In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2422

CHRISTINE BJORNSON,

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. 10 C 5835—Elaine E. Bucklo, Judge.

ARGUED DECEMBER 14, 2011—DECIDED JANUARY 31, 2012

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge. This is an appeal from a

decision by the district court affirming the denial of

social security disability benefits by an administrative

law judge, whose decision became final when the Social

Security Administration’s Appeals Council denied the

applicant leave to appeal the Council’s decision.

After an automobile accident in 1999 Christine

Bjornson began having severe back pains. Three years
2 No. 11-2422

later she was diagnosed with a “Chiari malformation,”

which is a protrusion of brain tissue into the spinal

canal. The malformation may have been caused by the

accident, but probably not; the cause, however, is irrelevant. After three operations on her brain and spine in

2002, the vision and speech problems that the Chiari

malformation had caused lessened substantially but she

developed hydrocephalus—a buildup of cerebrospinal

fluid in the brain—that required the installation of a

shunt in her brain, to drain the fluid. It took three installations to place the shunt properly, the last in 2003. To

alleviate the severe headaches caused or aggravated by

what appear to have been a total of nine brain and spinal

operations that she had undergone, she was prescribed

a number of powerful pain medications, including

OxyContin, Percoset, Lyrica, and methodone, often in

conjunction.

She hasn’t worked since the auto accident. She was

last insured for social security disability benefits in

June 2005 (when she was 34 years old), so only if she

was disabled from full-time work by that date is she

eligible for benefits.

At the first of two disability hearings she testified that

since before her last-insured date she has had constant,

excruciating headaches four or five days a week, which

cause her to vomit when she stands up. She takes her

pain medications when she wakes up and then goes

back to bed for hours because she “could not do anything else because of her pain medications.” She also

has severe back pain, aggravated by obesity, but it

does not appear that the back pain is disabling in itself,
No. 11-2422 3

though it compounds the effects of the headaches on

her ability to work.

At the first hearing the administrative law judge

decided that Bjornson should be examined by a physician

hired by the Illinois Department of Human Services,

which works with the Social Security Administration

in determining eligibility for social security disability

benefits. See Illinois Department of Human Services,

“Disability Determination Services,” www.dhs.state.il.us/

page.aspx?item=29979 (visited Dec. 30, 2011). This was

done, and the physician, Dr. Muhammad Rafiq, reported

that Bjornson “gets frequent severe headaches three to

four times per week during which she cannot stand,” and

that in an 8-hour day she can sit for an hour and a

half, stand for an hour, and walk for half an hour—the

rest of the time she has to lie down. The limitation on

standing may be caused by her back pain as well as her

headaches—it is unclear from Rafiq’s report which.

Other doctors’ reports note Bjornson’s “chronic headaches, neck pain, intermittent visual problems, swallowing problems, slurred speech, and bilateral finger

numbness.” Dr. Ira Goodman, a pain specialist who

had treated Bjornson since 2003, noted her complaints

of constant headaches and diagnosed her with

(among other things) occipital neuralgia, a type of headache that involves piercing, throbbing, or “electric-shocklike” chronic pain in the neck and head. He also

remarked her cervical spine pain, lower-back pain, a threeweek stretch of nonstop headaches, and daytime somnolence because of her pain medications. The administra-
4 No. 11-2422

tive law judge did not mention the diagnosis of occipital

neuralgia.

All the evidence we’ve described thus far, except for

Dr. Rafiq’s, concerns diagnoses and treatments that

Bjornson received before June 2005. The record also

contains a good deal of evidence, besides Rafiq’s, concerning Bjornson’s diagnoses and treatments since

then. None of this evidence indicates that her symptoms have worsened—that if she is disabled today, nevertheless she wasn’t disabled before her last insured date.

Yet the government’s brief argues the irrelevance of all

post-June 2005 medical data, an argument that

both is factually mistaken and violates the Chenery rule,

because the administrative law judge ruled that postJune 2005 medical data could be considered—and he was

right, as there was no reason to believe that Bjornson’s

ability to work had declined since then. Ray v. Bowen,

843 F.2d 998, 1004-06 (7th Cir. 1988); Potter v. Secretary of

Health & Human Services, 905 F.2d 1346, 1348 (10th Cir.

