Date: 08-07-2018

Case Style:

Case Number: 17-3399

Judge: Kanne

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Indiana (Allen County)

Plaintiff's Attorney: Randal Forbes

Defendant's Attorney: Catherine L. Gibbons

Description: Susan Spicher suffers from a series
of chronic health problems, including osteoarthritis, degenerative
disc disease, chronic obstructive pulmonary disease, fibromyalgia,
and morbid obesity. In 2010, Spicher applied for
Social Security Disability Insurance Benefits and Supple2
No. 17‐3399
mental Security Income dating back to 2003. An ALJ concluded
that Spicher had not become disabled until September
20, 2012. The district court affirmed the ALJ’s decision. Because
the ALJ’s conclusion was not supported by substantial
evidence, we now reverse and remand.
I. BACKGROUND
This is the second time Spicher’s case is up for judicial review.
After a 2012 hearing, an ALJ found that Spicher was not
disabled from August 1, 2003 to May 30, 2012. But the district
court remanded the case because the ALJ had not properly
considered the limitations imposed by Spicher’s obesity, both
independently and in combination with her other impediments.
Spicher v. Colvin, No. 1:13‐CV‐304‐TLS, 2015 WL
4714293 (N.D. Ind. Aug. 7, 2015).
After the remand, the ALJ held another hearing on May
25, 2016. There, Spicher narrowed her case, focusing on
whether she had been disabled since December 31, 2008,
when her insured status expired. In response to the district
court’s instructions to reconsider Spicher’s obesity, the ALJ
consulted a second doctor who essentially adopted the findings
of the medical reports already in the record. At the conclusion
of the hearing, the ALJ remarked that her further consideration
of Spicher’s obesity had not motivated her to
change her findings.
The ALJ ultimately issued an opinion that again concluded
that Spicher had not been disabled until September 20,
2012. Her decision rested on her finding that Spicher could
hold a sedentary position and perform three jobs identified by
a vocational expert. In addition, the ALJ found that Spicher
could occasionally crouch, crawl, balance, stoop, and kneel.
No. 17‐3399 3
Spicher appealed that decision to the district court. After the
district court affirmed the ALJ’s decision, Spicher appealed to
this court.
II. ANALYSIS
On appeal, Spicher raises two issues. First, she argues that
the ALJ violated her due process rights by prejudging the outcome
of her case. Second, she contends that the ALJ improperly
concluded that she was not disabled. We address each
argument in turn.
A. The ALJ did not violate Spicher’s due process rights on remand.
Applicants for disability benefits have the right to a hearing
before a fair decisionmaker. Keith v. Barnhart, 473 F.3d 782,
787–88 (7th Cir. 2007). We review whether alleged due process
violations merit a new hearing de novo, id. at 787, and will
remand for a new hearing only if the “decisionmaker ‘displayed
deep‐seated and unequivocal antagonism that would
render fair judgment impossible.’” Id. at 788 (quoting Liteky v.
United States, 510 U.S. 540, 556 (1994)).
Spicher directs the court to two points in the hearing that
she argues show the ALJ’s bias against her. The first came as
the ALJ began the proceedings on remand:
Oh, and I think I probably forgot to introduce myself
on the record … I’m not bound by any of the prior
decisions that have been made in this case. Although,
of course, we’re here because [sic] Federal
Court didn’t agree with that [sic] I did the last time.
However, I will stick with what I determined the last
time. That you were limited to sedentary work.
Which meant that as of your age, September 20th,
4 No. 17‐3399
2012, as of age 50, you were disabled under the rules.
Now, I never determined when you were sedentary
work. [sic] So, that—so any other description of
what’s reason able [sic] from the medical record we
will work out with [the medical expert.].
(R. 9 at 866–867.) The second came near the end of the proceeding.
As the ALJ explained the result she would likely
reach, she asked Spicher’s counsel if he wished to amend the
request “so the decision [would] be fully favorable.” (Id. at
875.) After Spicher’s counsel declined, the ALJ asked, “Oh,
you want to go to Federal Court again?” (Id.)
These statements are troublesome, but they fall short of
the high bar required for a new hearing. The ALJ’s first statement
that “[she would] stick with what [she] determined last
time” seems to refer to the ALJ’s following sentence in which
she added “[t]hat you were limited to sedentary work.” Id. at
866. In other words, at the outset of the hearing, the ALJ established
that she would not consider any elevated classification
that required mobility. This interpretation is borne out by
the fact that the ALJ specifically noted that she wanted to
“work out” if the medical evidence supported further limitations.
Rather than demonstrate the ALJ’s bias against Spicher,
these statements suggest some willingness on the part of the
ALJ to reevaluate her prior decision.
As to the second exchange, we agree with Spicher that the
ALJ’s question “Oh, you want to go to Federal Court again?”
