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Dawn Y. v. Saul

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

June 28, 2019

Dawn Y., Plaintiff,
v.
Andrew Marshall Saul, Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          IAIN D. JOHNSTON, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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.

         BACKGROUND

         In 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 OrthoIllinois.

         In 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.

         Plaintiff 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.

         When 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.

         As for 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 course.[1]

         On May 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.

         DISCUSSION

         Before 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.

         I. Treatment Gaps

         The 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.[2] 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;[3] 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.

         The 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, ...


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