Johnson v. Berryhill

Filing 18

MEMORANDUM Opinion and Order; 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. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 6/1/2018: (yxp, )

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

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No. 17 CV 50058
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Many disability cases come to this court with a plethora of doctor notes, diagnostic tests,
medical opinions, and other documents—all adding up to a voluminous pile. By contrast, this
case presents a sparse record. The relevant evidence boils down to a couple of doctor visits, one
MRI, and one EMG. Plaintiff has suffered from diabetes since 1996, but alleges that he recently
began to experience foot numbness caused by diabetic neuropathy and back, knee, and ankle
pain caused by degenerative disc disease. 2 He claims that he needs a cane to walk and could not
stand or walk for six hours, as required for a job classified as light work. Under Social Security
rules, if he cannot do light work, then he must be found disabled given his age (he is now 62) and
work experience. The administrative law judge (“ALJ”), in a short decision, concluded that
plaintiff’s two impairments were not severe enough to survive the de minimis screening standard
at Step Two. The ALJ concluded that all of plaintiff’s examination findings were normal and that
he made several inconsistent statements. Plaintiff argues that the ALJ reached these conclusions
by cherrypicking from the record and by essentially playing doctor. Despite serious concerns

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Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).
He also has glaucoma, but there are no arguments raised about this condition.

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about the ultimate viability of plaintiff’s claim, this Court agrees that a remand is appropriate on
the record before it.
BACKGROUND
As even plaintiff admits, the medical record is thin with less than a 100 pages of medical
treatment. There are two main sources of treatment records. One is the prison records from
plaintiff’s stay at Taylorville Correctional Center from October 2012 until May 2013. But neither
the ALJ nor the parties have relied on these records for any significant argument. 3 The other
source is the records from Crusader Community Health (“Crusader”), where plaintiff was treated
after he was released from prison and up until the hearing in the fall of 2015.
At Crusader, plaintiff was treated by Dr. Larry Sy who, in 2014, ordered an EMG to
assess plaintiff’s complaints of bilateral lower extremity numbness. R. 343.The EMG was
performed on August 18, 2014. The conclusions from this report are as follows:
1. There is electrophysiologic evidence of motor polyneuropathy of the bilateral lower
extremities, predominantly axonal type.
2. There is also evidence of bilateral S1 radiculopathy as evidenced by bilateral absent H
soleus response.
3. Needle EMG did not show any evidence of active denervation.
4. Clinical correlation recommended. Flexor digitorum brevis.
R. 344.
About nine months later, in May 2015, the next relevant treatment took place when
plaintiff twice saw Dr. Terry Roth, a neurologist. The first visit was on May 26, 2015. In the
“History of Present Illness” section, Dr. Roth wrote the following:
Paresthesias 61 year old man with a history of IDDM going back 19 years,
complains of numbness in his feet, leg pains in knees and ankles. 4 He also reports
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As plaintiff notes, these records “are not exactly easy to read in some parts.” Dkt. #17 at 1.
As discussed below, this sentence is critical to one of the ALJ’s rationales. “Paresthesia” is an “abnormal usually
nonpainful sensation (e.g., burning, pricking),” and “IDDM” is the abbreviation for “insulin-dependent diabetes
mellitus, a term declared obsolete by the American Diabetes Association for Type 1 diabetes.” Stedman’s Medical
Dictionary, 944, 1425 (28th ed. 2006).