reveals the ALJ’s frustration with Spicher’s case. But here too,
No. 17‐3399 5
the ALJ’s statements fall short of the “deep‐seated and unequivocal
antagonism” required to justify a remand. Keith, 473
F.3d at 788.1
B. Substantial evidence does not support the ALJ’s conclusion
that Spicher was not disabled.
ALJs apply a five‐step test to determine if a claimant suffers
from a disability. 20 C.F.R. § 404.1520(a)(4); Zurawski v.
Halter, 245 F.3d 881, 885 (7th Cir. 2001). Spicher’s appeal focuses
on the fourth and fifth of those steps: the calculation of
the claimant’s residual functional capacity and whether the
ALJ has established that the claimant can perform work in the
national economy.
In order to find that Spicher could perform work in the
national economy, the ALJ first analyzed Spicher’s residual
functional capacity. The ALJ found that Spicher could perform
sedentary work with the following limitations:
[S]he can lift ten pounds occasionally and frequently;
can stand and walk for at least two hours in
an eight‐hour workday, and requires a hand‐held
assistive device to walk for even short distances, but
the contralateral upper extremity can be used to lift
and carry; can sit for about six hours in an eight‐hour
workday; is limited in the use of her lower extremities,
and cannot work with foot controls; can never
climb ladders, ropes, or scaffolds; can only occasionally
climb ramps or stairs, balance, stoop, kneel,
crouch, and crawl; must avoid concentrated expo‐
1 Spicher also contends that an ALJ violates agency rules and due process
by sharing her preliminary assessments before publishing a written report.
This argument is without merit.
6 No. 17‐3399
sure to extreme cold and heat, wetness, and humidity;
and, must avoid even moderate exposure to
fumes, odors, dusts, gases, poor ventilation, etc., and
to hazards such as slick, uneven surfaces and unprotected
heights.
(R. 9 at 845.) The ALJ later consulted with a vocational expert
who testified that a claimant of Spicher’s age, education, work
experience, and residual functional capacity could perform
three jobs: charge account clerk, call out operator, and telephone
order clerk. Based on that testimony, the ALJ concluded
that Spicher could perform work that existed in significant
numbers in the national economy and therefore was not
disabled prior to September 2012.
We review the ALJ’s decision to deny disability status under
the substantial evidence standard. Zurawski, 245 F.3d at
887. To satisfy this standard, the ALJ “must ‘build an accurate
and logical bridge from the evidence to her conclusion.’”
Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (quoting
Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001)). Moreover,
an ALJ may not ignore evidence that undercuts her conclusion.
Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014).
Spicher insists that the ALJ’s decision does not meet the
substantial evidence standard. Her arguments fall in two
broad categories. First, Spicher contends that the ALJ did not
address contradictory medical evidence when determining
the types of sedentary jobs that Spicher could hold. Second,
Spicher argues that the ALJ failed to consider the interaction
between her obesity and her non‐severe impairments. In both
instances, we agree.
No. 17‐3399 7
1. The ALJ did not explain why she dismissed medical evidence
that undercut her conclusion.
The ALJ is not required to adopt the recommendations of
an examining physician. But when a physician provides significant
evidence that cuts against the conclusion reached by
the ALJ, the ALJ must provide enough analysis to allow a reviewing
court some idea of why she rejected it. Clifford v. Apfel,
227 F.3d 863, 873–74 (7th Cir. 2000) (citing Rohan v. Chater,
98 F.3d 966, 971 (7th Cir. 1996)).
In this case, Dr. Crystal Strong served as a consultative examiner.
After visiting with Spicher in September 2010, Dr.
Strong produced a report that the ALJ reviewed when deciding
Spicher’s disability claim. This report undercut the ALJ’s
residual‐functional‐capacity finding in two respects, and the
ALJ did not address either.
a. The ALJ failed to adequately address Dr. Strong’s recommendation
that Spicher regularly ambulate.
Dr. Strong’s report could have justified further limitations
to Spicher’s residual functional capacity. When addressing
Spicher’s obesity, Dr. Strong noted that:
[Spicher] is severely overweight and the less that she
ambulates, the worse this problem will get, so I recommended
that she does not have a completely sedentary
job. She reports that she can ambulate 20
minutes at a time, so I recommend that she can ambulate
up to 20 minutes at a time as long as she is
given adequate rest in between those 20 minute intervals
in a work type setting.
8 No. 17‐3399
(R. 9 at 747–48.) This limitation, however, was absent from the
ALJ’s residual‐functional‐capacity determination.2
This omission is curious. The ALJ was clearly aware of Dr.
Strong’s recommendation. In fact, she “accorded great
weight” to Dr. Strong’s findings and opinions. (R. 9 at 850.)
She specifically noted that Dr. Strong had “advised against a
‘completely sedentary job.’” (Id.) Nevertheless, the restrictions
(or lack thereof) on sedentary work that the ALJ imposed
suggest that she implicitly rejected at least one portion
of Dr. Strong’s recommendation. Because Dr. Strong’s recommendation
suggested further limitations, it contradicted the
ALJ’s finding on residual functional capacity. The ALJ was
therefore required to provide enough analysis to allow a reviewing
court to determine why she rejected it. Because the
ALJ failed to do so, her decision to deny benefits cannot satisfy
the substantial evidence standard.
b. The ALJ did not adequately address observations from Dr.
Strong’s report that suggested that Spicher was unable to perform
certain postural activities.
Dr. Strong’s report also contradicted the ALJ’s finding that
Spicher could occasionally balance, stoop, kneel, crouch, and
crawl. Recounting the exam, Dr. Strong observed that:
It was very awkward and slow for [Spicher] to lie
back on the table. She had to pick up her leg with her
hands to both get it on and off the table. When I
2 The agency suggests that the ALJ did not have to address this portion of
Dr. Strong’s opinion because it was a recommendation not a mandate. But
we regularly require ALJs to consider the consequences of doctors’ recommendations.
See, e.g., Getch v. Astrue, 539 F.3d 473, 482 (7th Cir. 2008).
No. 17‐3399 9
asked her to walk on her heels, she said ʺI cannot because
of the pain.ʺ She did try, but did a poor job of
walking on her heels. She was able to walk on her
toes and walk heel‐to‐toe with her cane and she
squatted approximately one‐fifth of the way down
before she stopped secondary to pain issues as well.
(R. 9 at 747.)
These observations, of course, undercut the ALJ’s finding
that Spicher could balance, stoop, kneel, crouch, and crawl.
Spicher’s difficultly lowering herself onto a raised examining
table suggests that she would struggle to lower herself to a
crouching or crawling position. Her inability to squat at the
exam suggests that she could not do so throughout a workday.
Finally, Spicher’s inability to walk on her heels casts
doubt on the ALJ’s finding that Spicher could regularly balance.
The ALJ did nothing to address these concerns. That
alone is a ground for remand. Clifford, 227 F.3d at 873–74.
On this point, we reject the agency’s argument that these
errors were harmless because—according to the Dictionary of
Occupational Titles (“DOT”)—the three jobs identified by the
ALJ would not require Spicher to balance, stoop, kneel,
crouch, or crawl. The DOT is “obsolete.” Herrmann v. Colvin,
772 F.3d 1110, 1113 (7th Cir. 2014). Since it was last updated
in 1991, it is certain that “many of the jobs have changed and
some have disappeared.” Browning v. Colvin, 766 F.3d 702, 709
(7th Cir. 2014). Thus, the ALJ’s reference to the DOT gives this
court little confidence that Spicher could perform the jobs the
ALJ identified.
10 No. 17‐3399
2. The ALJ ignored the interaction between Spicher’s obesity and
her non‐severe impairments.
When assessing if a claimant is disabled, an ALJ must account
for the combined effects of the claimant’s impairments,
including those that are not themselves severe enough to support
a disability claim. 42 U.S.C. § 423(d)(2)(B). Here, the ALJ
ignored the effects of at least two impairments.
First, the ALJ refused to consider the effects of a humerus
fracture. The ALJ explained that she did not consider the injury
because the most severe effects lasted less than one year.
This was error. In fact, the ALJ was required to consider the
permanent‐but‐mild effects of the humerus fracture in combination
with the permanent‐and‐severe effects of Spicher’s
obesity. 20 C.F.R. § 404.1545(a)(2) (“We will consider all of
your medically determinable impairments of which we are
aware, including your medically determinable impairments
that are not ‘severe’ … when we assess your residual functional
capacity.”).
Second, the ALJ entirely ignored evidence of carpal tunnel
syndrome. Because Spicher raised the condition to the ALJ,
(R. 9 at 52), and produced medical evidence to support the
diagnosis, (R. 9 at 357), the ALJ was required to at least consider
the assertion. Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535,
539 (7th Cir. 2003).

Outcome: There is no doubt that the ALJ displayed some hostility
towards Spicher, but this treatment falls far short of the bar
we require to remand on the basis of due process. The substance
of the ALJ’s decision is another matter. While the ALJ
need not accept all of a doctor’s recommendations and findings,
she must—at minimum—build an accurate and logical
bridge from the evidence to her conclusion. Doing so requires
the ALJ to consider evidence that undercuts her conclusion.
Because the ALJ failed to address such evidence in this case,
we REVERSE and REMAND. On remand, the ALJ must address—
but is not required to accept—Dr. Strong’s recommendation
that Spicher regularly ambulate. The ALJ must also address
evidence in Dr. Strong’s report that Spicher could not
perform certain postural activities. Finally, the ALJ must account
for the effects of Spicher’s humerus fracture and carpal
tunnel syndrome.

Plaintiff's Experts:

Defendant's Experts:

Comments: