Middleton v. Colvin

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable Young B. Kim on 11/9/2015. (ma,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THERESA LYNN MIDDLETON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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No. 13 CV 4483
Magistrate Judge Young B. Kim

November 9, 2015

MEMORANDUM OPINION and ORDER
Theresa Middleton applied for disability insurance benefits (“DIB”), see 42
U.S.C. §§ 416(i), 423, based on her claim that a combination of her cervical stenosis
with sciatica, degenerative disc disease of the lumber spine, status post cervical
fusion, coronary artery disease, swollen legs, and obesity renders her completely
disabled. After an administrative law judge (“ALJ”) denied her application and the
Appeals Council declined her request for review, Middleton filed the current lawsuit
seeking judicial review. See 42 U.S.C. § 405(g). Before the court are the parties’
cross-motions for summary judgment.

For the following reasons, Middleton’s

motion is granted and the Commissioner’s is denied:
Procedural History
Middleton applied for DIB on January 13, 2010, claiming that she became
unable to work on December 26, 2008. (Administrative Record (“A.R.”) 18, 184.)
After her claims were denied initially and upon reconsideration, (id. at 86-91, 95-

98), Middleton sought and was granted a hearing before an ALJ, (id. at 101-06, 15152). The ALJ held a hearing on October 11, 2011, at which both Middleton and a
vocational expert (“VE”) testified. (Id. at 53-84.) On October 31, 2011, the ALJ
issued a decision finding that Middleton was not disabled within the meaning of the
Social Security Act and denied her claim for benefits. (Id. at 18-29.) When the
Appeals Council denied Middleton’s request for review, (id. at 1-6), the ALJ’s
decision became the final decision of the Commissioner, see Schomas v. Colvin, 732
F.3d 702, 707 (7th Cir. 2013). Middleton filed this suit seeking judicial review,
(R. 1); see 42 U.S.C. § 405(g), and the parties consented to the jurisdiction of this
court, (R. 6); see 28 U.S.C. § 636(c).
Facts
Middleton’s claim of lower back pain dates back to the early 2000’s.
(A.R. 397.) She also reported upper back and neck pains in 2004 for which she
underwent two surgical procedures: a C4-C7 cervical spine fusion in 2004 and a C3C4 cervical spine fusion in 2006. (Id. at 376, 397.) Despite the pair of surgeries
Middleton continued to experience neck and back problems which, according to her,
have gradually worsened over time. (Id. at 292-95.) To relieve her pain she sought
treatment including physical therapy, medications, diagnostic testing and
evaluations, and steroid epidural injections (“ESIs”). (Id. at 58-59, 292-95, 479,
482.) According to Middleton, none of these has provided relief. Because of her
ongoing pain, Middleton stopped working as a customer service representative in a
retail store sometime in October or November 2008, when she was 48 years old. (Id.

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at 57, 65, 176, 184, 188, 212.)

At her October 2011 hearing before an ALJ,

Middleton presented both documentary and testimonial evidence in support of her
DIB claim.
A.

Medical Evidence
The medical records tracing Middleton’s back and neck issues describe a

series of cervical fusion surgeries and post-surgery examinations to evaluate the
condition of her cervical and lumbar spines. The records indicate that Middleton
has been complaining of lower back and neck pains as early as 2000. (Id. at 376,
397.)

To better diagnose and treat her symptoms, Middleton’s primary care

physician, Dr. Jose Penaherrera, referred her to neurosurgery specialist Dr.
Thomas Hurley in 2004.

(Id. at 192, 436.)

After identifying various ventricle

epidural defects present in Middleton’s cervical spine in connection with central
canal stenosis and degenerative disc disease, (id. at 438-39), Dr. Hurley performed a
C4-C7 cervical spine fusion surgery in 2004. (Id. at 376, 397, 407, 438-39.)
In May 2005 Dr. Hurley reviewed an MRI report of Middleton’s cervical spine
and observed that spinal stenosis appeared to have “resolved” and that the spinal
alignment was “good.”

(Id. at 424, 429.)

In the fall of 2004 and 2005,

Dr. Penaherrera followed up with x-rays and confirmed that Middleton’s cervical
fusion appeared “stable” and that her vertebrae were in “good alignment.” (Id. at
409-10.)

But when Dr. Hurley noted a moderate-sized extradural defect

compressing the ventral aspect of the cervical spinal canal at C3-C4, “moderate
central spinal stenosis” at both C3-C4 and C5-C6 secondary to disc, and osteophyte

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complex on a CT cervical myelogram in February 2006, Dr. Hurley recommended a
second fusion surgery, this time at C3-C4. (Id. at 419-23.)
After the second surgery, Dr. Hurley ordered post-operative MRI and x-ray
reports in July 2006 to reassess Middleton’s cervical spine and generally found
normal height and alignment of the vertebral bodies. (Id. at 417-18.) The findings
also indicated, however, prevertebral soft tissue swelling and the possibility of
hematoma in addition to some foraminal narrowing at C6-C7 on the left. (Id. at
407-08, 417.)

