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Lovett v. Berryhill

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

June 26, 2017

Dewayne Lovett Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston United States Magistrate Judge

         Plaintiff Dewayne Lovett seeks social security disability benefits based on back pain that first emerged after a car accident in June 2011, when he was 42 years old. Since that time, he has seen several doctors, including Dr. Vo, a spine physiologist, who treated plaintiff from approximately August 2011 until the end of 2012; Dr. Velimirovic who performed an L5-S1 discectomy in March 2012; Dr. Freeman, a pain specialist, who treated plaintiff for a two month period in late 2013 to early 2014; and Dr. Norem, a primary care physician, who began treating plaintiff in October 2013 and who was still treating plaintiff at the time of the administrative hearing. Plaintiff has tried varying treatments to relieve his back pain, which was mostly on the lower right side and sometimes caused numbness or tingling in his right leg. These treatments included trigger point injections, the surgical procedure noted above, electric stimulators, medications (e.g. Tramadol and Lidoderm patches), and physical therapy.

         On November 7, 2014, a hearing was held before the administrative law judge (“ALJ”). At the start of the hearing, plaintiff's counsel stated that she had recently submitted a medical source statement from Dr. Norem. The ALJ stated that she had not seen this opinion, nor any treatment records from Dr. Norem who, she noted, was plaintiff's primary physician. Plaintiff's counsel stated that she would “re-upload that” (it's not clear whether the “that” meant just the 2-page opinion or also the related treatment records).The ALJ stated that she would “take a look, then later today.” R. 42.

         Plaintiff then testified about his ongoing pain, treatment, and activities. His daily pain averaged a four on a scale of ten, and he treated it with “Tramadol patches, lidocaine patches, tramadol, and electronic stimulators.” R. 42. He used the Tramadol every day and used the electric stimulator, or TENS unit, two to three times a week. He tried physical therapy. His doctors offered to perform a surgery where “[t]hey [] go in and burn nerves, ” but plaintiff decided against this procedure because he did not “want them burning the wrong nerve, and still have the pain, and have to go in for multiple surgeries.” R. 43. Plaintiff stated that his doctors rated the chance that such a procedure would be successful at 50/50. Counsel asked plaintiff about the fact that his medical records showed “that you have not had much treatment as of late.” R. 44. Plaintiff stated that “[t]here's not much they can do.” Plaintiff last saw his primary care physician, Dr. Norem, the previous week and then six months before then. When asked how long he could sit, plaintiff answered that he has “got to keep moving around constantly.” Id. He stated that he could walk “[p]robably less than a block.” R. 45. On an average day, he would “[g]et up, have breakfast with the kid, send her out to school, sit down or lay down and watch TV, wait for her to get home from school.” R. 45. The “kid” was plaintiff's five-year old daughter who had Down syndrome. Plaintiff did not lift her up at all. The daughter went to school four hours a day. The ALJ asked about a vacation plaintiff took to Florida, his pool playing, and other activities. These are discussed further below. At the end of the hearing, the ALJ referred to Dr. Norem's records and opinion and stated that she would “[h]opefully” get them and “then . . . make a decision.” R. 60.

         On February 10, 2015, over three months after the hearing, the ALJ issued her decision finding plaintiff not disabled. The ALJ found that plaintiff's degenerative disc disease qualified as a severe impairment, but that it did not meet Listing 1.04. In the residual functional analysis (“RFA”), the ALJ found that plaintiff was able to perform light work. The ALJ noted that there were “significant gaps” in plaintiff's treatment history. One was a year gap after plaintiff stopped treatment with Dr. Vo in late 2012 and then resumed treatment with Dr. Freeman in December 2013. The second was 10-month gap from the end of treatment with Dr. Freeman in early February until the hearing in early November 2014. The ALJ found that plaintiff had taken “appropriate medications” for his impairment that had been “relatively effective in controlling [his] symptoms.” R. 20. The ALJ also noted that plaintiff “admitted” driving to Florida on a vacation and “admitted to an active lifestyle that included socializing with friends, playing pool and caring for his daughter.” R. 20-21. The ALJ acknowledged that Dr. Norem had provided a medical source statement, dated November 3, 2014 (Ex. 8F), which stated (among other things) that plaintiff could sit for less than one hour a day, that he could stand or walk for less than one hour, that he would be off task more than 30% due to pain, and that he would miss work more than five days a month. However, the ALJ gave the opinion little weight. Because the ALJ's explanation is important, the Court will quote it in full. The three paragraphs roughly correspond to the three major rationales.

