United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. Johnston United States Magistrate Judge.
2012, plaintiff Shelton Hightower was diagnosed with Stage
III rectal cancer. He was 47 years old. After the diagnosis,
plaintiff began treatment and also applied for disability
insurance benefits. The cancer treatment was extensive,
lasting over a year. Plaintiff underwent multiple rounds of
chemotherapy and radiation, which caused him to lose a
significant amount of weight. At one point, the treatments
were stopped because the side effects were too severe. He was
operated on twice, and part of his bowel was removed. After
the second surgery, which was required to address an
obstructed bowel, he stayed in the hospital for a lengthy
period. He now has to use a colostomy bag and a cane. But,
fortunately, the treatment worked. By July 2013, the cancer
was in remission and treatments were stopped with plaintiff
reporting feeling less tired.
this same period, plaintiff's disability claim was
percolating through the initial stages of the Social Security
administrative system. In February 2013, an initial medical
reviewer denied plaintiff's claim on the ground that the
cancer had been “completely removed” after the
surgeries. R. 268. In December 2014, when a hearing was held
before an administrative law judge (“ALJ”), the
cancer had been in remission for over a year, and plaintiff
was no longer claiming that he was disabled because of it.
Instead, his claim was based on a new set of problems that
emerged toward the end of the cancer treatment. In late 2012,
plaintiff was diagnosed with diabetes and hypertension.
Around this time, he first began complaining to his
oncologist, Dr. Fauzia Khattak, that he had tingling and
numbness in his feet. On July 22, 2013, Dr. Khattak diagnosed
plaintiff with peripheral neuropathy. Dr. Khattak and
plaintiff's other doctors were unsure then-and are still
unsure now-whether the neuropathy was caused by the diabetes
or the chemotherapy or perhaps both.
the evidence relating to the neuropathy was developed in the
remission period- i.e., after July 2013. During this
time, plaintiff continued to see Dr. Khattak at three-month
intervals to monitor the cancer. She periodically noted that
plaintiff complained about the neuropathy, but also noted
that he was otherwise doing well. Plaintiff was also being
seen by his general physician, first Dr. Sy and later Dr.
Guenev. They too noted the complaints about neuropathy. Dr.
Sy referred plaintiff to a podiatrist, Dr. Mertzenich, who
saw plaintiff for a single visit on September 18, 2013. Dr.
Mertzenich administered the Semmes-Weinstein monofilament
test, in which a 10-gram monofilament is applied to the
patient's toes. This test revealed that plaintiff had no
sensation in eight of his ten toes.
before the hearing in December 2014, Dr. Khattak completed a
form entitled Post Cancer Treatment Medical Source Statement.
Ex. 18F. Dr. Khattak observed that plaintiff had neuropathy
“from diabetes and contributed to by previous
chemo”; that plaintiff was taking medications
prescribed by his general physician; that plaintiff could
walk one to two city blocks before stopping; that plaintiff
could sit about four hours and stand/walk less than two hours
on a normal work day; that plaintiff would be off task 5% of
the day; that plaintiff had no limitations with reaching,
handling, or fingering; that plaintiff would need two
unscheduled breaks each day, for 30 minutes each; that
plaintiff did not need to keep his feet elevated; and that
plaintiff would miss about two days a month.
hearing, plaintiff testified about his current condition. As
summarized by the ALJ, plaintiff made the following
assertions: his left hip was hurting; he was taking
Gabapentin for his neuropathy; he had a colostomy bag that he
flushed out three times a day, a process taking 20 minutes
each time; he had numbness in his fingers all the time; he
had daily swelling in his left leg and feet; and he had to
elevate his feet and lie down to relieve the swelling. R. 28.
A vocational expert then testified. No. medical expert was
March 19, 2015, the ALJ issued a decision with a mixed
outcome. The ALJ first found that plaintiff qualified as
disabled for the 15-month period when his cancer was active.
The ALJ agreed that plaintiff had “significant levels
of fatigue and pain” from the “obviously
extensive” cancer treatments. R. 25-26. In the second
half of the decision, the ALJ found that plaintiff's
problems lessened after the cancer treatments were stopped.
The ALJ acknowledged that plaintiff continued to suffer from
“some lower extremity neuropathy, ” but found
that these problems were not severe enough to prevent him
from working at a sedentary job. R. 31. The ALJ gave little
weight to Dr. Khattak's opinion based on the following
reasons: (i) Dr. Khattak's treatment notes “contain
few supportive findings”; (ii) there were “no
abnormal neurological findings on examinations”; (iii)
she had not “seen the claimant in approximately ten
months” and thus “no longer [had] longitudinal
familiarity”; and (iv) she indicated that diabetes was
“the primary source of neuropathy, a medical diagnosis
for which she did not follow the claimant.” R. 30-31.
The ALJ found that the plaintiff's testimony was not
credible because the record contained “normal objective
findings in many medical examinations.” R. 31.
raises four arguments for remand. One of them can be
addressed quickly at the outset. Plaintiff notes that the ALJ
“found that Plaintiff's disability ended on August
31, 2013, so that as of September 1, 2013, he was no longer
disabled.” Dkt. # 9 at 11. Plaintiff complains that the
ALJ “did not explain” why she selected these
dates. As framed by plaintiff, this argument suggests that
the ALJ arbitrarily found that plaintiff's condition
changed essentially overnight. But this argument overlooks
the obvious rationale, which was that the cancer treatment
ended in July 2012 and plaintiff's symptoms improved
thereafter. This was not an arbitrary rationale.
other three arguments are that the ALJ should have given
controlling weight to Dr. Khattak's opinion; the ALJ
conducted a flawed credibility analysis; and the ALJ
improperly “played doctor.” After reviewing these
arguments, the Court finds that a remand is warranted. The
Court does not find that the ALJ's analysis was shoddy or
necessarily unpersuasive. Rather the Court's primary
concern is that the ALJ's rationales were not supported
by any medical opinion. As previously noted, no medical
Dr. Khattak's Opinion
complains that the ALJ erred in giving little weight to Dr.
Khattak's opinion. In making this argument, plaintiff
dutifully lays out the procedural requirements of the
treating physician rule. However, plaintiff does not
thereafter tie his arguments to any failure to follow that
specific framework, but instead focuses on the substantive
reasons for the ALJ's conclusion.
preliminary but important observation, the Court notes that
the Dr. Khattak's opinion is not one-sidedly in
plaintiff's favor. In fact, several findings are at odds
with plaintiff's allegations. For example, Dr. Khattak
indicated that plaintiff would have no limitations with
handling and fingering, a conclusion that seems to contradict
plaintiff's testimony that he had numbness in his hands.
Dr. Khattak also answered “no” to the question
about whether plaintiff would need to elevate his feet on the
job, another point contradicting plaintiff's testimony.
Some of Dr. Khattak's statements support the ALJ's
conclusions. Dr. Khattak opined, for example, that plaintiff
would be “off task” only 5% of the workday. It is
true that certain findings support plaintiff, but even these
are not far off from the ALJ's findings. For example, Dr.
Khattak checked the box indicating that plaintiff could sit
four hours in a normal workday, whereas the ALJ assumed he
could sit for six hours. Dr. Khattak stated that plaintiff
would miss about two days a month. This amount is enough to
preclude work, but again, is only just over the dividing line
that typically allows one absence a month. Based on these
facts, the Government argues that Dr. Khattak's opinion
affirmatively supports the ALJ's finding of no
disability, a stronger claim than merely arguing that the
report is neutral or agnostic. See Dkt. #16 at 3
(“The ALJ's decision finds support in the opinion
of none other than plaintiff's treating
oncologist.”). But the Government's position is
more aggressive than that taken by the ALJ who agreed that
Dr. Khattak's opinion, if accepted, would require a
finding that plaintiff was disabled.
to plaintiff's specific criticisms, the main one is that
the ALJ was wrong in concluding that Dr. Khattak's
treatment notes provided “few supportive
findings.” Plaintiff argues that Dr. Khattak
“examined him regularly” and “was watching
for signs of neuropathy” and recorded that he
complained of “numbness and tingling in his fingers and
toes and his sensitivity to cold on multiple visits.”
Dkt. #9 at 9. Plaintiff also argues ...