Tom Krause, NOSSCR Litigation Director

Reviewing recent cases to find something of interest to our members is challenging – there are so many good cases out there. Reviewing cases decided in September 2024, I noticed a pattern. Several recent cases talk about an ALJ’s duty to build a “logical bridge” in determining disability. In less than a month, at least 5 cases from within the Seventh Circuit referred to the “logical bridge.” Within the last two months, the Fourth Circuit and several district courts also discussed the “logical bridge.” So, what is it? Will it help me win cases? And, while we are at it, what is “cherry-picking”?

The concept of a “logical bridge” is not new. For years, the Seventh Circuit has required an ALJ to build a “logical bridge” from the evidence to the conclusion. See, e.g., Terry v. Astrue, 580 F.3d 471 (7th Cir. 2009); Getch v. Astrue, 539 F.3d 473 (7th Cir. 2008). Reviewing courts must be able to trace the reasoning process used by the ALJ to ensure that their decision is supported by substantial evidence. In contrast, “cherry-picking” means to cite only the evidence that supports the desired conclusion, ignoring the great weight of conflicting evidence.

One of the earlier cases to explain the “logical bridge” is Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). Under Steele, principles of administrative law require the ALJ to rationally articulate the grounds for her decision and confine judicial review to the reasons supplied by the ALJ. See SEC v. Chenery Corp., 318 U.S. 80, 93–95, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir. 1999); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). That is why the ALJ (not the Commissioner’s lawyers) must “build an accurate and logical bridge from the evidence to her conclusion.” Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001).

While the concept of a “logical bridge” is not new, it seems it is becoming more popular and is being cited more often. Here is a sampling of cases within the Seventh Circuit and from other circuits decided in the last 2 months.

District Courts in the Seventh Circuit

Cynthia A. v. O’Malley, No. 22 C 596, 2024 WL 4170205 (N.D. Ill. Sept. 12, 2024)

• It is well-settled law that an ALJ cannot cherry-pick which evidence to evaluate and disregard other relevant evidence. Scrogham v. Colvin, 765 F.3d 685, 696-99 (7th Cir. 2014). Although the ALJ is not required to provide a complete and written evaluation of every piece of testimony and evidence, he must build a logical bridge from the evidence to his conclusion. Warnell v. O’Malley, 97 F. 4th 1050, 1054 (7th Cir. 2024); Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015).
• With respect to an ALJ’s obligation to consider the evidence of record, the law is clear that the ALJ “may not ignore entire swaths of it that point toward a finding of disability.” Lothridge v. Saul, 984 F.3d 1227, 1234 (7th Cir. 2021); Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) (“An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.”). If the ALJ did consider these limitations and rejected them, he does not say that. He also does not explain how the RFC accommodates these limitations, and the Court cannot speculate. Therefore, remand is required.

Dwight L. v. O’Malley, No. 3:23-CV-00189-KFR, 2024 WL 4164431 (D. Alaska Sept. 12, 2024)

• This Court is confined to reviewing the reasons the ALJ asserts. An ALJ may discount an opinion that is conclusory, brief, and unsupported by the record as a whole, or by objective medical findings. The consistency of a medical opinion with the treatment notes is a relevant factor in the ALJ’s evaluation of that opinion. However, an ALJ may not “cherry pick” evidence to discount a medical opinion.

Joseph W. v. O’Malley, No. 23-CV-3084-SMY, 2024 WL 4143613 (S.D. Ill. Sept. 11, 2024)

• The RFC is a measure of what an individual can do despite the limitations imposed by his impairments. 20 C.F.R. § 404.1545(a). It is “a function-by-function assessment based upon all of the relevant evidence of an individual’s ability to do work-related activities,” Id., and must be supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). An “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). However, “an ALJ need not mention every piece of evidence, so long as he builds a logical bridge from the evidence to his conclusion.” Id. (citing Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008)).

Fred D. v. O’Malley, No. 23-CV-1446-SM Y, 2024 WL 4143611 (S.D. Ill. Sept. 11, 2024)

• The RFC is a measure of what an individual can do despite the limitations imposed by his impairments. 20 C.F.R. § 404.1545(a). It is “a function-by-function assessment based upon all of the relevant evidence of an individual’s ability to do work-related activities,” Id., and must be supported by substantial evidence. Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000). An “ALJ has the obligation to consider all relevant medical evidence and cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue, 596 F.3d 419, 425 (7th Cir. 2010). However, “an ALJ need not mention every piece of evidence, so long as he builds a logical bridge from the evidence to his conclusion.” Id. (citing Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008)).