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low back pain, and pain into his legs at times in bed such that he has trouble
moving.
He started a B vitamin today and denies any [history] of B12 deficiency.
He reports a ‘stroke’ in the 70’s but it may have been a right Bell’s Palsy.
He had EMGs showing neuropathy and possible S1 root bilateral. He had
dopplers showing good circulation in the lowers.[]
R. 332. In the “Physical Examination” section, Dr. Roth wrote that plaintiff’s gait was “[w]ithin
normal limits,” but that he “complains of discomfort in knees/ankles”; that his motor strength
was “5/5 Upper and Lower”; and that his reflexes were “Biceps: 1-2+, Triceps: 1-2+,
Brachioradialis: 1-2+, Knees: 1+, Ankles: 1+.” In the “Assessments” section, Dr. Roth wrote that
plaintiff had diabetes with neuropathy, bilateral leg pain, and low back pain. To further assess
plaintiff’s conditions, Dr. Roth ordered a lumbar MRI.
The MRI was performed on June 4, 2015. Because the MRI is a key piece of evidence,
along with the EMG, the Court will quote both the specific findings and conclusion:
LUMBAR DISC LEVELS
L1-L2: Minimal facet degenerative changes
L2-L3: Bilateral facet degenerative changes with some mild bilateral lateral recess
stenosis. Mild broad-based disc bulge with extension into the proximal neural
foramina bilaterally. No central canal stenosis. Most notably at the L4-5 level with
multilevel broad-based disc bulge is with neural foraminal proximal extension.
Please see above dictation for further discussion.
L3-L4: Broad-based disc bulge with tiny left paracentral component with
extension into the neural foramina bilaterally and left greater than right mild central
canal stenosis with canal dimensions of approximate 9 millimeters
L4-L5: Left paracentral disk protrusion which does contact the traversing nerve
root there is superimposed broad-based disc bulge with bilateral proximal neural
foraminal extension bilateral facet degenerative changes
L5-S1: Broad-based disc bulge with tiny central disc protrusion
CONCLUSION: Multilevel degenerative changes as described
R. 340.
Plaintiff next visited Dr. Roth was on June 30, 2015. In the “History of Present Illness”
section, Dr. Roth wrote the following:

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Radiculopathy [r]eturns at one month with no real change in his numbness
and pain in the lowers. He had the lumbar MRI showing degenerative changes but
not a major ruptured disc. He had lab work with an ESR=7 but his B12 was low
normal and he has not started his vitamins. He reports taking gabapentin 300mg tid
with benefit but he still has to take Ibuprofen. I discussed going up on gabapentin
as it treats both diabetic neuropathy and lumbar root and is probably safer than
daily ibuprofen. He will gradually go to 600 mg tid and try to cut back on pain
med.
R. 328. Dr. Roth assessed plaintiff with diabetes with neuropathy and low back pain due to
degenerative discs. A follow-up appointment was recommended for three months later. Id.
The hearing before the ALJ was held on October 28, 2015. No medical expert was called
to testify. Plaintiff and a vocational expert testified. On February 24, 2016, the ALJ issued her
six-page decision.
DISCUSSION
Two broader observations should be noted before considering plaintiff’s cherrypicking
arguments. First, plaintiff complains that the ALJ prematurely ended this case at Step Two,
thereby depriving him of a more detailed analysis that would have been undertaken if the fivestep process had been completed. Basically, plaintiff argues that the ALJ employed an overly
rigorous standard. This Court agrees. At Step Two, the ALJ must determine whether a claimant
has one or more severe impairments. Somewhat contrary to the common connotation of the word
“severe,” in disability litigation at Step Two, the word has a more diluted meaning. As the
Seventh Circuit has stated, the Step Two inquiry is only “a de minimis screening for groundless
claims.” See Meuser v. Colvin, 838 F.3d 905, 910 (7th Cir. 2016); SSR 85-28 (“Great care
should be exercised in applying the not severe impairment concept. If an adjudicator is unable to
determine clearly the effect of an impairment or combination of impairments on the individual’s
ability to do basic work activities, the sequential evaluation process should not end with the not
severe evaluation step. Rather, it should be continued.”). Here, given that both an EMG and an
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MRI confirmed that plaintiff suffered from neuropathy and degenerative disc disease, this does
not appear to be a groundless claim.
Second, in analyzing the objective evidence, the ALJ did not rely on any supporting
medical opinion. The ALJ did not call a medical expert at the hearing. No consultative
examination was ordered. It is true that there were two State agency opinions, which the ALJ
nominally relied on, but neither doctor reviewed or commented on the EMG or MRI, and neither
one acknowledged plaintiff’s complaints of neuropathy. Without any supporting medical
opinion, the ALJ was thus forced to play doctor, as discussed below.
Plaintiff argues that the ALJ mischaracterized or overlooked several facts favorable to his
case. See Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir. 2014) (“the ALJ identified pieces of
evidence in the record that supported her conclusion that Mr. Scrogham was not disabled, but she
ignored related evidence that undermined her conclusion”). The overlooked facts are offered as a
rebuttal to the ALJ’s unqualified, all-or-nothing conclusion that “all” examination findings were
“normal” and that there was a “complete absence” of any “remarkable examination findings.” R.
24-25. Plaintiff relies on three facts.
First, plaintiff argues that Dr. Roth, in his physical examination, found that plaintiff had
only “trace reflexes” in his ankles and knees, allegedly indicating that his strength was not intact.
Dkt. #15 at 5. The Government does not dispute plaintiff’s assertion that this was an abnormal
finding, or that the ALJ failed to acknowledge it. Instead, the Government argues that this
finding was outweighed by other normal findings from the same examination. See Dkt. #16 at 4
(“Indeed, although Dr. Roth observed that plaintiff had diminished reflexes, he also observed
that plaintiff had normal strength[.]”). The Government may ultimately be right, but this
argument runs afoul of the Chenery doctrine because the ALJ never explicitly engaged in this

