### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 1240

G EORGE A. P LESSINGER

, II,

Plaintiff

‐ Appellant

,

v.

N ANCY A. B ERRYHILL

, Acting Commissioner of Social Security,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 17

‐ CV

‐ 71

— William C. Lee

, Judge

.

____________________

A RGUED J ULY 6, 2018

— D ECIDED A UGUST 20, 2018

____________________

Before S YKES

, H AMILTON

, and B RENNAN

, Circuit Judges

.

H AMILTON

, Circuit Judge

. George Plessinger applied for

disability insurance bene fi ts under the Social Security Act

based on his chronic back pain. An administrative law judge

found that he was severely impaired by his lumbar degener

‐

ative disc disease and stenosis, thoracic degenerative disc dis

‐

ease, obesity, and systemic hypertension. Given the stringent

standard for total disability under the Social Security Act,2 No. 18

‐ 1240

however, the ALJ found that these impairments were not dis

‐ abling. The agency’s Appeals Council denied review, and the

district court upheld the ALJ’s decision. We reverse and re

‐

mand to the agency. In the face of the great weight of medical

evidence supporting Plessinger’s claims of disabling impair

‐

ments, the ALJ gave undue weight to the opinion of the testi

‐ fying medical expert, who did not examine Plessinger and

hedged his opinion in a critical way that was never resolved.

The ALJ and the testifying medical expert each seemed to del

‐

egate to the other the job of evaluating the credibility of Ples

‐ singer’s complaints of pain. The ALJ’s decision to discount the

credibility of those complaints was not supported by substan

‐

tial evidence.

I. Factual and Procedural Background

Plessinger was born with congenital spinal stenosis. He

began experiencing back pain in 2010, when he was just 23

years old. He worked as a diesel mechanic, electric lineman,

fast food worker, welder, and truck driver. But in April 2012

he was in an accident that exacerbated a prior injury from fall

‐ ing at work. He had epidural nerve block injections in August

2012, but they did not relieve his pain. An MRI scan revealed

a disc rupture in his lumbar spine, so he had surgery in March

2013.

In May and September 2013, in connection with Ples

‐ singer’s application for Social Security disability bene fi ts,

non

‐ examining consultants for the agency assessed his resid

‐

ual functional capacity, meaning his abilities to do various

work

‐ related activities on a sustained basis. Dr. J.V. Cocoran

determined that Plessinger had the residual functional capac

‐ ity to perform light work, while Dr. J. Sands determined he

could perform only sedentary work. Speci fi cally, Dr. CocoranNo. 18

‐ 1240 3

found that Plessinger could stand or walk for about six hours

in an eight

‐ hour workday. Dr. Sands, on the other hand,

found that Plessinger could stand or walk for a total of only

two hours per day and noted that he had “objectively sup

‐ ported back problems that are signi fi cant for someone his

age.”

Unfortunately, Plessinger’s 2013 surgery did not relieve

his chronic pain. He was later diagnosed with failed back sur

‐

gery syndrome, which is also called post

‐ laminectomy syn

‐

drome. Plessinger’s neurosurgeon, Dr. Je ff rey Kachmann, re

‐

ferred him to a pain management doctor, Dr. Neal Coleman,

to see if more conservative treatment could forestall a second

surgery. Dr. Coleman examined Plessinger in February 2015

and noted that he could walk only 50 yards before his legs

began to tingle. Dr. Coleman’s notes indicate that Plessinger’s

four di ff erent daily pain medications reduced his symptoms,

but his pain was aggravated by daily activities, including

“lifting, lying/rest, rolling over in bed, si tt ing, standing and

walking.” Dr. Coleman also noted that Plessinger’s spinal ste

‐

nosis was “symptomatic and function limiting” and did not

respond to injection therapies or other conservative pain man

‐

agement approaches.

Dr. Coleman referred Plessinger to another neurosurgeon

to assess whether a second surgery would be appropriate. Dr.

