Hightower v. Colvin

Filing 18

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is remanded to the Commissioner for further proceedings consistent with this opinion. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 1/11/2018:(yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Shelton Hightower
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.

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No. 16 CV 50314
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
In May 2012, plaintiff Shelton Hightower was diagnosed with Stage III rectal cancer. He
was 47 years old. After the diagnosis, plaintiff began treatment and also applied for disability
insurance benefits. The cancer treatment was extensive, lasting over a year. Plaintiff underwent
multiple rounds of chemotherapy and radiation, which caused him to lose a significant amount of
weight. At one point, the treatments were stopped because the side effects were too severe. He
was operated on twice, and part of his bowel was removed. After the second surgery, which was
required to address an obstructed bowel, he stayed in the hospital for a lengthy period. He now
has to use a colostomy bag and a cane. But, fortunately, the treatment worked. By July 2013, the
cancer was in remission and treatments were stopped with plaintiff reporting feeling less tired.
During this same period, plaintiff’s disability claim was percolating through the initial
stages of the Social Security administrative system. In February 2013, an initial medical reviewer
denied plaintiff’s claim on the ground that the cancer had been “completely removed” after the
surgeries. R. 268. In December 2014, when a hearing was held before an administrative law
judge (“ALJ”), the cancer had been in remission for over a year, and plaintiff was no longer
1

Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).

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claiming that he was disabled because of it. Instead, his claim was based on a new set of
problems that emerged toward the end of the cancer treatment. In late 2012, plaintiff was
diagnosed with diabetes and hypertension. Around this time, he first began complaining to his
oncologist, Dr. Fauzia Khattak, that he had tingling and numbness in his feet. On July 22, 2013,
Dr. Khattak diagnosed plaintiff with peripheral neuropathy. 2 Dr. Khattak and plaintiff’s other
doctors were unsure then—and are still unsure now—whether the neuropathy was caused by the
diabetes or the chemotherapy or perhaps both.
Most of the evidence relating to the neuropathy was developed in the remission period—
i.e., after July 2013. During this time, plaintiff continued to see Dr. Khattak at three-month
intervals to monitor the cancer. 3 She periodically noted that plaintiff complained about the
neuropathy, but also noted that he was otherwise doing well. Plaintiff was also being seen by his
general physician, first Dr. Sy and later Dr. Guenev. They too noted the complaints about
neuropathy. Dr. Sy referred plaintiff to a podiatrist, Dr. Mertzenich, who saw plaintiff for a
single visit on September 18, 2013. Dr. Mertzenich administered the Semmes-Weinstein
monofilament test, in which a 10-gram monofilament is applied to the patient’s toes. This test
revealed that plaintiff had no sensation in eight of his ten toes.
Shortly before the hearing in December 2014, Dr. Khattak completed a form entitled Post
Cancer Treatment Medical Source Statement. Ex. 18F. Dr. Khattak observed that plaintiff had
neuropathy “from diabetes and contributed to by previous chemo”; that plaintiff was taking
medications prescribed by his general physician; that plaintiff could walk one to two city blocks
before stopping; that plaintiff could sit about four hours and stand/walk less than two hours on a
normal work day; that plaintiff would be off task 5% of the day; that plaintiff had no limitations
2

According to the Mayo Clinic website, peripheral neuropathy is caused by damage to the peripheral nerves that
“often causes weakness, numbness and pain, usually in [the] hands and feet.”
3
Plaintiff saw Dr. Khattak five times by this Court’s count.

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with reaching, handling, or fingering; that plaintiff would need two unscheduled breaks each day,
for 30 minutes each; that plaintiff did not need to keep his feet elevated; and that plaintiff would
miss about two days a month.
At the hearing, plaintiff testified about his current condition. As summarized by the ALJ,
plaintiff made the following assertions: his left hip was hurting; he was taking Gabapentin for
his neuropathy; he had a colostomy bag that he flushed out three times a day, a process taking 20
minutes each time; he had numbness in his fingers all the time; he had daily swelling in his left
leg and feet; and he had to elevate his feet and lie down to relieve the swelling. R. 28. A
vocational expert then testified. No medical expert was called.
On March 19, 2015, the ALJ issued a decision with a mixed outcome. The ALJ first
found that plaintiff qualified as disabled for the 15-month period when his cancer was active.
The ALJ agreed that plaintiff had “significant levels of fatigue and pain” from the “obviously
extensive” cancer treatments. R. 25-26. In the second half of the decision, the ALJ found that
plaintiff’s problems lessened after the cancer treatments were stopped. The ALJ acknowledged
that plaintiff continued to suffer from “some lower extremity neuropathy,” but found that these
problems were not severe enough to prevent him from working at a sedentary job. R. 31. The
ALJ gave little weight to Dr. Khattak’s opinion based on the following reasons: (i) Dr. Khattak’s
treatment notes “contain few supportive findings”; (ii) there were “no abnormal neurological
findings on examinations”; (iii) she had not “seen the claimant in approximately ten months” and
thus “no longer [had] longitudinal familiarity”; and (iv) she indicated that diabetes was “the
primary source of neuropathy, a medical diagnosis for which she did not follow the claimant.” R.
30-31. The ALJ found that the plaintiff’s testimony was not credible because the record
contained “normal objective findings in many medical examinations.” R. 31.

