In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1746

BONNIE SHRAMEK,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner
of Social Security,

Defendant-Appellee.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 C 166--John C. Shabaz, Chief Judge.


Argued December 3, 1999--Decided September 1, 2000



  Before FLAUM, Chief Judge, ROVNER and EVANS,
Circuit Judges.

  ROVNER, Circuit Judge. Bonnie Shramek applied
for Social Security Disability Insurance Benefits
(DIB) and Supplemental Security Income (SSI). The
focus of her claim for benefits was her history
of frequent superficial phlebitis and repeated
deep venous thrombophlebitis, for which she
received approximately forty treatments over a
fifteen year period. After a hearing, the
Administrative Law Judge (ALJ) denied her claim
for benefits at Step 5 of the sequential process.
In doing so, the ALJ found that: she was not
currently employed (Step 1); she suffered from a
severe impairment (Step 2); her impairment did
not meet or equal the SSA listings (Step 3); she
was not capable of performing her past work (Step
4); and SSA had met its burden of demonstrating
that she was capable of performing work in the
national economy (Step 5). See Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995) (explaining the
sequential process). In reaching his conclusions
at Step 5, the ALJ found that she was capable of
doing sedentary work with some restrictions, and
that a sufficient number of such positions
existed in the economy. The Appeals Council and
the district court affirmed that determination,
and she now appeals to this Court.

  Shramek raised a number of issues in this Court
as she did in the district court, but
unfortunately there is little overlap between the
two. Many--if not most--of the issues raised in
this appeal were not raised in the district
court. Although the failure to assert an argument
at the Appeals Council does not operate as a
waiver of that claim, Johnson v. Apfel, 189 F.3d
561 (7th Cir. 1999), issues that are not raised
before the district court are waived on appeal.
Ehrhart v. Secretary of Health and Human
Services, 969 F.2d 534, 537 & n.4 (7th Cir. 1992);
Reynolds v. Bowen, 844 F.2d 451, 453 (7th Cir.
1988). A generous reading of the briefs before
the district court and this Court yields a few
issues that have been preserved, which we will
address.

  Shramek contends that the ALJ erred in
crediting the opinion of the medical examiner,
Dr. Eckman, who had reviewed the record but had
never examined her, over that of her treating
physician, Dr. Quenan, who had ministered to her
for over 10 years. Shramek also asserts that the
ALJ improperly discredited Shramek’s testimony
regarding her disability. We agree with most of
these arguments, but affirm because they
ultimately did not affect the outcome.

I.

  We turn first to the ALJ’s assessment of
Shramek’s credibility. A credibility assessment
is afforded special deference because the ALJ is
in the best position to see and hear the witness
and determine credibility. Powers v. Apfel, 207
F.3d 431, 435 (7th Cir. 2000). Where, however,
"the reasons given by the trier of fact do not
build an accurate and logical bridge between the
evidence and the result," we cannot uphold the
ALJ’s determination. Sarchet v. Chater, 78 F.3d
305, 307 (7th Cir. 1996); Groves v. Apfel, 148
F.3d 809, 811 (7th Cir. 1998). In analyzing an
ALJ’s opinion for such fatal gaps or
contradictions, "we give the opinion a
commonsensical reading rather than nitpicking at
it." Johnson, 189 F.3d at 564.

  The ALJ stated that the "claimant testified
that she is unable to work due to chronic pain
and swelling in her lower extremities that
significantly limits her from performing
prolonged sitting, walking or standing." He found
her testimony regarding her discomfort and
limitations "inconsistent with her daily
activities and the medical evidence of record,
and not fully credible." The ALJ then recited
factors that led to that conclusion, which
included: no significant flare-ups of the disease
since the onset date of December 1981, visits to
her treating physician that occurred "only" every
two to five months, and her failure to fully
comply with the recommended treatment. Those
"factors" identified by the ALJ are each either
without support in the record or are patently
insufficient to support his conclusion.

