Kevin Thomas Lacher v. ANDREW M. SAUL, Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 18, 2020
Decided December 1, 2020
Before
DIANE S. SYKES, Chief Judge
MICHAEL S. KANNE, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 20-1035
KEVIN THOMAS LACHER,
Plaintiff-Appellant,
v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 18-CV-941
Nancy Joseph,
Magistrate Judge.
ORDER
Kevin Lacher, a 55-year-old man suffering from sustained back pain and limited
mobility, challenges the denial of his application for disability insurance benefits. An
administrative law judge found that Lacher had the residual functional capacity to
perform sedentary work with some limitations. On appeal, Lacher contends that the
ALJ erred by (1) not assigning enough weight to his treating physician’s opinion and (2)
discounting his subjective complaints. Because substantial evidence supports the ALJ’s
determination that Lacher was not disabled, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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Lacher filed for disability benefits in early 2015, asserting that his pathological
back fractures, degenerative lumbar-spine disc disease, left-side joint dysfunction, and
high blood pressure prevented him from working. He traced these conditions back to
2008, when he fractured his spine lifting a window for a home-improvement company.
Before that, Lacher had served in the Air Force as a heavy-equipment mechanic.
A surgery that Lacher underwent in 2010 to repair a torn disk appeared to
alleviate his symptoms. He stayed out of the workforce until late 2013, when he began
working for a laptop-recycling company. But in January 2014, Lacher complained of
back pain to his primary-care physician, Dr. Paul Robey, who subsequently discovered
a compression fracture. Lacher underwent another back surgery in March.
After this surgery, Lacher still experienced back pain. In October, an orthopedic
specialist diagnosed him with a second compression fracture in his spine. Another
surgery was scheduled but then cancelled because the fracture was considered too
small. Lacher soon began therapy with a chiropractor, and his condition improved to
the point where he could shovel snow. An MRI and bone scan from this time showed
that the fracture had healed. At a post-therapy checkup in mid-2015, the chiropractor
noted that Lacher had minimal to mild muscle spasms and restricted mobility in his
problem areas but no longer had significant flare-ups of pain.
Based on his back pain and restricted mobility, Lacher applied for disability
insurance benefits. He claimed a disability onset date of February 13, 2014—the same
day he was laid off from his job dismantling laptops for recycling. Lacher stated that he
could not sit or stand for more than 20 minutes, walk more than a block without a cane,
lift more than 20 pounds, or bend to pick up something off the floor. He also reported
waking up every two hours from pain, for which he was prescribed Valium.
In support of Lacher’s application, Dr. Robey submitted a “Treating Source
Statement” opining on Lacher’s ability to perform work-related activities. On one form,
he checked a box indicating that Lacher likely would be off task at work for over 25% of
the time and absent more than 4 days a month. Dr. Robey also noted that Lacher had
limitations such as lifting and carrying objects weighing at least 10 pounds (which he
could do only occasionally); lifting 20 pounds (rarely); stooping, balancing, kneeling,
and crouching (only occasionally); and never climbing stairs, ramps, ladders, or
scaffolds.
The Social Security Administration denied Lacher’s application initially and on
reconsideration, and an ALJ held a hearing on his disability claim. At the hearing,
Lacher emphasized that, as of 2015, he could not bend down (such as to put on his socks
or pick up after the dog) or sit for more than 30 to 45 minutes without taking a break.

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He added that he could walk only about 50 yards before needing to stop, and that he
used a cane. Lacher also described days on which the burning back pain was so severe
that he could do nothing but find a comfortable position and lie down.
The ALJ then questioned a vocational expert about the jobs available to someone
with Lacher’s limitations. The vocational expert noted at the outset that Lacher had
worked in the past as a laptop recycler—medium, unskilled work—but he actually had
been performing the work at only a sedentary level. The expert went on to testify that a
person with Lacher’s limited mobility could not perform his past recycling work if he
needed to take a break every thirty minutes, but he could do the job as Lacher had
actually performed it in the past.
Applying the agency’s familiar five-step analysis, see 20 C.F.R. § 404.1520(a), the
ALJ determined that Lacher was not disabled at any time between February 2014 (the
alleged onset date) and September 2015 (the date last insured). The ALJ found that
Lacher had not engaged in substantial gainful activity since the alleged onset date (step
one); that he had the severe impairment of a history of compression fractures (step two);
that he did not have an impairment or combination of impairments that met or equaled
a listed impairment (step three); that he had the residual functional capacity to perform
a range of sedentary work as defined in 20 C.F.R. § 404.1567(a) (step four); and that he
could perform his past recycling work (also step four).
In reaching her conclusion, the ALJ explained that she found Lacher’s testimony
about the intensity, persistence, and limiting effects of his symptoms “not entirely
consistent” with the medical evidence—evidence that he had improved mobility post-
therapy and that his fractures were healing. The ALJ gave some weight to Dr. Robey’s
opinion, noting that portions of it were consistent with evidence that Lacher had
tenderness and a limited range of motion in his back, but other portions were
inconsistent with evidence showing normal gait, normal muscle strength, and the
absence of any limping.
The Appeals Council denied review, making the ALJ’s decision final.
See 20 C.F.R. § 404.981. The district court upheld the ALJ’s decision as supported by
substantial evidence.
On appeal, Lacher argues—with respect to the residual functional capacity
finding—that the ALJ erred by giving only “some weight” to the opinion of his treating
physician Dr. Robey. For applications like Lacher’s that were filed before 2017, a
treating source’s opinion is entitled to controlling weight if it is supported by sound
medical evidence and a consistent record. 20 C.F.R. § 404.1527(c)(2); Hall v. Berryhill,
906 F.3d 640, 643 (7th Cir. 2018). When an ALJ does not give controlling weight to a

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treating source’s opinion, that opinion should be weighed based on the nature and
extent of the treatment, the treating source’s area of specialty, and the degree to which
the opinion is consistent with the record and supported by evidence. See 20 C.F.R.
§ 404.1527(c)(2). Lacher disputes the determination that Dr. Robey’s “Treating Source
Statement” was inconsistent with the medical record, emphasizing the doctor’s
February 2015 comment that his back pain likely would not improve and that he likely
would have more compression fractures over time.
Substantial evidence supports the ALJ’s decision to give only “some weight” to
Dr. Robey’s opinion. The ALJ adequately explained why she found that Dr. Robey’s
treating-physician form painted a more severe picture of Lacher’s limitations than
suggested by the objective medical evidence. She properly assessed the limitations in
Dr. Robey’s form, noting inconsistencies between the severe limitations identified by
the doctor and physical examinations showing that Lacher had normal gait, muscle
strength, and range of motion in his extremities. As the ALJ also pointed out, Dr. Robey
attributed Lacher’s limitations to his diagnosed compression fractures without
explaining how the fractures restricted his mobility so severely. Although the ALJ could
have substantiated her analysis better—for instance, by specifying the portions of Dr.
Robey’s form she discredited—she did acknowledge Dr. Robey’s familiarity with
Lacher’s condition, directly adopted some of his proposed limitations, and otherwise
applied the correct legal standards.
Lacher next faults the ALJ for discounting his subjective complaints as “not
entirely consistent” with the evidence—a formulation akin to one (“not entirely
credible”) that we have identified as “meaningless boilerplate.“ Parker v. Astrue, 597
F.3d 920, 921–22 (7th Cir. 2010). Specifically, he argues that the ALJ ignored his April
2015 statement that he “cannot sit, stand more than 20 minutes.”
But the phrase “not entirely credible” (or “not entirely consistent”) is
meaningless only when the ALJ gives no legitimate reasons for discrediting the
claimant’s testimony. Martinez v. Astrue, 630 F.3d 693, 696 (7th Cir. 2011). The ALJ’s
rationale here was thin, but it was adequate to reflect her conclusion that the objective
medical evidence and Lacher’s daily activities did not corroborate his subjective
symptoms. The ALJ acknowledged Lacher’s physical limitations caused by the
compression fractures, but pointed to his “normal reflexes, sensation, muscle strength,
and gait”; his “reported improvement with chiropractic care”; and his “increased ability
in performing some activities of daily living”—including shoveling snow with less pain.
True, the ALJ said nothing about Lacher’s self-reported inability to sit for prolonged
periods, but Lacher has not identified any objective medical evidence in the record to
corroborate such a generalized subjective complaint. Given how little Lacher said about

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any limitations he had while sitting, the ALJ cannot be faulted for not explicitly
addressing this complaint. See Murphy v. Colvin, 759 F.3d 811, 817 (7th Cir. 2014)
(internal citations omitted).
AFFIRMED

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