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DISCUSSION
Plaintiff raises four arguments for remand. One of them can be addressed quickly at the
outset. Plaintiff notes that the ALJ “found that Plaintiff’s disability ended on August 31, 2013, so
that as of September 1, 2013, he was no longer disabled.” Dkt. # 9 at 11. Plaintiff complains that
the ALJ “did not explain” why she selected these dates. As framed by plaintiff, this argument
suggests that the ALJ arbitrarily found that plaintiff’s condition changed essentially overnight.
But this argument overlooks the obvious rationale, which was that the cancer treatment ended in
July 2012 and plaintiff’s symptoms improved thereafter. This was not an arbitrary rationale.
Plaintiff’s other three arguments are that the ALJ should have given controlling weight to
Dr. Khattak’s opinion; the ALJ conducted a flawed credibility analysis; and the ALJ improperly
“played doctor.” After reviewing these arguments, the Court finds that a remand is warranted.
The Court does not find that the ALJ’s analysis was shoddy or necessarily unpersuasive. Rather
the Court’s primary concern is that the ALJ’s rationales were not supported by any medical
opinion. As previously noted, no medical expert testified.
I.

Dr. Khattak’s Opinion
Plaintiff complains that the ALJ erred in giving little weight to Dr. Khattak’s opinion. In

making this argument, plaintiff dutifully lays out the procedural requirements of the treating
physician rule. However, plaintiff does not thereafter tie his arguments to any failure to follow
that specific framework, but instead focuses on the substantive reasons for the ALJ’s conclusion.
As a preliminary but important observation, the Court notes that the Dr. Khattak’s
opinion is not one-sidedly in plaintiff’s favor. In fact, several findings are at odds with plaintiff’s
allegations. For example, Dr. Khattak indicated that plaintiff would have no limitations with
handling and fingering, a conclusion that seems to contradict plaintiff’s testimony that he had

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numbness in his hands. Dr. Khattak also answered “no” to the question about whether plaintiff
would need to elevate his feet on the job, another point contradicting plaintiff’s testimony. Some
of Dr. Khattak’s statements support the ALJ’s conclusions. Dr. Khattak opined, for example, that
plaintiff would be “off task” only 5% of the workday. It is true that certain findings support
plaintiff, but even these are not far off from the ALJ’s findings. For example, Dr. Khattak
checked the box indicating that plaintiff could sit four hours in a normal workday, whereas the
ALJ assumed he could sit for six hours. Dr. Khattak stated that plaintiff would miss about two
days a month. This amount is enough to preclude work, but again, is only just over the dividing
line that typically allows one absence a month. Based on these facts, the Government argues that
Dr. Khattak’s opinion affirmatively supports the ALJ’s finding of no disability, a stronger claim
than merely arguing that the report is neutral or agnostic. See Dkt. #16 at 3 (“The ALJ’s decision
finds support in the opinion of none other than plaintiff’s treating oncologist.”). But the
Government’s position is more aggressive than that taken by the ALJ who agreed that Dr.
Khattak’s opinion, if accepted, would require a finding that plaintiff was disabled.
Turning to plaintiff’s specific criticisms, the main one is that the ALJ was wrong in
concluding that Dr. Khattak’s treatment notes provided “few supportive findings.” Plaintiff
argues that Dr. Khattak “examined him regularly” and “was watching for signs of neuropathy”
and recorded that he complained of “numbness and tingling in his fingers and toes and his
sensitivity to cold on multiple visits.” Dkt. #9 at 9. Plaintiff also argues that the monofilament
test performed by Dr. Mertzenich was a supportive finding. Plaintiff’s argument has some strong
and weak points.
One weakness is that the argument is pitched at a general level. It is true that Dr.
Khattak’s treatment notes support lower-level building blocks in plaintiff’s argument (e.g. that

