Swift v. Berryhill
Filing
16
MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 5/10/2018: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Lisa Swift
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security, 1
Defendant.
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No. 17 CV 50051
Magistrate Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
This is a Social Security disability appeal. Plaintiff Lisa Swift was injured in three
workplace incidents, one in March 2012 and two in October 2013, that eventually caused her to
stop working as a teacher for Easter Seals. She alleges that she continues to experience pain,
mostly in her back but also in her hands, legs, and neck (the problems being more on the right
side). One limitation is that she cannot sit for more than 10 to 15 minutes at a time. She also
suffers from Stage III kidney disease and migraines, and takes pain medication.
Plaintiff has been treated or examined by various doctors. After the incidents, she was
treated for a while by doctors at Physicians Immediate Care. She received injections from Dr.
Dahlberg, a pain management specialist, who believed that plaintiff had a sciatic nerve injury or
perhaps a piriformis muscle injury suffered when she backed into the corner of a desk to avoid
an agitated student. Plaintiff was treated by Rockford Nephrology Associates for her stage III
kidney failure. Throughout this period, plaintiff was treated by her primary care physician, Dr.
Timothy Flynn, who opined that plaintiff’s medical problems, in combination, would prevent her
from working.
1
Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).
1
Plaintiff was also examined, on two occasions, by Dr. Jesse Butler, who was hired by
plaintiff’s former employer to perform an “independent medical examination” as part of a
pending worker’s compensation case that later settled. In his two reports, Dr. Butler painted a
dramatically different picture than did Dr. Flynn. Dr. Butler concluded that plaintiff was
malingering (i.e. engaging in “symptom magnification”), was abusing narcotics, and was
“manipulating different providers to obtain narcotics.” R. 613. He stated that the only treatment
she should receive was being sent to “a narcotic detox program.” Id. In addition to the sharply
contrasting opinions of Dr. Flynn and Dr. Butler, there was also an opinion from Dr. Reynaldo
Gotanco, a State agency physician, who opined that plaintiff could do light work. No impartial
expert was called at the administrative hearing to adjudicate among these opinions.
On August15, 2016, the administrative law judge (“ALJ”) issued a 9-page decision
finding plaintiff not disabled. At Step Two, the ALJ found that plaintiff had the following severe
impairments: “obesity, degenerative disc disease of the lumbar spine, stage III chronic kidney
disease, headaches and hypertension.” R. 22. But the ALJ concluded that plaintiff was
nonetheless capable of light work based on the following findings: (i) plaintiff made several
inconsistent statements; (ii) the objective medical evidence, such as negative straight leg raising
tests, did not provide “strong support” for her allegations; (iii) she had not been “referred for
surgical intervention” or gone to the emergency room; and (iv) there was a treatment gap of
approximately six months at one point. As for the medical opinions, the ALJ gave “great weight”
to Dr. Gotanco’s opinion, “some weight” to Dr. Butler’s opinion, and “little weight” to Dr.
Flynn’s opinion. 2
2
The ALJ also collectively gave “some weight” to temporary work restrictions imposed by various doctors at
Physicians Immediate Care, but none of these doctors rendered any formal opinions.
2
Plaintiff’s main argument for remand is that the ALJ gave Dr. Flynn’s opinion too little
weight and Dr. Butler’s too much weight. Additionally, plaintiff argues that the ALJ cherrypicked the record, engaged in doctor playing, and failed to follow the treating physician rule. The
Court finds that these arguments collectively justify a remand.
A few general observations should be noted at the outset. First, it is undisputed that the
ALJ did not follow the procedures required by the treating physician rule. This Court has often
remanded for not explicitly applying the two-step treating physician rule, in particular the six
checklist factors in the second step. One benefit of applying the checklist (besides the fact that it
is the Social Security Administration’s own regulation that it is bound to follow) is that it helps
develop the underlying facts that will aid both the ALJ and this Court in the subsequent analysis.
The first two checklist factors, for example, require consideration of the length and nature of the
treatment relationship. The ALJ did not make these determinations. The ALJ’s summary of the
medical visits gives the impression that plaintiff first saw Dr. Flynn on May 20, 2014. R. 25. But
this is contrary to Dr. Flynn’s opinion, which states that he had been treating plaintiff since 2008
and saw her every month or two since that time. R. 458. That is evidence of a longer and more in
depth relationship. At this point, the Court need not pin down these details, as this is a task for
the ALJ on remand, but it illustrates one of the benefits of explicitly following the treating
physician rule.
Second, although the treating physician rule contains specific analytical steps, it also sets
forth the larger principle that, all things being equal, a treating physician’s opinion deserves
some deference. See Koelling v. Colvin, 2015 WL 6122992, *8 (N.D. Ill. Oct. 16, 2015) (“within
the weighing process, treating physician opinions receive particular consideration”). For this
reason, the proper application of the treating physician rule should result in the total rejection
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(i.e., assigning “no weight”) of the treating physician’s opinion only on rare occasions. See SSR
96-2p (“A finding that a treating source’s medical opinion is not entitled to controlling weight
does not mean that the opinion is rejected. It may still be entitled to deference and adopted by
the adjudicator.”). Here, although the ALJ nominally gave Dr. Flynn’s opinion “little” weight,
the practical effect was that the ALJ gave it “no” weight because the ALJ did not credit any
aspect of the opinion.
Third, consistency is a central principle embodied in the treating physician rule. The
fourth checklist factor explicitly refers to “the consistency of the opinion with the record as a
whole.” But in addition to assessing the consistency of an individual opinion, there is a broader
notion of consistency arising from the fact that the ALJ must compare multiple opinions. As this
Court has noted, it is important that the ALJ employ the “same metrics” and the “same level of
rigor” in evaluating multiple opinions. Vandiver v. Colvin, 2015 WL 8013554, *3 (N.D. Ill. Dec.
7, 2015) (“the checklist has its greatest usefulness as a tool for making an apples-to-apples
comparison between opinions.”).
With these principles in mind, the Court first considers the ALJ’s analysis of Dr. Flynn’s
opinion. On May 12, 2015, Dr. Flynn completed a two-page form titled “Physical Residual
Function Capacity Medical Source Statement.” Ex. 10F. He opined (among other things) that
plaintiff had been diagnosed with “chronic back pain, sciatica, peripheral neuropathy/neuralgia,
depression with anxiety, chronic kidney disease, [and] migraines”; that she would only be able to
sit or stand two hours in a normal workday; that she would be off-task more than 30% of the day;
and that she would miss five or more days a month. If accepted, these limitations would prevent
plaintiff from working full-time. The ALJ rejected this opinion based on the following
explanation:
4
These restrictions, however, are inconsistent with the objective medical evidence,
which does not reveal any positive straight leg raising, muscle weakness, or issues
with gait or ambulation. Furthermore, the claimant’s MRI of the lumbar spine did
not reveal any abnormalities that would result in the level of functional restrictions
that Dr. Flynn provides in this assessment.
R. 27.
Plaintiff attacks this explanation on two main grounds. The first is cherry-picking.
Plaintiff asserts that the ALJ’s conclusion about the medical record—i.e. that there were not
“any” supportive findings—was incorrect. In her two briefs, plaintiff identifies various findings
about muscle weakness and other issues (including limited grip strength, stiffness, and decreased
mobility) that undermine the ALJ’s zero-evidence statement. See Dkt. #13 at 5-7; Dkt. #15 at 12. The Court need not further analyze these specific findings because it finds that plaintiff has
raised a colorable argument that the ALJ overlooked this evidence. This conclusion is also
indirectly supported by the Government’s brief, which contains a series of “yes, but” statements
in which the Government concedes that a particular piece of evidence supports plaintiff but then
argues that it is small compared to other, supposedly stronger evidence. See, e.g., Dkt. #14 at 5
(“A physical examination revealed right paraspinal musculature spasm and tenderness of the
sacral muscles, but her gait was normal and numb muscle weakness was noted.”) (emphasis
added). Unlike the ALJ, the Government at least explicitly confronted this contrary evidence.
And although the Government’s arguments might prove convincing on remand, they cannot be
relied on here because the ALJ did not make these same arguments. See Parker v. Astrue, 597
F.3d 920, 922 (7th Cir. 2010) (“the Chenery doctrine [] forbids an agency’s lawyers to defend
the agency’s decision on grounds that the agency itself had not embraced”). As a result, we are
left in doubt as to whether the ALJ considered this contrary line of evidence that potentially
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supports Dr. Flynn’s opinions. Thomas v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (an ALJ
may not ignore a line of evidence contrary to his conclusion).
Even if the Court were inclined to view the ALJ’s zero-evidence statement as a rhetorical
overreach, the ALJ improperly “played doctor” in discussing the objective medical evidence. See
Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (ALJs should “rely on expert opinions instead
of determining the significance of particular medical findings themselves”). In this case, as in
many disability cases involving spinal-related impairments, the record contains numerous
examination and diagnostic findings—some negative and some positive—that collectively create
a large pile from which to choose. For this reason, it is relatively easy for each side—to borrow a
metaphor about legislative history—to pick out their “friends” from the crowded record. See
Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring) (“Judge Harold Leventhal
used to describe the use of legislative history as the equivalent of entering a crowded cocktail
party and looking over the heads of the guests for one’s friends.”).
In her opening brief, plaintiff identifies four specific instances of doctor playing. Dkt. #13
at 7. Again, given the Court’s decision to remand, it is not necessary, nor would it be productive,
for this Court to sort through all these competing arguments, in part because they require some
medical expertise to even evaluate and also because the Court is persuaded that the ALJ engaged
in doctor playing. 3 But one example is the following: “the claimant’s MRI of the lumbar spine
did not reveal any abnormalities that would result in the level of functional restrictions that Dr.
Flynn provides in this assessment.” R. 26. This sentence reflects the ALJ’s judgment that the
3
For example, plaintiff makes the following argument: “While plaintiff had some negative SLR tests and did not
require a cane to ambulate, that does not mean that she did not have significant, chronic pain from her back
condition.” Dkt. #13 at 7. Another unjustified medical assumption, according to plaintiff, is the following: “while
the ALJ implies that she felt plaintiff did not have disabling pain because of her MRI findings, lack of positive EMG
in the lower extremities, and lack of positive SLR; those facts would not rule out that plaintiff had piriformis
syndrome.” Id. at 7-8 (footnote omitted). Plaintiff also suggests that the ALJ lacked the expertise to interpret the
findings about plaintiff’s renal disease and the role it may have played in causing neuropathy.
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MRI basically contained no serious abnormalities. But this implied judgment is one that the
Seventh Circuit has held may not be made by ALJs. See Akin v. Berryhill, 887 F.3d 314, 318 (7th
Cir. 2018) (remanding because the ALJ improperly played doctor: “without an expert opinion
interpreting the MRI results in the record, the ALJ was not qualified to conclude that the MRI
results were ‘consistent’ with his assessment.”). One reason that the ALJ was forced to play
doctor is that the ALJ did not call an impartial medical expert at the hearing, and neither Dr.
Butler nor Dr. Gotanco clearly addressed these issues. For this reason, on remand, the ALJ
should call an expert witness. HALLEX I-2-34A.2.
In sum, the ALJ’s rejection of Dr. Flynn’s opinion was not based on a complete and
thorough review of the record. It is true that Dr. Gotanco briefly discussed some of the medical
evidence, but his summary is cursory and did not provide any clear guidance and, in particular,
did not address all of the issues analyzed by the ALJ.
The Court next turns to plaintiff’s argument about Dr. Butler. As noted above, he
concluded that plaintiff was a malingering drug addict manipulating the system to get more
narcotics. This was certainly a harsh judgment and one that carries the potential to “dominate all
[other arguments] like the proverbial skunk thrown in the jury box.” See Potega v. Berryhill,
2017 WL 2461549, *4 (N.D. Ill. June 7, 2017). As explained below, the Court agrees that the
ALJ should have analyzed this opinion with a more critical eye before accepting it.
One preliminary question is whether the ALJ fully endorsed Dr. Butler’s conclusions in
their strongest form. On the one hand, in the analysis section, the ALJ ambiguously gave Dr.
Butler’s opinion “some” weight and only offered the following mixed-message: “[Dr. Butler’s]
opinion does not appear to be an accurate overall assessment of the claimant’s ability to function
in a competitive work environment, but is nonetheless supportive of finding the claimant not
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disabled.” R. 27. However, in the earlier narrative section, the ALJ accepted Dr. Butler’s
conclusions at face value and even, at one point, suggested that they were endorsed by others
(more on this below). For this reason, the Court concludes that Dr. Butler’s conclusions played a
significant role in the ALJ’s decision. In its brief, the Government seems to agree, arguing that
the ALJ properly relied on these two reports. See, e.g., Dkt. #14 at 9 (“Particularly troubling was
Dr. Butler’s note, after summarizing the medical records, that plaintiff was on narcotic pain
medication from multiple providers.”) (emphasis added).
One of plaintiff’s specific criticisms is that the ALJ failed to acknowledge the possible
bias from the fact that the two allegedly “independent” reports were, in fact, not independent
because they arose out of an adversarial worker’s compensation case (i.e. Dr. Butler was hired by
plaintiff’s former employer). But plaintiff has not cited to any case law suggesting that there is a
bright-line rule of exclusion for these types of reports. Indeed, the Government could make the
same argument about opinions from treating physicians, friends, and family members. Plaintiff
appears to be asking merely that the ALJ acknowledge, in some way, the possibility of bias.
Plaintiff notes that the sixth checklist factor is a catchall category for any factors “supporting or
contradicting” a medical opinion. The Government does not cite to any relevant case law either,
nor offer any other suggestions about how to analyze this issue, and instead adheres to its
unqualified position that Dr. Butler’s reports were properly relied upon. 4
Rather than analyzing this more abstract question of whether reports from worker’s
compensation cases are generally unreliable, the Court finds that it is more productive to focus
on the specific reasoning and evidence set forth in these reports. This is something the ALJ did
4
See Dkt. #14 at 9 (“The fact that his examinations were done pursuant to a workers’ compensation claim does not
diminish the validity of his examination findings.”); see also id. at 13 (“The fact that Dr. Butler’s opinion was
developed during a workers’ compensation proceeding is not material. It is still a medical opinion the ALJ was
required to discuss.”).
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not do. A review of these reports raises questions about their cogency. In general, they contain
no meaningful analysis or explanation despite giving the surface appearance of doing so. The
first report (September 2013) contains a long and detailed narrative summary of plaintiff’s
treatment with a number of doctors and nurses, including Dr. Strawser, nurse Elliot, nurse
Pearson, Dr. Buzzard, Dr. Dahlberg, physician assistant Crum, and Dr. LaRue-Headon.
However, with one possible exception of one unnamed person (discussed below), none of these
individuals ever suggested that plaintiff was malingerer. Dr. Butler’s opinion, therefore, was the
outlier.
Dr. Butler also did not explain what led him to conclude that plaintiff was manipulating
doctors to get more narcotics. There is again very little analysis. At the end of the second report,
Dr. Butler asserted that plaintiff’s “longstanding use of Dilaudid” was taken only for “bowel
issues as opposed to back pain.” R. 616. But it is not clear why this statement, even if true,
proves there was narcotics abuse. Moreover, it rests on the unexplained assumption that plaintiff
had been using this medication for a long time. Perhaps Dr. Butler is correct in this assertion, but
it is not clear based on the current record. For example, in his second report, which contains the
assertion about Dilaudid use, Dr. Butler listed plaintiff’s current medications, and Dilaudid was
not on the list. R. 615.
In sum, in reading the long narrative summaries in Dr. Butler’s reports, there is no
indication or foreshadowing (again, with the one ambiguous exception) that dramatic
conclusions will pop up at the end. Those conclusions feel as if they were pulled from out of thin
air, or even cut and pasted from some other document containing a different narrative history.
Now, as for the possible exception, the first report does include the following anecdote at
the end of the narrative section:
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On April 8, 2013, the patient presented to Myofascial Physical Therapy for an
initial evaluation. A John Barnes Myofascial Release Program was recommended
2-3 times per week for 4 weeks.
On May 11, 2013 the patient was reevaluated at therapy. She complained of the
same hip pain rated 7/10. She stated she was unable to sit at all even when driving
in the car. However, it was noted she was viewed sitting in the car and driving and
sitting in the waiting room without difficulty.
R. 610 (emphasis added). The ALJ relied on this description to reach the broader—and more
damning—conclusion that “multiple sources” (i.e. not just Dr. Butler) had concluded that
plaintiff was malingering and abusing drugs. Specifically, the ALJ stated the following:
Multiple sources noted that the claimant was also vague and manipulative in
obtaining narcotic medications. In fact, Dr. Butler went so far as to indicate that she
exaggerated her symptoms and no longer needs any medical treatment for her back
pain.
R. 26-27 (emphasis added).
The concern, again, is that the ALJ accepted the anecdote completely and uncritically
despite there being questions about its reliability. First, as plaintiff notes, the “source” of these
observations was unnamed. Second, neither side provided a citation to the underlying document
from which Dr. Butler retrieved this anecdote, and in this Court’s review of the record, it did not
find such a document. The Court is not claiming that no such document exists, but merely that it
has not been able to view the original statement in context. Third, this anecdote relies on a
technique—peeping out the window and observing a claimant privately in the parking lot—that
has the potential for abuse, at least in this Court’s view. Fourth, because Dr. Butler’s reports
were only submitted after the hearing, plaintiff was never given a chance to respond to them.
Fifth, it is not clear exactly what the “source” thought was contradictory. Plaintiff was observed
sitting in, and driving, a car. This fact was then juxtaposed against the following statement
plaintiff supposedly made: “she was unable to sit at all even when driving in the car.” R. 610
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(emphasis added). Taken literally, this statement suggests a hard-to-imagine scenario in which
plaintiff, like users of standing desks, was standing while driving. The Court assumes (though it
is not entirely sure) that the writer was trying to state that plaintiff had claimed that she never
drove a car. But if so, then this statement would be at odds with many other statements in the
record where she merely stated that she could only sit for limited periods. See, e.g., R. 266
(stating that she does drive a car, but can only do so for “short distances”). These statements
would not be inconsistent with having driven to the therapy appointment, assuming that it was
not a long drive. Sixth, and finally, even if one construed this anecdote in its strongest form, it is
only a false statement about plaintiff’s driving abilities. In other words, it does not directly relate
to abusing narcotics or manipulating doctors.
For all these reasons, the Court finds that the ALJ should have subjected this anecdote to
more critical analysis before relying on it to bolster the strongly prejudicial conclusions of Dr.
Butler.
In sum, the ALJ erred by only providing a vague explanation for rejecting Dr. Flynn’s
opinion while readily accepting Dr. Butler’s opinion without subjecting it to any comparable
scrutiny. Dr. Flynn was a treating physician whose opinion generally should be given some
deference, all things being equal. Moreover, Dr. Flynn was the only doctor who opined on all of
plaintiff’s impairments in combination. Neither Dr. Butler nor Dr. Gotanco referred to plaintiff’s
kidney problems or her migraines. This is yet another reason why Dr. Flynn’s opinion should not
have been so lightly dismissed.
Although the above issues are sufficient to justify a remand, the Court briefly will
comment on the ALJ’s credibility analysis. The ALJ concluded that plaintiff made four or five
inconsistent statements. See R. 26-27. However, the Court finds that many of these alleged
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inconsistencies rest on undeveloped or questionable factual foundations. One of these was the
observation discussed above about plaintiff driving to her a therapy appointment. Another is the
following statement: “While [plaintiff] reported that her medications only help up to 20 minutes
at a time, this complaint was never made to her treating sources.” R. 26. Although the ALJ did
not provide a citation, this assertion seems to rest on Exhibit 6E, a Pain Questionnaire plaintiff
completed, which contained the following pre-printed questions (in bold), along with plaintiff’s
handwritten answer: “Does the medicine relieve the pain? How soon? A little 15-20
minutes.” R. 257. Contrary to the ALJ’s interpretation, the Court reads this statement to mean
that the medicine took 15 to 20 minutes to begin working, not that it stopped working in that
amount of time. Otherwise, the question would have asked: “How long?”. Another alleged
inconsistency was the assertion that plaintiff was able to garden for some unspecified amount of
time even though she claimed she could not “sit or stand for long periods of time.” R. 26. It is
not obvious why this was inconsistent given the qualification of the word “long” and given
plaintiff’s repeated statements that sitting was often more painful than moving around. See
generally Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013) (an ALJ should examine daily
activities “with care” because “a person’s ability to perform daily activities, especially if that can
be done only with significant limitations, does not necessarily translate into an ability to work
full-time”).
On remand, the ALJ should more carefully consider these and the other issues discussed
above before concluding that plaintiff lacked credibility. The ALJ should also call a medical
expert to explain and help resolve the widely divergent medical opinions in the record.
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CONCLUSION
For the foregoing reasons, plaintiff’s motion for summary judgment is granted, the
government’s motion is denied, and this case is remanded for further consideration.
Date: May 10, 2018
By:
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___________________________
Iain D. Johnston
United States Magistrate Judge
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