### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3883

M IKEAL G. C OLE

, J R

., Plaintiff

‐ Appellant

,

v.

C AROLYN W. C OLVIN

, Acting Commissioner of Social

Security,

Defendant

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:14

‐ cv

‐ 00198

‐ RLM

‐ SLC

— Robert L. Miller, Jr.

, Judge

.

____________________

A RGUED J ULY 6, 2016

— D ECIDED J ULY 26, 2016

____________________

Before P OSNER

, S YKES

, and H AMILTON

, Circuit Judges

.

P OSNER

, Circuit Judge

. In this appeal from the district

court’s affirmance of the Social Security Administration’s

denial of social security disability benefits, Mikeal Cole, a

41

‐ year

‐ old man who has severe pain in his arms and groin

and multiple gastrointestinal conditions as well, argues that

the administrative law judge assessed his credibility errone

‐ ously and failed to offer a reasoned basis for rejecting a con

‐2 No. 15

‐ 3883

sulting physician’s medical opinion. Recently the Social Se

‐ curity Administration announced that it would no longer

assess the “credibility” of an applicant’s statements, but

would instead focus on determining the “intensity and per

‐

sistence of [the applicant’s] symptoms.” Social Security Rul

‐ ing 16

‐ 3p; “Titles II and XVI: Evaluation of Symptoms in

Disability Claims,” 81 Fed. Reg. 14166, 14167 (effective

March 28, 2016). The change in wording is meant to clarify

that administrative law judges aren’t in the business of im

‐ peaching claimants’ character; obviously administrative law

judges will continue to assess the credibility of pain asser

‐

tions by applicants, especially as such assertions often cannot

be either credited or rejected on the basis of medical evi

‐

dence.

In 2000, while working as a welder, Cole broke his left

arm and wrist, requiring insertion of a metal plate and

screws in his arm. As a result of the accident and treatment,

he experienced pain that has still not gone away. Eight years

later, employed as a foreman in a factory, he fell off a 10

‐ foot

ladder, landing on his right elbow. He experienced severe

pain in his right arm and in two of his fingers—

unsurprisingly, since he weighs about 185 pounds, which

would be bound to make a 10

‐ foot fall onto a hard surface

likely to cause serious injury. He received physical and oc

‐ cupational therapy for the treatment but as with his previous

accident the pain has persisted.

The therapy having failed, Cole was examined by an or

‐ thopedic surgeon named David Cutcliffe, who diagnosed

cubital tunnel syndrome, a condition in which the ulnar

nerve—which runs down the inner side of the arm, behind a

bony prominence on the inner side of the elbow, to the hand,No. 15

‐ 3883 3

supplying sensation to the muscles of the forearm and

hand—is compressed at the elbow (the location of the inapt

‐ ly named “funny bone”), causing pain, tingling, and numb

‐

ness. Cutcliffe performed an anterior ulnar nerve transposi

‐

tion on Cole, a procedure that moves the ulnar nerve to a

position in which it isn’t irritated or pinched by the bony

prominence. But the operation seems not to have been suc

‐

cessful, as two months later Cole told Cutcliffe that despite

continuing therapy his pain was worse than before and that

he was coping by “eating pain pills.” His elbow joint was

producing a loud “pop” when he extended his arm, causing

“significant pain”; he also experienced pain when his arm

was fully bent at the elbow.

Another orthopedic surgeon, Ward Hamlet, gave Cole a

diagnosis of posterolateral rotatory instability, a condition in

which the elbow slides in and out of its joint because of an

injury to the soft tissue on the outside of the elbow. He re

‐ placed the ligament in Cole’s elbow with a graft from Cole’s

arm, yet months later Cole reported that he now had “con

‐

stant pain in the elbow.” Hamlet opined in a 2009 report that

Cole’s pain “would improve with time.” Another orthopedic

surgeon who examined him that year, Thomas Kay, noted

his “chronic pain” but said “that much of his discomfort will

continue to improve over time” and that he could return to

work “without restrictions.” Neither optimistic prediction

seem to have been accurate. Hamlet acknowledged that Cole

was “pretty frustrated” by his continued pain but said “I

have told him I do not think there is anything else we can do

for him surgically or nonsurgically.”

