Omar v. Saul

Filing 41

MEMORANDUM Opinion and Order. Signed by the Honorable Gabriel A. Fuentes on 1/11/2022. Mailed notice.(jj, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WAFA O.,
Plaintiff,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security, 1
Defendant.

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No. 19 C 3455
Magistrate Judge Gabriel A. Fuentes

MEMORANDUM OPINION AND ORDER 2
Before the Court are Plaintiff Wafa O.’s 3 motion for summary judgment seeking remand
of the final decision of the Commissioner denying her Disability Insurance Benefits (“DIB”) (D.E.
19) and the Commissioner’s cross-motion to affirm the decision. (D.E. 27.)

The Court substitutes Kilolo Kijakazi for her predecessor, Andrew Saul, as the proper defendant in this
action pursuant to Federal Rule of Civil Procedure 25(d) (a public officer’s successor is automatically
substituted as a party).

1

On July 29, 2019, by consent of the parties and pursuant to 28 U.S.C. § 636(c) and Local Rule 73.1, this
case was assigned to a United States Magistrate Judge for all proceedings, including entry of final judgment.
(D.E. 9.) On August 22, 2019, this case was reassigned to this Court for all proceedings. (D.E. 13.)

2

The Court in this opinion is referring to Plaintiff by her first name and first initial of her last name in
compliance with Internal Operating Procedure No. 22 of this Court. IOP 22 presumably is intended to
protect the privacy of plaintiffs who bring matters in this Court seeking judicial review under the Social
Security Act. The Court notes that suppressing the names of litigants is an extraordinary step ordinarily
reserved for protecting the identities of children, sexual assault victims, and other particularly vulnerable
parties. Doe v. Vill. of Deerfield, 819 F.3d 372, 377 (7th Cir. 2016). Allowing a litigant to proceed
anonymously “runs contrary to the rights of the public to have open judicial proceedings and to know who
is using court facilities and procedures funded by public taxes.” Id. A party wishing to proceed anonymously
“must demonstrate ‘exceptional circumstances’ that outweigh both the public policy in favor of identified
parties and the prejudice to the opposing party that would result from anonymity.” Id., citing Doe v. Blue
Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir. 1997). Under IOP 22, both parties are
absolved of making such a showing, and it is not clear whether any party could make that showing in this
matter. In any event, the Court is abiding by IOP 22 subject to the Court’s concerns as stated.

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BACKGROUND
I.

Procedural History
Plaintiff applied for DIB in November 2015, alleging a disability onset date of January 1,

2013, when she was 53 years old. (R. 160.) Her date last insured (“DLI”) was September 30, 2014. 4
(R. 17.) On December 20, 2017, Plaintiff received a hearing before an Administrative Law Judge
(“ALJ”) (R. 29), and on April 18, 2018, the ALJ issued a written opinion finding Plaintiff not
disabled. (R. 12.) On March 20, 2019, the Appeals Council denied Plaintiff’s request for review
(R. 1), making the ALJ’s decision the final decision of the Commissioner. Butler v. Kijakazi, 4
F.4th 498, 500 (7th Cir. 2021).
II.

Administrative Record 5
In October 2012, less than three months prior to her alleged onset date, Plaintiff underwent

arthroscopic surgery on her right knee (debridement of the medial meniscus (removal of
degenerative tearing in cartilage on inner side of knee)). (R. 324.) That month, Plaintiff also
underwent left carpal tunnel release surgery, and in November, a physician noted Plaintiff also had
tingling, numbness and pain in her right hand. (R. 323.) In December 2012, Plaintiff reported
increased right knee pain and had a minimally antalgic gait, mild tenderness and mild to moderate
swelling, but overall good range of motion (“ROM”). (R. 320.)
In July 2013, after complaining of chronic left knee pain and the inability to bend her knee,
Plaintiff underwent x-rays of both knees, which showed degenerative joint space narrowing. (R.
306.) Plaintiff continued to complain to her doctors of pain in both knees in August 2013. (R. 268.)

4

To obtain DIB, a claimant must establish that he or she became disabled before their date last insured.
Kaplarevic v. Saul, 3 F.4th 940, 942 (7th Cir. 2021).

5

As Plaintiff does not argue that the ALJ erred in determining that her alleged mental impairment was not
severe, the Court addresses only Plaintiff’s alleged physical impairments.

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On April 30, 2014, Plaintiff met with rheumatologist Rediet Kokebie, M.D., to address her
complaints of joint pain in her shoulders, knees, neck and hands, including continued pain and
stiffness in her right knee even after surgery and a steroid injection. (R. 1012.) On examination,
Plaintiff exhibited crepitus (grating sound) and full ROM in both knees. (R. 1013.) She was
diagnosed with generalized osteoarthritis and prescribed Cymbalta. 6 (Id.) X-rays showed Plaintiff
had joint space narrowing in her knees, worse on the right, and medial subluxation of the right
distal femur (dislocation of the bone just above the knee joint). (Id.)
On June 11, 2014, Dr. Kokebie gave Plaintiff steroid injections to address her bilateral knee
pain, despite minimal relief with injections in the past. (R. 1011.) On August 6, she returned to Dr.
Kokebie, complaining of continued hand, wrist and bilateral knee pain. (R. 1010.) Medicaid did
not approve Cymbalta, so Dr. Kokebie prescribed hydroxychloroquine (“HCQ”), 7 topical
analgesics and oxaprozin. 8 (Id.) Examination again showed crepitus and full ROM. (Id.) On
September 10, Plaintiff told Dr. Kokebie she continued to have significant bilateral knee pain. (R.
1008.) Dr. Kokebie referred her for an MRI of her knees and continued to prescribe HCQ because
NSAIDs (non-steroidal anti-inflammatory drugs) upset Plaintiff’s stomach. 9 (Id.)

6

Cymbalta is used to treat depression as well as ongoing bone or muscle pain from osteoarthritis.
https://medlineplus.gov/druginfo/meds/a604030.html.
Hydroxychloroquine is an antimalarial drug that can be used to treat rheumatoid arthritis in patients whose
symptoms have not improved with other treatments. https://medlineplus.gov/druginfo/meds/a601240.html.

7

8

“Oxaprozin is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis (arthritis
caused by a breakdown of the lining of the joints) and rheumatoid arthritis (arthritis caused by swelling of
the lining of the joints).” https://medlineplus.gov/druginfo/meds/a693002.html.

NSAIDs are “a common treatment for chronic (long-term) health problems, such as arthritis (rheumatoid
arthritis, osteoarthritis, and others) and lupus.” https://www.rheumatology.org/I-Am-A/PatientCaregiver/Treatments/NSAIDs.
9

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On September 24, 2014, Plaintiff met with orthopedic surgeon Craig McAsey, M.D. She
reported having no relief from knee pain despite surgery, and minimal relief from physical therapy
(“PT”), but Aleve gave her some relief; she rated her pain that day as a five out of 10 (R. 453.) On
examination, she had full ROM and motor strength, but displayed an antalgic gait favoring both
lower extremities, medial pseudolaxity (laxity in the knee joint from loss of cartilage) and
tenderness in the medial joint and patellofemoral joint (front of knee). (Id.) Dr. McAsey wrote that
radiographs from that day showed Plaintiff had osteoarthritis “bordering on grade 3” (on a fourpoint scale, with four being the most severe), bone spurs, approximately 50% cartilage loss in the
medial joint space, and subchondral sclerosis (thickening of bone) with subluxation (partial
dislocation) in both knees. (Id.) He advised Plaintiff to obtain a repeat set of injections “to confirm
that her knee is the sole source of her pain [as] she also does have some outside complaints of
radicular symptoms into the feet bilaterally.” (R. 454.) Dr. McAsey prescribed Arthrotec (NSAID
used to relieve pain and swelling). (Id.)
Plaintiff attended PT on September 15 and 22, 2014, reporting increased left knee pain,
and on September 29, she reported pain shooting up from her feet to her buttocks at night. (R.
368.) At PT on October 1 and 6, just after her September 30 DLI, Plaintiff reported that she
continued to have shooting pain. (Id.) The therapist noted she had limited knee flexion and
extension, tenderness to palpation and crepitus bilaterally, and wrote that Plaintiff showed “mild
improvement in bilateral knee pain through 6 therapy sessions.” (Id.)
On October 6, 2014, Plaintiff met with internal medicine physician Kevin Polsley, M.D.
(R. 368-69.) She reported that taking Arthrotec was “helping a little, but she was also having
“problems with dropping things,” where “all of a sudden [she felt] weak.” (R. 369-70.) On October
13, Plaintiff told her physical therapist that she had canceled her last appointment because her

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knees were too painful; she was having difficulty walking and standing. (R. 368.) At PT on October
15, Plaintiff rated her bilateral knee pain as a seven out of 10; although she reported “improved”
bilateral knee pain after her PT session, her knee pain was still at a level of six to seven out of 10
at her next appointment on October 20, and she reported difficulty walking and standing on her
right leg. (R. 362.) On October 22, Dr. McAsey found Plaintiff’s physical examination unchanged
from her last visit and injected both of her knees with a corticosteroid. (R. 422.)
On November 20, 2014, Plaintiff followed up with Dr. Polsley and reported hand pain, leg
pain, head pain, numbness and tingling. (R. 349-50.) Dr. Polsley noted Plaintiff walked with a
limp. (R. 350.) On December 10, Plaintiff told Dr. Kokebie she was “doing a little better” after the
knee injections. (R. 1007.) Dr. Kokebie prescribed topical analgesics for Plaintiff’s hand pain and
acupuncture and medical massage for her other aches and pains. (Id.)
On January 16, 2015, Plaintiff met with internal medicine physician Sara Doss, M.D.,
complaining of constant fatigue and pain in her legs from hips to feet, as well as headaches and
tingling in her toes. (R. 344-45.) Plaintiff was very depressed, so Dr. Doss increased her dose of
antidepressants. (Id.) On January 30, Plaintiff had an initial consultation with neurologist Marisa
McGinley, M.D., to whom she described head pressure and balance problems, including dropping
things and wobbling when she walked, as well as chronic knee and neck pain that radiated down
her arms and legs. (R. 3053.) Dr. McGinley wrote that Plaintiff’s neurological exam was
“remarkable for mild sensory deficits in her fingertips and great toes, along with instability with
Romberg [balance test], but was otherwise [normal].” (R. 3056.). Dr. McGinley prescribed
migraine medication and opined that the “[e]tiology of unsteadiness/dropping things [was] less
clear at [that] time, but include[d] orthopedics problems (ex knee pain) combined with previous
carpal tunnel [was] most likely, but [] underlying cervical disc disease [was] also possible.” (Id.)

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On February 13, 2015, an MRI of Plaintiff’s spine showed moderate to severe neural
foraminal stenosis (compression/narrowing of the spaces) of the lumbar spine (lower back) at the
L5-S1 level and severe central spinal stenosis and cord deformity in the cervical spine (neck) at
the C5-C6 level. (R. 503-05.) On February 16, Dr. Doss prescribed Flexeril (muscle relaxant) and
Norco as needed for pain and told Plaintiff to restart diclofenac (topical gel to relieve arthritis
pain). (R. 389.) On February 23, Plaintiff met with neurosurgeon Beejal Amin, M.D.; he
recommended anterior cervical discectomy and fusion (“ACDF”) surgery (removal of damaged
portion of discs and fusion together of the vertebrae) at the C5-6 level. (R. 492-94.) On May 4,
Plaintiff met with neurosurgeon Ricardo Fontes, M.D., who agreed that “fusion would be the only
reasonable surgical option” for Plaintiff’s cervical and lumbar problems; he prescribed PT and
gabapentin (pain reliever, anticonvulsant) for pain. (R. 2050-53.) On May 27, Plaintiff told pain
management specialist Reem Bitar, M.D., that her knee, wrist and neck pain were at a nine out of
10. (R. 2041.) Dr. Bitar observed Plaintiff had full ROM but walked with a limp; he advised her
to have neck surgery as soon as possible and prescribed Norco, gabapentin and Naproxen
(NSAID). (R. 2042.) On June 18, neurologist Herbert Engelhard III, M.D., performed ACDF
surgery at the C5-6 level of Plaintiff’s neck. (R. 2723.)
On June 8, 2015, x-rays of Plaintiff’s knees showed severe narrowing on the right and
“almost” severe issues on the left (R. 2733-34), and she rated her pain at a 10 out of 10. (R. 2777.)
Orthopedic surgeon Bruce Dolitsky, M.D., performed total knee replacement of Plaintiff’s left
knee on August 25 (R. 1825-26) and of Plaintiff’s right knee on November 24. (R. 540, 557.)
In March 2016, a non-examining state agency reviewing physician opined that despite
having severe major joint dysfunction and unspecified arthropathies, Plaintiff could perform
medium work with frequent pushing and pulling before her DLI of September 30, 2014. (R. 94-

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97.) On reconsideration, another non-examining state agency doctor opined Plaintiff was limited
to light work before her DLI. (R. 85-86.)
III.

Evidentiary Hearing Before the ALJ
On December 20, 2017, Plaintiff testified at a hearing that she had stopped working as a

hairdresser in 2013 due to pain in her hands and knees. (R. 45.) In 2013 and 2014, she was able to
cook and clean around the house, but those activities took her a long time because she had to stop
periodically to rest to ease the pain in her neck, hands, back and knees. (R. 51-53, 56-57.) Her trips
to the grocery store at the time were limited because she would leave when her legs started hurting
or became wobbly. (R. 58.) In 2017, she traveled overseas for the first time since 1995. (R. 56.)
The vocational expert testified that Plaintiff’s work as a hair stylist involved frequent to constant
handling, fingering and standing, and that being off task more than 10 to 12 percent of the workday
would be work preclusive. (R. 70-73.)
IV.

ALJ’s Decision
On April 18, 2018, the ALJ issued a written opinion finding Plaintiff was not disabled

within the meaning of the Social Security Act from her alleged onset date of January 1, 2013
through her DLI of September 30, 2014. (R. 15.) The ALJ found that through her DLI, Plaintiff
had the severe impairments of “dysfunction – major joints and other [] unspecified arthropathies.”
(R. 17.) The ALJ recognized that Plaintiff underwent carpal tunnel release surgery but noted that
an electromyography of her upper extremities was normal. (R. 18, citing R. 1301 (June 2017
EMG).) The ALJ also acknowledged Plaintiff underwent back and neck surgery but found “the
medical records documented no functional limitations from her past surgery.” (R. 18, citing R.
1376 and 1380 (November 2016 lumbar surgery at L5).) The ALJ concluded that Plaintiff’s
impairments alone or in combination did not meet or medically equal the severity of a listing,

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finding that Plaintiff could ambulate and perform fine and gross movements “effectively.” (R. 1819.) The ALJ assigned Plaintiff a residual functional capacity (“RFC”) (through her DLI) to
perform light work with frequent operation of foot controls, handling and fingering; occasional
climbing of ramps/stairs, kneeling, crouching or crawling; and never climbing ladders, ropes, or
scaffolds. (R. 19.) The ALJ allowed for Plaintiff to be off task 10% of the day. (Id.)
The ALJ found it “notabl[e]” that “there are no medical records from the alleged onset date
thru June 2013,” but acknowledged that in July 2013 knee x-rays showed degenerative joint space
narrowing, in April 2014 Dr. Kokebie diagnosed Plaintiff with osteoarthritis, and in June 2014
Plaintiff received steroid injections. (R. 20.) The ALJ also recognized that Plaintiff reported pain
in her shoulder, neck, hands and knees from April through September 2014, but emphasized that
physical examinations “showed crepitus but full range of motion of all joints.” (Id.) The ALJ next
reviewed the post-DLI record, noting that Plaintiff presented to Dr. McGinley with a “normal”
examination showing full strength and normal reflexes in her extremities. (Id.)
The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of her alleged symptoms were “not supported by the medical records,” and that the
state agency opinion limiting Plaintiff to light work was entitled to “great weight since it is
supported by the medical records.” (R. 21-22.) 10 In support of these conclusions, the ALJ stated:
•

A September 2014 report showed Plaintiff had full weight bearing bilaterally with no use
of an assistive device. (R. 21, citing to Exhibit 29F (R. 3060-74), a December 2017 postoperative report on surgery to Plaintiff’s left little and middle fingers.)

•

Plaintiff “report[ed] no high level pain,” because she rated her pain as two to six on a 10
point scale. (R. 21, citing to Exhibit 29F (the December 2017 report).)

The ALJ gave “little weight” to the RFC opinion of a physical therapist who treated Plaintiff in 2017, as
it was “not supported by the record as a whole” and physical therapists are not acceptable medical sources
under the Social Security regulations. (R. 22, citing R. 974-78.) The ALJ stated that Plaintiff had not been
“totally compliant” with PT in 2017 (R. 22), but the Court notes that July 2017 PT notes indicate Plaintiff
cancelled “because she is in such horrible pain and is waiting to see her primary care.” (R. 992-94.)

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•

Plaintiff “had not even seen a neurologist or rheumatologist” before her DLI and a
neurological examination a few months after the DLI “indicates that she could likely do
light work.” (R. 21.)

•

“[I]n October 2014, she reported significant improvement in bilateral knee pain with
injections. She reported walking with much less pain. In December 2014, she also reported
that she felt a little better after a recent shot.” (R. 22.) (The ALJ gave no citation to the
record for these statements.)

•

“[A]t the hearing, [Plaintiff] popped up out of her chair before we even started,” and she
“reported that she took a trip recently to the Middle East.” (R. 21-22.)

•

“The claimant has purported performing a good range of activities of daily living. In a
function report, she reported that she did laundry, dishes, and housework.” (R. 22, citing
R. 213.)

Furthermore, the ALJ highlighted that although Plaintiff started to complain about dropping things
near her DLI, “there [was] no new diagnosis at that point,” and an “MRI of the cervical spine does
show some issues, but there was no EMG at that point.” (R. 21-22.) Ultimately, the ALJ found that
through her DLI, Plaintiff was capable of performing her past relevant work as a hairdresser, both
as actually (light to medium level) and generally (light level) performed. (R. 23.)
ANALYSIS
Plaintiff argues that the Court should reverse and remand the ALJ’s decision because it
was not supported by substantial evidence. The Court agrees.
I.

Legal Standard
An ALJ’s decision will be affirmed if it was supported by “substantial evidence,” which

means “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, -- U.S. --, 139 S. Ct. 1148, 1154 (2019). “Under the substantialevidence standard, a court looks to an existing administrative record and asks whether it contains
sufficient evidence to support the agency’s factual determinations. . . . [T]he threshold for such
evidentiary sufficiency is not high.” Id. In making this determination, the Court may “not reweigh

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the evidence, resolve debatable evidentiary conflicts, determine credibility, or substitute our
judgment for the ALJ’s determination.” Gedatus v. Saul, 994 F.3d 893, 900 (7th Cir. 2021).
II.

The ALJ’s Decision Was Based on Factual Errors
As an initial matter, it is axiomatic that an ALJ decision that is based on “serious factual

mistakes” or “a blatant factual error” is not supported by substantial evidence. See Beardsley v.
Colvin, 758 F.3d 834, 837 (7th Cir. 2014); Thomas v. Colvin, 745 F.3d 802, 806-07 (7th Cir. 2014).
See also Pierce v. Colvin, 739 F.3d 1046, 1051 (7th Cir. 2014) (reversing where “ALJ’s credibility
finding misstated some important evidence and misunderstood the import of other evidence” and
elsewhere “ALJ made a basic factual error”); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006)
(ALJ’s findings are not entitled to deference if they are “based on errors of fact or logic”).
The ALJ’s decision here was based on multiple factual errors, many of which could have
been outcome determinative, and therefore, not harmless. Most significantly, the ALJ stated that
Plaintiff “had not even seen a neurologist or rheumatologist” before her DLI of September 30,
2014. (R. 21.) But Plaintiff first met with her treating rheumatologist, Dr. Kokebie, on April 30,
2014, to address pain in her shoulder, knees, neck and hands, and she continued to do so over the
next several months before her DLI: on June 11, Plaintiff’s knee pain was so severe that Dr.
Kokebie gave her steroid injections; on August 6, Plaintiff continued to have hand, wrist and
bilateral knee pain, and Dr. Kokebie prescribed HCQ, topical analgesics and oxaprozin; and on
September 10, Plaintiff told Dr. Kokebie she was still having significant bilateral knee pain. (R.
1008-12.) The ALJ’s failure to understand that Plaintiff repeatedly saw a specialist for her pain
before her DLI requires remand.

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Next, the ALJ erroneously stated that a neurological examination soon after the DLI
“indicates that [Plaintiff] could likely do light work.” (R. 20.) 11 The Court presumes the ALJ was
referring to Dr. McGinley’s January 2015 examination because that is the only neurological
examination the ALJ references in the opinion, and all the other neurologists who examined
Plaintiff recommended she undergo surgery to address her severe pain. (See R. 492-94 (Dr. Amin
in February 2015), R. 2050-53 (Dr. Fontes in May 2015), R. 2723 (Dr. Engelhard performed neck
surgery in June 2015).) However, even as to Dr. McGinley’s examination, the ALJ’s description
of it as “indicat[ing] that [Plaintiff] could likely do light work” is simply wrong. Dr. McGinley
found Plaintiff’s examination “remarkable for mild sensory deficits in fingertips and great toes,
along with instability with Romberg, but was otherwise [normal].” (R. 3053-56.). Dr. McGinley
did not give any opinion on Plaintiff’s functional abilities. To the contrary, Dr. McGinley noted
that the “[e]tiology of unsteadiness/dropping things [was] less clear at [that] time, but include[d]
orthopedics problems (ex knee pain) combined with previous carpal tunnel . . . most likely, but []
underlying cervical disc disease [was] also possible.” (Id.) No reasonable person could read Dr.
McGinley’s report as opining that Plaintiff could likely do light work. See, e.g., Hardy v. Berryhill,
908 F.3d 309, 312 (7th Cir. 2018) (reversing ALJ decision where ALJ stated that physician’s notes
reflected “‘essentially normal physical exams,’ but it is not clear from her discussion what exams
she is relying on to make that determination,” and “it is not clear how these findings undermine
[Plaintiff’s] claim of disability”).
III.

The ALJ’s Decision Mischaracterized Evidence
The ALJ’s decision also contains potentially outcome-determinative mischaracterizations

of the evidence. Where “the ALJ’s description [of the claimant’s symptoms] conflicts with many
“Medical evidence from after the alleged disability period is relevant to the extent it may reflect the
claimant’s impairments on a prior date.” Jones v. Saul, 823 F. App’x 434, 439 (7th Cir. 2020).

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other treatment notes” and the ALJ’s conclusions are “contrary to the evidentiary record,” remand
is required. Lambert v. Berryhill, 896 F.3d 768, 777 (7th Cir. 2018). Here, the ALJ stated that
Plaintiff had “significant improvement in bilateral knee pain with injections” and “reported
walking with much less pain” (R. 22), but these statements conflict with the evidentiary record.
The record shows that on October 6, 2014, Plaintiff’s physical therapist noted she had limited knee
flexion and extension and tenderness to palpation, and that she showed “mild improvement in
bilateral knee pain through 6 therapy sessions.” (R. 368 (emphasis added).) A few days later,
Plaintiff canceled a PT session because she was having trouble walking and standing due to knee
pain. (Id.) Even when she reported “improved” bilateral knee pain on October 15, Plaintiff
continued to rate her pain as a seven out of 10 and reported difficulty walking and standing. (R.
362.) Furthermore, Plaintiff told Dr. Kokebie she was only “doing a little better” after knee
injections. (R. 1007 (emphasis added).)
In addition, the ALJ’s description of Plaintiff as experiencing “significant” improvement
in her pain contradicts the evidentiary record as a whole because “the medical records actually
show that [] treatments were ineffective at either consistently or decisively improving [Plaintiff’s]
chronic pain or resolving [her] functional limitations.” Lambert, 896 F.3d at 777. See also
Gerstner v. Berryhill, 879 F.3d 257, 262 (7th Cir. 2018) (Plaintiff’s “unchanged diagnoses and the
medication adjustments belie the conclusion that [the claimant’s condition] had improved”);
Reinaas v. Saul, 953 F.3d 461, 466 (7th Cir. 2020) (reversing and remanding where ALJ failed to
acknowledge that claimant continued to report pain despite “progress” in PT); Baldwin v.
Berryhill, 746 F. App’x 580, 584 (7th Cir. 2018) (“intermittent relief” does not show that a
claimant is able to work). Indeed, non-surgical treatment failed; Plaintiff ultimately underwent
neck surgery, bilateral knee surgery, lumbar surgery and carpal tunnel surgery.

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The ALJ opinion also misleadingly stated that Plaintiff “report[ed] no high level pain,”
because she rated her pain as two to six on a 10 point scale. (R. 21.) However, the ALJ points to
nothing relevant to support this characterization of Plaintiff’s pain, citing only to a December 2017
report after surgery on Plaintiff’s hand, while the evidence from 2014 and 2015 paints a different
picture, with Plaintiff complaining of pain at a level of six or above. See Ray v. Berryhill, 915 F.3d
486, 490 (7th Cir. 2019) (reversing and remanding where ALJ cited “irrelevant” treatment records
to support her determination that claimant’s pain was not as limiting as he alleged).
IV.

