United States District Court, N.D. Illinois, Western Division
Mark R. Hurlbut Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
D. Johnston Magistrate Judge
an action challenging the administrative law judge's
(“ALJ”) denial of social security disability
benefits to plaintiff Mark R. Hurlbut. See 42 U.S.C.
§405(g). Plaintiff alleges that he suffers from
long-standing back pain. The ALJ agreed that plaintiff's
multilevel degenerative disc disease was causing him pain,
even severe pain at times, but concluded that plaintiff could
still work a full-time sedentary job. In reaching this
decision, the ALJ rejected the opinions of two treating
doctors. As explained below, the Court finds that a remand is
required to address several unresolved medical questions.
ALJ's opinion contains a lengthy summary of
plaintiff's treatment history beginning in 2004. Over
this period, plaintiff was treated by many doctors and tried
many treatments to alleviate his back-related pain. These
included fusion surgery in 2004 performed by neurosurgeon Dr.
Diane Sierens. After this surgery, plaintiff was treated by
Dr. Fred Sweet, an orthopedist and spinal surgeon.
Eventually, plaintiff was sent to a pain management doctor,
Dr. A.P. Rosche of Advanced Pain Intervention, who treated
plaintiff from 2006 through August 2011 and who tried various
treatments and numerous medications to alleviate the pain. In
2013, plaintiff began seeing a new pain specialist, Dr.
Ishmeet Singh, who completed a questionnaire about
plaintiff's condition. This questionnaire is one of the
two opinions from a treating physician. The other one is a
one-page letter, dated March 29, 2012, from Dr. John T.
Dorsey, plaintiff's longtime primary care physician.
November 21, 2013, a hearing was held before the ALJ.
Plaintiff's counsel gave an opening statement, explaining
that plaintiff was then taking Methadone four times a day, a
drug which counsel described as “an extremely strong
opiate narcotic medication for pain.” R. 50. Counsel
also explained that, although plaintiff could perform certain
activities from time to time that were consistent with a
sedentary job, he could not perform them on a sustained basis
because his condition fluctuated with good and bad days.
Plaintiff testified that he was 49 years old and lived with
his wife. He last worked in December 2010, as a restaurant
manager, and quit because he was having sharp stabbing pains
between his shoulder blades, which radiated down his back. He
had problems standing on his feet and walking and lifting
things, and his problems had worsened in the last year and
25, 2014, the ALJ found that plaintiff was not disabled in a
lengthy opinion (19 pages). The ALJ found that plaintiff had
the severe impairments of “degenerative disc disease of
the cervical, thoracic and lumbar spine and osteoarthritis of
the bilateral knees”; that plaintiff's depression
did not qualify as a severe impairment; and that plaintiff
did not meet a listing. The ALJ found that plaintiff could do
a reduced range of sedentary work.
raises the following two related arguments for remand: (1)
the ALJ failed to follow the treating physician rule; and (2)
the ALJ “played doctor” by engaging in a
layperson analysis of the medical evidence. In a sense, the
first argument could be viewed as an example of the general
principle underlying the second argument. The Court therefore
will begin with the latter argument. Both arguments rest on
the fact that the ALJ did not rely on any medical expert.
argues that the ALJ played doctor in multiple instances
throughout the opinion. This Court agrees that the ALJ made
medical judgments beyond his expertise or at least failed to
provide a sufficient explanation to enable the Court to
follow his reasoning.
the ALJ's rationales for finding plaintiff not disabled
was that his medical treatment was supposedly conservative.
The ALJ, however, did not provide a clear explanation for
this conclusion. Plaintiff was treated by numerous doctors
(including three pain management specialists over a nine-year
period), had many tests such as MRIs, and tried various
treatments including epidurals and pain medication. After
reading this ALJ's own summary of this treatment history,
the Court did not understand why these treatments should be
viewed as conservative. This uncertainty leads to a broader
question: which treatments are considered to be conservative
for a person with plaintiff's particular conditions and
his specific treatment history? The ALJ did not answer this
question or otherwise cite to any authority for the claim
that plaintiff's treatment was conservative. The
supposedly conservative nature of the treatment is not
self-evident to this Court, and the question requires medical
expertise to answer. For example, as plaintiff noted in his
opening brief, when his orthopedist (Dr. Sweet) referred him
to a pain medication specialist (Dr. Rosche) in 2006, the
orthopedist noted that plaintiff had already by that
time tried “multiple conservative treatment
modalities” which provided no relief. Dkt. #12 at 4.
This is strong medical evidence that subsequent treatments
were not conservative.
the analysis were limited to plaintiff's present
treatment of taking methadone four times a day, there is
still a question of whether even this is conservative, as the
ALJ seems to be claiming. As noted above, at the hearing,
plaintiff's counsel described methadone as “an
extremely strong opiate narcotic medication.” And
neither the ALJ nor the government provides any evidence to
the contrary. In sum, there is no statement from any doctor
indicating that this treatment was conservative. On remand,
the ALJ must call a medical expert to answer this question.
related issue concerns the specific treatment of epidural
injections. The ALJ suggested that plaintiff should have kept
getting these injections because they were effective. R. 33.
The impression given by the ALJ is that plaintiff was
needlessly shunning an easy and proven treatment. However,
this conclusion fails to address several potential
countervailing points. As an initial matter, plaintiff did
willingly try this therapy, receiving numerous epidural
injections from Dr. Rosche. See R. 255 (1/4/2010
visit, Dr. Rosche noting that plaintiff “does want
future care and future interventional pain management
consisting primarily of facet therapy and epidurals on a
p.r.n. basis”). Therefore, this is not a case where a
claimant was unwilling to try a therapy. Based on the current
record, it is not clear why plaintiff stopped, and it may
have been due to multiple reasons. In his opening brief,
plaintiff's attorney stated that a “plausible
alternate explanation for not seeking [further] injections is
that [plaintiff] had previously received similar conservative
treatment for ten years without success.” Dkt. #12 at
12. This may be true, but the record is not clear on this
point. As the ALJ noted, plaintiff himself indicated that
these treatments were effective at least for a time. Another
possible explanation, one given by plaintiff at the hearing,
is that there were risks to continuing this type of
treatment. See R. 81 (“Well, [Dr. Rosche]
believed that we were coming to the point where I've had
so many in the previous three years that it would start
deteriorating the area and it would probably not be giving me
- it would not be advantageous to continue to have more
steroid shots or epidurals”). The ALJ and the
Government do not address this testimony, apparently
believing that there were no risks. But this assumption is,
again, not obvious. In sum, these epidural-related questions
are another area where medical expert testimony is needed.