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weighing process. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010). Moreover, even if the
ALJ had done so, the ALJ would have then been playing doctor by determining which finding
was more significant. Goins v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (ALJs should not “play
doctor” by summarizing the results of a medical exam without input from an expert).
Second, with regard to the EMG, plaintiff argues that the ALJ omitted the finding that he
had radiculopathy. The Government first argues that the ALJ “specifically noted” this fact in the
decision, but the Court cannot find evidence that the ALJ did. See Dkt. #16 at 5. The
Government then argues that, even if the EMG showed that plaintiff had radiculopathy, it also
found no evidence of “active denervation.” Id. Again, the Government seems to be offering an
after-the-fact balancing analysis in which it argues that one medical finding trumped another
finding. This Court has no way to judge the accuracy of this contention. The Government again
may be proven correct, but without a supporting medical opinion, the argument is a layperson
analysis.
Third, a similar criticism applies to the MRI. The ALJ did not discuss any of the specific
MRI findings, which were quoted above, but generally concluded that the report indicated only
“mild” problems. R. 24. But it is not clear whether “mild” is a fair characterization. The
conclusion section of the report did not use this word. Instead, this section merely stated that
there were “[m]ultilevel degenerative changes as described.” It is true that the word “mild” was
used once in the specific findings, but there were also many other findings that didn’t include
that qualifying adjective “mild,” although they did not include “moderate” or “severe” either.
One question then is whether some of the specific findings were more than just mild. Another
question is whether multiple mild findings could cumulatively add up to a more-than-mild
conclusion. The conclusion that there were “multilevel” changes perhaps supports such an idea.

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This is another reason why a medical expert is needed to interpret these results. See Akin v.
Berryhill, 887 F.3d 314, 317-18 (7th Cir. 2018) (“The MRI results may corroborate Akin’s
complaints, or they may lend support to the ALJ’s original interpretation, but either way the ALJ
was not qualified to make his own determination without the benefit of an expert opinion.”).
In addition to these three omissions, the ALJ’s analysis left out the broader diagnoses and
treatment recommendations made by plaintiff’s doctors. Both Dr. Sy and Dr. Roth agreed that
plaintiff was suffering from neuropathy and degenerative disc disease, and both agreed that
plaintiff should take Gabapentin. Dr. Roth, in the last appointment before the hearing,
recommended that the dosage be increased. Although the ALJ acknowledged these facts, the
ALJ did not appear to give them any serious consideration when concluding that there was a
“complete absence” of any abnormal findings. It would be helpful, on remand, if one of these
two doctors could provide a formal opinion.
The Court turns now to the credibility analysis. The ALJ cited the complete lack of
objective evidence as one reason for finding plaintiff not credible. But the heart of the analysis
was the conclusion that plaintiff made a series of inconsistent statements. However, several of
these conclusions rest on incomplete or ambiguous factual foundations. The Court will discuss
three instances.
Longstanding neuropathy. The ALJ found it significant that plaintiff had neuropathy
for “years” but was still able to work full-time during some of that period. The logic was simple
but powerful. If he could work then with the same impairments, he could work now. This
rationale was arguably the key one in the entire decision. Although the ALJ did not explicitly
label it as such, the ALJ referred to it several times. The Government, in its response brief,

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likewise referred to it as “important evidence,” mentioning it prominently on the first page of the
brief, as well as twice thereafter. Dkt. #16 at 1, 5-6, 9.
The concern is with the factual premise. The ALJ cited to only one piece of evidence. It
was the following sentence taken from Dr. Roth’s treatment notes: “Paresthesias 61 year old man
with a history of IDDM going back 19 years, complains of numbness in his feet, leg pains in
knees and ankles.” R. 332. The ALJ construed this sentence to mean that the neuropathy or
numbness (paresthesias) existed for 19 years. But another way to read this same sentence—one
that this Court finds to be more reasonable and natural—is that plaintiff was merely reporting
that he had diabetes (IDDM) for 19 years, and that the numbness was a more recent complaint. If
true, then the ALJ’s rationale collapses. At a minimum, the sentence is ambiguous. And, the ALJ
did not cite to any other evidence to confirm that the neuropathy had been longstanding. The
prison records apparently do not refer to it, nor did this Court find any other confirmation.
Plaintiff argues that the neuropathy emerged only recently after many years of poorly controlled
diabetes. On remand, the ALJ should develop a more solid factual foundation about when the
neuropathy began, especially if relying on this rationale.
The cane. As another alleged inconsistency, the ALJ noted the following:
At the hearing, [plaintiff] testified that he had been using a cane for six months
because of problems with his left leg. Notably, after the hearing, the claimant’s
representative submitted a prescription, dated after the hearing, for a cane by Dr.
Sy[.] Dr. Sy did not provide any supporting explanation or diagnosis for the
prescription.
R. 24 (emphasis in original). The Court is not clear why this was an inconsistency. The mere fact
that plaintiff obtained a prescription after the hearing does not necessarily mean that plaintiff was
lying. The doctor agreed to write the prescription, thus presumably reflecting his belief that
plaintiff needed a cane. It is true, as the ALJ noted, that Dr. Sy did not provide an explanation.

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But this is not a basis, standing alone, for doubting plaintiff. It would be helpful on remand if Dr.
Sy could provide an explanation because the issue is important given that the vocational expert
testified that the need to use a cane would preclude light work.
Administering sister’s medication. Another alleged inconsistency was the following:
“[Plaintiff] reported that he was responsible for administering medication to his aging sister.
However, he simultaneously maintained that he required reminders to take his own
medication[.]” R. 24. This argument, like the previous two, is based on a sliver of ambiguous
evidence. The two allegedly contradicting statements were both made on the Adult Function
Report completed by plaintiff. In response to a question asking what he does after waking up,
plaintiff wrote that he would take his medication and then would “administer [his] aging
[sister’s] medication.” R. 201. On the next page, in response to a separate question asking
whether he ever “need[s] help or reminders taking medicine,” plaintiff answered that he
“sometime[s]” does before eating a meal. R. 202. The ALJ believed that these two statements—
made one page apart—were inconsistent and thus evidence that plaintiff was not being truthful.
Based solely on these brief answers, it is not apparent to this Court that there was an
inconsistency. One could imagine a situation in which plaintiff both reminded his sister to take
her medication, but then sometimes forgot to take his own and had to be reminded to do so
(perhaps by his sister or someone else). Such a mutual-reminder relationship is one that many
elderly couples undoubtedly follow. This point aside, the ALJ also failed to acknowledge
plaintiff’s testimony that provided a richer picture about his living arrangement. At the hearing,
plaintiff stated that he lived with his sister, who was 78, and that his sister’s daughter, who was
in her 50s, also lived with them. R. 35-36. The daughter worked during the day as a caretaker in
a nursing home. In addition, there was a separate caretaker who looked after the sister because

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she was disabled with dementia. Given that there were two caretakers involved with the sister’s
care, it seems unlikely that plaintiff was playing the key role in administering medication. 5
In sum, this Court concludes that a remand is required so that the ALJ can complete all
five steps of the analysis and can obtain a medical opinion. The Court recognizes that plaintiff
has a limited treatment history, but finds that plaintiff has still raised sufficient grounds for a
remand.
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: June 1, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge

Additionally, as plaintiff notes, his alleged mental ability to remind his sister to take her medication is far afield
from the question of whether he could do the physical tasks required for light or medium work.

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