Judges: Per Curiam
Filed: Apr. 04, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-1802 REBECCA ANN AKIN, Plaintiff-Appellant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:15-cv-01380-WCG — William C. Griesbach, Chief Judge. _ ARGUED JANUARY 24, 2018 — DECIDED APRIL 4, 2018 _ Before BAUER, KANNE, and BARRETT, Circuit Judges. PER CURIAM. Rebecca Akin, a 47-year-old woman, chal- le
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 17-1802 REBECCA ANN AKIN, Plaintiff-Appellant, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:15-cv-01380-WCG — William C. Griesbach, Chief Judge. _ ARGUED JANUARY 24, 2018 — DECIDED APRIL 4, 2018 _ Before BAUER, KANNE, and BARRETT, Circuit Judges. PER CURIAM. Rebecca Akin, a 47-year-old woman, chal- len..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1802
REBECCA ANN AKIN,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:15-cv-01380-WCG — William C. Griesbach, Chief Judge.
____________________
ARGUED JANUARY 24, 2018 — DECIDED APRIL 4, 2018
____________________
Before BAUER, KANNE, and BARRETT, Circuit Judges.
PER CURIAM. Rebecca Akin, a 47-year-old woman, chal-
lenges the denial of her application for Supplemental Security
Income. She contends that she became disabled in 2011 prin-
cipally from fibromyalgia, back and neck pain, and head-
aches. Akin argues that the administrative law judge made
several errors: The ALJ (1) wrongly discounted her allegations
of back pain; (2) improperly credited the opinions of agency
2 No. 17-1802
physicians who had not reviewed all of the medical records,
including relevant MRI scans; and (3) ignored her complaints
of headaches. These arguments are persuasive, so we remand.
Akin began to see Dr. Ahmad Haffar in early 2011 for
gradually worsening and unresolved pain. He noted that
Akin had “symptoms of fibromyalgia” and had 12 positive
trigger points. An x-ray of Akin’s back confirmed two fused
disks, narrowed spacing, and minimal spurring. Akin com-
plained at a follow-up appointment with Dr. Haffar in April
2011 of headaches and neck pain. She tried physical therapy
to address this pain, but with little success. By July, Dr. Haffar
began to treat her fibromyalgia with drugs after Akin re-
ported “severe pain all over” as warm weather worsened her
fibromyalgia symptoms. He prescribed gabapentin, tizani-
dine, ReQuip, and hydrocodone. When Akin returned to him
twice over the next six months still complaining of frequent
headaches, fibromyalgia, and chronic back pain, he renewed
these prescriptions.
Two emergency-room visits in early 2012 for pain led to
more assessments. During the first visit, in March 2012, Akin
complained of back pain. The doctor who examined her noted
that she had a normal gait, no spinal tenderness, and a full
range of motion in her back and neck. The next day she saw
Laurie Van Grinsven, a physician’s assistant. Akin com-
plained that her fibromyalgia had been getting worse and that
her hands, hips, and toes ached. Van Grinsven renewed
Akin’s medications and sent her to a rheumatologist. The
rheumatologist confirmed the fibromyalgia tender points and
tenderness in her upper extremities. He noted, though, that
Akin had a good grip, her hips moved well and were not ten-
der, and she had a good range of motion in her axial skeleton.
No. 17-1802 3
Overall the rheumatologist concluded that Akin “is never go-
ing to feel well, but that [her] fibromyalgia is something that
could be dealt with and managed.”
Her second visit to the emergency room, in May, was also
for pain. As happened at the first visit, the doctor who exam-
ined Akin noted that she had full range of motion in her neck
and back, a normal gait, and good motor strength in her ex-
tremities. After her release Akin saw Dr. Haffar in July for on-
going back pain. Akin walked with a limp and still had trigger
points in her back. Dr. Haffar prescribed Akin morphine. Two
weeks later he wrote that Akin showed “mild neuropathy.”
Akin had three more emergency-room visits over the next
few months for new problems and her recurring pain. In late
2012, she went in for a bronchospasm. She was discharged the
next day after her chest x-ray and CT scan showed no abnor-
malities in her lungs. During this one-day stay she did not
complain about her fibromyalgia, and the doctor wrote that
she had a full range of motion in her back and neck. But she
returned to the emergency room in January 2013 complaining
of renewed neck and back pain. Because her gait was at this
time steady, she was sent home and told to rest. Akin had a
follow-up appointment with Ms. Van Grinsven two weeks
later. She observed that Akin moved slowly and shifted fre-
quently, so she referred Akin for a chronic-pain evaluation.
Akin went back to the emergency room for fibromyalgia pain
two weeks later. Although she displayed a full range of mo-
tion, her movements were deliberate and slow. In between
these visits, in November, Akin reported to Dr. Haffar in-
creased pain from fibromyalgia and that she could not toler-
ate morphine, so he discontinued it.