1990) (per curiam); Dousewicz v. Harris, 646 F.2d 771, 774

(2d Cir. 1981).

One physician, Dr. Chukwuemeka Ezike, testified

that while Bjornson has a history of chronic headaches

attributable to the Chiari malformation and has been

treated for “headaches, nausea, vomiting, and some

parasthesia” (numbness or tingling in the limbs), he “did

not find enough . . . in the medical records” to justify

Dr. Rafiq’s opinion. He believed that her “pain was not

well substantiated after 2003,” and he did “not find the

evidence that says she cannot sustain [a] sedentary job.”
No. 11-2422 5

His testimony goes on and on, but what we have

quoted is the only intelligible portion of it that bears on

Bjornson’s ability to hold a full-time job. Elsewhere he

did say that “because of the persistence of the symptoms

and the fact that she was on high dose opiates, that’s not

in my professional opinion based on reasonable degree

of medical certainty that physically she would be unable

to sustain unemployment at that time . . . . [W]e do not

have any evidence physically.” But we don’t know

what this passage means.

The rest of Dr. Ezike’s testimony, which was

continually and confusingly interrupted by the administrative law judge, is epitomized in the following

exchange and seems, to the limited extent that it is even

intelligible, irrelevant:

BY ADMINISTRATIVE LAW JUDGE:

Q Dr. Azekee [sic], are we in the general realm of

what that chiari malformation is? Are we all, what?

A Yeah. I think you have the basic, you have the

basic correct pathology of this kind. Just basically the

brain is not supposed to be in the spinal canal.

That’s all.

Q Right.

A Any time you have any part of the brain which in

the spinal canal then you describe as a chiari malformation of which you have four types. That’s one

and two times and type four. At one, of course, is the

most common, which is what the patient had or had.

And they usually, they try to first [INAUDIBLE] they
6 No. 11-2422

don’t have any symptoms or they do not have any

abnormality. But when you have injuries, such as in

this case, she has a lumbar top, or a lumbar idete

surgery procedure that precipitated the, the brain to

remove a little bit more lower in the canal, resulting

in symptoms that she was experiencing. And at that

point, most doctors will recommend that you have

surgery to, to prevent further herniation down.

The problem when brain goes down more into the

canal, the spinal canal, of course, is smaller than

the brain. So the more it goes down, the more you

have strangulation.

Q Right

A The more you—

Q I got it.

A —strangulation—

Q I think I—

A —then it goes from [INAUDIBLE] deformity is

smaller than the brain, and is pulling down. Then you

have a filter will collect and cut off some of the ceiling. And the ceiling will not result in, most of the time,

what it causes, it causes damage of the spinal tract,

neck, in the columns, of the spinal tract, so that the

most of the time it gives you symptoms of problem

with [INAUDIBLE] syndrome, the lower extremity, the

lower muscle nerve syndrome the upper extremities.

Q Okay. So it might be related to left arm weakness?

I mean it’s possible?
No. 11-2422 7

A Well, it’s possible, but it is absolutely I think it’s

more if, if the left arm was [INAUDIBLE] when they

get to, if as a result of the surgery, part of the

malformation itself.

Q Okay. Well maybe, from the surgery. But something might have gone, happened, which would cause

some left arm weakness. Right? Possibly?

A Many things are possible, Your Honor.

Q Well okay.

One turns with relief to a November 2008 evaluation

by Dr. Goodman:

Christine Bjornson has been a patient of mine since

October, 2003. She is being treated for chronic headache related to multiple surgeries for Chiari malformation as well as for low back pain related to degenerative disk disease, lumbar facet arthropathy and

sacroiliitis with lower extremity pain related to

lumbar radiculopathy. She has responded some to

interventional treatments and medical management but remains unable to work primarily due to

noticeable increases in pain with prolonged sitting

or standing. The last MRI of the lumbar spine was

performed in June 2006 and showed degenerative

disk disease at both L4-5 and L5-S1 with disk protrusion. She has failed to gain significant improvement with IDET and is not willing to undergo a

lumbar spinal fusion at these levels, which I think is

appropriate. It is my opinion that she will need ongoing treatment of her pain with periodic inter-
8 No. 11-2422

ventional procedures, which do give benefit for up

to months at a time, as well as pharmacological management. Even with these forms of treatment she

experiences great difficulty caring for her family,

and I think that functioning in a job on a sustained

basis would be extremely difficult if not impossible

as she cannot sustain one position for any length

of time.