Kolosick v. O’Malley, No. 23-C-1050, 2024 WL 4053034 (E.D. Wis. Sept. 5, 2024)

• Although a decision denying benefits need not discuss every piece of evidence, remand is appropriate when an ALJ fails to provide adequate support for the conclusions drawn. Jelinek, 662 F.3d at 811 (citing Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009)). The ALJ “must build an accurate and logical bridge from the evidence to his conclusion[s].” Clifford v. Apfel , 227 F.3d 863, 872 (7th Cir. 2000) (citation omitted); Groves v. Apfel , 148 F.3d 809, 811 (7th Cir. 1998)).
• Although an ALJ need not mention every piece of evidence in the record, she “cannot simply cherry-pick facts that support a finding of non-disability while ignoring evidence that points to a disability finding.” Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) (citation omitted).

District Courts Outside the Seventh Circuit

Stephen R. v. O’Malley, No. 21-2292, 2024 WL 3508155 (4th Cir. July 23, 2024)

• “[T]he RFC ‘assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).’ ” Monroe, 826 F.3d at 189 (quoting Mascio v. Colvin , 780 F.3d 632, 636 (4th Cir. 2015) ). “To pass muster, ALJs must ‘build an accurate and logical bridge’ from the evidence to their conclusions.” Arakas v. Comm’r, Soc. Sec. Admin., 983 F.3d 83, 95 (4th Cir. 2020) (quoting Monroe, 826 F.3d at 189).
• “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) ).

Anne J.W. v. O’Malley, No. CV 22-00448, 2024 WL 4137312 (E.D. Pa. Sept. 10, 2024)

• However, it is apparent that the ALJ selectively cited facts that support his conclusion while ignoring those that do not. Federal courts in this district, and across the country, recognize that an ALJ is entitled to accept some evidence and to reject other evidence with proper reason. But an ALJ is not entitled to “cherry pick” favorable evidence and ignore facts that run counter to his findings. As Plaintiff correctly observed, the ALJ’s singling out of broad activities, while ignoring specific limitations in performing them, deprives the Court of meaningful review of the Decision. This is particularly problematic here, where the ALJ so heavily relied on these observations to discount the opinions of several medical providers.

Ebony B. v. O’Malley, No. 21-CV-1742-MAU, 2024 WL 4133288 (D.D.C. Sept. 10, 2024)

• The ALJ impermissibly cherry-picks reports from 2019 (allegedly during times of SUD [substance use disorder]) and 2020 (non-SUD) to assert that Plaintiff had various limitations on concentration or memory when she was using substances, but not without. For example, the ALJ claims that Plaintiff “reported poor concentration and frustration” when she was using substances. . . Further, reports . . . after Plaintiff reportedly stopped using substances []reflect identical assessments of her behavior; orientation; attention span and concentration; memory; thought process; and thought content.

Blake v. O’Malley, No. 5:23-CV-486-RJ, 2024 WL 3888910 (E.D.N.C. Aug. 20, 2024)

• “[T]he residual functional capacity ‘assessment must first identify the individual’s functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions’ listed in the regulations.” Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The ALJ must provide “a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations).” Id. (quoting SSR 96-8p); see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ “must build an accurate and logical bridge from the evidence to his conclusion”).
• The ALJ’s mischaracterization of the record is error. “An ALJ has the obligation to consider all relevant medical evidence and cannot simply cherrypick facts that support a finding of nondisability while ignoring evidence that points to a disability finding.” Lewis v. Berryhill , 858 F.3d 858, 869 (4th Cir. 2017) (quoting Denton v. Astrue , 596 F.3d 419, 425 (7th Cir. 2010) ). To be sure, “there is no rigid requirement that the ALJ specifically refer to every piece of evidence in his decision.” Reid v. Comm’r of Soc. Sec. Admin., 769 F.3d 861, 865 (4th Cir. 2014) (quoting Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).

Amanda G. v. O’Malley, No. 2:23-CV-02228-DCC-MGB, 2024 WL 3432181 (D.S.C. June 18, 2024), report and recommendation adopted sub nom. Gilmer v. Comm’r of Soc. Sec. Admin., No. 2:23-CV-02228-DCC, 2024 WL 3429788 (D.S.C. July 15, 2024)

• However, the court does not “reflexively rubber-stamp an ALJ’s findings.” Dowling, 986 F.3d at 383 (citing Lewis v. Berryhill, 858 F.3d 858, 870 (4th Cir. 2017)). An ALJ may not cherry-pick, misstate, or mischaracterize material facts. Arakas, 983 F.3d at 99 (citing Lewis, 858 F.3d at 869). Rather, ALJs “must ‘build an accurate and logical bridge’ from the evidence to their conclusions.” Arakas, 983 F.3d at 95 (quoting Monroe, 826 F.3d at 189).