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Hurlbut v. Colvin

United States District Court, N.D. Illinois, Western Division

February 7, 2017

Mark R. Hurlbut Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.


          Iain D. Johnston Magistrate Judge

         This is 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.


         The 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.

         On 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 half.

         On June 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.


         Plaintiff 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.

         I. Playing Doctor

         Plaintiff 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.

         Conservative Treatment.

         One of 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.[1]

         Even if 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. HALLEX I-2-5-34.A.1.

         A 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.[2] In sum, these epidural-related questions are another area where medical expert testimony is needed.

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