Bjornson testified at the second hearing, consistently

with her testimony at the first, that she needed the shunt

in her brain replaced but that the neurosurgeon she

had consulted had refused for fear that it might bring

back her hydrocephalus and require still another brain

surgery. (His report was consistent with that testimony.)

She testified that “there’s nothing more they [the doctors]

can do for me,” and that the pain medications help “a

little” but “usually . . . just knock me out and I sleep

through the headaches.” She testified that she spends

most of her day lying down.

The administrative law judge concluded that Bjornson

was capable of performing sedentary work (she had

been at various times before her accident a waitress, an offtrack betting teller, and a clerk in a real estate office),

albeit with some limitations—mainly that she be able

to sit or stand whenever she wanted to. He asked the

vocational expert (an expert who testifies in disability

hearings about whether there is a substantial number

of jobs in the local economy that the claimant is

physically and mentally able to perform) whether

given these limitations Bjornson could satisfy the require-
No. 11-2422 9

ments of such a job. The vocational expert testified

that Bjornson could work as a clerk in a real estate office

because she “could remain in a seated position long

enough to perform data entry tasks.” The administrative

law judge asked whether her opinion would change

if Bjornson had to lie down “at least an hour during

the workday at irregular intervals every day differently”—to which the vocational expert replied that in

that event “there would be no jobs [she] could perform.”

And in response to a further question from the administrative law judge—what if Bjornson had occasional

bad headaches that caused her to miss two days of

work?—the vocational expert answered: that too

“would knock her out of all work.” Nevertheless the

administrative law judge concluded that Bjornson

was not disabled.

Reading the administrative law judge’s opinion, we

first stubbed our toe on a piece of opaque boilerplate

near the beginning, where, after reciting Bjornson’s description of her medical condition, the opinion states:

“After careful consideration of the evidence, the undersigned [administrative law judge] finds that the

claimant’s medically determinable impairments would

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 assessment.” The government’s brief describes this passage as

a “template,” by which it means a passage drafted by

the Social Security Administration for insertion into
10 No. 11-2422

any administrative law judge’s opinion to which it pertains.

This “template” is a variant of one that this court

(and not only this court) had criticized previously—that

“after considering the evidence of record, the undersigned finds that claimant’s medically determinable

impairments would reasonably be expected to produce

the alleged symptoms, but that the claimant’s statements concerning the intensity, persistence and limiting

effects of these symptoms are not entirely credible.” In

Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010), we

called this “meaningless boilerplate. The statement by

a trier of fact that a witness’s testimony is ‘not entirely

credible’ yields no clue to what weight the trier of

fact gave the testimony” (emphasis in original); see

also Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011);

Martinez v. Astrue, 630 F.3d 693, 696-97 (7th Cir. 2011);

Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir. 2010). “Such

boilerplate language fails to inform us in a meaningful,

reviewable way of the specific evidence the ALJ considered in determining that claimant’s complaints

were not credible. More troubling, it appears that the

Commissioner has repeatedly been using this same

boilerplate paragraph to reject the testimony of numerous claimants, without linking the conclusory statements contained therein to evidence in the record or

even tailoring the paragraph to the facts at hand, almost

without regard to whether the boilerplate paragraph

has any relevance to the case.” Hardman v. Barnhart,

362 F.3d 676, 679 (10th Cir. 2004) (citation omitted).
No. 11-2422 11

The present “template,” which adds at the end of the

previous one “. . . to the extent they are inconsistent with

the above RFC assessment,” is even worse, though

the government’s brief defends it with great vigor—

while at the same time both mistakenly describing it as

the identical boilerplate criticized in the previous cases

and confusing it with form orders that the Social Security

Administration has authorized when an administrative

law judge “chooses to make a wholly favorable [to the

applicant] oral decision at the hearing.” Social Security

Administration, “Oral (Bench) Decision Procedures,”