The ALJ’s Decision Cherry-Picked Evidence
It is also well-settled that the Court cannot uphold an ALJ determination that “ignores

entire swaths of [evidence] that point toward a finding of disability.” Lothridge v. Saul, 984 F.3d
1227, 1233-34 (7th Cir. 2021). Put another way, an ALJ “cannot simply cherry-pick facts
supporting a finding of non-disability while ignoring evidence that points to a disability finding.”
Reinaas, 953 F.3d at 466. The ALJ’s opinion contains numerous instances of this.
First, the ALJ found it noteworthy that Plaintiff did not see a neurologist until after her
DLI, but the ALJ overlooked the fact that Plaintiff saw multiple other specialists before the DLI
in an attempt to diagnose and treat her pain symptoms and functional limitations. After her
rheumatologist, Dr. Kokebie, tried multiple unsuccessful treatments, Plaintiff sought treatment
with Dr. McAsey, an orthopedic surgeon, at the end of September 2014, and he attempted to treat
her pain with steroid injections. (R. 453-54.) In addition, throughout September and October 2014,
Plaintiff received PT in an attempt to ease her pain and functional limitations.
Second, the ALJ emphasized that Plaintiff’s physical examinations in 2014 “showed
crepitus but full range of motion of all joints” (R. 20), but the ALJ ignored the fact that despite
Plaintiff’s full ROM, both Plaintiff’s treating rheumatologist and orthopedic surgeon during that

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time continued to try different methods to treat her pain, including different medications, topical
analgesics, PT, and steroid injections. “[N]one of [Plaintiff’s] physicians interpreted the[] medical
findings as inconsistent with [her] reports of recurrent and worsening pain and functional
limitations. . . . [They] continued to treat [her] pain.” Lambert, 896 F.3d at 777. See Martin v. Saul,
950 F.3d 369, 375 (7th Cir. 2020) (reversing and remanding where ALJ “made much of the fact”
that claimant walked without a limp during her doctor’s appointment while discounting fact that
the doctor’s report was “replete with other findings” showing the claimant had pain and physical
limitations). Indeed, one year later, despite having full ROM in her knees, Plaintiff underwent
bilateral knee surgery. The ALJ’s decision to emphasize Plaintiff’s knee ROM while ignoring the
significant treatment she continued to receive for her knee pain requires remand.
Third, the ALJ ignored certain evidence of Plaintiff’s hand and wrist pain and associated
functional limitations. Although the ALJ acknowledged that Plaintiff underwent carpal tunnel
surgery right before her alleged onset date, the ALJ discounted this fact because an EMG of her
upper extremities in June 2017 – seemingly irrelevant almost three years after her DLI -- was
normal. (R. 18.) In doing so, the ALJ ignored abundant evidence of Plaintiff’s hand trouble,
including her complaints in November 2012 (one month after she underwent left carpal tunnel
surgery) of tingling, numbness and pain in her right hand and her repeated complaints to her
rheumatologist of hand and wrist pain from April through September 2014. The ALJ also
dismissed Plaintiff’s complaints about starting to drop things near her DLI because “there is no
new diagnosis at this point.” (R. 21-22.) “[B]ut an ALJ may not discredit pain complaints solely
because they lack objective corroboration.” Lambert, 896 F.3d at 778.
Fourth, the ALJ cherrypicked evidence of Plaintiff’s back and neck impairments. With
regard to her lumbar impairments, the ALJ acknowledged that Plaintiff underwent back surgery

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but found “the medical records documented no functional limitations from her past surgery.” (R.
18.) It is unclear what “past surgery” the ALJ is referring to here, because the ALJ cites to lumbar
surgery Plaintiff underwent in November 2016. Regardless, the ALJ overlooked the February 2015
MRI of Plaintiff’s lumbar spine showing moderate to severe impairment (R. 503-05) and a
neurosurgeon’s recommendation of lumbar surgery in May 2015 (R. 2050-53). With regard to
Plaintiff’s neck impairments, the ALJ stated that “MRI of the cervical spine does show some
issues, but there was no EMG at that point.” (R. 18.) But it is unclear what relevance the absence
of an EMG had, since Plaintiff told Dr. Kokebie of pain in her neck as early as April 2014 (R.
1012), Plaintiff complained of radiating neck pain to Dr. McGinley in January 2015 (R. 3053), the
February 2015 MRI of Plaintiff’s cervical spine showed severe central spinal stenosis (R. 503-05),
and neurosurgeons began recommending Plaintiff undergo neck surgery as early as February 23,
2015, less than five months after her DLI. (R. 492-94.) The ALJ’s reliance on irrelevant evidence
in the face of abundant evidence of Plaintiff’s back pain was reversible error.
V.

Credibility
The ALJ also erred in finding that Plaintiff’s statements concerning the intensity,

persistence, and limiting effects of her symptoms were “not supported by the medical records.”
(R. 21.) This is “the rare case in which the claimant can overcome the ‘considerable deference’ we
afford [the ALJ’s credibility] findings unless they are ‘patently wrong.’” Ray, 915 F.3d at 490.
First, the ALJ erred in drawing an adverse inference based on the absence of treatment
records between January and June 2013. “[A]n ALJ must not draw inferences about a claimant’s
lack of treatment without exploring the reasons for the inaction.” Id. at 490-91 (reversing where
the ALJ “did not ask [the claimant] about his missed spine appointment and instead assumed that
he did not attend because his symptoms were not serious”). The record does not show why there

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are no treatment records between January and June 2013, and the ALJ chose not to ask Plaintiff
about this gap at her hearing. The ALJ’s decision to draw a negative inference against Plaintiff
based on the lack of treatment without exploring the reasons for it was “reversible error.” Id.
Second, the ALJ erroneously evaluated Plaintiff’s daily activities. Despite acknowledging
Plaintiff’s testimony that she had to take breaks doing housework and cooking due to pain in her
neck, back, hands and knees (R. 19), the ALJ determined that Plaintiff “has purported performing
a good range of activities of daily living” because “in a function report, she reported that she did
laundry, dishes, and housework.” (R. 22, citing R. 213.) But the ALJ ignored the limitations
Plaintiff included in that function report: “little laundry. Do little dishes. As much as I can house
work.” (R. 213.) Plaintiff’s “ability to do limited work . . . does not adequately support the ALJ’s
conclusion that [s]he would be able to work full time.” Reinaas, 953 F.3d at 467 (holding that the
ALJ erred in relying too heavily on the claimant’s daily activities but “ignor[ing] his testimony
about the pain and fatigue these activities cause him and his limitations with them”). See also
Beardsley, 758 F.3d at 838-39 (holding that ALJ relied too heavily on claimant’s ability to clean
and do laundry as a basis for finding she could do full time work because the claimant explained
that those chores caused her pain and took a long time for her to accomplish).
Third, the ALJ erroneously evaluated Plaintiff’s symptoms and limitations from pain. As
explained above, the ALJ here, like the ALJ in Ray, acknowledged that Plaintiff had severe
impairments, but “to support her determination that these impairments are not as limiting as [s]he
alleged, she cited irrelevant records from treatment [Plaintiff] received” for other ailments. Ray,
915 F.3d at 490. For example, the ALJ relied on evidence from more than three years after
Plaintiff’s DLI -- a post-operative report on hand surgery and the fact that Plaintiff “popped up out

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of her chair” at her hearing -- to discount Plaintiff’s allegations of pain and difficulty walking and
standing before her DLI. (R. 21-22.)
Third, the ALJ erred by failing to consider that Plaintiff’s pain and limitations were
consistent with medical imaging and the extensive treatment she underwent, including carpal
tunnel surgery, multiple knee replacement surgeries, cervical and lumbar fusion surgeries, steroid
injections and strong prescription medications. These “painful and risky procedures in attempts to
alleviate [her] pain . . . would seem to support the credibility of [her] claims regarding the severity
of [her] pain.” Lambert, 896 F.3d at 778 (quoting Israel v. Colvin, 840 F.3d 432, 441 (7th Cir.
2016).). The ALJ’s failure to consider the consistency of Plaintiff’s allegations of pain with the
procedures she underwent requires remand. 12 See Plessinger v. Berryhill, 900 F.3d 909, 916 (7th
Cir. 2018) (holding that the ALJ’s “unsupported credibility assessment provides by itself sufficient
reason to remand” where the ALJ also did not address the fact that the claimant’s “allegations of
pain were consistent with the strong prescription pain medication he was taking”).
CONCLUSION
For the foregoing reasons, the ALJ’s opinion was not supported by substantial evidence.
Thus, the Court grants Plaintiff’s motion for remand (D.E. 19) and denies the Commissioner’s
motion to affirm. (D.E. 27.)
ENTER:

________________________________
GABRIEL A. FUENTES
United States Magistrate Judge
DATED: January 11, 2022
The Court finds less persuasive, and declines to reach, Plaintiff’s arguments regarding the opinion of a
physical therapist who treated her in 2017. (Pl.’s Mem. at 10-11.)
12

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