Minnick v. Berryhill

Filing 24

MEMORANDUM Opinion and Order: Plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is reversed and remanded for further proceedings. (See attachment for full detail). Signed by the Honorable Lisa A. Jensen on 12/5/2019. Mailed notice (jk, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Michelle M.,
Plaintiff,
v.
Andrew Saul,
Commissioner of Social Security,
Defendant.

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No. 18 CV 50003
Magistrate Judge Lisa A. Jensen

MEMORANDUM OPINION AND ORDER1
Plaintiff Michelle M. alleges that ongoing pain, numbness, and tingling in her back,
elbows, hips, hands, and feet prevent her from working full-time. Plaintiff’s doctors have offered
a series of possibly overlapping diagnoses to explain her symptoms—including degenerative disc
disease, fibromyalgia, psoriatic arthritis, diabetes, and carpal tunnel syndrome in her right hand.
But no single consistent diagnosis has yet been settled upon. Plaintiff’s treatment mostly took
place in the two years leading up to her hearing, and this treatment occurred on a parallel track
with the progression of her legal case at the administrative level. For example, she first began
seeing a pain management specialist just a month before the hearing. The late-breaking nature of
this treatment complicated the adjudication of plaintiff’s claim, mainly because 200 pages of
treatment records were submitted after the State agency doctors rendered their opinions.
The administrative law judge (“ALJ”) found that plaintiff was not disabled based on two
main rationales: (1) the objective medical evidence—x-rays, MRIs, physical examination
findings—indicated only mild problems; and (2) plaintiff had limited treatment that was likewise

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The Court will assume the reader is familiar with the basic Social Security abbreviations and jargon.

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consistent with only mild problems. Plaintiff raises numerous arguments for remand, but her
most encompassing argument is that the ALJ improperly “played doctor” repeatedly throughout
the five-step analytical process. The Government’s main counter-argument is that any possible
errors were harmless. After reviewing the briefs, the Court does not agree with all or even most
of plaintiff’s contentions, but finds that overall plaintiff has raised enough—just enough—
concerns and questions to justify a remand.
BACKGROUND
Although plaintiff has stated that some of her problems may have been present since birth
or even caused by a fall when she was six years old, the relevant medical history for our
purposes begins in late December 2014 when plaintiff stopped working because of her health
problems. Her primary physician was Dr. Schock. However, because plaintiff lost her health
insurance when she stopped working, she had to switch doctors. R. 55. She then began seeing
Dr. Dennis Norem who oversaw her care in 2015 and 2016. Plaintiff saw him six times in total.
On March 17, 2015, plaintiff filed disability applications under Title II and XVI. Plaintiff
was then 36 years old.
On July 13, 2015, plaintiff was examined by Dr. K.P. Ramchandani, a consultative
examiner, who prepared a report that was later relied on by the two State agency doctors. He
made the following findings, among others:
[Plaintiff’s] gait is normal, unassisted. She is able to walk on heels and toes. She
is able to squat and get up from squatting position without support. She is able to
get on and off the examination table without assistance and dress and undress
without assistance. She is right-handed. Her grip is 5/5 bilaterally. She is able to
make a fist, pick up objects, open and close the door, oppose the thumb to fingers,
and flip pages.

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Motor system: Power is 5/5 with normal tone and muscle mass in all 4
extremities. Sensory system: She has tingling in right hand on tapping the right
flexor aspect of right wrist joint, no deficit to touch and pinprick in all 4
extremities. Deep tendon reflexes are 2+, going down plantars bilaterally.
R. 368.
On August 6, 2015, Dr. Towfig Arjmand, a State agency physician, opined that plaintiff
had the residual functional capacity (“RFC”) to do medium work with certain limitations. Exs.
1A, 2A.
On August 17, 2015, Dr. Norem completed a four-page RFC questionnaire, offering
various assessments which, if credited, would support a finding of disability. Ex. 7F.2
On September 23, 2015, Dr. Victoria Dow, another State agency physician, issued an
opinion. Exs. 5A, 6A. Dr. Dow found that plaintiff had the RFC to do light work, which differed
from Dr. Arjmand’s finding that plaintiff could do medium work. Dr. Dow indicated that she had
reviewed recent x-rays not reviewed by Dr. Arjmand. R. 101.
Dr. Norem eventually referred plaintiff to Dr. Hovis, a rheumatologist. At a visit on
September 23, 2015, plaintiff reported that she was taking several medications (Gabapentin,
Tramadol, and Ibuprofen), but they had not been effective. R. 426. On examination, Dr. Hovis
noted that plaintiff had no synovitis, pain, or impaired range of motion, but the doctor did
observe a number of positive tender points. R. 429. Dr. Hovis noted that plaintiff had “[n]o
active Psoriatic arthritis at this time” and concluded that her pain was “probably related to
fibromyalgia.” R. 430. Dr. Hovis recommended Effexor to treat the fibromyalgia. Id.

A week later, Dr. Norem submitted a letter, stating only that plaintiff was under his care and was “unable to work
at this time due to [her] medical condition.” R. 375.
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Plaintiff saw Dr. Hovis again on January 13, 2016, and reported that the Gabapentin and
Effexor did not help and made her “feel foggy.” R. 421. Dr. Hovis again observed that there was
no evidence of psoriatic arthritis but that there was ongoing fibromyalgia. R. 422. Dr. Hovis
advised plaintiff to do low impact exercises. Id. It does not appear that plaintiff saw Dr. Hovis
after this time, and it is not known why the relationship stopped.
On September 2, 2016, Dr. Norem completed another medical questionnaire, reaching
similar conclusions to the earlier one. Ex. 10F.
In the fall of 2016, Dr. Norem referred plaintiff to Dr. Maxim Gorelik, a pain specialist.
Plaintiff saw him several times before the hearing. On October 5, 2016, Dr. Gorelik administered
a steroid injection to plaintiff’s right hip. R. 474. On October 13, 2016, an MRI was taken. Dr.
Gorelick was contemplating at this time whether to do a spinal injection because the hip injection
had been ineffective. This was several weeks before the hearing, which was held on November 3,
2016.
At the hearing, Plaintiff testified that she was living with her aunt who was disabled.
Since 2002 she had worked full-time as a live-in home health aide for her aunt. She stopped
doing this job, for which she was paid, in December 2014 because of her health problems.
She testified that her pain rose to a 9 on a 10-point scale after walking longer than 10 to
15 minutes. She could not lift more than a couple pounds. If she lifted more weight, her back
would “completely lock up and cause intense pain.” R. 41. Her elbows were always inflamed
because of her psoriatic arthritis. She had trouble sitting, and she couldn’t go to the movies
because her tailbone area would become numb. Over the last several years of treatment with

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multiple doctors, plaintiff had been trying to find the “root cause” of her inflammation and pain.
R. 46.
On March 16, 2017, the ALJ found that plaintiff did not qualify as disabled. At Step Two,
the ALJ found that the following impairments were severe: “degenerative joint disease of the
cervical, thoracic, and lumbar spine; fibromyalgia; psoriasis; and right hand carpal tunnel
syndrome.” R. 17. Here, the ALJ essentially accepted every diagnosis made by any treating
doctor. At Step Three, the ALJ considered whether plaintiff met one of four listings—14.09,
1.02, 1.04, and 8.05—but concluded in a fairly brief analysis that plaintiff did not.
In the RFC analysis, the ALJ summarized the medical history, offering occasional
analysis along the way, and then concluded that plaintiff lacked credibility for two reasons,
discussed further below. As for the medical opinions, the ALJ gave “substantial weight” to Dr.
Dow’s “light work” RFC finding and “less weight” to Dr. Arjmand’s “medium work” finding
because Dr. Dow “had the opportunity to review additional medical records including medical
imaging of the claimant’s spine.” R. 21. As for Dr. Norem’s two opinions, the ALJ evaluated
them using the six factors from the treating physician rule and concluded that they deserved only
“minimal weight” even though he was a treating physician. R. 22-23. Among other things, the
ALJ noted that plaintiff did not have an “extensive treatment relationship” with Dr. Norem,
having seen him only six times in total, with only three visits before the first opinion was
rendered. The ALJ also found that Dr. Norem’s findings only showed “mild changes in the
spine” and the “absence of inflammation in the joints,” and that plaintiff had a “normal gait, full
strength in the extremities, and intact sensation and reflexes.” R. 22.

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DISCUSSION
A reviewing court may enter judgment “affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. §
405(g). If supported by substantial evidence, the Commissioner’s factual findings are conclusive.
Id. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to
determine that the decision’s conclusion is supportable. Richardson v. Perales, 402 U.S. 389,
399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering
facts or evidence, or by making independent credibility determinations. Elder v. Astrue, 529 F.3d
408, 413 (7th Cir. 2008).
However, the Seventh Circuit has emphasized that review is not merely a rubber stamp.
Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a “mere scintilla” is not substantial
evidence). A reviewing court must conduct a critical review of the evidence before affirming the
Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when
adequate record evidence exists to support the Commissioner’s decision, the decision will not be
affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to
the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). Moreover, federal courts
cannot build a logical bridge on behalf of the ALJ. See Mason v. Colvin, No. 13 C 2993, 2014
U.S. Dist. LEXIS 152938, at *19-20 (N.D. Ill. Oct. 29, 2014).
In her two briefs, plaintiff has showered the Court with many arguments and subarguments, attacking the ALJ’s decision from multiple angles. Some are broad while others are
tightly focused on specific pieces of evidence. The three main arguments, at least as identified by
the Roman numeral headings in the opening brief, are the following: (1) the ALJ erred in failing
to obtain an updated medical opinion because over 200 pages were added to the record after the
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State agency physicians rendered their opinions; (2) the ALJ erred in playing doctor in various
ways; and (3) the ALJ erred in analyzing the medical opinions and in specifically rejecting Dr.
Norem’s opinions. But many more arguments are embedded within these three, and there is
much overlap among the arguments. After triaging these arguments, the Court finds that
plaintiff’s best argument for a remand is a combination of the first two arguments—namely, the
ALJ played doctor in too many instances, and should have sought the assistance of an expert.
Additionally, a remand is warranted because the ALJ ignored critical parts of plaintiff’s
testimony.
Viewed at a general level, the admonition that ALJs should not play doctor seems fairly
straightforward and easy to articulate. Because ALJs are not medical doctors, they cannot
reliably interpret technical medical records or make independent diagnoses. See, e.g., Moon v.
Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (the ALJ should “rely on expert opinions instead of
determining the significance of particular medical findings themselves”); Rohan v. Chater, 98
F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and
make their own independent medical findings.”).One concrete example cited in recent case law
is interpreting MRI reports. See, e.g., Akin v. Berryhill, 887 F.3d 314, 317-18 (7th Cir. 2018).
However, in practice, the rule is not always easy to apply. As the Government notes, the Seventh
Circuit has affirmed ALJs in some cases (the Government refers to it as “a number of cases”)
where ALJs “evaluated medical records”—i.e. where they arguably engaged in some degree of
doctor-playing. Dkt. #15 at 8-9.3 In such cases, the ALJs could be viewed as merely noting or
summarizing the evidence, rather than interpreting it or using it to reach a deeper diagnosis

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The cases cited by the Government to support this claim are the following: Summers v. Berryhill, 864 F.3d 523
(7th Cir. 2017); Dixon v. Massanari, 270 F.3d 1171 (7th Cir. 2001); Knight v. Chater, 55 F.3d 309 (7th Cir. 1995).

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different from the ones made by the doctors. The bottom line is that there do not appear to be
many clear rules to determine when the doctor-playing line is crossed.
Turning to the present case, two predicate facts set the stage for the doctor-playing
argument. First, the ALJ did not call a medical expert at the hearing.4 Second, the two State
agency doctors rendered their opinions in August and September of 2015, more than a year
before the hearing and before the 200 pages of additional medical evidence were tendered. As a
result, the ALJ necessarily analyzed this evidence based only on his layperson judgment. But the
relevant question is whether, as the Government argues, the ALJ’s doctor playing could be
viewed as not being material, largely because the new evidence did not reveal any dramatic
changes from the earlier evidence considered by the two State agency doctors.
The Court agrees with the Government that some of the specific doctor-playing cited by
plaintiff could be deemed harmless errors. We can start with what plaintiff seems to believe is
her best argument. This is the claim that the ALJ mistakenly confused two similar-sounding
medical conditions—“psoriasis” and “psoriatic arthritis.” Relying on the Mayo Clinic website,
plaintiff argues that the former condition only affects the skin, whereas the latter condition
affects both the skin and joints and is overall much more serious. This argument brings to mind
Mark Twain’s famous quip that the difference between the right word and the almost right word
is like the difference between the lightening bug and lightening.
But the problem with this argument is that the textual evidence for it is ambiguous. The
main piece of evidence is that the ALJ used the word “psoriasis” (rather than “psoriatic

It does not appear that plaintiff’s counsel ever asked the ALJ to seek an updated opinion. Also, plaintiff’s counsel
chose not to procure an independent medical opinion. These facts weaken the rhetorical force of plaintiff’s
argument.
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arthritis”) in describing the impairments at Step Two. This is true, and it does appear to be that
this one instance was a linguistic slip of the pen, so to speak. But later in the opinion, the ALJ
used both terms, and evaluated both conditions, as evidenced by the separate listings 14.09 and
8.05. Thus, rather than viewing this as evidence of confusion, another explanation is that the ALJ
was simply being thorough. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (“Rather
than nitpick the ALJ’s opinion for inconsistences or contradictions, we give it a commonsensical
reading.”). But a bigger obstacle to this whole argument is that the evidence plaintiff even had
psoriatic arthritis is debatable. Notably, Dr. Hovis twice found no evidence for it.
Plaintiff also alleges that the ALJ played doctor in the listing analysis. But here again, the
Court finds any error to be harmless. Plaintiff has not made a colorable argument that the ALJ’s
listing analysis was wrong. Cf. James E. v. Berryhill, 357 F.Supp.3d 700, 702-03 (N.D. Ill. 2019)
(finding that a medical expert should have been called to confirm ALJ’s listing analysis because
the plaintiff pointed to “enough evidence to make a colorable argument that [the listing] might
apply”) (emphasis in original). Of the four listings at issue, the only one that plaintiff even makes
an argument for is 14.09 ( “Inflammatory arthritis”). But plaintiff does not discuss the specific
requirements of that listing. The ALJ found it was not met because plaintiff had not shown
“persistent and severe manifestations of inflammatory arthritis.” R. 18. To support this
conclusion, the ALJ cited to Dr. Hovis’s findings. Id. Given that plaintiff has not challenged this
evidence, nor pointed to other evidence showing that plaintiff could possibly meet the specific
requirements, plaintiff has not made a prima facie case. For example, listing 14.09 contains four
alternative tests, and plaintiff has not even identified which one she believes she could meet.
Without some initial showing of a viable pathway, the Court is unwilling to hold that the ALJ

