Spain v. Berryhill

Filing 18

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 6/25/2018: (yxp, )

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

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No. 17 CV 50066
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
This is a back-pain disability case. The administrative law judge (“ALJ”) found plaintiff
not disabled primarily because he believed that the objective evidence was inconsistent with
plaintiff’s subjective allegations of pain. The ALJ also rejected an opinion from plaintiff’s
primary care physician. The briefs in this case are relatively short, and cover issues routinely
raised in this Court by these counsel. As explained below, the Court finds that a remand is
required because, among other things, the ALJ improperly “played doctor.”
BACKGROUND 2
In 2011, plaintiff attempted suicide by jumping out of a third story window. She survived
but fractured several vertebrae. She had two spine surgeries to correct the problem but the pain
persisted.
Dr. Jorge Villacorta was her primary care physician during this time. In March 2015, he
referred plaintiff to Dr. Ishmeet Singh, a pain management specialist, who recommended that
plaintiff increase her dosage of Norco, and that she also take Gabapentin and Flexeril. Over the
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Nancy A. Berryhill has been substituted for Carolyn W. Colvin. Fed. R. Civ. P. 25(d).
The following is overview is taken largely from plaintiff’s opening brief. The Government has not disputed the
accuracy of this summary.
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next year or so, Dr. Singh performed multiple steroid injections to treat the pain. In January
2016, Dr. Singh prescribed morphine in addition to plaintiff’s other medications. He also stated
that plaintiff had failed caudal injections and S1 injections and recommended a spinal cord
stimulator trial.
On June 11, 2015, plaintiff visited Dr. Villacorta to get a statement to support her
disability application. That same day, Dr. Villacorta provided a letter stating as follows:
Chronic lower back pain.
Heather has restrictions: -No lifting, no standing for longer periods of time, elevate
legs when sitting, no prolonged walking.
R. 431.
On December 21, 2015, an x-ray showed the possible loosening of screws at S1 in
plaintiff’s lumbar spine.
On March 7, 2016, plaintiff saw Dr. Konstantin Slavin for a surgical consultation. He
stated that plaintiff had a “significant spinal sagittal deformity” and that her symptoms included
“both neurogenic claudication, as well as radiculopathy, multilevel, along with imaging that is
consistent with lumbar sagittal deformity.” Dkt. #13 at 2. He recommended that plaintiff be
evaluated by a “complex spine surgeon” and, if surgery was not possible, that plaintiff be
recommended for a spinal cord stimulator.
DISCUSSION
Plaintiff raises three arguments. First, the ALJ played doctor in analyzing the objective
evidence. Second, the ALJ failed to consider Dr. Slavin’s treatment records. Third, the ALJ erred
in not following the treating physician rule. The Court finds these arguments justify a remand.
Playing Doctor. Plaintiff complains that the ALJ made judgments about what was
significant (or not significant) in the physical examinations by plaintiff’s various treating doctors

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and in the MRI and x-ray reports. This Court agrees. In the decision, the ALJ included a
narrative of the medical visits, which was ostensibly a neutral summary but as inevitably the
case, also included value judgments about which findings were significant. For many of the
medical visits that the ALJ chose to focus on, the ALJ declared that the findings were
“unremarkable,” and thus supposedly undermined plaintiff’s allegations. The ALJ summarized
the overall findings by stating that “[o]bjective clinical findings did not include any positive
straight leg raising, and gait was normal on all evaluations except one.” R. 25. It is possible that
the ALJ’s intuitions are correct, but the problem is that there are no medical opinions to support
the ALJ’s analysis. There was one State Agency opinion cited to by the ALJ, but the ALJ only
referenced it generically, and this opinion did not reach the same specific conclusions as the ALJ
did, and it did not even focus on the same office visits. In short, there is no evidence that the
ALJ was relying on this analysis.
Also, plaintiff’s treating physicians, who made the particular examination findings cited
by the ALJ, did not describe them as being “unremarkable” overall. For example, the ALJ
concluded that findings made by Dr. Singh, at the March 31, 2015 visit, were “unremarkable
aside from tenderness.” R. 24. However, Dr. Singh’s review of the musculoskeletal systems only
stated the following: “She exhibits tenderness. She exhibits no edema.” R. 493. It is not clear to
this Court that these two findings are unremarkable. Would not tenderness be a confirmation of
plaintiff’s pain? More broadly, Dr. Singh gave no indication elsewhere in these notes that he
doubted plaintiff’s pain allegations. His subsequent actions likewise gave no such indication. A
month later, he gave plaintiff an epidural steroid injection and then later gave her more
injections. R. 496. If the examinations were truly unremarkable, it would raise a question about

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why he performed these procedures. None of plaintiff’s other treating doctors questioned the
sincerity of his pain allegations either.
Given the lack of a supporting medical opinion, the ALJ’s analysis necessarily rested on
his layperson analysis of the meaning of these examination findings and also the MRI and other
reports. This is a ground for remand. 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.”); 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).
Dr. Slavin’s Records. Even if the ALJ did not play doctor, the Court would still remand
based on the second argument, which is that the ALJ failed to analyze the treatment records from
Dr. Slavin, who plaintiff saw in March 2016 for a surgical consultation. Plaintiff argues that Dr.
Slavin’s observations and opinions further support his claim. This Court agrees. The mere fact
that plaintiff was referred for a surgical evaluation undermines the ALJ’s criticism that plaintiff
“has not been involved with additional surgical intervention.” R. 25.
In the decision, the ALJ noted, without mentioning Dr. Slavin by name, that plaintiff had
gone for an evaluation with a doctor on March 7, 2016. R. 24. The ALJ then briefly summarized
the findings from this visit, stating that the examination “revealed antalgic gait, intact sensation,
and positive sagittal balance.” R. 24. However, plaintiff complains that this was a bland
summary that omitted the larger, more important conclusions—specifically, that the doctor found
that plaintiff had a “significant” sagittal deformity, that he was referring her to an evaluation by a
“complex spine surgeon”; that if she were not a candidate for surgery, then she “would become a

