Lаtesha MOON, Plaintiff-Appellant, v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.
No. 13-3636.
United States Court of Appeals, Seventh Circuit.
Argued May 27, 2014. Decided Aug. 14, 2014.
As Amended on Denial of Rehearing Oct. 24, 2014.
718 F.3d 718
But Fletcher himself supplies the answer as to whether any error on Count I affected the court‘s selection of a sentence. By Fletcher‘s calculations using the earlier version of the guidelines, the total offense level “as it pertains to Count I” should have been 37. With a criminal history category of IV, the earlier version of the guidelines would have yielded a sentencing range of 292-365 months. See Brief of Defendant-Appellant, at 13-14. As was the case with the district court‘s calculation, the low end of this range exceeded the statutory maximum for Count I and so, under section 5G1.1, “the statutorily authorized maximum sentence shall be the guideline sentence.” That would bring the range for Count I down to 240 months, the same range the district court calculated under the 2011 guidelines. Because the court was constrained by the statutory maximum under either version of the guidelines, any error in calculating the range for Count I could not have affected the district court‘s chоice of a sentence and thus any possible error was harmless. Olson, 450 F.3d at 683; Schlifer, 403 F.3d at 854. The judgment is therefore AFFIRMED.
Joseph S. Sellers, Spector & Lenz, Chicago, IL, for Plaintiff-Appellant.
Joo Hui Kim, Social Security Administration Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.
Before POSNER, EASTERBROOK, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
Moon is a mother who was 26 years old at the time of her application. She has worked in the past as a cashier, bank teller, and certified nursing assistant. For years she has suffered from numerous documented hеalth issues, including back and joint problems, mild sleep apnea, depression, and migraine headaches. Most of these problems are related to the fact that Moon is exceptionally obese: at a height of 5‘5“, she weighs over 400 pounds, giving her a body mass index (BMI) of around 67. A BMI between 18.5 and 24.9 is considered normal, and a person is considered obese when his or her BMI reaches 30. See “About BMI for Adults,” Centers for Disease Control and Prevention, http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/index.html) (visited Aug. 13, 2014).
In support of her application for disability benefits, Moon submitted extensive medical records. On the medical issue that is central to this appeal—her migraine headaches—the evidence showed that she was diagnosed as early as 2005 and that she saw doctors about her headaches many times over the years that followed. she was prescribed Amitryptyline and Zomig to treat her headaches in 2005, but she did not take thеse medications because she feared side effects. Later she was prescribed Imitrex and Motrin, both of which she was taking at the time of her May 2010 hearing before the ALJ.
At the hearing, Moon testified about the seriousness of her migraines, their effect on her activities, and their treatment. She explained that the headaches had become worse over the last two or three years than they had been in 2005. Over that period, she had headaches on most days, and her headaches could last up to three days. Often the pain would be so bad that she needed to lie down in the dark until it passed. She said she bеlieved that the medications Motrin and Imitrex caused side effects but that she had “no choice” but to take them because of the severity of her pain.
In his written decision denying Moon‘s claim for benefits, the ALJ went through the standard five-step analysis for determining whether a person is disabled within the meaning of the Soсial Security Act. See
At step three the ALJ found that Moon‘s combination of impairments did not meet the criteria for an automatic finding of disability. (If durational requirements are satisfied, conditions listed in
Residual functional capacity is the extent to which a person can still work despite having health problems. See
On the specific issue of Moon‘s headaches, the ALJ did not explain in his decision how they influenced his determination of her residual functional capacity, but he implied that their role was minimal. He noted that the “alleged headaches” had begun in 2005, three years before Moon stopped working. He also pointed out that she had not taken the medications she was prescribed in 2005 and that a 2008 MRI of her head was “unremarkable,” showing “no cause for headaches.” Moreover, the ALJ explained, Moon had “denied backaches, headaches, and depression” at a visit to her doctor in March 2009. Regarding Moon‘s testimony about her headaches, the ALJ highlighted a perceived tension between her testimony that her current medications caused side effects and her medical records, which did not show that she had reported these side effects to her doctors.
Based on Moon‘s residual functional capacity, the ALJ found at step four that she was not capable of doing her past work. At step five, however, he found that Moon was not disabled because sedentary jobs with a sit/stand option exist in significant numbers. After the Appeals Council agreed with the ALJ‘s assessment, Moon sought judicial review in the district court, which also upheld the ALJ‘s decision.
Moon argues on appeal that the ALJ, in determining her residual functional capacity, did not sufficiently account for her migraines. Like the district court, we review the ALJ‘s determination to see if it is supported by “substantial evidence,” meaning “such relevant evidence as a reasonable mind might accеpt as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120-21 (7th Cir.2014), quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). This deferential standard of review is weighted in favor of upholding the ALJ‘s decision, but it does not mean that we scour the record for supportive evidence or rack our brains for reasons to uphold the ALJ‘s decision. Rather, the ALJ must identify the relevant evidеnce and build a “logical bridge” between that evidence and the ultimate determination. Moore, 743 F.3d at 1121.
In this case, the ALJ‘s analysis of the evidence related to Moon‘s migraines is not logically connected to his determination of her residual functional capacity. He found at step two that her headachеs were part of a severe combination of impairments. At step four, though, he seemed to imply that she did not actually suffer migraines when he addressed the specifics of her “alleged headaches,” despite the undisputed record of years of treatment for migraines. Even if the ALJ did not mean to imply thаt Moon had no migraines, though, his analysis of the migraine evidence is problematic in several respects.
First, the ALJ‘s description of Moon‘s March 2009 visit to the doctor was mistaken. He wrote that she “denied headaches” as if she denied ever having them. The record of that visit shows that Moon, who was there to rеceive test results, denied currently having a headache. The fact Moon did not have a headache at the time of that visit is no reason to conclude anything about the frequency or severity of her migraines.
Finally, the ALJ‘s emphasis on the fact that the migraines began long before Moon stopped working and her refusal to take prescribed medication in 2005 failed to come tо grips with her 2010 testimony that her headaches had become worse in recent years. Perhaps the ALJ did not credit that portion of her testimony, but he did not actually say so or explain why. And the reason he gave for doubting another portion of her testimony about migraines—her statement that she experienced side effects from her current medications—does not justify rejecting all of her testimony about migraines without further explanation. The ALJ cited a lack of medical documentation that she experienced side effects, but that lack of documentation does not control the impact migraines had on her life and ability to work.
Perhaps the ALJ‘s apparently dim view of Moon‘s testimony about her migraines resulted in part from his broader skepticism of her credibility, but his more general credibility assessment is problematic as well. For example, the ALJ called into question Moon‘s testimony that she had needed a cane to walk since 2009 by pointing to a particular doctor‘s appointment where she did not bring a cane—an appointment that took place in 2008. He also split hairs unfairly, in our view, when he called her testimony that she could not lift more than 10 pounds “inconsistent” with a doctor‘s finding in a consultative еxamination that she could lift no more than 10 to 15 pounds.
The government attempts to support the ALJ‘s analysis of the migraine evidence by contending that the report of Dr. Kim and the interrogatory answers of Dr. Francis (the evidence that the ALJ relied upon most heavily) took Moon‘s migraines into account sufficiently, thus relieving the ALJ of any further obligation to account for the migraines. The doctors’ opinions cannot provide the needed logical bridge. Dr. Kim did not actually specify how Moon‘s migraines relate to the residual functional capacity she found. She did not address the possibility that a migraine could keep Moon at home in bed, apparently understanding Moon‘s “history of frequent migraines” to have implications only for her ability to lift, stoop, and stand. Dr. Francis‘s report provides even less support for the government‘s position. He noted: “There is not enough information [in the
Once the ALJ‘s unsupported assessment of Moon‘s migraines is set aside, the question becomes just how serious her migraines were beginning in August 2008. If her testimony about needing to remain in bed multiple days per week is credited, she could not have held a full-time job. We do not decide that her tеstimony must be credited. We conclude only that the ALJ failed to build a logical bridge between substantial evidence and his conclusion that Moon was capable of a limited range of sedentary work after August 2008. The judgment of the district court is REVERSED and the case is REMANDED to the agency for further proceedings consistent with this opinion.
HAMILTON
CIRCUIT JUDGE
EMPRESS CASINO JOLIET CORP., et al., Plaintiffs-Appellants, v. John JOHNSTON, Balmoral Racing Club, Inc., and Maywood Park Trotting Ass‘n, Inc., Defendants-Appellees.
No. 13-2972.
United States Court of Appeals, Seventh Circuit.
Argued March 31, 2014. Decided Aug. 15, 2014.