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plaintiff had neuropathy and complained about numbness in his toes and other things). But these
findings do not necessarily lead to the conclusion that he could not work any job. Put differently,
the ALJ did not ignore these general complaints, but found that they would be accommodated by
limiting plaintiff to sedentary job and allowing him to use a cane. So the deeper question is not
merely whether plaintiff had neuropathy, but rather how severe it was. For example, was the
numbness in plaintiff’s toes enough to make him incapable of working a sedentary job?
But there is one aspect of plaintiff’s argument that has validity. In concluding that there
were “few supportive findings,” the ALJ was relying on her own layperson analysis of Dr.
Khattak’s treatment notes. This argument—that the ALJ was “playing doctor”—is discussed
further in Section III. As applied specifically to Dr. Khattak’s opinion, however, this argument is
somewhat undermined by the fact that Dr. Khattak made statements on the form suggesting that
she had doubts about her opinion. Specifically, in three separate places, she emphasized that her
treatment relationship focused on plaintiff’s cancer, not on the neuropathy. See R. 868 (“Our
focus is on cancer related [questions and] evaluation.”); R. 866 (“I am assuming neuropathic
pain. Again neuropathy may or may not be related to the previous chemo. He does have diabetes
that can cause same.”) (emphasis added); R. 866 (refusing to answer the question whether
plaintiff could work full time because she believed it could not “be answered from oncology or
cancer perspective”). Based on these statements, the ALJ reasonably could have concluded that
Dr. Khattak doubted whether she was qualified to opine about plaintiff’s neuropathy limitations.
Translated in terms of the treating physician checklist, Dr. Khattak’s treatment relationship (2nd
factor) and her specialization (5th factor) supported giving her opinion less weight. Finally, as
for the monofilament test, it is not clear whether Dr. Khattak was given a copy of that report or
otherwise considered it in rendering her opinion.

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Plaintiff raises one other criticism regarding Dr. Khattak’s opinion. Plaintiff asserts that
the ALJ made an “erroneous finding of fact” when she stated that Dr. Khattak had not seen
plaintiff in ten months before the opinion was rendered on November 26, 2014. Dkt. #9 at 9. The
ALJ relied on this fact to conclude that Dr. Khattak “no longer [had] longitudinal familiarity.” R.
31. Plaintiff states, correctly, that this one statement was an error because his last visit with Dr.
Khattak was on August 25, 2014, which would have meant that there was only a three month
gap. This error certainly raises a concern, but at the same time, the ALJ earlier in the decision
discussed the August 2014 visit with Dr. Khattak and noted that this visit consisted of “another
unremarkable neurological examination.” R. 29. The ALJ thus considered this evidence, raising a
question as to whether the later statement about the 10-month gap was a harmless error.
In sum, the ALJ’s rejection of Dr. Khattak’s opinion can be criticized on several grounds.
At the same time, the Court finds that the ALJ was entitled to give weight to the fact that Dr.
Khattak had reservations about her own opinion and to the fact that her opinion supported
several aspects of the ALJ’s analysis. Arguably, these latter arguments neutralized the two
criticisms above, rendering them harmless errors. However, given the Court’s conclusion that a
remand is justified based on plaintiff’s remaining two arguments, the Court need not reach a
definitive conclusion on this argument.
II.

Credibility Analysis
Plaintiff next argues that the credibility analysis was incomplete and unclear and that the

ALJ relied solely on the purported lack of objective tests to substantiate plaintiff’s subjective
allegations. This Court finds that this argument supports a remand.
As for the issue of clarity and completeness, plaintiff asserts that the ALJ did not
explicitly apply the factors set forth in SSR 96-7p (the regulation then in effect). Plaintiff

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complains, for example, that the ALJ never considered his daily activities, which is one of these
factors. As for medications, another factor under 96-7p, plaintiff alleges that the ALJ
unjustifiably insinuated that no doctor prescribed the Gabapentin he was taking. Plaintiff
counters that his doctors knew about and authorized this medication. Dkt. #9 at 12-13. As for the
former argument, it is true that the ALJ did not specifically analyze his daily activities, although
she did summarize his hearing testimony that described some of those same activities. R. 23, 28.
As for the latter assertion about an unauthorized prescription, it is not clear that the ALJ drew the
prejudicial inference suggested by plaintiff. 4 In fact, the ALJ noted at one point in the decision
that the Gabapentin was prescribed by plaintiff’s primary care doctor. See R. 30. In sum, this first
argument is, by itself, a questionable ground for remand.
Plaintiff’s better credibility argument is the assertion that the ALJ ran afoul of the wellknown principle in Social Security disability litigation that, although ALJs may consider the
objective evidence, they may not disregard subjective allegations “solely” because they are not
confirmed by objective medical evidence. Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015) (“as
numerous cases (and the Social Security Administration’s own regulation) make clear, an
administrative law judge may not deny benefits on the sole ground that there is no diagnostic
evidence of pain but only the applicant’s or some other witness’s say so”). Here, as plaintiff
argues, the ALJ repeatedly emphasized that “there have been normal objective findings in many
medical examinations.” R. 31. This factor was undeniably the primary rationale supporting the
ALJ’s credibility finding. The more difficult question is whether it was the “sole” rationale. In its

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Plaintiff’s argument seems to be based on the following statements: (i) “Records from Crusader Clinic show that
in November 2013, Greg Campbell, PA-C prescribed Gabapentin, which is the same as Neurontin, to be taken three
times a day, without a diagnosis or examination” (R. 29); and (ii) “[Plaintiff] has reported having neuropathy
primarily in his lower extremities and has been taking Gabapentin that was not prescribed by his oncologist but a
primary care provider whose objective findings are normal on examinations” (R. 30).

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response brief, the Government argues that the ALJ, in fact, relied on other factors. The
Government provides the following overview of these other factors:
The primary factor, and that upon which plaintiff admits the ALJ relied, is the
objective medical evidence. 20 C.F.R. § 404.1529(c)(2). Other factors include the
length and type of treatment (the ALJ noted that chemotherapy had stopped in June
2013, and had only routine treatment thereafter); activities (much maligned by the
Seventh Circuit); medication (chemotherapy stopped months earlier); and other
factors (plaintiff used a cane, which the ALJ accommodated).
Dkt. #16 at 4-5. This analysis is more explicit than the ALJ’s, but fails to persuade this Court that
the ALJ truly relied on these other factors. For one thing, the Government implicitly concedes
that the ALJ did not address plaintiff’s daily activities. As for medications, the Government only
focuses on the cancer chemotherapy treatments, and fails to address the use of Gabapentin in the
remission period. After carefully analyzing the ALJ’s decision, this Court is uncertain whether
the ALJ considered these other 96-7p factors. For this reason, the case must be remanded.
III.

Playing Doctor.
This leads to the third argument, which has already been partially discussed in the first

two sections of this order. Plaintiff argues that the ALJ made layperson judgments about the
meaning and significance of various medical findings. The ALJ had to rely on her layperson
intuitions because there was no medical opinion in the record addressing the neuropathy. The
ALJ never ordered a consultative examination on this issue. The ALJ did not call a medical
expert at the hearing. The ALJ gave no weight to the opinions of the State agency doctors who,
in any event, did not opine on this issue. And finally, the ALJ disregarded the opinion of Dr.
Khattak, finding that she lacked the necessary expertise and treatment relationship to opine on
plaintiff’s neuropathy. In short, plaintiff argues that the ALJ improperly played doctor. See Lewis
v. Colvin, No. 14 CV 50195, 2016 U.S. Dist. LEXIS 115969, *11 n. 3 (N.D. Ill. Aug. 30, 2016)
(courts, counsel, and ALJs must resist the temptation to play doctor). This Court agrees.
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The ALJ’s principal rationale for finding plaintiff not disabled was that the medical
examinations contained mostly normal findings. This basic point was repeated throughout the
decision. The Court has already noted how the sole reliance on this argument led to an
incomplete credibility analysis. But there is another problem. Medical expertise is often required
to assess what is “normal” or “significant” when diagnosing a particular ailment. See Moon v.
Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (ALJs must “rely on expert opinions instead of
determining the significance of particular medical findings themselves”).
Here, the ALJ culled various “normal” findings from the medical record, and then
concluded that these findings cumulatively showed that plaintiff’s problems were not that
serious. Although the ALJ may ultimately be proven correct in relying on these “normal”
findings, this Court cannot be sure that they were all relevant to the particular problems plaintiff
was experiencing. For example, the ALJ noted that one doctor found that plaintiff was found to
have normal “range of motion,” but it is not clear to this Court that this finding was inconsistent
with plaintiff’s allegations of numbness in his toes and other related symptoms. Likewise, the
ALJ gave weight to the statement in Dr. Mertzenich’s notes stating that plaintiff had “normal
foot morphology.” Although the ALJ found this to be significant, it is not clear that Dr.
Mertzenich viewed it the same way. There is no statement in his notes indicating as such.
Moreover, during this same visit, Dr. Mertzenich conducted the monofilament test and found that
plaintiff had no sensation in eight of ten toes. One of plaintiff’s main gripes here is that the ALJ
did not give any consideration to the monofilament test, which, as plaintiff notes, was objective
evidence. Among other things, the ALJ did not explain how the positive finding on the
monofilament test squared with the normal-foot-morphology finding. This is one of several areas
where a medical expert could have provided assurance that the ALJ’s analysis was sound.