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failed back surgery syndrome” and would be “a good candidate for pain management, including
a spinal cord stimulator.” R. 588. Plaintiff argues that this evidence bolstered her case, and thus
should have been considered. This Court agrees. Scrogham v. Colvin, 765 F.3d 685, 698 (7th Cir.
2014) (an ALJ may not use a “sound-bite” approach in which favorable evidence is cited but
unfavorable “related evidence” is ignored). Notably, in its response, the Government never
responded to this argument, thus essentially conceding that the ALJ’s analysis was incomplete.
Treating Physician Rule. Plaintiff argues that the ALJ failed to apply the checklist of
factors in rejecting Dr. Villacorta’s opinion. The ALJ’s analysis consisted of the following two
rationales:
This opinion is given little weight, as it is inconsistent with the objective clinical findings
made on the same date. [Furthermore], the restrictions of “longer periods of time” and
“prolonged” walking do not provide detailed specific restrictions that would result in any
accurate residual functional capacity.
R. 24. The Government argues that an ALJ “need not discuss every [checklist] factor” but only
must “minimally articulate” the reasons why the opinion was rejected, and then argues that the
above explanation is adequate. Dkt. #16 at 3. The Court disagrees. The ALJ’s “analysis” of the
treating physician rule was woefully insufficient. Even accepting the Government’s more lenient
approach, the Court finds the ALJ’s analysis was insufficient.
The ALJ’s first rationale was that Dr. Villacorta’s letter was inconsistent with his own
findings “made the same date.” However, it is not clear that there were inconsistent findings
made that day. The notes are short and vague about whether Dr. Villacorta performed any
extensive evaluation at this visit or whether he was, instead, merely responding to the letter
request by relying on his prior treatment history with plaintiff. R. 438-49. Even the Government,
in its brief, concedes that there were no inconsistent findings, as the ALJ claimed, but merely an
alleged lack of confirmatory findings. See Dkt. #16 at 4 (“While it may have been more correct
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to say that the clinical findings did not support Dr. Villacorta’s opinions, rather than that they
were inconsistent with the opinions, this imperfection is not fatal.”). A broader problem with the
ALJ’s approach is that he only considered Dr. Villacorta’s findings made on that particular day,
without acknowledging that Dr. Villacorta had an ongoing relationship with plaintiff. It is
reasonable to assume that the opinion letter reflected this deeper, long-term relationship and was
not based solely on the one visit on June 11th.
Another problem with the ALJ’s inconsistency argument is that the ALJ never assessed
the consistency of Dr. Villacorta’s opinion as compared to the other medical opinions. In
particular, both Dr. Singh and Dr. Slavin treated plaintiff. It would make sense, therefore, to see
whether their observations and diagnoses were consistent with—or alternatively undermined—
Dr. Villacorta’s opinion. But instead of making this comparison, the ALJ instead simply looked
at Dr. Villacorta’s opinion in isolation and then, narrowing the lens even tighter, just looked at
one day’s treatment notes. A more comprehensive review should be undertaken on remand.
The ALJ’s second rationale—that the opinion lacks “detailed specific restrictions”—is
partially true, but is a weak basis for simply disregarding the opinion altogether. As a
preliminary matter, not all of the recommendations lacked specificity. Two of the four
limitations (no lifting and elevate legs when sitting) were absolute statements requiring no
subjective interpretation. As for the other two limitations (plaintiff can’t stand for “longer”
periods or engage in “prolonged” walking), it is possible that different people might disagree at
the margins about what precise hourly limitations are envisioned by these terms. But the issue
here is whether plaintiff could do light work, which would require six hours of standing or six
hours of walking. 3 It is difficult to imagine how six hours would not constitute “prolonged”

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At the hearing, plaintiff testified that she couldn’t “walk a long distance” and “not even a short distance without
hanging onto something.” R. 42.

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walking under any reasonable interpretation of that word. The ALJ’s concerns about vagueness
would carry more weight if the proposed RFC included a much shorter limitation on walking,
say one hour. Finally, to the extent that the ALJ believed that Dr. Villacorta’s limitations were
ambiguous, the better approach would have been to seek an updated opinion from the doctor.
In sum, the ALJ’s analysis was incomplete and relied too heavily on layperson analysis
of the medical findings. Also, although not directly raised by plaintiff as an argument, the ALJ’s
decision rests almost entirely on the rationale that there was no objective evidence to support the
pain allegations. In fact, the ALJ indicated that that the objective did not provide “strong
support” for plaintiff’s allegations, suggesting that the ALJ may have believed that the objective
evidence must be clear and overwhelming to believe a claimant. However, as set forth in SSR
96-7p, pain allegations “may not be disregarded solely because they are not substantiated by
objective medical evidence.” Hall v. Colvin, 778 F.3d 688, 691 (7th Cir. 2015) (“an
administrative law judge may not deny benefits on the sole ground that there is no diagnostic
evidence of pain”); Adaire v. Colvin, 778 F.3d 685, (7th Cir. 2015) (“[The ALJ’s] principal error,
which alone would compel reversal, was the recurrent error made by the Social Security
Administration’s administrative law judges, and noted in many of our cases, of discounting pain
testimony that can’t be attributed to ‘objective’ injuries or illnesses—the kind of injuries and
illnesses revealed by x-rays.”).
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 25, 2018

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge