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Hightower v. Berryhill

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

January 11, 2018

Shelton Hightower Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge.

         In May 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.

         During 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.[2] 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.

         Most of 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.[3] 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.

         Shortly 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.

         At the 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 called.

         On 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.


         Plaintiff 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.

         Plaintiff's 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 expert testified.

         I. Dr. Khattak's Opinion

         Plaintiff 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.

         As a 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.

         Turning 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 ...

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