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Medical expertise was likewise needed to assess the range of tests and treatments
available for a person with neuropathy. The ALJ found fault with the lack of objective tests
confirming plaintiff’s allegations and also suggested that plaintiff was only receiving routine
treatment. Again, the ALJ may ultimately be right, but it is not clear at this point. In his reply
brief, plaintiff asserts that “medication is the proper mode of treatment for neuropathy caused by
chemotherapy.” Dkt. # 17 at 4. Plaintiff’s assertion is itself an example of doctor playing, but
based on the current record, the Court cannot simply dismiss it. This is why a medical expert was
needed
*

*

*

As noted above, the Court does not find that the ALJ’s rationales were either lacking in
logic or evidence. Further, the Court notes that the evidence regarding plaintiff’s problems in the
remission period is not overwhelming. It consists mostly of a handful of seemingly routine
doctor visits with no major treatments. Still, for the reasons stated above, the Court finds that, on
balance, plaintiff has raised enough arguments to merit a remand. If there were any doubt about
this conclusion, it would be dispelled by the Seventh Circuit’s fairly recent ruling in Engstrand v.
Colvin, 788 F.3d 655 (7th Cir. 2015), a case plaintiff cited three times in his opening brief. 5 See
Dkt. #9 at 5 n.8, 13, 15. Engstrand is factually similar, and provides strong authority for plaintiff
here. The claimant there had neuropathy caused by diabetes and his doctors administered the
same monofilament test given to plaintiff. In fact, unlike here, the claimant in Engstrand was
found to have normal sensation in his toes after taking the monofilament test. 6 Despite this
negative finding, the Seventh Circuit concluded that the district court should have remanded
5

This case was issued after the ALJ’s decision. This Court is, therefore, is obviously not faulting the ALJ for not
following it.
6
In addition, the claimant in Engstrand arguably engaged in more vigorous daily activities than plaintiff here.
These activities included “help[ing] on his parents’ farm a few times a week (with tasks like picking up hay bales
with a tractor).” Id. at 658.

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based largely on the same arguments presented here. Specifically, the Seventh Circuit stated that
the claimant’s “severe pain stemming from his neuropathy need not be confirmed by diagnostic
tests.” Id. at 660. The Seventh Circuit faulted the ALJ for concluding that certain examination
findings were inconsistent with the claimant’s allegations when the claimant’s own doctor did
not flag them as being inconsistent. Id. Also, relying on Stedman’s Medial Dictionary, the
Seventh noted generally that a person “who cannot feel the monofilament may have neuropathy
severe enough to lead to an ulcer or gangrene” and that the “development of diabetic neuropathy
is poorly understood, and the response to treatment is unpredictable.” Id. at n.1, n.2. The latter
observation suggests that, even though neuropathy may not be serious in many cases, it is still
possible that it is work-disabling in a subset of “unpredictable” cases. In its response brief, the
Government did not mention or try to distinguish Engstrand, and this Court does not see a basis
for distinguishing it. Thus, based on this case alone, a remand is required.
In sum, a remand is required so that the ALJ can call an expert or otherwise develop the
record to address these questions. See HALLEX I-2-5-34A.1. The Court does not indicate that
any particular result should be reached on remand.
CONCLUSION
For all the above reasons, plaintiff’s motion for summary judgment is granted, the
Government’s motion is denied, and the case is remanded to the Commissioner for further
proceedings consistent with this opinion.

Date: January 11, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge