United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. JOHNSTON, UNITED STATES MAGISTRATE JUDGE.
who is now 48 years old, is seeking Title II benefits based
on chronic body pain she has suffered from, in varying
degrees, since at least 2009. No. one cause for the pain has
been identified with certainty, but the major candidates are
degenerative disc disease, obesity, and fibromyalgia. The ALJ
found that plaintiff's testimony was not credible
because, among other reasons, there were significant
treatment gaps. Plaintiff argues that a remand is warranted
because the ALJ erred in numerous ways. Although the Court
does not find that the ALJ committed any egregious error, or
that plaintiff's many criticisms are all justified, the
Court nonetheless finds that her collective arguments are
enough to justify a remand.
2006, plaintiff had back surgery. The back pain returned in
2009, and plaintiff then saw Dr. Sweet, an orthopedist, who
ordered an MRI and performed tests and referred plaintiff to
Dr. Dahlberg, a pain specialist. R. 28. Plaintiff's
primary treatment thereafter was with Dr. Dahlberg. He
administered injections, prescribed medication, and
recommended a dorsal column stimulator. R. 29. Plaintiff
underwent a trial but ultimately chose not to have a
permanent stimulator implanted. In February 2016, a couple
months before the administrative hearing, plaintiff made a
single visit to the office of Dr. Brian Braaksma at
April 2016, an administrative hearing was held. No. medical
expert was called. Plaintiff testified that she had lower
back pain radiating into her legs, and she stated that there
was “no rhyme or reason to what can cause the pain as
far as being like too sedentary or too active.” R.
60-62. She stated that she had good days and bad days,
although more of the latter. When asked what helped with the
pain, she stated that there was no “simple
answer” and that she had tried ice and heat and took
medication, but it had caused side effects. R. 62-63.
Plaintiff declined Dr. Dahlberg's offer to implant a
permanent stimulator because she found it
“unnerving” to “think about something in
you permanently that doesn't belong there” and
because the trial stimulator did not alleviate pain in
six-inch area on her right leg. R. 64, 78.
stated that her fibromyalgia caused “widespread
pain” (calves, upper chest, back). She tried Lyrica and
Cymbalta for this pain, neither of which worked, and she has
tried to exercise “when [she] can.” R. 65. She
had fibromyalgia flares once every two months, and they would
“last anywhere from a few days to a few months.”
Id. Plaintiff stated that no doctor was currently
treating her fibromyalgia and that she last saw a specialist
years ago and did not take any current medication for this
condition because the prior medication (Lyrica) “did
not help.” R. 76.
asked about exercising, plaintiff stated that she had tried
the exercise bike but could not stay on it for more than five
minutes. R. 80. She had not used the bike in over three
months. Years ago, she had tried an elliptical machine but it
hurt her knees and back.
daily activities, she testified that she did activities like
vacuuming and sweeping “like once a month”
because they “really yank on [her] back.” R. 74.
She stayed home with three of her four children (then aged
17, 15, and 7) who were being homeschooled through an online
27, 2016, the ALJ issued a 16-page ruling finding plaintiff
not credible based on multiple rationales. The ALJ also gave
great weight to the opinions of the State Agency physicians.
These rationales are considered below.
considering plaintiff's numerous criticisms of the
ALJ's decision, the Court notes that the Government's
brief, in addition to responding to these criticisms, makes
the broader argument that the credibility finding must be
upheld even if some rationales were flawed. (This is
effectively a concession that the ALJ made a few errors.) The
Government argues that the Seventh Circuit has adopted a
lenient standard, and relies in particular on McKinzy v.
Astrue, 641 F.3d 884 (7th Cir. 2011) where the court
upheld the ALJ's credibility determination even though
two out of the three rationales were flawed to some degree.
But it is worth noting that the lone remaining rationale in
that case-that the claimant's treating physician doubted
her allegations- was deemed to be “a smoking
gun.” Id. at 891. Here by contrast, there does
not appear to be a single rationale that rises to this level.
Rather, plaintiff's argument rests on the accumulated
force of many small arguments. This raises a line-drawing
question-namely, how many flaws are enough to break the
proverbial camel's back.
ALJ's main credibility rationale (at least based on the
emphasis given to it in the briefs) was the
“significant” treatment gaps from 2010 to 2016.
These were during the period plaintiff treated with Dr.
Dahlberg. The longest gap was “nearly two years”
from February 2011 to November 2012. R. 32. Plaintiff
acknowledges that these gaps existed, but argues that the ALJ
should have explored explanations for them before relying on
the inference that lack of treatment meant lack of serious
pain. Plaintiff complains that the ALJ not only
failed to ask plaintiff any questions at the hearing about
these gaps, but also ignored statements in the record
alluding to possible explanations. In her briefs, plaintiff
lists, in somewhat kitchen-sink fashion, the following
explanations: the injections provided only temporary relief;
the injections were painful; on at least one occasion
plaintiff had trouble getting to the doctor because of the
pain; “it appears that Dr. Dahlberg was prescribing
pain medication as Neurontin and Percocet” during the
2011-12 gap; the stimulator was delayed twice because
plaintiff “needed to have insurance to allow it and
complete a psychological evaluation”; the trial
stimulator did not work on a six-inch region; and Dr.
Dahlberg prescribed a Medrol Dosepak the month before the
trial stimulator was implanted.
Government concedes that the ALJ failed to question plaintiff
at the hearing, but argues that this failure was justified
because “neither plaintiff nor the record provided
possible reasons” for the gaps. Dkt. #16 at 2. Here,
the Government seems to be trying to flip the burden of proof
by requiring plaintiff to affirmatively offer explanations
before the ALJ has any duty of inquiry. Although this might
be a reasonable rule to impose (and the Court notes that
plaintiff's counsel was taking a risk in not proactively
developing this evidence), the Government has not cited to
cases holding that plaintiff essentially has an initial
burden of production. This point aside, ...