  For instance, contrary to the ALJ’s statement,
the record demonstrates numerous hospitalizations
and other "flare-ups" since the onset date of the
disease. A glance at only a one-year period
reveals the following history:

8-16-91: right leg was erythematous/1 and tender,
and her left leg showed marked problems with
stasis dermatitis/2 and recurrence of smaller
varicosities;/3 impression was chronic recurrent
superficial phlebitis;

9-26-91: noted recurrent superficial phlebitis of
the right lower leg with erythema;

11-11-91: superficial phlebitis of the right lower
leg; no open ulcerations but the skin was warm,
reddened and there was mild stasis dermatitis
with some varicosities;

2-3-92: phlebitis in the right leg with chronic
stasis dermatitis and varicosities; area of
inflammation in the posterior aspect of the
lesser saphenous system just above the ankle;
heat and elevation prescribed;

7-10-92: inflammation of the left thigh with
obvious phlebitis; prescribed aspirin, hot packs,
elevation and antibiotics

Far from refuting her allegations of swelling and
discomfort, those medical records provide
significant support for it. In fact, the record
contains at least 13 separate instances in which
elevation is recommended, thus affirming her
claims of swelling and clotting. Similarly, the
ALJ’s belief that she is not credible because she
"only" sought physician treatment every 2-5
months is incomprehensible. It is unclear what
frequency of visits he would deem sufficient, but
physician visits every 2-5 months for fifteen
years is hardly insubstantial, and is an unsound
basis on which to reject testimony of swelling
and discomfort that is consistent with the
complaints regularly made to the physician during
those visits.

  Another reason provided for the ALJ’s
credibility assessment is her purported failure
to comply with the prescribed medical treatment.
The alleged non-compliance identified by the ALJ
included her failure to quit smoking despite
evidence that smoking could worsen the condition.
That is a misuse of the non-compliance
regulation. 20 C.F.R. sec. 404.1530(a) provides
that "[i]n order to get benefits, you must follow
treatment prescribed by your physician if this
treatment can restore your ability to work." The
failure to do so without good reason will result
in a denial of benefits. 20 C.F.R. sec.
404.1530(b). "Essential to a denial of benefits
pursuant to Section 404.1530 is a finding that if
the claimant followed her prescribed treatment
she could return to work." Rousey v. Heckler, 771
F.2d 1065, 1069 (7th Cir. 1985).

  In Rousey, we reversed an ALJ’s denial of
benefits premised in part on the claimant’s
failure to quit smoking where the claimant
suffered from chronic obstructive pulmonary
disease. We held that no evidence demonstrated
that she would be restored to a non-severe
condition if she quit smoking. Id. We similarly
denounced the ALJ’s conclusion that her smoking
rendered incredible her allegations of pain
because no medical evidence linked her chest pain
directly to her smoking. Id. at 1070. As in
Rousey, the ALJ here made no finding that the
prescribed treatment would restore her ability to
work, and the record would not in fact support
such a finding. In addition, no medical evidence
directly linked her pain or swelling to her
smoking. Therefore, the ALJ erred in relying on
her failure to quit smoking as evidence of non-
compliance and as a basis to find her incredible.
We note that even if medical evidence had
established a link between smoking and her
symptoms, it is extremely tenuous to infer from
the failure to give up smoking that the claimant
is incredible when she testifies that the
condition is serious or painful. Given the
addictive nature of smoking, the failure to quit
is as likely attributable to factors unrelated to
the effect of smoking on a person’s health. One
does not need to look far to see persons with
emphysema or lung cancer--directly caused by
smoking--who continue to smoke, not because they
do not suffer gravely from the disease, but
because other factors such as the addictive
nature of the product impacts their ability to
stop. This is an unreliable basis on which to
rest a credibility determination.

  The record also provides scant support for the
other allegations of non-compliance raised. For
instance, the ALJ decries Shramek’s failure to
wear prescribed elastic stockings, stating that
she testified that she declined to wear these
stockings because it caused too much swelling in
her legs. That is not an accurate recitation of
her testimony. When asked whether she wears
elastic stockings, Shramek responded "I tried
them in the hospital, but my legs swelled above
it where they had to take it off because it was
cutting off circulation." That is her only
testimony on the issue. It indicates that the
hospital personnel discontinued the stockings
because of the swelling, and does not support
even an inference of non-compliance on her part.
The remaining allegations of non-compliance are
no more convincing.

  Finally, the ALJ found Shramek’s testimony
inconsistent with her daily activities, declaring
that her daily activities are "clearly consistent
with the ability to perform some work
activities." Again, that finding is without basis
in the record. Her testimony, as characterized by
the ALJ himself, was that she had "chronic pain
and swelling in her lower extremities that
significantly limits her from performing
prolonged sitting, walking or standing." She
never testified that she was unable to perform
"some work activities," and thus the alleged
contradiction is illusory. Moreover, her
testimony that she was significantly limited in
performing prolonged sitting, standing and
walking is not contradicted by her ability to
care for the house and her children. Such work by
its nature provides the type of flexibility to
alternate standing, sitting and walking, and to
rest and elevate the legs when necessary, that
she, Dr. Quenan, and even Dr. Eckman testified
was necessary. It is therefore not a basis to
find her incredible. Compare Thompson v.
Sullivan, 987 F.2d 1482, 1490 (10th Cir. 1993)
(sporadic performance of household tasks or work
does not establish that a person is capable of
engaging in substantial gainful activity.)
Accordingly, the factors used by the ALJ in
rejecting Shramek’s credibility are not supported
by the record.

  Shramek also challenges the ALJ’s failure to
credit the testimony of her treating physician
over that of the medical examiner. In his
decision, the ALJ expressly adopted the
functional capacity assessment of Dr. Eckman
limiting her to carrying no more than 20 pounds,
walking no further than 3-4 blocks, and sitting
and standing no more than 4 hours out of an 8-
hour day. The ALJ’s determination was erroneous
for a number of reasons, not the least of which
is it did not accurately reflect the functional
capacity assessment actually tendered by Dr.
Eckman. In addition to the above limitations, Dr.
Eckman opined that she could sit or stand for
only 30-45 minutes at a time before she would
have to move. The ALJ fails to acknowledge that
in his opinion.

  That limitation by Dr. Eckman in fact tracks a
similar requirement imposed by Dr. Quenan, who
maintained that Shramek could not perform any
work requiring prolonged sitting, standing or
walking, with prolonged defined as lasting
between 30 and 45 minutes. Dr. Quenan also stated
that Shramek needed to rest and elevate her legs
after 30 minutes of activity. The ALJ erred in
rejecting the opinion of Dr. Quenan, who treated
her for over 10 years for this condition. A
physician’s opinion regarding the nature and
severity of an impairment will be given
controlling weight if it is well-supported by
medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent
with the other substantial evidence in the case.
20 C.F.R. sec. 404.1527(d)(2). Nothing in the
record contradicted Dr. Quenan’s conclusions, and
the medical evidence in the record supports his
opinion. In fact, Dr. Eckman was asked whether
Dr. Quenan’s assessment was consistent with the
medical treatment notes, and he stated that "I
think in general it is." He went on to state that
he had some reservations about Dr. Quenan’s
assessment but was open to agreeing with it if
there was any documented deep vein thrombosis.
Later in his testimony, he acknowledged that the
record in fact contained such evidence of deep
vein thrombosis. Although Dr. Eckman thought that
Dr. Quenan’s diagnostic conclusions could be
verified through "some of the more modern
testing," the ALJ did not order such testing.

II.

