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Freund v. Berryhill

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

June 15, 2018

Mark Freund Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge.

         Plaintiff Mark Freund was a welder who injured his back on the job sometime in 2011. After the injury, his back pain gradually worsened and he underwent various treatments over the next several years to alleviate the pain. These included injections, physical therapy, and, eventually, the implantation of a dorsal column stimulator. Despite some improvement, plaintiff claims that he still cannot walk, stand, or sit for any significant period. He applied for disability benefits. The administrative law judge (“ALJ”) agreed that plaintiff was unable to return to his welding job, where he had lifted 100 pounds, but found that he could do light work. In reaching this decision, the ALJ relied on the hearing expert who testified that the objective evidence indicated only mild problems and that an April 2014 functional capacity evaluation showed that plaintiff could do medium level work, albeit for only six hours a day. Based on these and other factors, the ALJ concluded that plaintiff lacked credibility. Plaintiff seeks a remand, arguing that the ALJ's credibility analysis was flawed and that the ALJ ignored an opinion of plaintiff's treating physician. This Court agrees that a remand is warranted.


         The following summary is only a general background and does not include all of the medical visits or tests. The relevant treatment period runs from early 2012 until the middle of 2015. During this time, plaintiff's care was overseen by his primary care physician, Dr. Dennis Norem. After plaintiff's back injury, Dr. Norem issued a series of “off work” notes every few months stating that plaintiff was unable to return to his welding job. The assumption seems to have been that plaintiff's back problem might improve with treatment so that he could return to his welding job. But on September 5, 2013, Dr. Norem wrote that it “appears [that plaintiff] is not going to be able to return to the kind of physical activity he has been doing.” R. 419. In addition to the “off work” notes, Dr. Norem wrote a “To Whom It May Concern” letter on September 16, 2014. This letter is the main document evidencing Dr. Norem's opinion, and it states as follows:

Mark Freund is a patient of mine whom I have followed for the past several years. He has a history of significant back pain. He has been thoroughly assessed by neurosurgery and pain management and he has undergone extensive therapy. He is unable to return to his occupation due to his chronic back pain. He continues to have significant discomfort, limited range of motion and is unable to do any significant lifting, bending or standing. At this point I consider his disability permanent and I do not expect this to improve.

R. 724.

         As alluded to in the letter, plaintiff was treated at the Rockford Pain center beginning in February 2012. Doctors recommended a variety of treatments. Dr. Gahl performed multiple epidural steroid injections, an SI injection, and a radiofrequency ablation. Dkt. #9 at 2. Plaintiff participated in several physical therapy programs. As described in the ALJ's decision, plaintiff at one point “completed seven weeks of therapy in a five-hour per day, five days a week conditioning program.” R. 23. Doctors prescribed numerous medications, including gabapentin, hydrocodone, and ambien. Dkt. #9 at 2. The Court need not summarize all the details here, but it should be noted that these efforts were fairly extensive. For example, at the hearing, Dr. Slodki, gave the following summary of the injections plaintiff received:

What I found in the record was the following injection procedures. He had Cottle steroid injection on 1/22/15, lumbar epidural steroid injections 6/8/16, Cottle steroid injection 2/19/[15?], lumbar epidural steroid injections 3/27/15, lumbar epidural steroid injection 5/7/15, facet injections 2/9/13, sacroiliac injections 12/26/13, radiofrequency ablation 4/23/13, and trigger point injection procedures injections 12/7/13 and 2/30/13, so that completes the injection procedures that I found. I'm sure I missed a few.

R. 51.[2] As described in Dr. Norem's letter, plaintiff also consulted with a neurosurgeon, Dr. Roh, who concluded that surgery would not be a good option to address plaintiff's problems.

         On October 2, 2013, plaintiff consulted with Dr. Dahlberg, also at the Rockford Pain Center, about a dorsal column stimulator implant. In the “History of Present Illness” section, Dr. Dahlberg wrote the following, which provides an overview of plaintiff's treatment history:

Mr. Freund is a very pleasant 36-year-old white male who is well known to our practice. I am seeing him for the first time today in consultation for possible dorsal column stimulator implant. This patient's chief complaint is of low back and left lower extremity pain. This has been ongoing for just over 2 years. Apparently it was preceded by an injury at work. The patient has been followed by my partner, Dr. Gahl, after being referred by Dr. Roh and Dr. Norem. Dr. Roh did not feel that there was anything surgically to be done for his low back and has sent him to Dr. Gahl who has tried multiple different injections as well as multiple different medications for management of his low back and left lower extremity neuropathic pain. Despite this, the patient's pain continues to progressively worsen.

R. 442.

         A hearing was held on October 15, 2015. Plaintiff testified that his last job, as a welder of drive chains, was “very, very heavy work” that required standing and walking most of the day. R. 39. He injured his back on this job, and there was a worker's compensation claim pending. The ALJ observed that plaintiff had “tried a number of [] different kinds of treatment” that included “pain medications, physical therapy, injections, a [dorsal] column stimulator.” R. 41. The ALJ asked whether the dorsal column stimulator had helped, and plaintiff answered as follows:

It does on some basis. It helps me most when I'm laying down flat in bed and I turn it up high, but [they've] been having issues where they have to reprogram it about every two weeks now, but I'm still [] seeing the guy that reprograms, I've got to go see him again tomorrow [] to try and do a different programming to see if that works a lot better. It's hard to have it on when I'm walking around because it moves a little bit there, and it raises the frequency up and down too much, and it's up in my rib cage, and it hurts.

R. 41-42. The ALJ asked about surgery, and plaintiff stated that doctors thought that there was only a “50-50 shot if it would work” and that it could “make [his] situation worse.” R. 42. Plaintiff stated that he still had pain “all the time, ” and that he was in bed “most days.” R. 43. Sitting was hard for any long period. He estimated that he could walk between 100 and 200 yards until he would have to stop and lean on something. He sometimes needed help from his mother to get dressed, and there were days when he did not take showers because he could not get out of bed and sometimes could “just barely get out of bed to use the restroom.” R. 45. He was “on 10 different medications.” R. 47.

         Dr. Sheldon Slodki testified next.[3] He first observed that there were references in the medical records to “failed back syndrome” but noted that this seemed to be an error because there was no evidence plaintiff ever had surgery. Dr. Slodki noted that plaintiff was “on a broad range of significant medication, ” and was “[d]ependent on pain medication.” R. 51-52. The dependence was iatrogenic. When the ALJ asked what that meant, Dr. Slodki stated that it “means the doctors did it, usually.” R. 51. He did not elaborate.

         After the above testimony, Dr. Slodki distilled the case down to the following: “This is primarily a pain case, and credibility is the major issue, and the commissioner determined credibility.” R. 52. Dr. Slodki provided the ...

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