United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
D. Johnston. United States Magistrate Judge.
digital clock radio flips from 5:59 to 6:00 a.m.
& Cher's “I Got You Babe” starts
good reasons, there was no cinematic sequel to Groundhog
Day. In addition to transformation, redemption
and morality, among other themes,  at least to the Court, a
point of the movie was to move forward and not commit the
same errors of the past.
the same cannot be said of many Social Security appeals.
Three years ago, this Court referenced Groundhog Day
when remanding a Social Security appeal. Booth v.
Colvin, No. 14 CV 50347, 2016 U.S. Dist. LEXIS 82754
(N.D. Ill. Jun. 27, 2016). (The irony of repeatedly
referencing Groundhog Day is not lost on the Court.)
The Court noted the repeated mistakes the Social Security
Administration (“SSA”) and its administrative law
judges (“ALJs”) made not only in different cases
but also in the same cases-even after courts specifically
identified the errors and how to correct them.
Booth, 2016 U.S. Dist. LEXIS 82754 at *8-10. Indeed,
this Court has identified numerous cases in which remands
have been entered more than once with clear directions only
to have the SSA and the ALJs commit the same errors,
resulting, not surprisingly, in yet another appeal.
Wallace v. Colvin, 193 F.Supp.3d 939, 941-42 (N.D.
Ill. 2016). Regrettably, this is not a new
phenomenon or one limited to the district courts. Even the
Seventh Circuit has been subjected to this practice. See,
e.g., Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir.
reasonable person would think that when a court remands a
case to the SSA and provides clear directions as to how the
ALJ should proceed on remand, the ALJ would do so. Sadly, it
appears expecting the SSA to act reasonably may be a lost
there are many losers in this process. Obviously, the
claimants are losers. But the taxpayers are also losers as
they must pony up attorneys' fees to claimants'
counsel under the Equal Access to Justice Act, 28 U.S.C.
Section 2412, as well as fund the salaries of all the
government employees involved in these cases. See
Wallace, 193 F.Supp.3d at 943.
recent Federal Magistrate Judges Association conference,
representatives from the SSA repeatedly assured those present
that the ALJs read the remand orders. Many magistrate judges
in attendance were skeptical. This Court is now confident
that either those representations were not entirely accurate
or that some ALJs do, in fact, read the remand orders but
just choose to ignore them, which may be even worse.
as this Court enjoys referencing Groundhog Day and
reminiscing about Woodstock, Illinois and the friends who
lived there, the Court would rather move forward and not
return to Ned's corner.
* * *
2009, plaintiff filed her initial claim for disability
benefits, alleging two primary impairments-fibromyalgia,
which causes a range of symptoms including pain, fatigue, and
concentration problems; and lymphedema, specifically leg
swelling, which she treats with a mixture of methods,
including elevating her feet and wearing hip-length
compression boots. From 2009 until 2017, plaintiff has seen
numerous doctors (but has no consistent treating physician)
and has tried various treatments without obtaining any
the Court is plaintiff's third appeal from a ruling by an
ALJ. This case is now 10 years and running. To recap, in
2011, the first ALJ denied plaintiff's claim, finding in
a 10-page ruling that plaintiff could do sedentary work
subject to certain limitations, including that she be allowed
to sit or stand for 1 to 2 minutes every hour (to address the
leg swelling) and that she be limited to simple, repetitive,
routine tasks (to address concentration problems). Plaintiff
appealed that ruling here. After plaintiff filed her opening
brief raising several arguments for a remand, the Government
agreed to a voluntary remand without further briefing,
implicitly conceding that the ALJ's first decision was
flawed in some respects. On remand, the same ALJ presided
over a second hearing. In October 2014, in an 18-page ruling,
that ALJ again found plaintiff not disabled, largely on the
same grounds as the first decision. The decision differs in
some respects-for example, the sit-stand option was changed
from every hour to every three hours. R. 553.
filed a second appeal to this Court. See No.
15-50248. Her arguments were similar to those raised in the
first appeal. In February 2017, after full briefing, this
Court agreed with plaintiff and ordered a remand with several
specific instructions, including that the ALJ must call an
impartial medical expert to testify at the third hearing.
remand, a new ALJ took over the case. After conducting a new
hearing, at which Dr. Ashok Jilhewar testified, the ALJ found
plaintiff was able to do sedentary work. The broad outlines
are similar to the first two decisions, although some minor
differences exist. For example, this ALJ omitted a sit-stand
option and did not include a limitation for simple
appeal, plaintiff raises seven specific arguments for a
remand. Although the blunderbuss opening brief is
longer (now up to 30 pages) and the arguments even more
numerous than the first two appeals, plaintiff raises the
same basic criticisms. Plaintiff argues that one possible
remedy is to again remand the case for another hearing and
ruling. This would be the fourth trip through the
administrative system. However, plaintiff believes a stronger
remedy is needed. Plaintiff asks this Court to remand with
instructions that the Commissioner award benefits
outright-i.e. no further proceedings. Plaintiff
argues that the Commissioner has repeatedly failed to correct
its mistakes and should not be given “endless
opportunities to get it right.” Dkt. #18 at 30. In
effect, it's three strikes and you're out.
Court will not systematically go through all of
plaintiff's seven arguments in the exact order presented.
Instead, the Court will highlight those arguments it finds
starting point is plaintiff's broader criticism that the
ALJ “conflated” her two primary impairments
(lymphedema and fibromyalgia) and thereby gave less attention
to the fibromyalgia allegations. Dkt. #18 at 23. The Court
agrees. This Court's 2017 decision raised this same
concern, noting that the fibromyalgia issue was “at the
heart of this case.” R. 1099. The decision noted that
the ALJ (i.e. the prior ALJ) “gave mixed
signals”-on the one hand, agreeing at Step Two that
plaintiff had established that she was properly diagnosed
with fibromyalgia, but then on the other hand, making
comments in the rest of the decision casting doubt on this
conclusion. Id. Given this underlying tension, the
Court stated that the “obvious starting point”
for the ALJ on remand was to utilize SSR 12-2p, which
provides a roadmap for how to analyze these issues and
includes two specific tests for determining whether a
claimant has fibromyalgia. R. 1100. (The fact that the Court
is repeatedly required to direct the SSA and the ALJs to
follow their own rulings is troubling. It should not be
difficult for an agency to follow its own rules.) However,
despite these instructions, the ALJ did not discuss SSR
12-2p, nor apply either of its two tests. The calling of Dr.
Jilhewar as the expert witness arguably strengthened the
analysis of the lymphedema issues, but it did not provide
much help regarding the fibromyalgia allegations. Dr.
Jilhewar began his testimony by immediately focusing on
plaintiff's edema. His comments about the fibromyalgia
were brief and technical. In the 2017 decision, this Court
required the ALJ to call an expert, and recommended that the
ALJ call a rheumatologist given the central role fibromyalgia
played in the case. That recommendation was ignored. Dr.
Jilhewar is not a rheumatologist. R. 1029. Dr. Jilhewar is
certified in internal medicine and gastroenterology. R. 1029.
to the specific arguments, the Court finds that the ALJ
committed several errors commonly seen in fibromyalgia cases.
Many of them are interrelated and reinforce each other.
To Acknowledge That Plaintiff Had Good and Bad Days.
issue was raised in previous appeals. In the 2017 decision,
this Court agreed with plaintiff that the ALJ had
“repeatedly” failed to consider plaintiff's
allegations “that she experienced ‘good days'
and ‘bad days' with a large fluctuation in symptoms
and daily activities.” R. 1103. Further, the Court
rejected the ALJ's conclusory assertion that no objective
evidence “substantiated” plaintiff's
allegations, noting that doctors often rely on a
patient's subjective reports in treating fibromyalgia. R.
1104. The Court noted that plaintiff's treating
physician, Dr. Crowe, and her friend, Renee Palmer, provided
support for plaintiff's allegations. Again, the same
errors were made.
addressed the “good days/bad days” argument with
the following analysis (the Court has added labels to
identify the three rationales):
The claimant testified that she has good days and bad days.
She stated that she experienced 4-5 good days a week in 2009
and currently has two good days a week. The claimant
explained that a good day is when she can get things done and
a bad day is when she has difficulty performing simple tasks.
[Reason #1] Dr. Jilhewar acknowledged this
complaint but testified that the record does not show
specific documentation of good and bad days. [Reason
#2] It is noted that the claimant herself did not
fully describe her ability to function on a bad day and only
stated that she has difficulty performing simple tasks on
these days. [Reason #3] In reviewing the
record as a whole, the undersigned finds that ...