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was obligated to call a medical expert, which again was a request plaintiff’s counsel apparently
never made to the ALJ.
Although the Court agrees that the ALJ was playing doctor to some extent in the above
examples, the Court does not find that these instances, on their own, justify a remand. But the
doctor-playing argument is stronger when considered in relation to the credibility analysis and
the analysis of the medical opinions.
The ALJ’s credibility analysis consisted of the following paragraph:
Overall, the undersigned finds the claimant’s allegations only partially consistent
with the medical evidence. As discussed above, medical imaging of the claimant’s
spine has shown only mild changes, and physical examinations have failed to
produce findings to support the degree of pain and other limitations alleged by the
claimant. The claimant demonstrated a normal gait and station, 5/5 strength in the
extremities, and intact sensation. Moreover, the claimant did not see a pain
management specialist until September 2016, and she is not on any prescription
pain medication other than topical ointment (Ex. 17E).
R. 21. This paragraph sets forth two main rationales. However, both of them rest on unstated
medical assumptions.
The first rationale was that the objective evidence was mild. This rationale rests on the
assumption that plaintiff would not have had the degree of pain she alleged to be having without
there being stronger supporting objective evidence. But this assumption is not always true for all
conditions, in particular with fibromyalgia. See Harbin v. Colvin, 2014 WL 4976614, *5 (N.D.
Ill. Oct. 6, 2014) (“Fibromyalgia is diagnosed primarily based on a patient’s subjective
complaints and the absence of other causes for the complaints.”). This is why a medical expert is
advisable when the claimant makes a credible allegation of fibromyalgia. See Stokes v. Astrue,
09 CV 972, 2010 U.S. Dist. LEXIS 86746, *18 (S.D. Ind. Aug. 23, 2010) (due to the nature of
fibromyalgia a medical expert would be a benefit). Here, the ALJ basically lumped all of
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plaintiff’s alleged impairments into one large category without distinguishing the symptoms for
each. But this raises the concern that the ALJ may have used the wrong criteria for some of them.
In particular, the mild objective findings the ALJ cited concerned plaintiff’s gait and muscle
strength. But it is not clear whether these findings were relevant to the diagnosis of fibromyalgia,
which focuses more on tender points. Dr. Hovis noted many of the same normal findings the ALJ
cited, but still seemed to believe that plaintiff was suffering from fibromyalgia. The Court is not
in a position to make any definitive judgments one way or another on these questions, but merely
holds that they need an evaluation from a medical expert to ensure that the conclusions are fair
and reliable. See, e.g., Akin, 887 F.3d at 317-18 (“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.”)
But even if the ALJ’s evaluation of the objective evidence was valid, the ALJ was
required to have at least another rationale to support a credibility finding. See 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”). The ALJ’s second rationale was that
plaintiff had a limited treatment history. This is a valid issue to consider. See SSR 16-3p (factors
4-6). However, the Court is again concerned that the ALJ’s analysis rested too heavily on
medical assumptions. As for specialists, the ALJ did not explain what other specialists plaintiff
should have been seeing. She was seeing a pain specialist (albeit late in the game) and had
already seen a rheumatologist. The ALJ seemed to believe that further effective treatments were
available, but this is not always the case. See SSR 16-3p (“A medical source may have advised
the individual that there is no further effective treatment to prescribe or recommend that would
benefit the individual.”). This possibility has been noted for fibromyalgia. See Mayo Clinic

