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Dyer v. Berryhill

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

February 21, 2017

Michael F. Dyer Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston United States Magistrate Judge.

         This is an action challenging the administrative law judge's (“ALJ”) denial of social security disability benefits to plaintiff Michael F. Dyer. See 42 U.S.C. §405(g). Plaintiff alleges that back-related pain prevents him from working a full-time sedentary job.


         Plaintiff worked for many years in the maritime industry, where he loaded and unloaded barges and tugs, regularly lifting 75 to 150 pounds in shifts sometimes lasting 14 to 18 hours a day. R. 40. On November 20, 2009, he injured his back while lifting one of these heavy objects. R. 43. He was then 39 years old and had never had any back problems before.

         After the injury, he tried physical therapy, but it did not work. Dkt. #14 at 2 (citing R. 344, 346-359). He had several MRIs and other tests. Then, on November 8, 2010, he had lumbar fusion surgery that resulted in four screws and two rods being inserted. R. 45. The surgery was performed because, as the ALJ later noted in the opinion, plaintiff's “lower back pain had not responded to conservative treatment.” R. 18. After the surgery, plaintiff tried physical therapy several more times. Over time, his pain improved somewhat, although how much it improved is the subject of dispute.

         On May 5, 2011, plaintiff had a functional capacity evaluation administered by a company called ATI Physical Therapy.[2] R. 391. A month and a half later, one of plaintiff's doctors (Dr. Herman) wrote a letter releasing plaintiff to work a job consistent with the results of this evaluation.

         On May 8, 2014, a hearing was held before the ALJ. In his opening statement, plaintiff's counsel referred to the proceeding as a “relatively straightforward case” involving back pain. R. 37-38 (“it's essentially a pain case”). Plaintiff then testified about his various limitations arising out of his back pain.

         On July 11, 2014, the ALJ found that plaintiff, despite ongoing back pain, could perform a sedentary job with exceptions such as the freedom to stand or walk every two hours. The ALJ's reasoning is discussed below.


         Plaintiff argues that the ALJ committed two main errors: (1) the ALJ improperly “played doctor” in interpreting the objective medical evidence, and (2) the ALJ cherry-picked or misinterpreted the evidence to reach various conclusions. The Court agrees with these arguments, finding that there are too many unresolved questions, ambiguous statements, and inconsistent or incomplete explanations. In short, the ALJ did not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).

         Plaintiff focuses his arguments on the credibility analysis. The Court, therefore, will consider this analysis first and then will consider the ALJ's discussion of the medical opinions, some of which are also mentioned in the credibility analysis.

         I. Credibility Analysis.

         To summarize a few key facts at the outset, the ALJ did not call a medical expert to testify at the hearing. In the opinion, the ALJ agreed that plaintiff had a severe impairment of degenerative disc disease and that this condition could cause the pain and limitations plaintiff allegedly was experiencing. Therefore, the key issue was whether plaintiff's allegations were believable. The ALJ concluded that they were not-specifically, they were “less than fully credible.” R. 20. The ALJ's explanation was set forth in the following paragraph:

After considering the claimant's allegations and complaints, the undersigned finds him to be less than fully credible. While the claimant elected to undergo lumbar fusion, the record indicates that he had no neurological deficits prior to the surgery (Exhibit 18F/25). While the physical consultative examiner noted that the claimant walked with an antalgic gait, that he could not heel/toe walk and that he had reduced 4/5 dorsal flexion of the right foot, the record also indicates that he has full strength and sensation of his upper and lower extremities (Exhibit 9F). While straight leg raising has been positive on occasion, the record indicates that the claimant has no accompanying motor weakness or neurological deficits. This is consistent with a finding that the claimant is able to perform work at the sedentary level. While the claimant testified that he has increasing levels of weakness of his hands, the record consistently indicates that he has full grip and dexterity bilaterally. After undergoing a functional capacity evaluation, the claimant was released to work at the light exertional level (Exhibit 7F). In addition, Vijay Marwaha, M.D., the claimant's treating physician, opined that the claimant is able to perform sedentary work (Exhibit 12F). Therefore, the undersigned finds that the opinions of the claimant's treating physicians do not support a finding of disability. Even ...

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