Guatam Phookan examined him in March 2015. He noted disc

herniation in several parts of Plessinger’s spine, and diag

‐

nosed “referred/radicular pain” in both legs. Dr. Phookan

noted that Plessinger was already living with failed back sur

‐

gery syndrome and that his herniations were not in the same

part of the spine where he was experiencing the most pain.4 No. 18

‐ 1240

Dr. Phookan determined that it would be best to explore other

options for pain relief before a tt empting a second surgery.

Plessinger was examined by the agency’s consulting ex

‐

aminer, Dr. Xavier Laurente, in July 2014. Dr. Laurente deter

‐

mined that Plessinger could walk only 20 to 30 feet and could

stand for only fi ve minutes at a time. He noted that Plessinger

had limited strength in his legs and showed “some signs of

nerve impingement (with positive straight leg raise test).”

At his hearing before the ALJ in April 2015, Plessinger tes

‐

ti fi ed about his physical limitations. He explained that he did

his best to help his wife take care of their fi ve young children,

all under ten years old. He said that on a typical day, he would

wake up at 6:00 a.m. to wake the children up for school, then

lie back down for half an hour while they were ge tt ing ready,

then get up again to make sure they were dressed and to get

them on the school bus. After that he would lie down again

before ge tt ing up again at 11:00 to make lunch for himself and

his youngest children. He would then take care of the children

until his wife got home from work.

Plessinger also explained that he had di ffi culty walking

because of the “shooting pain” he experienced when moving

around. He testi fi ed that if he walked more than ten feet, his

legs went numb, so most of the time he either lay down in bed

to ease the pain or sat in his chair. He said the pain also inter

‐

fered with his sleep, allowing him to sleep only two to three

hours at a time, followed by tossing and turning because of

the pain. As for daily activities, he said that it took him all day

to wash a load of dishes because he had to take frequent

breaks to allow his back to decompress and to “get the feeling

back in [his] legs.”No. 18

‐ 1240 5

Dr. John Pella, a physician certi fi ed in internal medicine

and specializing in pulmonary disease, also testi fi ed at the

hearing as a medical expert. He had reviewed Plessinger’s

medical records but had not examined him. Dr. Pella began

by brie fl y summarizing the results of Plessinger’s most recent

MRI from August 2014, which revealed several areas of disc

extrusion and root e ff acement. He also noted that Plessinger

had a history of hypertension and was signi fi cantly obese,

with a body

‐ mass index of 45.

When Dr. Pella had fi nished describing Plessinger’s phys

‐

ical conditions, the ALJ asked whether his impairments met

or equaled any impairment listed in Social Security regula

‐

tions that leads to a presumption of disability. Dr. Pella said

no. The ALJ did not ask about any particular listing or set

forth requirements for any. Dr. Pella did not explain which

listings would be most relevant or explain why he did not be

‐

lieve any listed impairment was met.

Dr. Pella then concluded that Plessinger would be able to

lift and carry 20 pounds occasionally and ten pounds fre

‐ quently; to sit for two hours at a time for a total of six hours

of an eight

‐ hour workday, with a sit/stand option; to stand for

30 minutes to one hour at a time, and to walk for 15 to 30

minutes at a time, for two to three hours total in a workday;

and to reach, push, or pull overhead frequently, but could use

his legs only occasionally.

A vocational expert also testi fi ed regarding Plessinger’s

work

‐ related capabilities. The expert said that Plessinger

could no longer do his past relevant work but could do un

‐

skilled sedentary work with the limitations described by the

ALJ, identical to the limitations Dr. Pella had testi fi ed to ear

‐

lier in the hearing. The vocational expert said the speci fi c jobs6 No. 18

‐ 1240

available to Plessinger would include a surveillance systems

monitor, a parimutuel ticket checker, and a document pre

‐

parer. The ALJ also asked the vocational expert whether those

jobs would still be available if the hypothetical individual, to

relieve symptoms, must lie down several times during the

day, as Plessinger testi fi ed was necessary. The vocational ex

‐

pert replied that the jobs identi fi ed would not be possible and

that no competitive employment could be achieved with that

restriction.