  The ALJ thus mischaracterized Dr. Eckman’s
opinion in his decision, and improperly
discounted the testimony of Shramek and the
opinion of Dr. Quenan. None of those errors,
however, ultimately impacted the outcome. See
Sarchet, 78 F.3d at 309 (where fact findings are
unreliable because of serious mistakes or
omissions, we reverse unless satisfied that no
reasonable trier of fact could have come to a
different conclusion). At the hearing, the ALJ in
fact submitted a hypothetical to the vocational
expert (VE) that included all of the functional
limitations set forth by Dr. Quenan and was
consistent with Shramek’s own testimony regarding
her limitations. Dr. Quenan’s opinion was that
Shramek:

is not able to do any work that involves
prolonged standing, sitting or walking.
"Prolonged" for her is anything from 30 min. to
45 min. She has difficulty at this time in even
completing her own housework and has to rest and
elevate her legs after only 30 min. of activity.
. . . It is my opinion that she would not be able
to perform any work that she could not do in a
lounge chair with her legs elevated.

In response to that assessment, the ALJ asked the
VE whether sufficient work existed for a claimant
with her age, education and work history, who
could stand only four out of eight hours and sit
four out of eight hours with the option to sit or
stand every half hour and with the option to
elevate her feet. The VE testified that there
would be a number of sedentary employment
positions that fall within those parameters.
Thus, even accepting the limitations set forth by
Shramek and Dr. Quenan, she is not disabled under
the statute./4

  The ALJ clouded this issue by mischaracterizing
the VE’s testimony. In the decision, the ALJ
stated that "even accepting Dr. Quenan’s report
at face value, with the exception of the need to
rest and elevate her lower extremities after 30
minutes of activity, the vocational expert
testified that the claimant was still capable of
performing all of the above cited jobs." If that
sentence was accurate, there would indeed be a
problem here because the need for regular
elevation of her feet is well-documented in the
record. The VE’s testimony, however, was not so
limited. The VE accepted Dr. Quenan’s limitations
and declared that sufficient work still existed
that met those parameters with one caveat. The VE
testified that if Shramek would need to rest
after every 30 minutes of activity, as opposed to
simply elevating her legs, then she would not be
capable of working. A plain reading of Dr.
Quenan’s assessment, however, belies such a
limitation. When discussing her ability to
complete her housework, he states that she needs
to rest and elevate her legs after 30 minutes of
activity. That statement does not indicate that
she cannot engage in any other activity while she
is elevating her legs. The reference to resting
clearly refers to taking a break from the
housework and getting off her feet. In fact, his
later statement that she could perform work if it
could be done from a lounge chair with her legs
elevated establishes his belief that she could
engage in work activity while elevating her legs.
Moreover, if his statement were interpreted as
imposing a rest break from any work every 30
minutes, the ALJ was justified in disregarding
that opinion because it is unsupported by any
evidence in the record. Therefore, the ALJ
propounded a hypothetical to the VE that included
all of the supportable limitations identified by
Dr. Quenan, and the VE stated that work existed
in the national economy in this region that would
fall within those parameters. On that basis, the
decision of the ALJ denying benefits because she
was capable of performing work in the regional
economy was supportable. Shramek did not
challenge in the district court the validity of
the VE’s conclusion and thus waived any such
challenge on appeal. Accordingly, the decision of
the district court is affirmed.


/1 Erythema is inflammatory redness of the skin.
Stedman’s Medical Dictionary, 5th Unabridged Lawyer’s Ed.
(1982).

/2 Stasis dermatitis is erythema and scaling of the
lower extremities due to impaired circulation and
other factors. Stedman’s Medical Dictionary, 5th Unabridged
Lawyer’s Ed. (1982).

/3 Varicosity is a varix or varicose condition.
Varix is a dilated vein, or an enlarged and
torturous vein, artery or lymphatic vessel.
Stedman’s Medical Dictionary, 5th Unabridged Lawyer’s Ed.
(1982).

/4 Although the need to elevate her legs was
presented to the VE, the hypothetical did not
include Dr. Quenan’s reference to the lounge
chair. Nothing in the record indicates that the
elevation had to be achieved in that manner, and
she does not argue on appeal that the ALJ erred
in failing to include that requirement in the
hypothetical to the VE.