As for the opinion evidence, the undersigned gives little weight to Dr. Norem's opinion, as the record contained no actual treatment notes from the doctor. There is no indication of when the doctor examined the claimant or what his findings were at that time. Since there are no treatment notes associated with this opinion, the possibility always exists that a doctor may express an opinion in an effort to assist a patient with whom he or she sympathizes for one reason or another. Another reality, which should be mentioned, is that patients can be quite insistent and demanding in seeking supportive notes or reports from their physicians, who might provide such a note in order to satisfy their patient's requests and avoid unnecessary doctor/patient tension. While it is difficult to confirm the presence of such motives, they are more likely in situations where the opinion in question departs substantially from the rest of the evidence of record, as in the current case.
Dr. Norem's opinion also contrasts sharply with the other evidence of record, which renders it less persuasive. The claimant admitted in early 2014, several months before Dr. Norem gave his opinion, that medications controlled his pain. After noting medications controlled his pain, the claimant did not seek any additional treatment, which suggests his pain remained controlled at the time of Dr. Norem's opinion. Dr. Norem also considered radiculopathy as a limiting factor when giving his opinion, but recent treatment notes from the claimant's pain management doctor showed the claimant did not suffer any radicular pain or symptoms.
The claimant also admitted to activities of daily living that [are] not as limited as Dr. Norem opined in his medical source statement. Dr. Norem stated the claimant could sit for less than 1-hour total per day, but, as noted above, the claimant successfully drove from Illinois to Florida and back in the summer of 2012, just months after undergoing back surgery. The claimant also cared for his daughter with Downs Syndrome and played pool with friends.

R. 25-26 (citations omitted).

         On April 10, 2015, two months after the ALJ's decision, plaintiff submitted a letter to the Appeals Council arguing that the case should be remanded on the basis of new and material evidence. This evidence consisted of Dr. Norem's treatment records from October 21, 2013 to March 17, 2015. Plaintiff offered the following explanation for why these records had not been submitted earlier: “Unfortunately, these records were not available at the time of the hearing due to some apparent confusion about Claimant's name. Dr. Norem's office had the Claimant listed under Wayne Lovett instead of DeWayne Lovett, and this apparently caused some confusion for someone in Dr. Norem's records department.” R. 267. On July 8, 2016, the Appeals Council denied the appeal in a form letter that refers to this new evidence, but contains no analysis and no clear indication of whether the ALJ considered this evidence to be new and material. R. 1-4.


         Plaintiff raises four arguments for remand: (1) the Appeals Council wrongly found that the treatment records from Dr. Norem were not new or material; (2) the ALJ misapplied the treating physician rule; (3) the ALJ failed to fully consider whether plaintiff met Listing 1.04; and (4) the ALJ misconstrued plaintiff's activities of daily living. The Court finds that a remand is warranted based on the second and fourth arguments.

         I. Dr. Norem's Treatment Records and the Appeals Council.

         The first argument is difficult to assess. For one thing, as both sides recognize, the plaintiff can only challenge the decision of the Appeals Council if it concluded that the Norem records were not new and material. If the Council concluded that they were, then this Court is not permitted to otherwise review the decision. But deciphering which of these two decisional paths was followed would require a virtual divining rod to ferret out the few flickers of information from the boilerplate. Another not-fully-resolved issue is whether this evidence can be considered “new.” Stated differently, who is to blame for the failure to timely supply the records? Neither side provides a satisfying answer. Plaintiff has suggested that the problem resulted from a name mix-up at Dr. Norem's office, but there are no documents to verify this assertion. It is not clear when plaintiff first requested these records, as the only request this Court found was a March 25, 2015 letter. R. 747. This letter was sent four months after the hearing, and well over a month after the ALJ's decision. The letter does not refer to an earlier, timely request. If this were the first request, then plaintiff's counsel dropped the ball on this issue. At the same time, a question could be raised as to why the ALJ did not follow up on this issue. The parties discussed these records at the hearing, and the ALJ indicated that she wanted to review them before issuing a decision. The ALJ ...

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