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Swift v. Berryhill

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

May 10, 2018

Lisa Swift Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston Magistrate Judge

         This is a Social Security disability appeal. Plaintiff Lisa Swift was injured in three workplace incidents, one in March 2012 and two in October 2013, that eventually caused her to stop working as a teacher for Easter Seals. She alleges that she continues to experience pain, mostly in her back but also in her hands, legs, and neck (the problems being more on the right side). One limitation is that she cannot sit for more than 10 to 15 minutes at a time. She also suffers from Stage III kidney disease and migraines, and takes pain medication.

         Plaintiff has been treated or examined by various doctors. After the incidents, she was treated for a while by doctors at Physicians Immediate Care. She received injections from Dr. Dahlberg, a pain management specialist, who believed that plaintiff had a sciatic nerve injury or perhaps a piriformis muscle injury suffered when she backed into the corner of a desk to avoid an agitated student. Plaintiff was treated by Rockford Nephrology Associates for her stage III kidney failure. Throughout this period, plaintiff was treated by her primary care physician, Dr. Timothy Flynn, who opined that plaintiff's medical problems, in combination, would prevent her from working.

         Plaintiff was also examined, on two occasions, by Dr. Jesse Butler, who was hired by plaintiff's former employer to perform an “independent medical examination” as part of a pending worker's compensation case that later settled. In his two reports, Dr. Butler painted a dramatically different picture than did Dr. Flynn. Dr. Butler concluded that plaintiff was malingering (i.e. engaging in “symptom magnification”), was abusing narcotics, and was “manipulating different providers to obtain narcotics.” R. 613. He stated that the only treatment she should receive was being sent to “a narcotic detox program.” Id. In addition to the sharply contrasting opinions of Dr. Flynn and Dr. Butler, there was also an opinion from Dr. Reynaldo Gotanco, a State agency physician, who opined that plaintiff could do light work. No. impartial expert was called at the administrative hearing to adjudicate among these opinions.

         On August15, 2016, the administrative law judge (“ALJ”) issued a 9-page decision finding plaintiff not disabled. At Step Two, the ALJ found that plaintiff had the following severe impairments: “obesity, degenerative disc disease of the lumbar spine, stage III chronic kidney disease, headaches and hypertension.” R. 22. But the ALJ concluded that plaintiff was nonetheless capable of light work based on the following findings: (i) plaintiff made several inconsistent statements; (ii) the objective medical evidence, such as negative straight leg raising tests, did not provide “strong support” for her allegations; (iii) she had not been “referred for surgical intervention” or gone to the emergency room; and (iv) there was a treatment gap of approximately six months at one point. As for the medical opinions, the ALJ gave “great weight” to Dr. Gotanco's opinion, “some weight” to Dr. Butler's opinion, and “little weight” to Dr. Flynn's opinion.[2]

         Plaintiff's main argument for remand is that the ALJ gave Dr. Flynn's opinion too little weight and Dr. Butler's too much weight. Additionally, plaintiff argues that the ALJ cherry-picked the record, engaged in doctor playing, and failed to follow the treating physician rule. The Court finds that these arguments collectively justify a remand.

         A few general observations should be noted at the outset. First, it is undisputed that the ALJ did not follow the procedures required by the treating physician rule. This Court has often remanded for not explicitly applying the two-step treating physician rule, in particular the six checklist factors in the second step. One benefit of applying the checklist (besides the fact that it is the Social Security Administration's own regulation that it is bound to follow) is that it helps develop the underlying facts that will aid both the ALJ and this Court in the subsequent analysis. The first two checklist factors, for example, require consideration of the length and nature of the treatment relationship. The ALJ did not make these determinations. The ALJ's summary of the medical visits gives the impression that plaintiff first saw Dr. Flynn on May 20, 2014. R. 25. But this is contrary to Dr. Flynn's opinion, which states that he had been treating plaintiff since 2008 and saw her every month or two since that time. R. 458. That is evidence of a longer and more in depth relationship. At this point, the Court need not pin down these details, as this is a task for the ALJ on remand, but it illustrates one of the benefits of explicitly following the treating physician rule.