That same year, having tried without success to obtain

employment since his fall off the ladder, Cole settled his4 No. 15

‐ 3883

worker’s compensation claim against his former employer

and obtained unemployment benefits. They ran out the next

year and it was then that Cole applied for social security dis

‐ ability benefits, claiming that his disability had begun with

his fall off the ladder. A further round of medical examina

‐

tions ensued. An internist named Gautham Gadiraju, a

state

‐ agency consulting physician, noted that Cole had mus

‐

cle pain and abnormal joint movement in the right elbow

and left wrist and experienced severe pain when gripping

with his right hand, which had limited strength. Gadiraju

determined that Cole could carry 20 pounds a distance of

30 feet and could lift 10 pounds above his head with his left

hand but not with his right hand, and that he could sit or

stand for only 30 minutes at a time and walk for no more

than 6 minutes at a time. If this is correct, Cole is indeed dis

‐

abled from gainful employment.

Another state

‐ agency consultant, however, family physi

‐

cian D. Neal, inferred from Cole’s records (he didn’t exam

‐

ine Cole) that Cole could stand or walk for 6 hours in an

8

‐ hour workday, occasionally lift 20 pounds and frequently

10, and engage in unlimited pushing and pulling. But subse

‐ quently another family physician, Charles Coats, examined

Cole and concluded contrary to Neal that he couldn’t “carry

out normal activities,” and that while he had good grip

strength he also had forearm pain, a limited range of motion

in his elbows, and “significant” limitations with respect to

lifting, grasping, and manipulation; pushing and pulling;

and crawling, climbing, and reaching above the shoulders.

Finally, two psychologists, Michelle Croce and Neal Da

‐

vidson, diagnosed Cole with depressive disorder and gave

him a Global Assessment of Functioning (GAF) score of 58,

which is predictive of “occasional panic attacks” or “moder

‐No. 15

‐ 3883 5

ate difficulty in social, occupational, or school functioning.”

American Psychiatric Association, Diagnostic and Statistical

Manual of Mental Disorders (DSM

‐ IV

‐ TR) 34 (4th ed. 2000).

We should note, however, that DSM

‐ 5, issued in 2013, aban

‐

doned reliance on GAF scores. See Voigt v. Colvin

, 781 F.3d

871, 874 (7th Cir 2015).

During this period (2011–2012) Cole occasionally visited

a free clinic for treatment of his arm pain and of a new onset

of stomach problems, and was given an exercise program

and prescribed drugs to treat inflammation and neuropathic

symptoms (such as loss of sensation in the skin owing to

nerve damage). A CAT scan of his abdomen and pelvis, or

‐

dered after he had started experiencing abdominal pain and

spitting up blood, which was also showing up in his stool

and urine, revealed that a lymph node in his groin was

“mildly enlarged” and several of the lymph nodes in his ab

‐

domen were “borderline in size.” Further testing revealed

gastritis (inflammation of the stomach lining), duodenitis

(inflammation at the beginning of the small intestine), left

inguinal lymphadenopathy (an enlarged lymph node in the

groin), and H. pylori (a bacterial infection in the stomach,

which seems however no longer to be bothering Cole). And

finally a vocational expert named Christopher Young hired

by Cole to review his medical record reported that “there is

no work that Mr. Cole would be able to perform at any exer

‐

tional level.”

Which brings us to his hearing before the administrative

law judge in mid

‐ 2012. Cole testified that the constant pain

in his arms interfered with his sleep and that he had slept a

total of only 10 hours the previous week (which is obviously

false, but his pain and other medical problems may have6 No. 15

‐ 3883

produced mental confusion). He said that he played guitar

occasionally for money but could do so only once a week

and only for about an hour at a time, because any activity

with his arms causes numbness in his hands. He said that

the swollen lymph node in his groin had been causing him

terrible pain for two or three years, that as a result he can’t

sit for prolonged periods, and that the drugs he’s taking (in

‐ cluding Tramadol, Vicodin, and Neurontin) alleviate his arm

and groin pain only slightly.

The only other witness was a vocational expert employed

by the Social Security Administration who testified that a

person with Cole’s limitations could perform unskilled jobs

requiring light exertion. Specifically, a person capable of

completing simple tasks in a timely manner, lifting 20

pounds occasionally and 10 pounds frequently, standing,

walking, or sitting for 6 hours in a workday, frequently

climbing ramps and stairs, balancing, stooping, and kneeling

and occasionally reaching overhead and handling with the

right hand, could work as a rental consultant, usher, or bak

‐

ery production worker. He testified that Cole, if capable of

lifting 10 pounds only occasionally but fewer pounds fre

‐ quently, of standing or walking for 2 hours in a workday

and of sitting for 6 hours in a workday, could work as an or

‐

der clerk, a telephone clerk, or a surveillance monitor. But

given Cole’s background as a manual laborer, there is noth

‐ ing to suggest that he could be a rental consultant, and his

infirmities seem likely to preclude his being a bakery pro

‐

duction worker as well, while given his problems with his

arms it is unclear that he could work as any kind of clerk;

nor does he seem capable of the long hours and concentra

‐

tion required of a surveillance monitor. These issues were

never explored.No. 15

‐ 3883 7

After the hearing but before the close of the record and

the decision by the administrative law judge, Cole was di

‐

rected by the judge to undergo further medical examina

‐

tions. An internist named Barbour who examined Cole re

‐ ported that his “musculoskeletal problems” and “left groin

swelling” were “chronic” and interfered “with all daily ac

‐

tivities,” that his arm condition was unlikely to improve,

and that the pain in his groin limited him to sitting, stand

‐ ing, or walking for only one hour in a work day. Obviously

if that’s correct he’s totally disabled from gainful employ

‐

ment.

A urologist named George Martin reported that the

lymph nodes in Cole’s groin, although they had decreased in

size, were “still painful,” as were the lymph nodes in his

armpits. An internist named Shashank Kashyap reported

that Cole complained of back, joint, and muscle pain, as well

as muscle weakness and swelling of the joints, but that he

(Kashyap), on the basis of clinical tests that he performed,

such as asking Cole to bend his arm or move his legs, did

not observe muscle weakness or joint swelling or other indi

‐

cia of pain. Kashyap did not however try to reconcile Cole’s

complaints with the clinical evidence, and so he did not say

that Cole was exaggerating his symptoms. One would need

to know more about the clinical tests to explain the contra

‐

diction between what Cole said and how Kashyap read the

test results.

And finally Daniel Roth, a doctor of osteopathic medicine

specializing in physical medicine, rehabilitation, and pain

management, opined that Cole’s multiple physical traumas

and surgeries rendered him “disabled and currently unable

to maintain meaningful employment.”8 No. 15

‐ 3883

Nevertheless the administrative law judge denied Cole’s

application for disability benefits—primarily on the odd

ground that the “timing of his filing appear[ed] to coincide

with when his unemployment benefits were running out,”

which the administrative judge said “suggests that it was

economic need, not disabling medical conditions, that

prompted” Cole to apply for benefits. That doesn’t make

sense. When receiving unemployment benefits Cole didn’t

need disability benefits, and probably wouldn’t have ex

‐ pected to be allowed to receive both types of governmental

benefits at once, as receipt of unemployment benefits would

imply ability to work. Unemployment benefits are generally

given only to those registering as unemployed, and often on

conditions ensuring that they seek work and do not current

‐ ly have a job. Furthermore, we explained in Sarchet v. Chater

,

78 F.3d 305, 308 (7th Cir. 1996), that people often are “reluc

‐

tant” to apply for benefits and “undergo arduous adminis

‐

trative proceedings” until driven to do so by “desperation

resulting from a personal crisis” or “the cut off of other pub

‐

lic funds.” The presence of economic need is hardly incon

‐

sistent with having a disability; indeed the two go hand in

hand.