Two months later, Dr. Penaherrera followed up with another

diagnostic imaging on Middleton’s cervical spine and found the fusion plate and
screws in good position and no signs of loosening. But the findings also included
abnormal straightening of the cervical spine. (Id. at 406.)
The record indicates that Middleton continued to complain of pain and
underwent a series of diagnostic tests, evaluations, therapies, and treatments from
late 2008 to the date of her hearing before the ALJ. The diagnostic findings with
respect to her cervical spine were varied. In March 2009 Middleton complained of
bilateral arm numbness and tingling, which prompted Dr. Amy Weierman to order
cervical spine CT images. The images showed that the cervical spine was within
normal limits without evidence of fracture or extradural defects. (Id. at 404.) The
report also indicated, however, a mild osteophyte protruding to the right
paracentral region as well as a mild degenerative change in the spine.

(Id.)

Evaluations from late 2009 and early 2010 were generally “unremarkable” with
“satisfactory” cervical alignment and “stable appearing” anterior fusion at C3-C4.

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(Id. at 278-83, 403.) The findings also noted “mild” levels of degenerative change,
osteophyte, indentation of the cervical cord, and central canal narrowing.

(Id. at

258, 299, 403-04, 415.) The diagnostic findings also included bilateral uncovertebral
hypertrophy with mild central canal narrowing at C4-C5, right paracentral disc
osteophyte complex with mild indentation of the cervical cord at C5-C6, and left
uncovertebral hypertrophy causing mild to moderate left neuroforaminal narrowing
at C6-C7.

(Id. at 258, 415-16.)

Based on these findings, Dr. Hurley opined in

January 2010 that Middleton had a “complete temporary disability.” (Id. at 276-77.)
From 2006 to 2011, Middleton also had a series of CT scans, MRIs, and xrays of her lumbar spine and hips to investigate her complaints of lower back pain.
(Id. at 259-60, 273-74, 297-98, 411-14, 475, 479, 419-23, 479-82.)

Physicians

described the diagnostic findings for the lumbar spine as “unremarkable,” “stable,”
“mild,” “minimal” with satisfactory alignment, normal vertebral body heights, and
“no significant central canal or neural foraminal stenosis.” (Id. at 259-60, 273-74,
411-12, 480-81.)

But the April 2009 MRI reports disclosed that Middleton was

experiencing “straightening of the normal lumbar lordosis,” and lesions in the
supralumbar spine and sacrum.

(Id. at 259-61.)

The reports also revealed

“scattered Schmorl’s nodes,” “loss of signal within the disc spaces through the
lumbar spine,” loss of disc height especially at L2-L3, a disc bulge at L4-L5,
“persistent facet arthropathy and ligamentum flavum thickening” at L5-S1, and
mild central canal and bilateral recess narrowing. (Id. at 273, 480-81.) Regarding
Middleton’s bilateral hip pain, a January 2011 MRI report showed that she has

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“tears in her hamstring muscles in both legs (back of her thighs),” which Dr. Hurley
acknowledged can cause pain.

(Id. at 479, 482.)

An August 2011 x-ray report

disclosed “moderate degenerative changes” in the lumbar spine despite its normal
alignment and “significantly limited” flexion movement of the lumbar region. (Id. at
475.)
In March 2009 Middleton went to an ER complaining of sudden neck pain,
right arm numbness, lower back pain, and right leg pain. (Id. at 302.) Dr. Hurley
prescribed “narcotic, NSAID, and muscle relaxer” and recommended that she be
temporarily restricted from working until further re-evaluation. (Id. at 301-02.) On
April 16, 2009, Dr. Hurley indicated that Middleton tested positive for pain on the
right side during the FABER test and straight leg raise test.

(Id. at 292-94.)

Having also looked at the MRI and CT scans of the cervical and lumbosacral spine,
Dr. Hurley determined facet arthrosis at C3-4, C4-5, C5-6, C6-7, L4-5, and L5-S1 as
well as disc dehydration at L4-5 and L5-S1. He recommended specific assessment
plans,

including

physical

therapy

for

neck

and

lower

back

pain

and

electromyography (“EMG”) for additional review. (Id. at 292-95.) Dr. Hurley again
concluded that Middleton was “temporarily disabled pending completion of the
recommended workup,” cautioning Middleton from working until the following
month’s clinic visit and re-evaluation. (Id. at 294-95.)
Dr. Hurley’s progress notes from July through September of 2009 show that
Middleton underwent repeated evaluations and engaged in physical therapy to
address her intermittent neck pain and constant back pain, as well as her frequent

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numbness and tingling in the extremities and pain in the right thigh─symptoms
which were diagnosed as sciatica and arthropathy. (Id. at 286-95.) During this
period, Middleton had pain in the neck and lower back at the levels of four to five on
a scale of ten on average and eight to nine at worst. (Id. at 286.)
Middleton returned to the ER on September 26, 2009, when she fell and
suffered “severe neck pain.” (Id. at 282-85.) She was treated at the ER and she
then continued physical therapy and evaluations the following month for cervical
stenosis. (Id. at 280-82, 285.) She expressed worsened pain in the neck─four out of
ten on average and ten out of ten at worst. (Id. at 280-81, 285.) After Middleton
went through three months of physical therapy, Dr. Hurley reviewed the updated
images on January 14, 2010, and observed disc dehydration at L4-5, dehydration at
L5-S1, and moderate facet arthrosis at L4-5 bilateral and L5-S1 bilateral, but found
normal alignment of the lordotic curve, no disc herniation, stenosis, or nerve root
compression.

(Id. at 276.)

Dr. Hurley recommended home exercise and a pain

management program, and determined that Middleton needed “complete temporary
disability.” (Id.) He opined that further surgery in the neck was not reasonable,
and for Middleton’s “even more problematic” back, he suggested weight reduction or
ESIs. (Id. at 277.) Dr. Hurley noted that recent MRIs showed a degenerated disc in
the neck and arthritis of Middleton’s “‘facet joints’ which may account for her
chronic LBP [lower back pain].”

(Id. at 272.)

This further reinforced his

recommendation that Middleton undergo a pain clinic evaluation for ESIs,

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especially for her facet joints, but again he did not think surgery was an option
because of her arthritic conditions. (Id.)
The record also shows that Middleton suffers from hypertension and
glaucoma with a history of high blood pressure and family history of heart problems
and diabetes. (Id. at 312.) On March 8, 2010, she was again brought to the ER
after suddenly feeling pain in her upper back that radiated across her whole chest.
(Id.) According to her, she felt pressure-like squeezing pain, and she felt dizzy as if
she were going to pass out. (Id. at 312, 350.) Her treadmill nuclear stress test came
back negative for ischemia.

(Id. at 312, 350-52.)

Despite the indications for

precordial pain, the attending physicians, namely Drs. Seif Martini, Saima Haque,
and Mazen Kawji, were doubtful of its cardiac etiology based on the
electrocardiogram (“ECG”), nuclear stress test, acute myocardial infarction profile,
and nuclear perfusion scan for ischemia and myocardial injury. (Id. at 314-17, 336,
359-60.)

The report showed, however, that a number of ECG graphs produced

“[a]bnormal ECG” signals.

(Id. at 337-39.)

Accordingly, Dr. Hurley placed

Middleton’s visit to a pain clinic on hold until further recovery for concern that
though “she did not suffer a heart attack . . . [it] could be related to her spine.” (Id.
at 389, 485.)
Regarding Middleton’s worsening back, hip, and leg problems, Dr. Hurley
opined that he might suggest another surgery if not for her condition with facet
joint arthritis. (Id. at 272, 465.) As an alternative measure, Middleton began to see
pain specialists Dr. Faris Abusharif and Dr. Jose Penaherrera in April 2011. (Id. at

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492-94.) During this period, Middleton complained of low back pain which radiated
to her neck, right leg, and thigh, and described it as aching, sharp pain─shooting
and throbbing with the intensity of five to seven out of ten on the pain scale. (Id.)
Symptoms also included numbness, pins and needles, tingling, and muscle spasms.
(Id.) Leg swelling was also observed. (Id. at 473-74.) Middleton tested positive for
“supine SLR,” “painful lumbar muscles with flexion,” “deep tendon reflex / nerve
stretch” as well as “decreased temperature sensation and decreased to pin prick.”
(Id.) Dr. Abusharif diagnosed Middleton with “lumbar disc protrusion with lumbar
radiculopathy L5-S1 dermatomal distribution on the right side,” recommending a
set of “right L5 and S1 transforaminal [ESIs].” (Id.) Despite undergoing a series of
ESIs for the lower back, however, Middleton continued to report persistent pain in
the lower back, hips, and legs as well as stiff and aching neck. (Id. at 478, 489.) In
June 2011, despite receiving several ESIs, Middleton reported that her low back
pain was “moderate to severe sharp stabbing,” and was aggravated by sitting,
standing, and walking. (Id.) Dr. Sreepathy Kannan conducted a nerve conduction
study in July 2011 but its result was limited because Middleton’s legs were
“severely swollen.” (Id.)
The record also includes the report of a consulting examining physician and
residual functional capacity (“RFC”) assessments completed by two consulting
physicians.

In April 2010 Dr. Sarat Yalamanchili examined Middleton and

reviewed her relevant medical history and evidence in the record. He noted that
Middleton had a stiff neck with limited ranges of motion and limited lumbar

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motions evidenced by a positive lumbar straight leg raise test which was “impaired
because of radicular pain.” (Id. at 397-99.) But he also noted that she had a normal
gait, normal handgrip, and normal muscle strength.

(Id.)

After the review,

Dr. Yalamanchili opined that Middleton’s “range of motion of cervical spine, lumbar
spine was impaired.”

(Id. at 400.)

He further opined that her neck pain was

possibly related to her history of cervical fusion and that the lower back pain was
possibly related to her history of degenerative disc disease. (Id.) In May 2010
Dr. Francis Vincent, an agency consulting physician, conducted an RFC assessment
based on the relevant evidence available and determined that Middleton can
occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk for a total
of about 6 hours, sit for a total of about 6 hours, push and/or pull without limitation,
and occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl.
(Id. at 453-60.) In August 2010 Dr. Richard Bilinsky, another agency consulting
physician, affirmed Dr. Vincent’s conclusions with little explanation. (Id. at 46163.) Middleton’s treating neurosurgeon, Dr. Hurley, on the other hand, opined in
December 2010 that given “her extensive surgical work to her spine and now with
her persistent LBP I would agree that she is unable to [return to work] either full or
part-time and I would support a claim of complete disability.” (Id. at 483.)
B.

Middleton’s Hearing Testimony
During her hearing before the ALJ, Middleton testified that she stopped

working in late 2008 when she no longer was able to perform her duties as a retail
customer representative. (A.R. 57, 65.) She testified that she had not worked since

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December 2008 because of her lower back and neck issues, (id. at 57-58, 65), and
because Dr. Hurley did not want her returning to work, (Id. at 65). Middleton
testified that none of the surgeries or other treatments she had undergone had
relieved her pain and that she has plans to meet with her neurosurgeon to
determine whether another surgery was a viable option. (Id. at 58-59.)
In describing her daily activities, Middleton testified that she lives with her
husband who works at home during the night, from 10:00 p.m. to 6:00 a.m., as a
network server manager. (Id. at 59-60, 64.) Her husband helps take care of the
cats because Middleton has problems bending to feed them. (Id. at 60.) He also
helps with house chores including cooking, cleaning, and the laundry because she
cannot bend over or stand for long. (Id. at 64.) She drives a car but only for about
10 to 15 minutes at a time, and never by herself because side effects of her pain
medications include drowsiness. (Id. at 60-61.) She usually takes pain medications
including Vicodin with codeine on a set schedule at night and also during the day if
she needs it. (Id. at 62.) She also takes a “water pill” for her leg swelling condition.
(Id. at 71.) Middleton’s husband usually does the grocery shopping, and sometimes
she goes with him to the store where she uses a shopping cart to help her walk. (Id.
at 66.) She uses a computer but only for five to ten minutes at a time because she
has trouble sitting for an extended period. (Id. at 65.) After using the computer she
switches to a more comfortable chair such as her recliner to elevate her feet. (Id.)
Middleton testified that if she walks, sits, or lies down for too long at a time, her
pain would get worse. (Id. at 62.) Her legs would also swell and get very large. (Id.

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at 62-63.) To alleviate the condition, she keeps her legs elevated when sitting and
wears compression stockings every day. (Id.)
When asked to describe her pain, Middleton testified that her pain is located
in the lower back and radiates down her right leg. (Id. at 66.) She explained that
the pain is steady but that the intensity waxes and wanes. (Id.) She said weather
also triggers the pain and makes it worse. (Id. at 61, 66.) She also has chest pain,
which she described as a “squeezing feeling” in the chest with pain shooting down
her left arm. (Id. at 81.) She has numbness in her right hand because of the neck
surgery. (Id. at 67.) She said she can sit for 20 minutes to an hour depending on
her erratic back condition and can walk for a block at a time unaided. (Id.) She can
only stand for 10 minutes and was told by her neurosurgeon that she can lift no
more than 20 pounds. (Id.)
C.

The ALJ’s Decision
On October 31, 2011, the ALJ concluded that Middleton is not disabled under

sections 216(i) and 223(d) of the Social Security Act. (A.R. 29.) In so finding, the
ALJ applied the standard five-step sequence, see 20 C.F.R. § 404.1520(a)(4), and at
the first two steps of the framework she found that Middleton has not engaged in
substantial gainful activity since December 26, 2008, and that she suffers from
severe impairments in the form of status post cervical fusion, cervical stenosis with
sciatica, degenerative disc disease of the lumbar spine, coronary artery disease, and
obesity. (Id. at 20.) At step three the ALJ determined that none of Middleton’s
impairments are conclusively disabling because they do not meet or medically equal

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a listing, either individually or in combination. (Id. at 20-21.) The ALJ specifically
ruled out listing 1.04 for disorders of the spine and listing 4.04 for ischemic heart
disease. (Id. at 21.) The ALJ also considered obesity per Social Security Ruling 021p. (Id.)
Next, the ALJ determined that Middleton retains the RFC to perform “light
work” as defined in 20 C.F.R. § 404.1567(b), with the following limitations:
occasionally climb ramps and stairs but never ladders, ropes, or scaffolds;
occasionally balance and stoop but never kneel, crouch, or crawl; and occasionally
work around hazards such as dangerous moving machinery or unprotected heights.
(Id. at 26.) In explaining her analysis, the ALJ reasoned that she found Middleton’s
allegations regarding her level of pain to be less than credible based on what she
perceived as a lack of support in the objective record, general inconsistencies, and
credibility issues.

(Id. at 23-26.)

In particular, the ALJ found Middleton’s

allegations not entirely credible because they were “inconsistent with her work
history, course of treatment, examination findings, and prior statements.” (Id. at
26.)

As for the various medical opinions, the ALJ gave “minimal weight” to

Dr. Hurley’s opinions despite supporting diagnoses from Dr. Penaherrera,
Dr. Koehler, and Dr. Abusharif, among others. (Id. at 27.) On the other hand, the
ALJ placed “great weight” on the state agency consulting physicians’ opinions. (Id.
at 34.)

Based on the consultants’ RFC assessments, the ALJ concluded that

Middleton is able to perform her past relevant work of convenience store manager
and customer service worker as actually performed and generally performed in the

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national economy, as well as other jobs available in the regional economy, such as
cleaner or housekeeper, cashier, or information clerk. (Id. at 27-28.) Accordingly,
the ALJ concluded that Middleton is not disabled. (Id. at 29.)
Analysis
Middleton argues that the ALJ committed errors when finding that her
allegations are not credible, when placing minimal weight on Dr. Hurley’s opinions,
and when determining her RFC. In particular, Middleton argues that the ALJ
failed to adequately explain her credibility findings, improperly weighed the
medical opinions, and failed to consider Middleton’s impairments both individually
and in combination. The government argues that the ALJ properly considered the
medical evidence as a whole and asserts that substantial evidence supports her
RFC analysis, including the credibility determination.
The court applies a deferential standard of review to the ALJ’s decision,
evaluating only whether that decision is free of legal error and supported by
substantial evidence. See 42 U.S.C. § 405(g); Eichstadt v. Astrue, 534 F.3d 663, 665
(7th Cir. 2008).

Substantial evidence means “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation and citation omitted). In determining
whether substantial evidence supports the ALJ’s decision this court considers the
record as a whole but neither substitutes its judgment for the ALJ’s nor reweighs
the evidence. Flener ex rel. Flener v. Barnhart, 361 F.3d 442, 447 (7th Cir. 2004).
Despite this deferential standard, this court will not hesitate to reverse where the

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ALJ failed to adequately discuss the issues or build a “logical bridge” between the
evidence and her conclusions. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir.
2010).
A.

Credibility Analysis
Middleton challenges the ALJ’s credibility analysis, arguing that the ALJ

failed to weigh required factors in discounting her testimony and gave unsupported
reasons for finding her lacking in credibility. Middleton’s challenge to the ALJ’s
credibility analysis presents a fairly close call. On the one hand, this court’s review
of the ALJ’s credibility determination is particularly deferential, allowing reversal
only where the analysis is “patently wrong.” See Schomas, 732 F.3d at 708. On the
other hand, a credibility determination will not stand where the only reasons
supporting it are based on a misreading or mischaracterization of the record. See
Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008) (“Reviewing courts . . . should
rarely disturb an ALJ’s credibility determination, unless that finding is
unreasonable or unsupported.”). In determining credibility an ALJ must consider
several factors, including the claimant’s daily activities, her level of pain or
symptoms, aggravating factors, medication, treatment, and limitations, see 20
C.F.R. § 404.1529(c); SSR 96-7p, 1996 WL 374186, and justify the finding with
specific reasons, see Steele v. Barnhart, 290 F.3d 936, 941-42 (7th Cir. 2002). Here,
Middleton has shown that enough of the ALJ’s reasons for discrediting her
testimony are unsupported or unreasonable so as to warrant a remand for the ALJ
to reassess her credibility.

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In explaining her determination that Middleton is not credible, the ALJ
wrote that her allegations “are inconsistent with her work history, course of
treatment, examination findings, and prior statements.” (A.R. 26.) She also added,
“[t]he claimant has alleged a number of impairments that are not evidence[d] by the
medical record.” (Id.) For example, the ALJ discredited Middleton’s complaint of
“significant swelling of her legs” such that “she would have to wear compression
socks and elevate her legs,” writing that there is “no definite etiology” to explain
such swelling.

(Id.)

The ALJ further explained that “the medical record

demonstrates minimal evidence of symptoms or related limitations.”

(Id.)

But

contrary to that assertion, there are a number of records that acknowledged
Middleton’s swollen legs. In his progress note, Dr. Penaherrera observed lower
extremity edema.

(Id. at 465.)

The record also shows that Middleton was

prescribed “water pills” for her leg-swelling condition. (Id. at 71, 473-74.) Also, in
July 2011 another doctor noted that her “legs were severely swollen” to such an
extent that the swelling interfered with an EMG nerve conduction study. (Id. at
488.) As for the cited lack of clear etiology, such an absence does not necessarily
undermine the symptom’s severity, its impact on functionality, or the credibility of
the purported allegations. See Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir.
2009).
The ALJ also found Middleton’s testimony regarding her extreme pain and
physical limitations on sitting, standing, and walking not credible. In support of
this finding, the ALJ explained that “recent medical records demonstrate conditions

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generally within normal limits and routine treatment.”

(A.R. 26.)

By way of

example, the ALJ described Middleton’s preventive treatment consisting of exercise
and nutrition/weight program, benign uterine fibroids, “low-grade partial thickness”
tears of the hamstring tendons, and concluded that “no further record of significant
treatment or diagnosis” was found. (Id.) But “allegations concerning the intensity
and persistence of pain or other symptoms may not be disregarded solely because
they are not substantiated by objective medical evidence.” SSR 96-7p, 1996 WL
374186, at *6. The regulations explain that “[i]n general, a longitudinal medical
record demonstrating an individual’s attempts to seek medical treatment for pain or
other symptoms and to follow that treatment once it is prescribed lends support to
an individual’s allegations of intense and persistent pain or other symptoms for the
purposes of judging the credibility of the individual’s statements.” SSR 96-7p, 1996
WL 374186, at *7. Also, “[p]ersistent attempts by the individual to obtain relief of
pain or other symptoms, such as by increasing medications, trials of a variety of
treatment modalities in an attempt to find one that works or that does not have side
effects, referrals to specialists, or changing treatment sources may be a strong
indication that the symptoms are a source of distress to the individual and
generally lend support to an individual’s allegations of intense and persistent
symptoms.” Id.
Here, the ALJ’s assertion that Middleton’s medical records are essentially
normal is difficult to square with the extensive evidence documenting her attempts
to get medical relief for her back and neck pain. In particular, in March 2009

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Middleton went to an ER because of sudden neck pain, right arm numbness, lower
back pain and right leg pain. (A.R. 301-03.) Dr. Hurley prescribed her “narcotics,
NSAID, and muscle relaxer” and recommended that she be temporarily restricted
from working until further re-evaluation. (Id. at 301-02.) A month later, Middleton
tested positive on the right side during the FABER and straight leg raise tests. (Id.
at 292-93.)

The imaging scans of Middleton’s cervical and lumbosacral spine

showed facet arthrosis and disc dehydration, for which physicians prescribed her
various assessment plans including physical therapy. (Id. at 292-95.) Dr. Hurley
again diagnosed Middleton as “temporarily disabled pending completion of the
recommended workup,” preventing her from working until the following month’s
clinic visit and re-evaluation. (Id. at 294-95.) Middleton’s neck and back conditions
worsened through 2010 with degenerated disc, disc dehydration, moderate facet
arthrosis, and facet joints, among others.

(Id. at 272, 276-79, 280-81, 285.)

Middleton also demonstrated physical limitations including positive “supine SLR,”
“painful lumbar muscles with flexion,” “deep tendon reflex/ nerve stretch,” and
“decreased temperature sensation and decreased to pin prick.”

(Id.)

Because

Dr. Hurley advised against another surgery, Middleton underwent a series of ESIs
for her lower back in 2011 but found no pain relief. (Id. at 478, 489.) The ALJ
failed to properly consider the relevant factors of Middleton’s treatment history,
how her treatments affected her alleged pain, and her persistent attempts to
alleviate her pain. See SSR 96-7p, 1996 WL 374186; see Kirsch v. Colvin, No. 11 C
9199, 2014 WL 6091915, at *5 (N.D. Ill. Nov. 14, 2014).

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Also, the ALJ pointed out an inconsistency, according to her, that Middleton
“put a hold on her treatment, stating that she had suffered a heart attack,” but
wrote that “[t]he medical record demonstrate[d] no such heart attack.” (A.R. 26-27.)
The record shows that Middleton was brought to the ER for severe chest pain and
dizziness, which later tested negative for ischemia but without identifying their
origin. (Id. at 312.) Middleton later reported to Dr. Hurley that “her cardiologist
told her . . . he believes she did not suffer a heart attack but wonders if her chest
pain could be related to her spine.” (Id. at 485.) Middleton also explained during
the ALJ hearing that someone from the ER told her “it possibly could have been a
small heart attack.”

(Id. at 81.)

Moreover, it appears to be Dr. Hurley, not

Middleton, who put the pain clinic treatments on hold for low back pain out of
concern that though “she did not suffer a heart attack . . . [it] could be related to her
spine.” (Id. 389, 485.) The Seventh Circuit has explained that etiology of extreme
pain often is unknown, so no one can infer from the inability of a physician to
identify the cause of her pain that she is faking it. Villano, 556 F3d at 562-63. In
light of Middleton’s update of her condition to Dr. Hurley, explanations provided
during the hearing, and the unclear etiology of the chest pains found in the record,
the court finds the ALJ’s inference unsupported.
However, the ALJ’s discounting of Middleton’s description of “right hand
numbness due to the neck surgeries,” has adequate support. She explained that
there is “sparse documentation of such a problem” in the record and that Middleton
“demonstrated normal grip strength bilaterally and normal ability to perform fine

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and gross manipulation.”

(A.R. 26.)

Despite a number of objective findings

Middleton points out relating to a mild osteophyte protruding to the right
paracentral region, mild degenerative change in the spine, (id. at 404), “mild” levels
of degenerative change, osteophyte, indentation of the cervical cord, and central
canal narrowing, (id. at 258, 299, 403-04, 415.), it is not clear that any of the
proffered evidence supports a finding of hand numbness.

The ALJ provided a

logical connection between the findings of normal grip strength and gross
manipulation and her conclusion regarding the right hand numbness.
Although this court’s review of a credibility determination is necessarily
deferential, see Jones, 623 F.3d at 1160, and not all of the ALJ’s reasons have to be
fully supported, see Simila v. Astrue, 573 F.3d 503, 517 (7th Cir. 2009), here the
holes in the ALJ’s assessment are significant enough to destroy the logical bridge
between the evidence and her explanation. Accordingly, the court concludes that on
remand the ALJ must reassess Middleton’s credibility and consider how it might
affect her weighing of medical opinions and her RFC determination.
B.

Weighing of Medical Opinions
Next, Middleton challenges the ALJ’s decision to afford “minimal” weight to

the opinion of Middleton’s neurosurgeon, Dr. Hurley, and argues that the ALJ
neglected to consider all the relevant evidence of record.

In particular, she

challenges the ALJ’s decision to give “great weight” to the opinions of agency
physicians Dr. Vincent and Dr. Bilinsky, neither of whom ever examined Middleton,
while discounting the opinions of her treating physicians. (A.R. 453-63.) A treating

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physician’s medical opinion is entitled to controlling weight if it is well supported
and “not inconsistent with the other substantial evidence” in the record. 20 C.F.R.
§ 404.1527(c)(2); Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008). Even if the
treating physician’s opinions are not entitled to controlling weight, they may be due
substantial weight depending on how the ALJ weighs a number of regulatory
factors, including the longevity and frequency of the treating relationship, and the
supportability and consistency of the physician’s opinions.

See 20 C.F.R.

§ 404.1527(c)(2). An ALJ is entitled to discount a treating source’s opinion if it is
either unsupported by medically acceptable diagnostic techniques or is inconsistent
with other substantial evidence. Id.; see also Ketelboeter v. Astrue, 550 F.3d 620,
625 (7th Cir. 2008). These factors are designed to strike a balance between the
benefit that derives from a treating physician’s ability to observe a claimant over an
extended period and the danger that the same physician will be too quick to find
disability out of loyalty to, or sympathy for, the patient. See Punzio v. Astrue, 630
F.3d 704, 713 (7th Cir. 2011).
Here, because there are differences of opinion between the treating
neurosurgeon, Dr. Hurley, and the agency consultants, (id. at 453-63, 483-84),
Dr. Hurley’s opinions are not entitled to controlling weight, see Larson v. Astrue,
615 F.3d 744, 749 (7th Cir. 2010). But before discounting Dr. Hurley’s opinions, the
ALJ was required to consider the length of his treating relationship, the frequency
of examination, his specialization, and whether his opinions are supported by and
consistent with the record as a whole. See 20 C.F.R. § 404.1527(c); Moss v. Astrue,

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555 F.3d 556, 561 (7th Cir. 2009).

Dr. Hurley performed two fusion surgeries,

evaluated Middleton’s progress, prescribed medications, made a referral to a pain
clinic, collaborated with physicians of different expertise, and provided medical
assessments and plans since 2004. (A.R. 192, 258-60, 276-77, 376, 394-97, 436-39.)
Based on this treating relationship, he opined that Middleton’s persistent low back
pain rendered her unable to work. (Id. at 483.) Absent from the ALJ’s decision to
give this opinion minimal weight, however, is any discussion of the length and
frequency of his treating relationship with Middleton, his specialization as a
neurosurgeon, or his knowledge of Middleton’s impairments.
§ 404.1527(c).

See 20 C.F.R.

That absence is particularly concerning because Dr. Hurley is a

specialist in neurosurgery who treated Middleton over a number of years, including
performing the two cervical fusion surgeries for the very conditions Middleton
claims are disabling her.

(A.R. 192, 258-60, 276-77, 376, 394-97, 436-39.)

Dr. Hurley regularly evaluated, diagnosed, and recommended plans of treatment
and therapy for Middleton, especially in the years 2004-2005 and 2009-2010. (Id. at
272-303, 427-51.) Had she considered these factors explicitly, the ALJ might have
concluded that Dr. Hurley’s medical opinion was entitled to more than the “minimal
weight” she assigned it. (Id. at 34.)
Instead of analyzing Dr. Hurley’s opinion in the context of the required
factors, the ALJ perfunctorily wrote that Dr. Hurley’s assessment that Middleton
was “unable to return to work either full or part-time” “due to the claimant’s
extensive surgical work to her cervical spine and her persistent low back pain” was

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“conclusory and poorly supported” as well as “inconsistent” with the medical
record.” (Id. at 27.) Although a physician’s opinion regarding the claimant’s ability
to work is not entitled to any “special significance,” the ALJ is required to consider
it and to review all of the medical findings or other evidence supporting the
physician’s opinion. 20 C.F.R. § 404.1527(d)(1), (3); Garcia v. Colvin, 741 F.3d 758,
760 (7th Cir. 2013). The ALJ does not make clear in her decision whether she at
least considered Dr. Hurley’s opinion in view of all the medical findings, other
physicians’ opinions, and other evidence supporting his opinion.

Nor does she

explain why Dr. Hurley’s finding that Middleton’s back impairments limit her
ability to work is inconsistent with the extensive record of interventions she
underwent in an attempt to relieve her back pain.

For example, Dr. Hurley

examined Middleton and observed disc-related issues including osteophyte complex
with mild indentation of the cervical cord and moderate neuroforaminal narrowing
in her neck, (A.R. 258, 415-16), lumbar disc degeneration, Schmorl’s nodes,
moderate arthropathy and hypertrophy, uterine fibroids, and hamstring tears in
her hips and lower back, (id. at 259-61, 273, 479-82). Dr. Hurley then prescribed
narcotic pain medications and referred Middleton to Dr. Abusharif for ESIs for
additional pain relief. (Id. at 62, 272, 290, 447, 493-94.) Dr. Hurley’s evaluations
and treatments were not only based on Middleton’s self-reports but also based on
the diagnosis made by Drs. Penaherrera, Koehler, Abusharif, Haque, Kawji, among
others. The ALJ’s cursory and blanket assertion about Dr. Hurley’s opinion lacks
record support.

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The government defends the ALJ’s treatment of Dr. Hurley’s opinion by
arguing that she was not required to give an exhaustive factor-by-factor analysis.
True enough, but the ALJ must explain the weight given to the treating physician’s
opinion with enough specificity “to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons
for that weight.” See SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996). She fails to
do so here. Accordingly, there is no logical bridge between the evidence and the
ALJ’s determination that Dr. Hurley’s opinion is entitled to only minimal weight.
See Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007); Skarbek v. Barnhart, 390
F.3d 500, 503 (7th Cir. 2004).
Moreover, Middleton points out that the agency consulting physicians,
Drs. Vincent and Bilinsky, on whose opinions the ALJ placed “great weight,”
provided their opinions in May and August of 2010─12 to 15 months before the
ALJ’s hearing and decision. (R. 22, Pl. Mem. at 10.) Middleton argues that the
consulting physicians did not have the opportunity to review up-to-date medical
records generated during the 12 to 15 months leading up to the ALJ’s decision. The
relevant records include pain specialist Dr. Abusharif’s ESI treatments and
assessments, Dr. Kannan’s EMG report regarding nerve conduction study and
severe swollen legs, Dr. Deutsch’s reports concerning rhizotomy or facet injections,
and Drs. Hurley, Penaherrera, and Koehler’s updated progress notes. (A.R. at 46063, 495-502.)

As Middleton asserts, the consulting physicians did not have the

benefit of reviewing all treatment records and it is not unreasonable to believe that

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the updated information may have affected their opinions. Although an ALJ may
give weight to consultative opinions, here, the ALJ did not adequately explain why
the reviewers’ opinions were entitled to greater weight than those of the treating
physicians. See Campbell v. Astrue, 627 F.3d 299, 309 (7th Cir. 2010). Given the
deficiencies in the ALJ’s reasoning, the ALJ should elaborate on her conclusions on
remand.
C.

Combined Effect of Impairments
Because the court remands the ALJ’s findings on Middleton’s credibility and

the weighing of medical opinions, and an RFC determination is largely dependent
on those findings, the issue raised by Middleton regarding the RFC determination
will be addressed briefly.

Middleton argues that the ALJ’s discussion of her

combination of impairments was inadequate. Specifically, Middleton contends that
the ALJ addressed the impairments individually but failed to consider the
cumulative effects of all relevant impairments, including Middleton’s chronic neck
pain, lower back pain, leg pain, chest pain, leg swelling, pain radiating to her
extremities, and obesity. When a claimant alleges a number of impairments, the
ALJ must consider “the aggregate effects of the entire constellation of impairments.”
Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003) (emphasis in original).
It is well established in the Seventh Circuit that an ALJ needs to consider the
applicant’s medical situation as a whole. Barrett v. Barnhart, 355 F.3d 1065, 1068
(7th Cir. 2004) (citations omitted). “Even if each problem assessed separately were

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less serious than the evidence indicates, the combination of them might well be
totally disabling.” Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011).
Here, Middleton offers no guidance to the court about how her impairments
ought to have been considered “in combination” other than to merely state that “the
ALJ failed to address [Middleton’s] impairments in combination” and that “the ALJ
sprinkled the words ‘in combination’ liberally throughout her opinion.” (R. 33, Pl.’s
Reply at 9.)

Middleton enumerates her individual impairments and argues that

their cumulative effects were not adequately explained by the ALJ. (R. 22, Pl. at
13-14.) But the burden lies with Middleton to demonstrate her disability. See 42
U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to be under a disability
unless he furnishes such medical and other evidence of the existence thereof as the
Commissioner of Social Security may require.”); Eichstadt v. Astrue, 534 F.3d 663,
668 (7th Cir. 2008) (“The claimant bears the burden of producing medical evidence
that supports her claims of disability.”). In the absence of any specificity, legal
citations, or evidence, Middleton makes only an underdeveloped argument, which is
inadequate to overturn the decision of the ALJ. See Hunt v. Astrue, No. 10 CV
2874, 2012 WL 1044744, at *8 (N.D. Ill. Mar. 26, 2012).
But even if Middleton had developed this argument, it also fails on the merits
because

the

ALJ

reviewed

Middleton’s

impairments,

“individually

or

in

combination,” at step two and gave “careful consideration of the entire record” by
“consider[ing] all symptoms” at step four, before concluding that Middleton was not
disabled. (A.R. 21-22.) The ALJ’s review of impairments is further evidenced by

26

her discussion that “the stress to [Middleton’s] spine secondary to her weight might
be a factor of the lower back degeneration[,]” (id. at 26), and that Middleton does not
“manifest clinical signs and findings that meet the specific criteria of any of the
listings, even after giving consideration to the claimant’s obesity[,]” (id. at 21). The
government also cites to legal authority which explains that “[t]he presumption of
regularity supports the official acts of public officers, and, in the absence of clear
evidence to the contrary, courts presume that they have properly discharged their
official duties.” United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926). The
court agrees with the proposition that the ALJ deserves due deference on her
factual determinations. In light of the record, the court finds sufficient evidence to
show that the ALJ accounted for all of Middleton’s symptoms in the aggregate. See
Lott v. Colvin, 541 Fed. App’x. 702, 706 (7th Cir. 2013) (noting that “we only require
that the ALJ acknowledge having considered the aggregate effect, as long as the
ALJ discusses each symptom”). But because the court remands the case for issues
relating to Middleton’s credibility and weighing of medical opinions, the ALJ should
again consider the cumulative effects of Middleton’s impairments on remand and
discuss their impact, along with her renewed assessment of Middleton’s credibility
and medical opinions, on her RFC determination.

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Conclusion
For the foregoing reasons, Middleton’s motion is granted, the Commissioner’s
motion is denied, and the case is remanded for further proceedings.
ENTER:

____________________________________
Young B. Kim
United States Magistrate Judge

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