The ALJ applied the standard fi ve

‐ step analysis for as

‐ sessing disability, see 20 C.F.R. § 404.1520(a), and concluded

that Plessinger was not disabled. At step one, the ALJ deter

‐

mined that Plessinger had not engaged in substantial gainful

activity since his alleged onset in December 2012. At step two,

the ALJ identi fi ed as “severe” Plessinger’s lumbar degenera

‐

tive disc disease and stenosis, thoracic degenerative disc dis

‐

ease, obesity, and systemic hypertension. At step three, based

exclusively on Dr. Pella’s assessment, the ALJ concluded that

these impairments, individually or in combination, did not

satisfy a listing for presumptive disability.

Step four required the ALJ to determine Plessinger’s resid

‐

ual functional capacity and determine whether he could do

his past relevant work. The ALJ found that his impairments

“could reasonably be expected to cause the alleged symp

‐

toms,” but concluded “his purely subjective complaints are

given less than full credibility and li tt le weight” because they

were “not reasonably consistent with the overall evidence of

record.” The ALJ then listed the factors that must be consid

‐

ered when assessing the credibility of an individual’s state

‐

ments, see 20 C.F.R. § 404.1529(c), but did not return to thoseNo. 18

‐ 1240 7

factors to explain his fi nding that Plessinger was “not entirely

credible.”

The ALJ wrote that he gave “great weight” to the opinion

of Dr. Pella because his testimony showed “a careful analysis

of the claimant’s impairments” and “was based on a thorough

review of evidence.” Further, the ALJ said he found Dr. Pella’s

determinations credible because they were “supported by ob

‐ jective clinical fi ndings and treating progress notes in the rec

‐

ord.” The ALJ did not specify which fi ndings and notes he

meant.

By contrast, the ALJ discounted the assessments of several

consulting physicians, and he did not assign any particular

weight to the assessment of Plessinger’s treating physicians.

The ALJ said he gave only li tt le weight to the opinions of Dr.

Laurente, the agency’s consulting examiner, and to the opin

‐

ions of Dr. Cocoran and Dr. Sands, the non

‐ examining state

‐

agency physicians, because he found their opinions incon

‐

sistent with the other diagnostic and clinical fi ndings, and be

‐

cause they lacked access to the longitudinal medical record.

The ALJ then brie fl y discussed some of the fi ndings of

Plessinger’s treating physicians but did not assign them any

particular weight. He focused only on their fi ndings that sup

‐ ported Dr. Pella’s assessment of residual functional capacity.

For example, the ALJ mentioned that Dr. Coleman’s February

2015 examination of Plessinger revealed that his spine was

positive for posterior tenderness, but that a neurological exam

was “within normal limits” and his MRI indicated li tt le

change from the earlier MRI. The ALJ omi tt ed any mention of

Dr. Coleman’s clinical assessment that Plessinger “can walk

less than 50 yards” before his legs tingle, and that his spinal8 No. 18

‐ 1240

stenosis was “symptomatic and function limiting” and was

“not responding to conservative and injection therapies.”

Similarly, the ALJ noted that Dr. Phookan “indicated that

the claimant was not a surgical candidate.” The ALJ omi tt ed

Dr. Phookan’s explanation for why a lumbar discectomy at the

L3

‐ L4 and L4

‐ 5 hernia locations might not be the right strat

‐

egy for Plessinger: he was already experiencing failed back

surgery syndrome, and his pain was mostly concentrated in

his axial low back rather than in his right leg. Dr. Phookan

also noted that if other treatment options did not work, he

would still consider a second surgery.

At step four, the ALJ thus concluded that Plessinger had

the residual functional capacity to perform sedentary work

with certain restrictions that would not allow him to perform

any of his past relevant work as a welder or truck driver. At

step fi ve, however, the ALJ found that sedentary and un

‐

skilled jobs existed in signi fi cant numbers in the national

economy that Plessinger could perform, including those that

the vocational expert identi fi ed. The ALJ therefore denied

bene fi ts.

II. Analysis

The ALJ’s decision was based on two related errors that

require remand. First, the ALJ relied too heavily on Dr. Pella’s

testimony without explaining adequately why he was dis

‐ counting the opinions of physicians who had treated and ex

‐

amined Plessinger. Second, the ALJ’s decision to discount the

credibility of Plessinger’s account of his pain and its limiting

e ff ects on him was erroneous. The ALJ relied heavily on Dr.

Pella, who quali fi ed his opinions by signaling that he had not

taken into account Plessinger’s complaints and that someoneNo. 18

‐ 1240 9

else—the ALJ—would need to assess the credibility of those

complaints. In essence, Dr. Pella and the ALJ each deferred to

the other on that critical issue. The ALJ never fully engaged

with the evidence supporting Plessinger’s claim of disabling

pain. There is also a third problem with the ALJ’s opinion: it

failed to explain why Plessinger did not meet or equal Listing

1.04A for spinal disorders, which would lead to a fi nding of

presumptive disability. Because of issues of waiver and

whether Plessinger met his burden of proof on this issue, we

do not rely on this point to remand. Since the case must go

back to the agency on other grounds, the listing issue will

need to be addressed on remand.

On appeal, Plessinger argues that the ALJ relied too heav

‐ ily on Dr. Pella’s testimony and gave too li tt le weight to his

other doctors’ opinions. Plessinger points out that Dr. Pella is

not an expert in orthopedics or neurology, the areas of medi

‐

cine most relevant to Plessinger’s impairments. Rather,

Dr. Pella is a career pulmonologist (lung specialist) who did

his residency in internal medicine many years ago.

An ALJ may have a medical expert assist with interpreting

the record evidence. See 20 C.F.R. § 404.1512(b)(1)(viii) (2017).

Dr. Pella’s specialty in pulmonology did not disqualify him as

a ma tt er of law from being able to opine on the meaning of

Plessinger’s medical records. See Kepple v. Massanari

, 268 F.3d

513, 516 (7th Cir. 2001). Nevertheless, the ALJ erred by giving

Dr. Pella’s testimony greater weight than was appropriate

based on the factors the regulations identify for assessing

medical opinions. See 20 C.F.R. § 404.1527(c)(2)–(5). The ALJ

said he gave Dr. Pella’s opinion “great weight” because it was

“based on a thorough review of evidence” and because, the

ALJ wrote, his determinations were supported by the record.10 No. 18

‐ 1240

Dr. Pella’s opinion was certainly admissible, but there are

several problems here. Dr. Pella never examined Plessinger,

had no treatment relationship with him, see § 404.1527(c)(2)(i)

(more weight given to doctors with a longer treatment rela

‐ tionship), and is not an expert in orthopedics or neurology,

see § 404.1527(c)(5) (more weight given to opinion of special

‐

ist about medical issues related to area of specialty). The ALJ

assumed that Dr. Pella was familiar with all of the medical

evidence, both supporting and undermining the claim of dis

‐ ability, but did not point to the corroborating record evidence.

The most fundamental error is that the ALJ accepted Dr.

Pella’s opinions without recognizing the limits that Dr. Pella

himself imposed on them. Dr. Pella acknowledged that his

opinions did not take into account Plessinger’s own account

of the disabling e ff ects of his pain. Dr. Pella concluded his

opinion on Plessinger’s residual functional capacity by saying

that “any further impairment would be related to credibility

of pain on his function, Your Honor.” A few minutes later,

Plessinger’s a tt orney asked Dr. Pella why he believed Ples

‐ singer was capable of longer periods of si tt ing, standing, and

walking than the agency’s consultative examiners did. Dr.

Pella answered: “

... I think that would be based on a credibil

‐ ity of, of pain on his function.”

These answers indicated honestly what seems obvious.

Having not even examined Plessinger, Dr. Pella was not in a

position to evaluate the credibility of his account of the pain

he su ff ered. Dr. Pella was saying, in other words, that some

‐

one else—presumably the ALJ—would need to assess those

issues to make a sound decision based on all the evidence in

the case. The ALJ cannot delegate to any doctor, and certainlyNo. 18

‐ 1240 11

not to a non

‐ examining doctor, the task of evaluating the

claimant’s credibility.