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Website, “Fibromyalgia: Treatment” (“The emphasis is on minimizing symptoms and improving
general health. No one treatment works for all symptoms.”). The same concerns apply to the
ALJ’s suggestion that plaintiff should have been taking additional medications.
An additional problem with the credibility analysis is that it was incomplete.
Specifically, the ALJ failed to acknowledge several possible explanations plaintiff gave for the
allegedly minimal treatment. She testified that she was leery of taking stronger medications
because both of her parents were addicts. She also mentioned problems with insurance. She also
described how she had tried medications, including Gabapentin, Tramadol, and Effexor, but
found that they were ineffective or caused side effects, such as fogginess. However, the ALJ
mentioned none of these explanations in the decision. This was an error. The law is clear that an
ALJ cannot rely on “sparse treatment history to show that a condition was not serious without
exploring why the treatment history was thin.” Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir.
2014); Shauger v. Astrue, 675 F.3d 690, 696 (7th Cir. 2012) (“Although a history of sporadic
treatment or the failure to follow a treatment plan can undermine a claimant’s credibility, an ALJ
must first explore the claimant’s reasons for lack of medical care before drawing a negative
inference”). Here, for the most part, the ALJ conducted the requisite exploration during the
hearing, but then in the written decision, failed to acknowledge plaintiff’s answers. It may be
possible that the ALJ had a reasonable basis for not believing plaintiff (for example, did plaintiff
inform her doctors about her concerns with taking medications?), but we are not even able to
evaluate these deeper questions because the ALJ swept plaintiff’s explanations under the rug.
Ultimately, plaintiff’s doctor-playing argument implicates a larger important question,
one not adequately resolved in this Court’s view. This is whether plaintiff’s condition materially
changed after the Agency opinions. The parties offer competing theories. Plaintiff alleges that
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her condition deteriorated, with her having to undergo increasingly more aggressive treatments
after the summer of 2015. If true, then this strengthens her argument that a medical expert was
needed to assess the additional 200 pages of new evidence. See Monero v. Berryhill, 882 F.3d
722, 728 (7th Cir. 2018) (“An ALJ should not rely on an outdated assessment if later evidence
containing new, significant medical diagnoses reasonably could have changed the reviewing
physician’s opinion.”). The Government argues that the ALJ reasonably concluded that
plaintiff’s condition was largely unchanged. If true, then the ALJ’s analysis could be viewed as
merely resting on an observation that the new evidence was the same as the earlier evidence.
However, the ALJ did not squarely address this issue—in fact, the ALJ gave mixed
signals. When analyzing the two Agency opinions, the ALJ seemed to endorse the theory that
plaintiff’s condition was worsening. The ALJ gave Dr. Dow’s opinion more weight than Dr.
Arjmand’s based on recent imaging showing spinal deterioration. Under this reasoning, a
credible argument can be made that an expert was also needed to assess whether subsequent
imaging showed even further deterioration. However, in another part of the decision, the ALJ
took an opposite tack. The ALJ noted that, up until shortly before plaintiff’s onset date in
December 2014, she was working as a home health aide for her aunt, a job classified at the
medium level. The ALJ then noted that plaintiff had not alleged any “acute exacerbation” in her
symptoms, thus implicitly undermining the deterioration theory. R. 22.5 These two rationales are

A separate criticism of this argument is that the ALJ again ignored plaintiff’s testimony. At the hearing, the ALJ
directly asked plaintiff how she could do medium work given her alleged condition. Plaintiff explained that her
unique work situation—living at home and treating a close family member—gave her the flexibility to structure her
tasks around her limitations (e.g. “if I had to sweep or mop, I could take a rest”). R. 44. The ALJ asked plaintiff if
she could have done the same work in a more traditional job setting, and plaintiff stated that she could not. She also
noted that the caseworker who was supposed to do a yearly visit had not come by to check in three years. R. 55. This
is another instance in which the ALJ failed to acknowledge testimony contrary to his rationales.
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in tension with each other, one suggesting deterioration with the other one pulling against that
conclusion.
The above conclusions are enough to order a remand. The Court, therefore, need not
address plaintiff’s remaining arguments in depth. The Court notes that plaintiff has raised some
valid concerns regarding the ALJ’s rejection of the two opinions from Dr. Norem. Here again,
the doctor-playing issue comes into play. For example, the ALJ assumed that six (or three)
treatment visits were not enough to render a valid judgment regarding plaintiff’s particular
collection of impairments, but it is not clear whether this assumption is medically grounded.
Likewise, the same concerns about the objective evidence, as noted above, apply to the analysis
of Dr. Norem’s opinions.
On remand, the ALJ should call a medical expert to address all these issues and any
others not addressed herein. In remanding this case, the Court is not indicating that the ALJ must
rule a particular way or that the ALJ’s current rationales, if supported by an appropriate medical
opinion and made after a fair review of the factual record, could not be relied upon to support a
finding that plaintiff was not disabled.
CONCLUSION
For the above reasons, plaintiff’s motion for summary judgment is granted, the
Government’s motion is denied, and the case is reversed and remanded for further proceedings.

Date: December 5, 2019

By:

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___________________________
Lisa A. Jensen
United States Magistrate Judge