NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1



# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued February 28, 2018 Decided May 4, 2018

Before

DANIEL A. MANION, Circuit Judge

DIANE S. SYKES, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 17-2284

GLENN H. HUBER, JR., Plaintiff-Appellant

,

v

.

NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant-Appellee

. Appeal from the United States District
Court for the Southern District of Indiana, Indianapolis Division.

No. 16-cv-1947

Matthew P. Brookman,

M agistrate Judge

.

O R D E R

Glenn Huber, a 67-year old veteran who s uffers from knee and hip pain, arthritis in his spine, and poor hearing, appeals th e district court’s judgment upholding the denial of his application for disability insu rance benefits. An administrative law judge found that, despite his impairments, he had the residual functional capacity to perform light work. Huber challenges the adequacy of the ALJ’s RFC find ing. Because the ALJ overlooked relevant medical evidence regarding Huber’s abilities to walk, stand, and hear and made a patently wrong credibility finding when assessing his symptoms, we

reverse and remand.No. 17-2284 Page 2

I. Background

Huber applied in 2013 for disability in surance benefits based on his spinal arthritis, hip and knee pain, and im paired hearing—ailments that, he said, rendered him unable to work beginning in the spring of 2011. Huber, who served in the military and completed one year of college, pr eviously worked as an insurance agent (1994–2010) and as an auditor for a federa lly funded weatherization program (2010– 2011).

Huber’s relevant medical records date back to 2010, when he was examined at a Veterans Administration hospital for complain ts related to his hips, knees, and hearing. At his appointment, Huber co mplained to an orthopedic surgeon of hip and knee pain that he said was “getting worse.” The surg eon diagnosed him with degenerative joint

disease in his knees and inflam mation in his hips (trochante r bursitis). Huber then saw a VA audiologist, who determined Huber to have “moderately-severe to profound” hearing loss for high-frequency sounds that, he wrote, would have “[s]ignificant effects” on his ability to work. The audiologis t reported that Huber said he had tinnitus

that made it difficult for him to hear in crowds, concentrate, and sleep.

Huber’s spinal problems were first do cumented in 2011. In mid-2011, a doctor specializing in pain medicine diagnosed hi m with a fracture in his vertebrae and performed a procedure to reduce his back pain and restore his spine’s alignment (kyphoplasty surgery). Five months late r, radiologists x-rayed Huber’s spine and concluded that he had degenerative disc dise ase in the cervical, thoracic, and lumbar areas of his spine. In late-2011 and early-2012, pain specialists administered anesthetic injections into his lumbar spine to reduce hi s back pain. Still experiencing “chronic low back pain” one month later, Huber underwen t radiofrequency ablation, which sought to reduce pain in his lumbar spine by using an electrical current to heat nerve tissue in this part of his back.

Roughly fourteen months later, Huber told a state consultative examiner of his “difficulty with standing, sitting or walkin g, bending over or lifting.” The examiner

observed that Huber could bend his lumb ar spine fully forward but that “it was painful” and noted that he had chronic hip, knee, and back pain. In the medical report
for this visit, the examiner wrote under th e heading “Medical Source Statement” that Huber “has difficulty with standing, walking, bending over and lifting.”No. 17-2284 Page 3

In August 2013, a VA physiatrist (a ph ysical medicine and rehabilitation physician) performed electromyography to examine the muscles and nerves in Huber’s legs. According to the physiatrist, the resu lts of this procedure showed damage to a nerve providing movement and sensation in his right leg (right peroneal motor neuropathy) and to a nerve in his right calf (mild, right sural sensory neuropathy).

Around this time, two state agency do ctors weighed in on Huber’s functional limitations, and Huber’s wife provided a re port on his daily activities. The doctors opined that Huber could perform a range of light work involving walking and/or standing for six hours per day. Meanwhile Huber’s wife said that her husband could “walk around the house,” but “[o]ther moveme nts” and “staying in one position for a long time cause him a lot of pain.” She added that it took him longer than normal to do “all chores,” including laundry and cleaning the bathroom.

At his hearing before an administrativ e law judge in 2014, Huber asserted that back, knee, and hip pain and hearing prob lems prevented him from working. He reported that his medical treatment was “not resolving the [pain] issue,” and therefore he could sit for only “about 30 minutes,” stand for “about 10 minutes,” and walk for 5 to 10 minutes before experiencing pain an d/or cramping. He further testified that because of his “hearing problems,” his friend s “abandoned [him], for the simple reason that they got tired of me asking them, ‘What did you say?’”

The ALJ asked a vocational expert to consider the possible employment opportunities for a person of Huber’s age, education, and vocational background who could only occasionally climb ladders, rope s, scaffolds, ramps, and stairs, and must only occasionally stoop, balance, crouch, crawl, kneel, and be exposed to hazardous conditions. The vocational expert said that this person could perform Huber’s past job as an insurance agent, but not his last position as a weatherization auditor.

The ALJ applied the five-step an alysis in 20 C.F.R. § 404.1520(a)(4), and found Huber not disabled. The ALJ determined that he had not engaged in substantial gainful activity since the alleged onset date of Ap ril 15, 2011 (step one); that degenerative disc disease, degenerative joint disease in his hips and right knee, and hearing loss were severe impairments (step two); that th ese impairments did not equal a listed impairment (step three); that he had the residual functional capacity to perform light work, limited to workspaces with non-slippe ry surfaces, moderate exposure to noise, occasional climbing of stairs, ramps, scaffolds, ladders, and ropes, occasional balancing,No. 17-2284 Page 4

crouching, crawling, stooping, kneeling, and exposure to hazardous conditions; and that he could perform his past job as an insurance agent (step four).

In determining Huber’s RFC, the ALJ fo und his testimony about the severity of his impairments “not entirely credib le.” The ALJ emphasized two reasons:

First, allegedly limited daily activities cannot be objectively verified with any degree of certainty. Secondly, even if the claimant’s daily activities are truly as limited as alleged, it is difficult to attribute that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in view of the relatively wea k medical evidence and other factors

discussed in this decision.

Noting that Huber was not prescribed narcot ics “on a long-term basis” nor referred to a neurosurgeon, the ALJ also opined that “the conservative nature of said medications [and treatment] weighs against a finding of disability.” As a final matter, the ALJ acknowledged Huber’s hearing loss and co mplaints that he had trouble sitting, standing and walking, but concluded that “from a clinical perspective” he had insufficient medical evidence of significant impairments to show that he was disabled. The Appeals Council denied review, making th e ALJ’s decision the final decision of the

Commissioner. See Varga v. Colvin , 794 F.3d 809, 813 (7th Cir. 2015).

Huber argued in the district court that the ALJ disregarded medical opinions of the consultative examiner and the audiolog ist. But a magistrate judge, presiding by

consent, see 28 U.S.C. § 636(c)(1), upheld the ALJ’ s decision. In the magistrate judge’s view, the ALJ did not err by failing to addr ess the consultative examiner’s statement that Huber “has difficulty with standing, wa lking” because the ALJ cited evidence from this doctor’s report that supported this stat ement. Nor did the ALJ err by not evaluating the audiologist’s statement that Huber’s hearing deficits woul d “[s]ignificant[ly]” affect his ability to work because the ALJ cited the audiologist’s report “as a basis for the RFC limitations he provided” and “no evidence suggests a greater limitation is required.” The judge also ruled that the ALJ’s credib ility assessment was not patently wrong.

II. Analysis

Huber argues that the ALJ committed three reversible errors.No. 17-2284 Page 5

A. Consultative Examiner’s Opinion Huber first contends that in making his RFC assessment, the ALJ violated 20 C.F.R. § 404.1527(c) by failing to evaluate the consultative examiner’s opinion that he “has difficulty with standing, wa lking, bending over and lifting.” 1 He emphasizes that Social Security regulations define “light work ” to “require[] a good deal of walking or standing,” 20 C.F.R. § 404.1567(b), and asserts that before deciding that he could perform light work, the ALJ needed to confront the examiner’s opinion.

Huber is correct that the ALJ viol ated § 404.1527(c) by not considering the consultative examiner’s opinion that he had trouble standing and walking. See Roddy v.

Astrue , 705 F.3d 631, 636, 639 (7th Cir. 2013) (remanding because ALJ did not address doctor’s opinion that claimant couldn’t work beyond six hours per day). Given that the ALJ concluded that Huber could do a good de al of walking or standing (“light work”), the ALJ needed to confront the contrary opinion of the agency’s own examining physician before reaching this conclusion. “An ALJ . . . cannot simply cherry-pick facts that support a finding of non-disability wh ile ignoring evidence that points to a disability finding.” Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010).

The Commissioner argues that the cons ultative examiner’s statement about

Huber’s abilities to stand and walk was not a medical judgment, and therefore the ALJ

did not need to consider it. Because the ex aminer recorded this statement as one of Huber’s complaints, the Commissioner cont ends that this statement “reasonably reflected Huber’s own report of difficultie s,” not a medical opinion that the ALJ was required to evaluate. We reject this arg ument because the examiner repeated this statement in his report immediately under the heading, “Medical Source Statement,” signaling that this statement wa s the examiner’s opinion too. See SSR 96-5p, 1996 WL 374183, at *4 (“Medical source statements are medical opinions submitted by acceptable medical sources.”). Alternatively, the Commissi oner contends that this statement does not “clarify the extent to which the claima nt could do those activities,” and thus any error by the ALJ in not addressing it was ha rmless. But if the ALJ required clarification from the doctor consulted by his own agen cy about the extent of Huber’s trouble walking and standing, then the ALJ needed to seek “additional information to flesh

out” these details. Barnett v. Barnhart , 381 F.3d 664, 669 (7th Cir. 2004).

1 The statement that Huber “has difficulty with standing . . .” first appears in a section of the examiner’s report recounting Huber’s self-described medical history and then is repeated almost verbatim under the heading “Medical Source Statement” at the end of the report.No. 17-2284 Page 6

B. Audiologist’s Medical Opinion and Huber’s Conversational Limitations

Huber next argues that the ALJ again vi olated 20 C.F.R. § 404.1527(c) by failing to address the audiologist’s statement that hi s hearing impairments would significantly affect his ability to work. He is correct th at here too the ALJ violated § 404.1527(c) by not addressing this statement, and ther efore we cannot be confident that the RFC

accounts for all of Huber’s limitations. We are not persuaded by the Commissioner’s argument that the audiologist’s statement “did not suggest problems in a normal office setting, and thus could not meet Huber’s bu rden to prove an unreasonable RFC.” The Commissioner wrongly interprets the audiologist’s statement to reflect no medical judgment about Huber’s ability to hear in an office environment. The audiologist’s determination that Huber’s hearing problems would significantly affect his ability to work, while somewhat vague, suggests that Huber would struggle to hear in an office

environment and should have been addresse d by the ALJ when deciding his RFC.

Huber also argues that the ALJ violated SSR 96-8p’s requirement that he “consider all allegations of physical . . . limitations,” 1996 WL 374184, at *5, by not addressing Huber’s allegations of “conversational deficits stemming from tinnitus and sensorineural hearing loss.” Huber is ri ght that the ALJ did not mention these allegations anywhere in his opinion. On remand, the ALJ should assess them when revaluating his RFC.

C. ALJ’s Credibility Finding

Huber raises three challenges to the AL J’s determination that he “was not entirely credible.” First he asserts that in deciding that he had “relatively weak medical evidence” of his ailments to support his cont ention of limited daily activities, the ALJ wrongly concluded that the record did not contain medical evidence of Huber having neurological deficits. He contends that the ALJ overlooked the electromyography results that revealed damage to nerves in Huber’s right leg and right calf. He further argues that this error was not harmless becaus e this evidence supported his allegations of hip and knee pain.

Huber is correct that the ALJ erred by ig noring the electromyography results and thereby reaching a credibility finding that, at least in part, was not “supported by the

evidence.” Craft v. Astrue , 539 F.3d 668, 678 (7th Cir. 2008). The Commissioner contends that the ALJ did not need to address this “trivial information” because HuberNo. 17-2284 Page 7

“presented no evidence of symptoms ste mming from neuropathy [and] . . . the ALJ accurately explained that Huber showed normal neurological functioning on all exams.” But the ALJ needed to acknowledge the electromyography results because they

contradict his conclusion that Huber never ex hibited neurological deficits and support Huber’s pain allegations that the ALJ found not entirely credible. See id. at 679 (medical evidence of “neuropathy with symptoms in hi s legs” bolstered claimant’s allegation of leg pain).

Second Huber argues that when evaluating the degree of his asserted limitations, the ALJ erred by reasoning that his doctors’ decisions not to prescribe him long-term narcotics or refer him to a neurosurgeon su ggest that his treatment was “conservative” and “weigh[] against a finding of disability .” Huber questions the ALJ’s definition of conservative treatment, adding that the treatment he did receive was hardly conservative, and in fact should be considered “aggressive.”

Huber is right that the ALJ unreasonably minimized the extent of his treatment. As an initial matter, the ALJ committed a “l ogical error” by “misinterpreting the significance” of his doctors’ treatment recommendations. Scrogham v. Colvin , 765 F.3d 685, 701 (7th Cir. 2014). The absence of recommendations for back surgery or narcotics does not suggest that Huber’s treatment wa s necessarily conservative. Further the ALJ omitted Huber’s kyphoplasty surgery and radiof requency ablation when recounting the “treatment regimen” that he characterize d as conservative. The nature of these treatments bolsters Huber’s pain allegati ons and suggests that the ALJ’s basis for labeling his treatment conservative was “misguided.” Id.

Third Huber points out that we have deride d as “nonsensical” the sort of reasons relied upon by the ALJ here for discrediting his allegations of limited daily activities.

Thomas v. Colvin , 534 Fed. App’x. 546, 551 (7th Cir. 2013). He argues that the ALJ here, as

in Thomas , overlooked corroboration from a family member (his wife’s report) when deciding that his “allegedly limited daily acti vities cannot be objectively verified.” In

addition Huber contends that similar to Thomas , the ALJ improperly concluded that his medical diagnoses were not enough to bolster the credibility of his assertion of limited daily activities. We agree with him that his diagnosed problems with his back and knee and hip pain reasonably explain his limited da ily activities and that the ALJ ignored his wife’s report stating that he performed all chores slower than he used to.

Because the ALJ disregarded relevant medical evidence and made a patently wrong credibility finding, we REVERSE the judgment of the district court andNo. 17-2284 Page 8

REMAND for further proceedings. On rema nd the ALJ should fully address the consultative examiner’s and audiologist’s medical opinions, consider Huber’s allegations of difficulty conversing, and reevaluate his credibility.