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Hudson v. Berryhill

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

May 25, 2018

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

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston, United States Magistrate Judge

         Plaintiff is a 56-year-old veteran who last worked full-time in 2008 doing maintenance at a public housing project. Since he stopped working, plaintiff has filed multiple disability applications, but he has so far has been unsuccessful. On three occasions (in April 2011, January 2013, and October 2015), an administrative law judge (“ALJ”) has held that plaintiff's orthopedic-related problems and other problems (obesity, diabetes, and high blood pressure) would not prevent him from working. Plaintiff chose not to appeal the first two decisions to this Court, but instead, each time, filed a new disability application, which then re-started a new round of hearings and decisions. This time he chose to file an appeal.[2]

         Plaintiff's argument for a remand is limited to one medical condition-neuropathy caused by his diabetes. Plaintiff alleges that the neuropathy causes a burning sensation in his feet, occurring mostly in the early morning. In this appeal, plaintiff does not raise any arguments directed at the ALJ's analysis of plaintiff's orthopedic problems, or his obesity, or his high blood pressure. Plaintiff agrees that the prior ALJ, in his 2013 decision, fully considered these impairments and that these impairments have not changed in any material way since then. However, the diabetic neuropathy allegedly had a different time progression. According to plaintiff, this condition was “just emerging” in January 2013 when the prior ALJ issued his decision and also when the medical expert testified at the second administrative hearing. The medical expert's role at the prior hearing is a critical part of plaintiff's argument because no expert testified at the 2015 hearing.

         The heart of the dispute is whether the neuropathy worsened. The ALJ found that it did not. Plaintiff argues that the ALJ reached this conclusion by “playing doctor” and should have called a medical expert. Although this Court agrees that the ALJ's decision would rest on firmer grounds if an expert had testified, the Court finds that the ALJ's decision still should be affirmed.

         BACKGROUND

         The Court will summarize the highlights of the three administrative proceedings because they provide context. The first hearing was held in March 2011. Dr. Hilda Martin was called as an impartial medical expert. She testified that plaintiff had “mild osteoarthritis of his lumbar spine” and noted, among other things, that an X-ray and a physical exam showed “very mild degenerative arthritis” with “minimal to no objective findings.” R. 113-14. As for plaintiff's diabetes, she stated that plaintiff “had normal monofilament testing bilaterally which means that he doesn't have any neuropathy.” R. 116. Dr. Martin also noted that there were “several times” when plaintiff had reported not taking his medications and that he had “missed many appointments” at the Veterans Administration (“VA”), where all of his medical care was rendered. Id. In her proposed residual function capacity (RFC) finding, Dr. Martin found that plaintiff could lift 50 pounds occasionally, 25 pounds frequently, and could stand, walk, and sit for six hours. R. 118.

         Relying on this testimony, the ALJ adopted this RFC formulation in the written decision. R. 135. The ALJ noted that plaintiff had “not been entirely compliant in taking prescribed medications and following the recommended diet for his diabetes, which suggests that the symptoms may not have been as limiting as the claimant has alleged.” R. 136.

         The ALJ's decision was issued on April 26, 2011. The next month, on May 20, 2011, plaintiff filed a new disability application. A second hearing before the same ALJ was held on January 3, 2013. This time Dr. Charles Metcalf testified as the expert. He opined that plaintiff's back problem was a “mechanical back problem, ” which meant that it was “not due to a disk” but instead was caused by the fact that plaintiff's “back muscle, ligaments, supporting structures and so forth, just don't hold up well and then he gets the pain because of a lot of positional and conditioning, and so forth.” R. 76. Dr. Metcalf stated that this caused plaintiff's doctors to recommend that he be put in an educational class “to help him learn how to use his back better.” Id. As for plaintiff's diabetes, Dr. Metcalf stated the following:

He does have diabetes; not under good control but not terrible. It's not good but it's not terrible. His A1C run low eights, 8.2, 8.3, the last two years. He's not on insulin-metformin and glipizide but he does have peripheral neuropathy diagnosed with that and they verify that, not just by his symptoms; stinging and tingling in the feet, but also he has absence of the deep tendon reflexes of the ankle; however, you can have that without neuropathy, but it's confirmatory a little bit. And he does have increased senses; apparently characteristic of peripheral neuropathy and the diabetes, so he has that to the lower extremity. The Diabetic Clinic, in May 2012, said he used to have this tingling and pain in the feet intermittently but, in the last couple months, it's got to be steady; more constant. He does also have some problem with knees; not much mention. He did have an X-ray in 2010 that he has some, at least moderate, degenerative disease and, just with his weight, his BMI is 35.1. He's 5'7”, 224 pounds, on one observation so he has significant obesity but not morbid obesity. That-I think those three problems-the muscular back problem, the diabetes with the peripheral neuropathy, obesity, you know, probably some degenerative joint disease in the knees. All of these are significant conditions[.]

R. 77-78 (emphasis added). Dr. Metcalf concluded that plaintiff could do light work, but also recommended that a sit-stand option be included in the RFC to accommodate plaintiff's “neuropathy and [] back problem.” R. 80.

         Plaintiff's counsel later cross-examined Dr. Metcalf. As part of this questioning, counsel asked the following questions, which plaintiff now relies on to cast doubt on Dr. Metcalf's opinion:

Q Okay. You noted that you believe Mr. Hudson could sit for six hours in a workday; you feel he could walk around for six hours in a workday?
A I don't see anything, physically, in his record that would prevent it.
Q Is it possible the peripheral neuropathy would prevent it?
A Yes. It's quite possible.
Q Okay.
A I didn't see anything in the record that would substantiate it.

R. 95.

         On January 25, 2013, the ALJ again found plaintiff not disabled. The ALJ's decision rested heavily on the fact that plaintiff was “very non-compliant” in following doctor recommendations and that, as a ...


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