Lora Lynn Cieszynski v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2023
Decided March 15, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 22-2024
LORA LYNN CIESZYNSKI,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 21-cv-10-slc
Stephen L. Crocker,
Magistrate Judge.
O R D E R
Lora Cieszynski applied for a period of disability insurance benefits based on a
constellation of serious physical and mental problems. The administrative law judge
determined, however, that she was not disabled, and the district court affirmed. On
appeal, Cieszynski argues that the ALJ improperly discounted the opinions of her
treating doctor and one of the agency’s examining physicians, and as a result, the
decision is not supported by substantial evidence. We agree with her that the ALJ did
not adhere to the regulations governing the evaluation of physicians’ opinions and thus
that the record does not support his determination. We vacate the decision and remand.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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I
Cieszynski has been seeking medical help for degenerative disc disease of the
cervical and lumbar spine, depression, anxiety, and attention deficit hyperactivity
disorder since 2012. She resigned from her job as a clerk at a law firm later that year and
applied at the age of 48 for disability insurance benefits in 2013. Over the years, she
tried many treatments, including steroid injections, various medications, chiropractic
treatments, physical therapy, and activity modifications. She could not tolerate physical
therapy because of the pain. Some of the other treatments provided temporary benefits,
but she continued to experience severe pain and other symptoms.
Several doctors under contract with the state-agency administrators of Social
Security provided opinions about Cieszynski’s condition. Dr. Eric Linford, an
orthopedist, examined her in January 2014, reviewed her x-rays, and determined that
she “would not tolerate prolonged sitting, standing, [or] lifting heavy loads
repetitively.” Two non-examining consultants (both internists) also provided opinions
about Cieszynski’s physical capabilities, but they based their evaluations solely on
medical records dating from 2013 to February 2014. Both said she was not disabled.
In October 2014 Cieszynski underwent a lumbar MRI and a cervical MRI. The
lumbar MRI revealed moderate degenerative changes, a shallow central disc protrusion,
moderate ventral osteophytes (bone spurs), and some mild bilateral foraminal
narrowing. The cervical MRI results (which the ALJ would later call “more serious”)
showed moderate to severe degenerative changes, several disk bulges, severe neural
foraminal narrowing, disc osteophyte complex (that is, bone spurs on multiple
vertebrae, compressing disks and exerting pressure on the nerve roots or spinal cord),
mild narrowing of the spinal canal, and more.
Cieszynski’s treating physician was Dr. Bruce Boyd, who completed a certificate
of medical condition for Cieszynski in 2016. Notably, he is the only medical professional
to provide an opinion who reviewed the 2014 MRI results. Based on those results, his
examinations, and Cieszynski’s treatment history, he opined that Cieszynski “would
likely be limited to part-time employment where she had flexibility with regard to how
long she would be required to sit, stand, or walk at one time.” He also concluded that
she should limit her activities as follows: avoid repetitive bending and twisting at the
waist and flexing, extending, and rotating of the neck; reach and grasp things only
occasionally; avoid static positioning of her neck and head; and lift no more than ten
pounds, and do so only occasionally.
After a hearing, an ALJ determined that Cieszynski was not disabled. Cieszynski
appealed to the district court. The court found that the ALJ erred in several respects: he

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cherry-picked evidence; he improperly rejected Dr. Boyd’s opinion based on a faulty
assessment of the problems detected by the 2014 MRIs; he gave too much weight to the
non-examining consultants’ opinions and failed to assign a weight to Dr. Linford’s
opinion; and he did not explain his conclusion about Cieszynski’s capacity for work.
For all those reasons, it ordered a remand to the agency.
On remand, a different ALJ held a new hearing in 2019. Cieszynski testified that
she experienced numbness in her arm, she had severe headaches three to four times a
month, her leg sometimes gave out when she was walking, and she was unable to stand
or sit for more than 30 minutes because of neck, lower back, and leg pain and stiffness.
She acknowledged that her psychiatric medications reduced her symptoms somewhat
but reported that she still felt fatigued, cried often, experienced anxiety and crying
spells when leaving the house, and struggled to complete basic daily tasks such as
getting out of bed, cooking, and doing household chores. A vocational expert testified
that a hypothetical claimant with Cieszynski’s education, experience, and various
physical and mental limitations as described by the ALJ (none of which were consistent
with the restrictions Dr. Boyd imposed), could not perform Cieszynski’s prior job as a
law-firm clerk but could perform many other jobs that exist in significant numbers in
the national economy.
The ALJ determined that Cieszynski was not disabled. Using the five-step
process for determining disability, 20 C.F.R. § 404.1520, he found that Cieszynski had
not engaged in substantial gainful activity since the onset date of her disability; she had
the severe impairments of degenerative disc disease of the cervical and lumbar spine,
depression, anxiety, and ADHD; those impairments did not meet or equal the severity
of a listed impairment; she could not perform her past work; yet jobs that she could
perform existed in significant numbers in the national economy.
In making these determinations, the ALJ stated with little explanation that he
discredited Dr. Boyd’s and Dr. Linford’s opinions, which both supported Cieszynski’s
disability claim. Here is what he said, in its entirety, about Dr. Boyd’s opinion:
While normally, the opinions of a treating physician are given controlling
weight, the opinion of Dr. Boyd is given little weight. Dr. Boyd’s opinion is
inconsistent with the course of treatment in this case. The treatment
records show the claimant received some benefit from the treatment, which
included steroid injunctions, chiropractic treatments, and medication. The
records also show the claimant has received little or no ongoing treatment
for back pain since terminating pain management treatment in June 2016.

