United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER 
D. Johnston Magistrate Judge
who is now 55 years old, is seeking disability benefits
arising from a workplace injury. In May 2014, while working
as an activity director for the River Bluff Nursing Home,
plaintiff fell over a cart as she was leaving a patient's
room. She injured her left shoulder and back. These two
injuries were treated on parallel tracks, with separate
surgeries for each. At some point, plaintiff retained her
current counsel who assisted her in filing a worker's
compensation claim in 2014. In April 2015, plaintiff filed
her disability applications in this case. At the hearing, she
testified that she could walk “less than a mile”
and could only stand for 15 minutes or sit for 10 minutes at
a time. R. 46.
plaintiff raises no arguments relating to the shoulder
problem, the following discussion will be confined to the
back impairment. The primary doctor plaintiff saw was Dr.
Nesher Asner, a neurosurgeon. This treatment took place over
a year. The first visit was on January 28, 2015 and the last
visit was on January 14, 2016. It is not clear why the
relationship stopped when it did-a topic of further
discussion below. Plaintiff also saw other doctors during and
after this period. In the spring of 2015, she briefly treated
with Dr. Freeman, who did one steroid injection. The
injection did not help. Neither side relies on this
treatment. In 2016, after plaintiff stopped seeing Dr. Asner,
she continued to periodically see her primary physician, Dr.
Daniel Herdeman. The parties only occasionally refer to this
treatment. Plaintiff also saw several doctors for the
Dr. Asner: he first recommended that plaintiff do physical
therapy, but plaintiff obtained no significant relief from
this treatment. So, on July 1, 2015, Dr. Asner operated on
plaintiff. The parties agree that this surgery was
successful-at least initially. See Dkt. #12 at 3
(acknowledging that improvement was
“significant”). But the parties disagree on
whether the improvement was sustained.
August 24, 2015, nearly two months after the surgery, Dr.
Asner prepared a short letter stating that plaintiff
“will be able to seek employment at this time”
except that there should be “no lifting over 30
lbs.” R.942. This letter is the key piece of
evidence in this case. The ALJ relied heavily though not
exclusively on it, giving it great weight because, among
other things, it was from plaintiff's treating
physician. Although plaintiff does not say so
explicitly, she seems to agree that, if this case were
stopped at this point in the medical chronology, then the
ALJ's decision would be based on substantial evidence.
offers two related arguments why the ALJ should not have
relied on this opinion. The main one is that, although the
surgery may have been successful initially, this success
proved to be a mirage because the back problems returned
sometime in the fall of 2015-i.e. after August 24,
2015 when Dr. Asner issued his opinion. Plaintiff's other
argument is that opinion was always meant to be only a
provisional, short-term temporary assessment, to be revised
later after plaintiff got a functional capacity evaluation.
Although plaintiff never explicitly argues that the ALJ
should have re-contacted Dr. Asner to get an updated opinion,
this is the logical extension of her argument.
Court will begin with plaintiff's primary argument. It is
mostly a factual claim. The parties' arguments unfold in
a familiar back and forth sequence. Plaintiff first argues
that the ALJ, in finding that plaintiff's problems
continued to be mild after the surgery, engaged in
cherrypicking and doctor playing. The Government (standing in
for the ALJ) argues that plaintiff engages in her own form of
cherrypicking. Both sides draw their evidence almost entirely
from the treatment notes from plaintiff's final four
visits with Dr. Asner. These took place on September 22,
2015; October 22, 2015; November 10; 2015; and January 14,
opening brief, Plaintiff sets forth the following facts,
which were culled from these treatment notes. See
Dkt. #12 at 5-7. At the September 22nd visit, she told Dr.
Asner that her back “grabbed” at times and that
her right quadriceps muscle was weak. At the November 10th
visit, she told Dr. Asner that she had “climbed some
stairs and had onset of right hip and leg pain.”
Plaintiff notes that when Dr. Asner issued his opinion in
August 2014, plaintiff had a negative straight leg raising
test, and denied any symptoms in her right leg, but she later
had a positive test and complained about right leg pain.
relies most heavily on the final visit on January 14th.
Plaintiff told Dr. Asner that she was still having weakness
in her quadriceps, as well as thigh pain. On a physical
examination, she had a positive straight leg test and a
positive piriformis test and was “very tender” at
the sciatic notch. R. 912. Dr. Asner wrote in his notes that
they needed to “rule out ongoing nerve
impingement” and possible “piriformis/sciatic
pain.” Id. An MRI was ordered.At this point,
plaintiff states in her brief that Dr. Asner
“thought” there “could be” a
“sciatic or piriformis component” to
plaintiff's back problem.
above narrative in plaintiff's brief creates an implied
expectation in the reader- namely, that new and perhaps
definitive evidence is about to be revealed and that Dr.
Asner might be on the verge of changing his opinion. If this
were a classic one-hour television episode, we would be
poised at the 45-minute commercial break, anticipating a
dramatic resolution in the last 15-minute segment. But here,
the screen frustratingly goes blank. After heightening
expectations that Dr. Asner might be revising his earlier
assessments, plaintiff then provides the following
anticlimactic resolution: “Unfortunately, [Dr.
Asner's] ultimate determination on the issue is
unclear.” Dkt #12 at 6. Plaintiff offers no explanation
why Dr. Asner made no determination. But the record indicates
that plaintiff stopped seeing him at this point. No.
explanations are given to the obvious question: Why? Instead,
Dr. Asner disappears from plaintiff's narrative. Counsel
then argues that-in her opinion-the MRI performed on
January 19th showed that plaintiff's condition had
worsened and that new problems had arisen. To be fair to
plaintiff, her argument is probably more that there was at
least colorable evidence showing that her condition had
changed, which in turn triggered a duty on the ALJ's part
to seek another medical opinion.
Court will consider the MRI report below, but first the Court
must consider what is the Government's strongest
argument. The Government asserts that there was a
straightforward way to establish definitively that Dr. Asner
had changed his mind about his earlier opinion that plaintiff
was able to work; namely, plaintiff could have “asked
him for another opinion.” Dkt. #17 at 7. As the
Government argues, plaintiff was represented by counsel, and
therefore it is reasonable to presume that this counsel
“made [her] best case before the ALJ.”
Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.
2007). In making this argument, the Government acknowledges
that ALJs have a duty to develop the record, but the
Government argues that the Seventh Circuit has nonetheless
held that ALJs may still draw the negative inference that a
counsel's failure to get a new opinion means that counsel
believed that “another expert would not help.”
Buckhanon v. Astrue, 368 Fed.Appx. 674, 679 (7th
Cir. 2010); see Dkt. #17 at 7-8.
reply brief, plaintiff only briefly responded to the
Government's arguments. Plaintiff did not distinguish the
cases cited by the Government, nor offer any contrary cases,
nor dispute the general proposition that a negative inference
may be drawn under these circumstances. Instead,
plaintiff made the following argument: “Plaintiff had
no warning that the ALJ was going to rely so heavy on what is
clearly not a decisive opinion on Plaintiff's
residual functional capacity.” Dkt. #18 at 1 (emphasis
in original). This argument rests in part on plaintiff's
second argument below, one that the Court finds is not
convincing. But putting this point aside for now, the Court
finds it implausible that plaintiff's counsel, who is
keenly aware of the important role that treating physician
opinions usually play in disability cases, had no inkling
that the ALJ might rely on this opinion. The opinion was in a
letter format, on a separate page. It was not, as is
sometimes the case, an isolated passing sentence buried in a
long paragraph of treatment notes. Even if one could believe
the claim that plaintiff's counsel did not know,
before the ALJ issued his decision, that he would
rely on Dr. Asner's opinion, counsel indisputably became
aware of that fact after he issued the decision.
Yet, when counsel filed her letter brief to the Appeals
Council, she did not raise any arguments that the ALJ had
erred in relying on Dr.
opinion. R. 170-71. She did not argue that the ALJ should
have sought an updated opinion from Dr. Asner. These
arguments were only raised for the first time in this
Court.Turning back to plaintiff's claim that
the ALJ “ignored” the post-surgery evidence
supposedly showing that plaintiff's condition had
deteriorated, the Court notes that the ALJ, in fact, did
acknowledge much of the evidence plaintiff now relies on. The
ALJ included a paragraph discussing it, specifically
referring to the examination findings from the critical
January 14th visit, as well as the results of the new MRI.
The ALJ noted that plaintiff had a positive straight leg
raising test and exhibited some tenderness over the sciatic
notch. R. 24. The ALJ, while acknowledging these facts which
were contrary to his theory, also pointed to other facts from
the same examination. The ALJ stated, for example, that
plaintiff rated her pain at this last visit as only a 2 on a
10-point scale, a rating characterized as “mild.”
The ALJ also noted that plaintiff only took pain medication
on an “as-needed basis, ” which the ALJ
characterized as a “limited use of medication, ”
and that plaintiff “was not referred to a pain
management specialist.” These facts support the
ALJ's conclusion that plaintiff's condition had not
materially changed since Dr. Asner gave his opinion.
Plaintiff's cherrypicking argument is weakened by the
fact that she did not, in either of her two briefs,
acknowledge these contrary facts.
plaintiff's best argument for a remand is the narrowly
targeted claim that the ALJ improperly played doctor in
interpreting the January 19th MRI. The ALJ concluded that
this MRI did not show any significant new abnormalities from
prior reports. Plaintiff, who is in some sense also playing
doctor, argues that the report revealed material new changes.
She notes that the report mentioned “fibrosis, ”
and then faults the ALJ for not acknowledging this finding.
Plaintiff relies on a website stating that “fibrosis
has in some contexts been noted to be correlated with a
‘poorer outcome in lumbar disc surgery.'”
Dkt. #12 at 7. This statement, it should be noted, speaks in
vague generalizations. Also, plaintiff did not cite to any
cases to support her argument. However, plaintiff easily
could have cited to-and presumably is relying on-several
recent cases where the Seventh Circuit has remanded because
ALJs improperly interpreted MRI results. See, e.g., Goins
v. Colvin, 764 F.3d 677, 680 (7th Cir. 2014) (ALJ failed
to submit MRI, which was “new and potentially
decisive” evidence, to the “medical
scrutiny” of an ...