The administrative law judge also thought her decision

that Cole’s application for disability benefits had not been

based on a disability further supported by the fact that Cole

had “essentially had no treatment” between July 2009 and

May 2011. The implication is that he must have felt fine dur

‐ ing this period, but the administrative law judge should

have asked him why he had had essentially no treatment

during that period. See Garcia v. Colvin

, 741 F.3d 758, 761 (7th

Cir. 2013); 81 Fed. Reg. 14166, 14168–71. In fact he had no

health insurance then, which may explain why he didn’tNo. 15

‐ 3883 9

seek treatment. Or he may have accepted Hamlet’s conclu

‐

sion that further treatment would not have helped. See 81

Fed. Reg. 14166, 14168–71. The administrative law judge

should also have explained the force of “essentially” in her

statement.

She appears to have thought Cole a malingerer, who

could have gone back to factory work or obtained some oth

‐

er type of strenuous manual labor but preferred to sit on his

fanny living off governmental largesse. But he did of course

go back to work after his first (2000) accident, only to have a

second accident in 2008. He had a work record going back

some years before his first accident and including strenuous

jobs between his first and second accidents, and we have

said that “a claimant with a good work record is entitled to

[a finding of] substantial credibility when claiming an inabil

‐ ity to work because of a disability.” Hill v. Colvin

, 807 F.3d

862, 868 (7th Cir. 2015).

The administrative law judge further concluded that Bar

‐

bour’s opinion about Cole’s capacity for work was “entitled

to no weight” because the limitations noted by Barbour were

“based on the claimant’s report.” But what did she expect?

That Barbour would bend Cole’s arm back until he screamed

with pain? True, there are subtler medical tests for pain, such

as a tap on the elbow, where the ulnar nerve is close to the

surface. The result of Barbour’s tests, however, was to con

‐

firm tenderness and swelling in the groin area, that Cole

couldn’t hop or squat, and that his right elbow flexion was

130 degrees—which is about fifteen degrees below normal—

and his right grip strength 2/5. Furthermore, “an individu

‐

al’s statements about the intensity and persistence of pain or

other symptoms or about the effect the symptoms have on10 No. 15

‐ 3883

his or her ability to work may not be disregarded solely be

‐

cause they are not substantiated by objective medical evi

‐

dence.’’ Hall v. Colvin

, 778 F.3d 688, 691 (7th Cir. 2015).

The administrative law judge also rejected Barbour’s clin

‐

ical findings as inconsistent with Coats’s exam, which had

“showed reduced range of motion of both [of Cole’s] elbows,

but normal power grip of five out of five and good coordina

‐

tion.” Yet the administrative law judge had pronounced

Coats’s assessment of Cole’s condition “internally incon

‐

sistent” and thus entitled to no “significant weight.” The

administrative law judge further stated that Barbour’s report

was inconsistent with the results of Kashyap’s exams in

2012, which “were essentially normal.” But this ignored the

tension in Kashyap’s report noted earlier in this opinion be

‐

tween the pain that Cole reported to him and the results of

Kashyap’s diagnostic tests, results inconsistent as we just

noted with Barbour’s report. By relying on the reports of

Coats and Kashyap to discount Barbour’s opinion, the ad

‐

ministrative law judge was cherry picking the medical rec

‐

ord—which is improper. See Price v. Colvin

, 794 F.3d 836,

839–40 (7th Cir. 2015); Yurt v. Colvin

, 758 F.3d 850, 859

(7th Cir. 2014); Bates v. Colvin

, 736 F.3d 1093, 1099 (7th Cir.

2013).

The administrative law judge’s decision was unreasoned,

and should not have been affirmed. The judgment of the dis

‐

trict court is therefore reversed with instructions to remand

the case to the Social Security Administration for reconsider

‐

ation of the plaintiff’s application for disability benefits.