By contrast, the ALJ referred only brie fl y in his opinion to

the clinical fi ndings of Dr. Coleman, the doctor who had one

of the longest treatment relationships with Plessinger, from

July 2013 to February 2015. Dr. Coleman’s assessment of Ples

‐ singer’s ability to walk (only 50 yards before his legs started

to tingle) was not consistent with Dr. Pella’s testimony that

Plessinger could walk for 15 to 30 minutes at one time. The

ALJ did not explain why he favored Dr. Pella’s opinion over

Dr. Coleman’s. See Vanprooyen v. Berryhill

, 864 F.3d 567, 572

(7th Cir. 2017) (“A treating physician’s opinion trumps the

conclusions of agency consultants—in particular those who

never examined the claimant—unless the limitations articu

‐

lated by the treating physician are not supported by the rec

‐ ord.”).

The ALJ also seemed to have misconstrued (or worse,

“cherry

‐ picked”) the evidence from Dr. Phookan’s March

2015 assessment that surgery might not be the best treatment

option for Plessinger. The ALJ treated this opinion as if it

showed that Plessinger’s condition was not severe enough for

surgery. Actually, Dr. Phookan’s full assessment undermines

that view. He pointed out that Plessinger was su ff ering from

failed back surgery syndrome, which meant that surgery was

less promising than it would otherwise be, despite the pain

Plessinger was su ff ering. Dr. Phookan also pointed out that

surgery where Plessinger’s herniated discs were located

might not address the part of the back where he reported ex

‐ periencing the most pain. ALJs are not permi tt ed to cherry

‐ pick evidence from the record to support their conclusions,12 No. 18

‐ 1240

without engaging with the evidence that weighs against their

fi ndings. See Yurt v. Colvin

, 758 F.3d 850, 859 (7th Cir. 2014).

Approaching the case in terms of the ALJ’s credibility fi nd

‐ ing, we also fi nd we must reverse and remand. Plessinger’s

own account of his pain and resulting limitations showed, if

believed, pain and e ff ects that rendered him totally disabled

and eligible for bene fi ts.

The ALJ recognized correctly that Plessinger’s “medically

determinable impairments could reasonably be expected to

cause the alleged symptoms,” but the ALJ found that his

“purely subjective complaints are given less than full credibil

‐ ity” because they were not consistent with the overall evi

‐

dence in the record. The ALJ also stated in his opinion the

proper test for analyzing a claimant’s credibility.

The ALJ failed, however, to actually conduct that analysis

himself. He instead deferred entirely to the testimony of

Dr. Pella. The ALJ’s only explanation for fi nding Plessinger

“not entirely credible” was that his “subjective complaints”

were “not reasonably consistent with the overall evidence of

record.” This is language that this court has criticized as

“meaningless boilerplate” if the ALJ does not o ff er more of an

explanation for the purported inconsistencies. Stark v. Colvin

,

813 F.3d 684, 688 (7th Cir. 2016).

The ALJ did not really explain, for example, why he did

not believe Plessinger’s testimony that he could not walk

more than a very short distance and had to lie down several

times during the day to manage his pain—testimony which,

if believed, would preclude competitive employment accord

‐ ing to the vocational expert. The ALJ also did not address the

fact that Plessinger’s allegations of pain were consistent withNo. 18

‐ 1240 13

the strong prescription pain medication he was taking. See,

e.g., Carradine v. Barnhart

, 360 F.3d 751, 755 (7th Cir. 2004)

( fi nding doctor’s prescription for strong pain medications cor

‐

roborated claimant’s credibility regarding pain).

The ALJ’s unsupported credibility assessment provides by

itself su ffi cient reason to remand here. Pierce v. Colvin

, 739

F.3d 1046, 1051 (7th Cir. 2014) (“An erroneous credibility fi nd

‐ ing requires remand unless the claimant’s testimony is incred

‐

ible on its face or the ALJ explains that the decision did not

depend on the credibility fi nding.”). We must repeat here that

Dr. Pella twice quali fi ed his own opinion about Plessinger’s

residual capacity. He concluded his opinion by saying that

“any further impairment would be related to credibility of

pain on his function,” and he repeated the same quali fi cation

when Plessinger’s a tt orney challenged his opinion. These an

‐

swers indicated that Dr. Pella was leaving to the ALJ the job

of determining how credible Plessinger’s complaints of pain

were. As noted, Dr. Pella had not examined Plessinger. He

was not in any position to o ff er his own opinion about credi

‐ bility or possible exaggeration or even malingering. (There is

no indication from any physician who examined or treated

Plessinger that he has been malingering or exaggerating his

symptoms.) That quali fi cation of Dr. Pella’s opinion made

clear that the ALJ would need to make his own assessment of

Plessinger’s credibility before accepting Dr. Pella’s opinion

about residual functional capacity.

