s opinion is entitled to controlling weight unless it is not

supported by the physician’s records or is inconsistent with the reports of otherNo. 12

‐ 3085 Page 7

sources. 20 C.F.R. § 404.1527(d)(2); Scott

, 647 F.3d at 739. An ALJ who concludes that such

an opinion is not entitled to controlling weight must give good reasons for that conclusion.

Martinez v. Astrue

, 630 F.3d 693, 698 (7th Cir. 2011); Punzio v. Astrue

, 630 F.3d 704, 710 (7th

Cir. 2011) ; Larson v. Astrue

, 615 F.3d 744, 749 (7th Cir. 2010).

We agree with Hamilton that the ALJ did not properly evaluate the medical opinions

in this case. The most obvious problem is that the ALJ said she was giving the doctors’

opinions “appropriate weight” without specifying how much weight is appropriate. But

even if we put that issue aside, the ALJ’s analysis falls short because she erroneously called

the opinions of Hamilton’s doctors and her physical therapist “generally consistent” with an

RFC limited to sedentary work with the option to stand every 45 minutes. The ALJ’s

announced RFC conflicts with the medical opinions of Hamilton’s medical providers on the

pivotal question of how long Hamilton can sit in a standard chair. Dr. Dugan’s opinion was

that Hamilton can sit in a firm chair for no more than 20 to 30 minutes, and the physical

therapist, Ms. Spanberg, in a report signed on to by Dr. Luken, opined that Hamilton has a

maximum sitting time of 20 minutes. The vocational expert testified that a person must be

able to sit for at least 45 minutes—presumably in whatever kind of chair the employer

chooses to provide—in order to hold a full

‐ time, sedentary job. Therefore, the physicians’

opinions that she can sit at most for only 30

‐ minute intervals cannot be glossed over as

“generally consistent” with a conclusion that she can work full time. (Although Dr. Dugan

agreed that Hamilton can sit for up to two hours in a “soft” chair, nothing in the record

suggests that something equivalent to Hamilton’s “lazy boy” recliner, which she uses for

sittings that exceed 20 minutes, is typically available in the work settings that the vocational

expert considered.)

Another problem with calling the physicians’ opinions “generally consistent” with

the RFC finding is that Dr. Luken opined that Hamilton is “disabled.” This opinion, too,

conflicts with the RFC finding that she can keep working. While the ALJ is right that the

ultimate question of disability is reserved to the Commissioner, see 20 C.F.R. § 416.927(e)(2),

a treating physician’s opinion that a claimant is disabled “must not be disregarded,”

SSR 96

‐ 5p; see also Roddy v. Astrue

, No. 12

‐ 1682, slip op. at 10–11, 13–14 (7th Cir. Jan. 18,

2013) (explaining that ALJ must address treating physician’s opinion that claimant cannot

“handle a full

‐ time job”). Here, the ALJ’s description of Dr. Luken’s opinion as “generally

consistent” with her RFC determination disregards his opinion that Hamilton is disabled.

Finally, the ALJ also inadequately justified rejecting the conclusion of the physical

therapist, Ms. Spanberg, that Hamilton can sit for only 20 minutes. Even if Ms. Spanberg’s

report cannot be attributed to Dr. Luken (who signed it but did not write it) and thus cannot

be given the controlling weight of a treating physician’s opinion, a physical therapist’sNo. 12

‐ 3085 Page 8

report is entitled to consideration and cannot be arbitrarily rejected. See Barrett v. Barnhart

,

355 F.3d 1065, 1067 (7th Cir. 2004). The ALJ gave no explanation for rejecting Ms.

Spanberg’s opinion other than to say that “the record does not support [her] finding

. . . .”

This is an empty explanation, and it is in tension with the testimony of Dr. Slodki, the

medical expert, who repeated Ms. Spanberg’s opinion that Hamilton can sit for only 20

minutes without suggesting that he disagreed or that the opinion was unsupported by the

medical record. Last, although Dr. Slodki assessed Hamilton’s RFC to be “sedentary” (an

opinion to which the ALJ gave “great weight”), this means that Hamilton can work only

while seated; it is not an opinion about how long she can sit.

Thus neither the medical nor non

‐ medical evidence in the record supports the ALJ’s

conclusion that Hamilton exaggerated her limitations and that she actually can sit regularly

for 45

‐ minute stretches. In fact the only reference to “45 minutes” in the record is from the

vocational expert who informed the ALJ that jobs are not available for people who cannot

sit for at least that long. Because the ALJ’s key findings were not supported by substantial

evidence, we VACATE the judgment of the district court and REMAND this case to the

agency for proceedings consistent with this opinion. In those proceedings, the agency shall

award benefits unless it determines that additional findings and conclusions still need to be

made.