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Pierce v. Colvin

United States Court of Appeals, Seventh Circuit

January 13, 2014

Terry A. PIERCE, Plaintiff-Appellant,
v.
Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee.

Argued Nov. 19, 2013.

Page 1047

[Copyrighted Material Omitted]

Page 1048

Barry A. Schultz, Attorney, Law Offices of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff-Appellant.

Edward J. Kristof, Attorney, Social Security Administration Office of the General Counsel, Chicago, IL, for Defendant-Appellee.

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Terry Pierce, a former waitress with back problems, seeks judicial review of the denial of her application for disability insurance benefits and supplemental security income. Because the ALJ's assessment of Pierce's credibility was flawed in several respects, we reverse and remand for further proceedings.

Pierce claims that she injured her lower back at her waitressing job in 2004 while moving cases of glassware. In too much pain to continue working, she quit her job and sought medical treatment. An MRI showed signs of disc degeneration, and she received chiropractic and electric-shock treatments to her back. She also took prescription pain medication. Her treating osteopathic physician, Dr. Jason Franklin, advised Pierce in 2005 that she should not lift more than 40 pounds, and after a few months, her back improved and she felt well enough to start a new job at a small café .

In March 2006 (her alleged onset date for disability), however, Pierce re-injured her back to the point that she could no longer sit or stand comfortably, and she had to quit her new job. The injury, she testified before the ALJ, disrupted her sleep, caused numbness in her legs, and prevented her from being able to sit, stand, lift, or bend for long periods. She added that she could not work for more than five hours without pain. Her doctors had trouble definitively identifying the cause of the pain. An MRI in 2006 revealed a small disc protrusion, mild disc bulging, and spinal arthritis, but no neural compression. She received chiropractic treatments, physical therapy, cold and hot therapy, and both prescription and over-the-counter pain medication. Her chiropractor, Manuel Duarte, advised her in 2006 not to return to work because of her lumbar injury, and he opined that her ability to bend, stand, and stoop had been reduced by more than 50 percent.

Pierce stopped treatment in 2006, she testified, because she had no insurance, but she continued to do at-home therapy and took pain medication. In late 2006 she took a job working mornings as a cashier in a high school cafeteria. Still unable to make ends meet, she also worked some evenings at a Subway restaurant, but she was fired from that job after back pain forced her to call in sick too many times.

In 2007, two consulting physicians for the agency found that Pierce's pain was not disabling. First, Pierce received a consultative physical examination from agency examiner Dr. ChukwuEmeka Ezike, who noted that her spinal range of motion was normal with only mild pain, but also observed that she had " chronic low back pain," could not squat without support, and had a " guarded gait." Second, Dr. Francis Vincent assessed Pierce's residual functional capacity based on her medical records. Dr. Vincent found that Pierce could lift 50 pounds occasionally and 25 pounds frequently, and could stand or walk for six hours in an eight-hour work day and sit for six hours over the same period.

In 2008 Pierce continued to seek treatment by visiting a physical therapist who observed that she had mild lumbar tenderness, only 60 percent strength in her left side, and a 50 ...


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