On appeal, Plessinger also argues that the ALJ erred by re

‐ lying on Dr. Pella’s testimony to fi nd that he was not pre

‐ sumptively disabled under Listing 1.04A for “Disorders of the

spine,” including spinal stenosis and degenerative disc dis

‐

ease. See 20 C.F.R. Part 404, Subpart P, App’x 1, § 1.04A.14 No. 18

‐ 1240

The Commissioner contends that Plessinger waived any

argument based on the listings because he did not raise the

issue before the district court. Plessinger argued broadly in

the district court that the ALJ failed to explain his analysis of

the evidence with enough detail to permit meaningful appel

‐

late review. We have treated such arguments as enough to

preserve more speci fi c arguments. See Arne tt v. Astrue

,

676 F.3d 586, 593–94 (7th Cir. 2012) ( fi nding claimant’s argu

‐

ment regarding speci fi c part of the ALJ’s residual functional

capacity analysis was not waived on appeal because claimant

raised issue of the ALJ’s overall residual functional capacity

fi nding in district court). We need not reach a de fi nitive con

‐

clusion on the issue of waiver, though, because the case must

be remanded on other grounds.

Listing 1.04 requires a spinal disorder, such as degenera

‐

tive disc disease or spinal stenosis “resulting in compromise

of a nerve root

... or the spinal cord,” plus one of three alter

‐

natives. Alternative A is “Evidence of nerve root compression

characterized by neuro

‐ anatomic distribution of pain, limita

‐

tion of motion of the spine, motor loss (atrophy with associ

‐

ated muscle weakness or muscle weakness) accompanied by

sensory or re fl ex loss and, if there is involvement of the lower

back, positive straight

‐ leg raising test.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 1.04. Dr. Coleman noted that Plessinger

had a positive straight

‐ leg test in February 2015, as well as

“new left L4 radiculopathy with numbness and motor weak

‐

ness for the past 4 weeks.” And Dr. Laurente noted in his July

2014 exam of Plessinger that he had “some signs of nerve im

‐ pingement (with positive straight leg raise test).”No. 18

‐ 1240 15

Here was the ALJ’s entire explanation for fi nding that Ples

‐ singer did not have an impairment meeting a listed impair

‐

ment:

John Pella, M.D., a board certi fi ed internist and

an impartial medical expert, had the oppor

‐ tunity to review the medical evidence of record

and testify at the hearing. Dr. Pella testi fi ed that

the physical impairments, considered singly or

in combination, do not meet or equal any sec

‐

tion of the listed impairments.

Given the substantial evidence from treating and examining

physicians tending to show that Plessinger may have met or

equaled Listing 1.04A, this was not a su ffi cient explanation of

the ALJ’s reasoning. It would not allow this court to under

‐

take a “meaningful review” of the ALJ’s fi nding that Ples

‐ singer did not satisfy Listing 1.04A. Kastner v. Astrue

, 697 F.3d

642, 648 (7th Cir. 2012). We could not “discern from the ALJ’s

scant analysis whether [he] considered and dismissed, or

completely failed to consider, this pertinent evidence,” so the

ALJ did not “build a logical bridge” from the evidence to his

conclusion. Minnick v. Colvin

, 775 F.3d 929, 936 (7th Cir. 2015),

citing Schmidt v. Barnhart

, 395 F.3d 737, 744 (7th Cir. 2005).

This issue will need a fresh look on remand.

The judgment of the district court upholding the ALJ’s de

‐

nial of bene fi ts is REVERSED and the case is REMANDED to

the agency for further proceedings consistent with this opin

‐

ion.