4 No. 17-1802
During 2013, Akin received further observations for her
pain. While wheelchair bound in March she visited Dr. Ryan
Zantow, an orthopedist. He did not see any swelling in Akin’s
hands or weakness in her arms or legs. But he noted that Akin
was hypersensitive to touch on her neck, shoulders, and up-
per back. The same month Akin had a follow-up visit with
Ms. Van Grinsven, who observed that Akin was in moderate
distress and moved slowly. She prescribed a short course of
Percocet for Akin and referred her to a specialist in chronic
pain. A month later she noted that Akin responded positively
to the Percocet and renewed that prescription until Akin
could see the pain specialist. At her visit with the pain spe-
cialist, Akin said that her pain ranged from a five to an eight
on a ten-point scale and was a seven on average. She said that
the pain interfered with her ability to walk, interact with oth-
ers, perform household chores, and sleep. The specialist ob-
served Akin walk with a normal gait and that she could walk
on her toes and heels, but had tenderness in her neck and
back. He wrote that Akin may benefit from injections in her
back, but she declined that option.
Another emergency-room visit occurred after a dog
jumped on her and aggravated her back pain in October 2013.
The doctor wrote that Akin’s motion in her neck and back was
painful and that she had moderate pain across her back. After
this visit she followed up with Ms. Van Grinsven and com-
plained that her lower back pain had worsened over the past
year. She had tenderness in her back and her range of motion
was limited, but she walked with a normal gait. Ms. Van
Grinsven renewed Akin’s medications.
Two months later Akin saw Dr. Mauizio Albala for pain
management. She said her pain ranged from a five to ten on a
No. 17-1802 5
ten-point scale. Dr. Albala wrote that Akin moved very slowly
and had trouble with simple movements, and he noted that
Akin needed help to stand up or sit down. He renewed Akin’s
prescriptions for gabapentin, tramadol, and Percocet, and he
prescribed tizanidine and a fentanyl patch. A month later
Akin reported a similar pain range to Dr. Albala and that it
interfered with her daily activities. The doctor discussed in-
jections for Akin’s neck and back; she declined citing a con-
cern about needles but said that she may need to reconsider.
Akin followed up again in March, reporting similar pain that
day, but acknowledged that on that day her pain was not as
bad as it was the day of her last visit.
To diagnose and treat her ongoing and recurring pain,
Akin received an MRI in March 2014. Carrie Voss, a nurse
practitioner, assessed Akin as having “significant neck and
low back pain as well as numbness, tingling and weakness in
her upper and lower extremities.” She renewed Akin’s medi-
cations and scheduled the MRI scan. The results were illumi-
nating. The MRI of Akin’s lumbar spine showed “[m]oderate
to severe spinal canal stenosis at T10-T11 secondary to liga-
mentum flavum hypertrophy” and a disk protrusion at L4-
L5. Her neck showed a “[w]orsening disk herniation at C5-6
which causes moderate spinal stenosis and cord impinge-
ment.” After the MRI, when Akin reported that her pain had
not changed, Ms. Voss discussed injections with Akin. In May
Akin reported no change in pain, but that with her regimen
of fentanyl, gabapentin, tramadol, tizanidine, and oxycodone,
she could at least complete her daily activities at home.
Two state-agency doctors reviewed some of Akin’s rec-
ords, but not the MRI results. Both opined that she was capa-
ble of sedentary work. First, in August 2012 Dr. Pat Chan
6 No. 17-1802
opined that Akin could occasionally lift or carry 10 pounds,
frequently lift or carry less than 10 pounds, stand or walk for
2 hours a day, and sit for 6 hours in a normal workday. The
doctor credited some of her complaints of back pain, but said
that her headaches were occasional, her March 2011 CT scan
was normal, and that she could handle daily activities if given
enough time to complete them. Second, Dr. Mina Khorshidi
reviewed Akin’s file in March 2013 (before Akin had the MRI
scans), agreed with the limitations recommended by
Dr. Chan, and also credited Akin’s assertion that she has some
pain from her impairments.
A hearing was held in June 2014 before an ALJ. In addition
to receiving these records, the ALJ heard Akin testify about
her pain. Her back pain is “stabbing and then throbbing” and
persists until she relaxes or lies down. She experiences fre-
quent headaches from neck pain. She can sit in a recliner for
about an hour before needing to move, but otherwise she can
sit only for a few minutes. She can stand for only a few
minutes, cannot walk half a block, and needs to use a motor-
ized cart in the grocery store. Her children help her do house-
hold chores, and she uses a chair to cook or clean. She wears
hand braces to help with soreness in her hands. In response
to the ALJ’s questions about her treatment Akin said that her
doctors wanted her to try injections in her back, but she
wanted to wait until her kids were out of school before start-
ing that treatment.