w ww .s sa.gov/OP_H om e/hallex/I-05/I-5-1-17.htm l

(visited Dec. 24, 2011), and “Findings Integrated Templates

(FIT), Social Security Online,” www.ssa.gov/appeals/fit

(visited Dec. 24, 2011). The government regards the

“template” as an indispensable aid to the Social Security

Administration’s overworked administrative law judges.

Yet when we asked the government’s lawyer at

argument what the “template” means, he confessed he

did not know.

One problem with the boilerplate is that the assessment of the claimant’s “residual functional capacity”

(the bureaucratic term for ability to work) comes later

in the administrative law judge’s opinion, not

“above”—above is just the foreshadowed conclusion

of that later assessment. A deeper problem is that the

assessment of a claimant’s ability to work will often

(and in the present case) depend heavily on the credibility of her statements concerning the “intensity, persistence and limiting effects” of her symptoms, but the

passage implies that ability to work is determined first
12 No. 11-2422

and is then used to determine the claimant’s credibility.

That gets things backwards. The administrative law

judge based his conclusion that Bjornson can do

sedentary work on his determination that she was exaggerating the severity of her headaches. Doubts about

credibility were thus critical to his assessment of ability

to work, yet the boilerplate implies that the determination of credibility is deferred until ability to work is

assessed without regard to credibility, even though it

often can’t be. In this regard we note the tension between

the “template” and SSR 96-7p(4), www.ssa.gov/OP_Home/

rulings/di/01/SSR96-07-di-01.html (visited Jan. 4, 2012),

which states that “an individual’s statements about the

intensity and persistence of pain or other symptoms

or about the effect the symptoms have on his or her

ability to work may not be disregarded solely because

they are not substantiated by objective medical evidence.”

The applicant’s credibility thus cannot be ignored in determining her ability to work (her residual functional

capacity, in SSA-speak).

The Social Security Administration had better take a

close look at the utility and intelligibility of its “templates.”

The administrative law judge based his doubts about

Bjornson’s credibility on his assessment of the medical

reports or testimony of the three doctors whom we’ve

mentioned, Goodman, Rafiq, and Ezike. He remarked that

Dr. Goodman’s treatment notes report that Bjornson’s

complaints about headaches had become less frequent—that she had complained about them only four

times in a nine-month period—and that although her
No. 11-2422 13

headaches “have been an ongoing problem since before

she started coming to see me in 2003 . . . she can deal with

that,” although she “must sit or lie down several times

per day to control pain.” The administrative law judge

appears to have overlooked Bjornson’s testimony that

she had concluded that the medical profession couldn’t

do anything more for her headaches—by this time

she had had multiple brain surgeries—except give her

painkillers that knock her out; if that testimony

is credited, it would explain why her complaints to

doctors about headaches diminished over time. The

administrative law judge did not mention Dr. Goodman’s

further statements that the headaches “were always

present” and that Bjornson had complained of “non-stop

headaches” that had lasted for three weeks.

And it was a mistake to infer from Goodman’s quoted

statement, as the administrative law judge did in ruling

that Bjornson can work as long as she has a sit-stand

option, that sitting down several times a day is all that

she would have to do in order to be able to hold a 9 to

5 job. Apart from the ambiguity not explored by the

administrative law judge of the term “control pain,”

Dr. Goodman’s statement that Bjornson “must sit or lie

down several times per day to control pain” is consistent

with Bjornson’s testimony that often she must lie down,

not stand or sit down, to alleviate the pain. One does

sedentary work sitting (the word “sedentary” is from the

Latin word “sedere,” which means “to sit”), but not lying

down.

The administrative law judge rejected Dr. Rafiq’s evidence (remember that he opined that Bjornson could sit,
14 No. 11-2422

walk, or stand for a total of only three hours in an eighthour workday—90 minutes (sitting) + 60 minutes (standing) + 30 minutes (walking)—which means that she

would have to be able to lie down for the other five hours

in the workday), saying that “those limitations are not

supported by [Dr. Rafiq’s] own clinical observations.”

Well, obviously Dr. Rafiq didn’t conduct an eight-hour

examination of Bjornson. The administrative law judge

faulted Rafiq for “rel[ying] on collateral evidence

in concluding that Bjornson’s functioning was so

markedly limited.” He did not explain what he meant

by “collateral evidence,” but probably he meant the

other treatment notes in the record—yet Dr. Rafiq

would have been remiss not to consult them and to

weigh them in forming his own judgment.

Out of the blue the administrative law judge remarked

of Dr. Rafiq that “doctors sometimes express an opinion

in an effort to assist a patient with whom they sympathize. While it is difficult to confirm the presence of such

a motive, it is more likely in situations where

the opinion in question departs substantially from the

rest of the evidence of record, as in the current case.”

Actually the doctor’s evidence was consistent with

most of the rest of the evidence. And the suggestion that

his evidence was based on sympathy for Bjornson is

both unsupported and implausible. She is not his

patient; the Illinois state agency that works with the

Social Security Administration retained and paid him

to conduct a single examination of a total stranger. His

first medical report (of two reports) states that Bjornson

“was informed that this examination was solely for pro-
No. 11-2422 15

viding information to the Bureau of Disability Determination Services and did not constitute a patient/physician relationship.”

The administrative law judge expressed doubt about

Bjornson’s credibility on the further ground of her “activities of daily living,” notably that she can walk up to one

block, sit or stand for up to 15 minutes, lift 10 pounds,

bathe and dress normally, and even drive and shop.

But she had never testified that she was immobilized,

and indeed she had testified that she had one or two

good days each week—for all that appears, the activities

recited by the administrative law judge are concentrated

in those days. Doubtless she dresses and bathes more

frequently than twice a week, but one can have awful

headaches yet still dress and bathe. The critical differences between activities of daily living and activities

in a full-time job are that a person has more flexibility

in scheduling the former than the latter, can get help

from other persons (in this case, Bjornson’s husband

and other family members), and is not held to a

minimum standard of performance, as she would be by

an employer. The failure to recognize these differences

is a recurrent, and deplorable, feature of opinions by

administrative law judges in social security disability

cases. See Punzio v. Astrue, supra, 630 F.3d at 712; Spiva v.

Astrue, supra, 628 F.3d at 351-52; Gentle v. Barnhart, 430

F.3d 865, 867-68 (7th Cir. 2005); Draper v. Barnhart, 425

F.3d 1127, 1131 (8th Cir. 2005); Kelley v. Callahan, 133 F.3d

583, 588-89 (8th Cir. 1998); Smolen v. Chater, 80 F.3d

1273, 1284 n. 7 (9th Cir. 1996).
16 No. 11-2422

The administrative law judge gave decisive weight to

testimony by Dr. Ezike, even though he is not a pain

specialist, like Goodman, and, unlike both Goodman

and Rafiq, had not examined Bjornson. (So all the

evidence Dr. Ezike relied on was “collateral,” unlike

Dr. Rafiq, whom the administrative law judge criticized

for relying on such evidence.) He noted with approval

Dr. Ezike’s testimony that the medical evidence concerning Bjornson’s condition after 2003 “supported a

sedentary residual functional capacity finding.” Yet on

the previous page of his opinion he had rebuked

Dr. Goodman for saying that Bjornson “remained unable

to work,” remarking that “statements that a claimant is

disabled or unable to work are not medical opinions

but are dispositive administrative findings . . . reserved

to the Commissioner” of social security. The remark is

imprecise. The pertinent regulation says that “a statement by a medical source that you are ‘disabled’ or

‘unable to work’ does not mean that we will determine

that you are disabled.” 20 C.F.R. § 404.1527(e)(1). That’s

not the same thing as saying that such a statement is

improper and therefore to be ignored, as is further

made clear when the regulation goes on to state that

“the final responsibility for deciding” residual functional capacity (ability to work—and so whether the

applicant is disabled) “is reserved to the Commissioner.”

§ 404.1527(e)(2) (emphasis added). And “we will not

give any special significance to the source of an opinion

on issues reserved to the Commissioner.” § 404.1527(e)(3)

(emphasis added).
No. 11-2422 17

The second medical report that Dr. Rafiq submitted

was a form that the Illinois disability determinations

agency had asked him to fill out, and one of the questions was how long Bjornson could sit, stand, and walk

and what she did when she couldn’t do any of those

things. When he stated on the form that she could

sit, stand, and walk for a total of only three hours in

an eight-hour workday, he was not invading any prerogative reserved to the Social Security Administration.

But his statement inescapably implied that she can’t

work full time, for what employer would hire for a fulltime job someone who has to lie down for five hours

during the workday?

The administrative law judge not only forgot his dismissive view of physicians’ testimony relating to

issues “reserved to the Commissioner” when he came

to Dr. Ezike, but compounded the inconsistency by

adding that he was “assign[ing] substantial weight to

Dr. Ezike’s opinions, as he is familiar with the Social

Security disability program, reviewed all available

medical evidence, listened to Bjornson’s testimony [at

the second administrative hearing] regarding her symptoms and functional limitations, and issued opinions

consistent with the rest of the medical evidence record.”

Apart from the fact that Dr. Ezike’s testimony was

not “consistent with the rest of the record,” his familiarity

with the social security disability program could be

relevant only if it permitted him to offer an opinion

concerning Bjornson’s eligibility—which the administrative law judge had just said was the prerogative of the

Social Security Administration. The regulation does
18 No. 11-2422

state that “the amount of understanding of our disability

programs and their evidentiary requirements that an

acceptable medical source has . . . [is among the] relevant

factors that we will consider in deciding the weight to

give to a medical opinion.” § 404.1527(d)(6). But the

administrative law judge seems to have forgotten

that when he dismissed Dr. Rafiq’s evidence. And remember that it was a sister government agency (in effect) of

the Social Security Administration that had hired

Dr. Rafiq to examine Bjornson, which implies that Rafiq

was believed to know as much as he needs to know

about the social security disability program in order to

be able to give an informed professional opinion

about the physical condition of an applicant for disability benefits.

It is impossible to tell, moreover, whether Dr. Ezike

based his skepticism about the severity of Bjornson’s

pain (her “pain was not well substantiated after 2003”)

on the absence of corroborating objective medical

evidence, which if he did would be in tension with SSR 96-

7p(4) (“an individual’s statements about the intensity

and persistence of pain or other symptoms or about

the effect the symptoms have on his or her ability to work

may not be disregarded solely because they are not substantiated by objective medical evidence”), or on his

interpretation of her report of her pain as quoted or

paraphrased in the notes of the other doctors (another

possible interpretation of “[her] pain was not well substantiated after 2003”). If the former, his opinion is both

implausible for there was plenty of corroborating medical

evidence—and in tension with SSR 96-7p(4), as we said;
No. 11-2422 19

and if the latter it adds nothing to those notes and those

doctors’ conclusions and does not undermine Bjornson’s

testimony that she had abandoned hope of being able

to deal with her headaches other than by a combination

of painkillers that made her somnolent with (what goes

with somnolence) lots of lying down. Dr. Ezike may

have based his testimony on the fact that the other doctors’ treatment notes indicated that Bjornson’s complaints

about headaches were intermittent.

The Social Security Administration’s administrative

law judges are overworked, but if one may judge from

the transcript in this case, the two hearings proceeded in

a leisurely, even meandering, fashion. Whatever the

cause, the administrative law judge’s opinion failed to

build a bridge between the medical evidence (along

with Bjornson’s testimony, which seems to have been

fully consistent with that evidence) and the conclusion

that she is able to work full time in a sedentary occupation provided that she can alternate sitting and standing. See Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011);

Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009) (per

curiam); cf. Hardman v. Barnhart, supra, 362 F.3d at 678-79.

The judgment of the district court is reversed and the

matter returned to the Social Security Administration

for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

1-31-12