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There are a number of problems with the assertions in this paragraph; we highlight
them below. In the aggregate, the ALJ’s conclusion about Dr. Boyd’s opinion cannot be
reconciled with the treating physician rule, which applies to Cieszynski’s case.
The ALJ, for example, pointed to appointment notes reporting that Cieszynski
felt that her medications and three chiropractic visits had helped. But he did not
attempt to reconcile this evidence with Cieszynski’s testimony at the hearing, which
unequivocally denied any lasting benefit from the chiropractic sessions. (There was no
discussion of the chiropractic visits at the second hearing; they were mentioned only at
the first hearing.) The ALJ also thought that Dr. Boyd’s opinion was inconsistent with
the fact that Cieszynski “received little or no ongoing treatment for back pain since
terminating pain management treatment in June 2016.” He implied that she had
abandoned those treatments not for inefficacy but because she “might have had a
dependence on painkillers and engaged in drug seeking behaviors, which might have
fueled her complaints.” In support, the ALJ cited a pain management provider’s notes
from an appointment in June 2016. Those notes state that Cieszynski tested positive for
opioids not prescribed by that clinic and tested negative for her prescribed medications.
The provider suspected that this indicated diversion of the prescribed medication and
acquisition of opioids from other sources. When the provider refused to refill
Cieszynski’s opioid prescription, Cieszynski said that she came only for opioids and
left. The ALJ found it significant that, after that appointment, Cieszynski largely
stopped seeking treatment for back pain.
The ALJ also gave Dr. Linford’s opinion “limited weight.” He explained that he
did so because the opinion was not specific enough and inadequately supported. In
addition, the ALJ found that Dr. Linford’s opinion had the same flaws as Dr. Boyd’s.
Bearing in mind the deferential standard of review that applies in these cases, the
district court ruled that the ALJ did not err in weighing Dr. Boyd’s or Dr. Linford’s
opinion and affirmed the ALJ’s decision.
II
Cieszynski’s arguments on appeal primarily address the way in which the ALJ
decided which doctors’ opinions to embrace or reject. We review the ALJ's decision
directly and accept his findings if they are supported by substantial evidence, defined
as "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” See 42 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019).
Cieszynski’s first point rests on the ALJ’s failure to follow the treating physician
rule, which, though prospectively abrogated, applies to cases such as hers that were

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filed before March 27, 2017. See 20 C.F.R. § 404.1520c (“For claims filed … on or after
March 27, 2017, the rules in this section apply. For claims filed before March 27, 2017,
the rules in § 404.1527 apply.”). Paragraph (c)(2) of section 404.1527 specifies the
agency’s approach to a treating source:
Generally, we give more weight to medical opinions from your treating
sources, since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of your medical
impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations, such as consultative
examinations or brief hospitalizations. If we find that a treating source’s
medical opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in your case record, we will give it controlling
weight. When we do not give the treating source's medical opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and
(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through
(c)(6) of this section in determining the weight to give the medical
opinion. We will always give good reasons in our notice of determination or
decision for the weight we give your treating source’s medical opinion.
Id. § 404.1527(c)(2) (emphasis added). Two things are notable: first, the commitment to
give the treating source’s opinion controlling weight if it is well-supported by acceptable
examinations and tests; and second, the commitment to give good reasons for whatever
weight is given to the treating source.
Cieszynski contends that the ALJ cited the right standard but did not follow it
when he found that Dr. Boyd’s opinion was inconsistent with the record. We agree with
that assessment. First, neither rationale the ALJ gave for rejecting Dr. Boyd’s opinion
qualifies as a “good reason.” One point was the alleged inconsistency between Dr.
Boyd’s opinion and the evidence that Cieszynski received “some benefit” from
injections, chiropractic treatments, and medications. But the ALJ did not grapple with
the fact that the record shows that the benefits were temporary, even though he
partially acknowledged the temporary nature of the relief elsewhere in his decision,
where he discussed medical records reporting that Cieszynski experienced significant
pain and limitations even after treatment. More importantly, it is possible for a person
to get “some benefit” from treatment yet not enough to be capable of more than part-