The ALJ concluded that Akin was not disabled because
her “residual functional capacity” allowed her to perform
“sedentary work.” See 20 C.F.R. § 416.920(a)(4). In so ruling
the ALJ credited the opinions of the two agency doctors, and
No. 17-1802 7
discounted those of Dr. Albala and Ms. Voss. The ALJ ex-
plained that Akin’s statements about her symptoms were “not
entirely credible” because doctors said that on some days she
had a normal gait and good range of motion, could walk on
her toes and heels, and had no swelling. Her reluctance to try
injections, the ALJ thought, undermined the credibility of her
allegations of disabling pain. The ALJ added that the MRI
scans, which the agency physicians had not evaluated, were
consistent with Akin’s impairments, but the scans did not
support her allegations of disabling pain.
After the appeals counsel denied review, a district judge
upheld the ALJ’s decision. The judge concluded that the ALJ
did not rely on any impermissible factor to determine that
Akin was not entirely credible.
We begin with Akin’s strongest argument. Akin argues
that the ALJ should not have credited the opinions of the
state-agency physicians. She points out that they did not re-
view about 70 pages of medical records, including the MRI
results, that later became part of the record. And, Akin con-
tinues, the ALJ further erred by interpreting the MRI results
himself.
We agree that the ALJ’s evaluation of Akin’s MRI results is
flawed because the ALJ impermissibly “played doctor.” See
Goins v. Colvin,
764 F.3d 677, 680 (7th Cir. 2014). The ALJ stated
that the MRI results were “consistent” with Akin’s impair-
ments and then based his assessment of her residual func-
tional capacity “after considering … the recent MRIs.” But,
without an expert opinion interpreting the MRI results in the
record, the ALJ was not qualified to conclude that the MRI
results were “consistent” with his assessment. See id.; Moon
v. Colvin,
763 F.3d 718, 722 (7th Cir. 2014). The MRI results may
8 No. 17-1802
corroborate Akin’s complaints, or they may lend support to
the ALJ’s original interpretation, but either way the ALJ was
not qualified to make his own determination without the ben-
efit of an expert opinion. The ALJ had many options to avoid
this error; for example, he could have sought an updated
medical opinion. See Green v. Apfel,
204 F.3d 780, 782 (7th Cir.
2000). But because the ALJ impermissibly interpreted the MRI
results himself, we vacate the judgment and remand this case
to the agency.
We comment briefly on Akin’s other arguments. Akin also
argues that the ALJ found her “not entirely credible.” This is
language that we have criticized repeatedly as “meaningless
boilerplate.” See Summers v. Berryhill,
864 F.3d 523, 526 (7th
Cir. 2017); Pepper v. Colvin,
712 F.3d 351, 367 (7th Cir. 2013). We
agree with Akin that the ALJ should revisit his credibility de-
termination in at least three respects.
First, we are troubled by the ALJ’s purported use of objec-
tive medical evidence to discredit Akin’s complaints of disa-
bling pain because fibromyalgia cannot be evaluated or ruled
out by using objective tests. See Vanprooyen v. Berryhill,
864
F.3d 567, 572 (7th Cir. 2017). An “ALJ may not discredit a
claimant’s testimony about her pain and limitations solely be-
cause there is no objective medical evidence supporting it.”
Villano v. Astrue,
556 F.3d 558, 562 (7th Cir. 2009). The ALJ
should have developed a more fulsome record about Akin’s
testimony of pain before discounting it; a fuller record may
have revealed evidence supporting or refuting Akin’s claims.
Second, the ALJ also improperly discredited Akin because
of her conservative course of treatment. The ALJ did not con-
sider Akin’s explanations for not seeking more aggressive
treatments, as he was required to do. See Beardsley v. Colvin,
No. 17-1802 9
758 F.3d 834, 840 (7th Cir. 2014). Indeed Akin expressed that
she was afraid of needles and that she wanted to wait until
her children finished school before trying more invasive treat-
ment. And, because Akin was responsible for her children, we
do not think her need to ensure that her children would be
cared for before scheduling more invasive medical proce-
dures shows anything that undermines the legitimacy of her
claim of disabling pain. See Stage v. Colvin,
812 F.3d 1121, 1125
(7th Cir. 2016).
Third, Akin persuasively argues that the ALJ did not
properly evaluate her complaints of headaches. She argues
that her March 2011 CT scan and other evidence show that her
headaches were severe. The ALJ discounted Akin’s com-
plaints based on the opinions of the two state-agency consult-
ants. But as we noted the ALJ will have the opportunity to
request an updated medical opinion and reevaluate Akin’s
complaints of headaches.
Accordingly, we VACATE the judgment of the district
court and REMAND the case to the agency for proceedings
consistent with this opinion.