         Second, although the treating physician rule contains specific analytical steps, it also sets forth the larger principle that, all things being equal, a treating physician's opinion deserves some deference. See Koelling v. Colvin, 2015 WL 6122992, *8 (N.D. Ill. Oct. 16, 2015) (“within the weighing process, treating physician opinions receive particular consideration”). For this reason, the proper application of the treating physician rule should result in the total rejection (i.e., assigning “no weight”) of the treating physician's opinion only on rare occasions. See SSR 96-2p (“A finding that a treating source's medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be entitled to deference and adopted by the adjudicator.”). Here, although the ALJ nominally gave Dr. Flynn's opinion “little” weight, the practical effect was that the ALJ gave it “no” weight because the ALJ did not credit any aspect of the opinion.

         Third, consistency is a central principle embodied in the treating physician rule. The fourth checklist factor explicitly refers to “the consistency of the opinion with the record as a whole.” But in addition to assessing the consistency of an individual opinion, there is a broader notion of consistency arising from the fact that the ALJ must compare multiple opinions. As this Court has noted, it is important that the ALJ employ the “same metrics” and the “same level of rigor” in evaluating multiple opinions. Vandiver v. Colvin, 2015 WL 8013554, *3 (N.D. Ill.Dec. 7, 2015) (“the checklist has its greatest usefulness as a tool for making an apples-to-apples comparison between opinions.”).

         With these principles in mind, the Court first considers the ALJ's analysis of Dr. Flynn's opinion. On May 12, 2015, Dr. Flynn completed a two-page form titled “Physical Residual Function Capacity Medical Source Statement.” Ex. 10F. He opined (among other things) that plaintiff had been diagnosed with “chronic back pain, sciatica, peripheral neuropathy/neuralgia, depression with anxiety, chronic kidney disease, [and] migraines”; that she would only be able to sit or stand two hours in a normal workday; that she would be off-task more than 30% of the day; and that she would miss five or more days a month. If accepted, these limitations would prevent plaintiff from working full-time. The ALJ rejected this opinion based on the following explanation:

These restrictions, however, are inconsistent with the objective medical evidence, which does not reveal any positive straight leg raising, muscle weakness, or issues with gait or ambulation. Furthermore, the claimant's MRI of the lumbar spine did not reveal any abnormalities that would result in the level of functional restrictions that Dr. Flynn provides in this assessment.

R. 27.

         Plaintiff attacks this explanation on two main grounds. The first is cherry-picking. Plaintiff asserts that the ALJ's conclusion about the medical record-i.e. that there were not “any” supportive findings-was incorrect. In her two briefs, plaintiff identifies various findings about muscle weakness and other issues (including limited grip strength, stiffness, and decreased mobility) that undermine the ALJ's zero-evidence statement. See Dkt. #13 at 5-7; Dkt. #15 at 1-2. The Court need not further analyze these specific findings because it finds that plaintiff has raised a colorable argument that the ALJ overlooked this evidence. This conclusion is also indirectly supported by the Government's brief, which contains a series of “yes, but” statements in which the Government concedes that a particular piece of evidence supports plaintiff but then argues that it is small compared to other, supposedly stronger evidence. See, e.g., Dkt. #14 at 5 (“A physical examination revealed right paraspinal musculature spasm and tenderness of the sacral muscles, but her gait was normal and numb muscle weakness was noted.”) (emphasis added). Unlike the ALJ, the Government at least explicitly confronted this contrary evidence. And although the Government's arguments might prove convincing on remand, they cannot be relied on here because the ALJ did not make these same arguments. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“the Chenery doctrine [] forbids an agency's lawyers to defend the agency's decision on grounds that the agency itself had not embraced”). As a result, we are left in doubt as to whether the ALJ considered this contrary line of evidence that potentially supports Dr. Flynn's opinions. Thomas v. Colvin, 743 F.3d 1118, 1123 (7th Cir. 2014) (an ALJ may not ignore a line of evidence contrary to his conclusion).

         Even if the Court were inclined to view the ALJ's zero-evidence statement as a rhetorical overreach, the ALJ improperly “played doctor” in discussing the objective medical evidence. See Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (ALJs should “rely on expert opinions instead of determining the significance of particular medical findings themselves”). In this case, as in many disability cases involving spinal-related impairments, the record contains numerous examination and diagnostic findings-some negative and some positive-that collectively create a large pile from which to choose. For this reason, it is relatively easy for each side-to borrow a metaphor about legislative history-to pick out their “friends” from the crowded record. See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, ...


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