Mikeal G. Cole , J R . v. CAROLYN W. COLVIN, Acting Commissioner of Social Security

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐3883
MIKEAL 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 , SYKES , and HAMILTON, 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‐

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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,

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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 his

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4 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‐

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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 have

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6 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.

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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.”

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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’t

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No. 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 on

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10 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.

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