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time work. See Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000) (remanding for an ALJ
to reevaluate a medical opinion when the ALJ did not adequately explain supposed
inconsistencies). Dr. Boyd’s letter reflected this nuance; it acknowledged that the steroid
injections and medications provided “some moderation” of symptoms, but even so, he
believed that the MRIs, examination, and medical history demonstrated that Cieszynski
could do only part-time work, and even that much with many restrictions.
Second, the ALJ said that Dr. Boyd’s opinion was inconsistent with Cieszynski’s
receiving “little or no” treatment for back pain after terminating pain management
treatment when she could no longer obtain opioids. But this is an inconsistency only if
the record could support a finding that Cieszynski had other options for effective pain
relief. No such evidence exists. Cieszynski’s belief that only prescription opioids
sufficed (whether because of their effectiveness or a dependency) is not inconsistent
with her having pain and other symptoms that made full-time work impossible, just as
Dr. Boyd opined. Further, the ALJ did not explain what kind of treatment he expected
her to undergo. As Cieszynski points out, she tried many methods of treatment. The
ALJ asked Cieszynski during a hearing whether she ever lacked health insurance
coverage, but he did not follow up by tying this to gaps in treatment after 2016.
Although he was not required to ask about the lack of treatment, citing it as a reason to
reject Dr. Boyd’s opinion without finding out why she mostly stopped is problematic.
See Roddy v. Astrue, 705 F.3d 631, 638 (7th Cir. 2013); SSR 16-3P, 2016 WL 1119029
(Mar. 16, 2016) (requiring ALJs to consider possible reasons claimants may not seek
treatment before finding symptoms inconsistent with the record). Without support for
the ALJ’s inferences from the cessation of pain management appointments, the finding
that Dr. Boyd’s opinion was contradicted by the record in this respect is not backed by
substantial evidence. See Clifford, 227 F.3d at 871.
Improperly assessing a treater’s opinion is enough to require reversal.
See Minnick v. Colvin, 775 F.3d 929, 938 (7th Cir. 2015). But the Acting Commissioner
defends the ALJ’s refusal to give Dr. Boyd’s opinion controlling weight on two other
grounds. First, she asserts that Dr. Boyd’s opinion is inconsistent with his own
treatment records. But the ALJ said nothing to that effect, and we must look to what the
ALJ did, not what he might have done. Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S.
80, 93–94 (1943). Second, she asserts that, by not making the point in the district court
that the record lacked evidence of other treatment options for her pain or that the ALJ
failed to explore why she stopped treatment, Cieszynski waived her right to advance
those arguments on appeal. But we find no such waiver. Cieszynski preserved these
points when she contended in the district court that the ALJ did not provide a “good
reason” for not giving Dr. Boyd’s opinion controlling weight. See Milhem v. Kijakazi,

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52 F.4th 688, 693 (7th Cir. 2022) (specific arguments about determination that jobs
claimant could perform existed in significant numbers preserved with general challenge
in district court); Plessinger v. Berryhill, 900 F.3d 909, 916–17 (7th Cir. 2018) (noting that
this court has treated “more specific arguments” of the same nature as those raised in
the district court as preserved).
Even if the ALJ’s refusal to give controlling weight to Dr. Boyd’s opinion were
defensible, there is a second problem with his ruling. The regulation specifically
requires the ALJ to give good reasons for whatever weight he thinks a treating
physician’s opinion is due. Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). The ALJ
did not do so here. He was obliged to consider factors such as the length, frequency,
nature, and extent of the treatment relationship, Dr. Boyd’s explanation for his opinion,
the extent to which the opinion is consistent with the record as a whole and is
supported by relevant evidence, and Dr. Boyd’s specialty. 20 C.F.R. § 404.1527(c)(2)–(6).
Had the ALJ done so, Cieszynski contends, he would have given Dr. Boyd’s opinion
more than “little” weight.
The ALJ did not justify his failure to examine these factors. He did announce that
he was discounting Dr. Boyd’s opinion, but as we have noted, his reasons do not stand
up under scrutiny. Dr. Boyd treated Cieszynski from 2014 to 2018 and provided a
thorough explanation for his opinion based on the 2014 MRIs, his own examination,
and Cieszynski’s treatment records. Indeed, as Cieszynski points out, only Dr. Boyd
incorporated into his opinion the results of the two MRIs in 2014. The ALJ recognized
that the MRIs showed “moderate to severe degenerative changes” yet did not accept Dr.
Boyd’s conclusion that these deficits would limit Cieszynski’s physical capacity for
work. We acknowledge that an ALJ’s failure to consider the regulatory factors can be
harmless error, Karr v. Saul, 989 F.3d 508, 512 (7th Cir. 2021), and the Acting
Commissioner contends that it was here. But because Dr. Boyd was the only doctor to
interpret the 2014 MRIs (some of the most objective evidence in the record), we cannot
be certain that the outcome would have been the same with proper assessment of both
of his opinion. Lambert v. Berryhill, 896 F.3d 768, 776 (7th Cir. 2018).
The ALJ similarly brushed aside the related opinion of Dr. Linford, an orthopedic
specialist, to the effect that Cieszynski could not tolerate prolonged sitting or standing.
This issue presents a closer call, but combined with the errors concerning Dr. Boyd’s
opinion, it reinforces our sense of an overall inattention to the requirements for
considering medical opinions.
The first problem is that the ALJ did not fulfill his regulatory duty to recontact
Dr. Linford—the agency’s consulting examiner—upon finding the doctor’s report

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inadequate. See 20 C.F.R. § 404.1519p(b) (requiring an ALJ to obtain more information
or a new report if a consultant’s report is “incomplete or inadequate”). If the ALJ was
concerned that Dr. Linford “did not provide any specific limitations or explain the
rationale for his conclusions,” he should have followed up with the doctor. Barnett v.
Barnhart, 381 F.3d 664, 669 (7th Cir. 2004). Cieszynski had the burden of proving
disability, of course, but the ALJ had a duty to develop a fair and full record if he did
not receive an adequate report from an examining consultant. See Smith v. Apfel,
231 F.3d 433, 437 (7th Cir. 2000).
Second, the ALJ did not provide a “good explanation” for why he took the
unusual step of giving little weight to the opinion of an agency examining physician
such as Dr. Linford. Beardsley v. Colvin, 758 F.3d 834, 839 (7th Cir. 2014). The opinions of
examining physicians are generally entitled to more weight than those of non-
examining medical professionals. 20 C.F.R. § 404.1527(c)(1). When an ALJ disregards
that hierarchy, he should give a good explanation supported by substantial evidence.
Beardsley, 758 F.3d at 839. The ALJ’s conclusory comment that the report was
inadequate or incomplete does not suffice. And, as with Dr. Boyd’s opinion, the ALJ
cited inconsistencies with the medical record but did not explain them. As we noted
earlier, it is possible for Cieszynski to have gotten “some” temporary benefits and to
have rarely sought treatment after 2016 but still have the work-preclusive physical
limitations Dr. Linford observed.
Last, Cieszynski argues that the ALJ erred by relying on the opinions of the two
state-agency internists who did not examine Cieszynski, because those doctors did not
review the 2014 cervical and lumbar MRIs. Cieszynski waived this argument by failing
to argue in the district court that the ALJ made this mistake. See Jeske v. Saul, 955 F.3d
583, 597 (7th Cir. 2020). Cieszynski responds that she argued that the ALJ did not
provide a good reason for rejecting Dr. Boyd’s opinion, and “[o]ne of the alleged ‘good
reasons’ provided by the ALJ was the reliance on state agency physicians.” But the ALJ
did not point to conflict with the state agency physicians’ opinions as a reason for
rejecting Dr. Boyd’s opinion. Nonetheless, the ALJ’s willingness to accept the opinions
of non-examining physicians who never saw the most recent MRIs underscores the
significance of his rejection of the opinions of the two examining doctors, one of whom
based his opinion on the MRI results.
Because the ALJ’s decision to discredit the opinions of Dr. Boyd and Dr. Linford
is not supported by substantial evidence, we VACATE the judgment and REMAND this
case to the Social Security Administration for further proceedings.

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