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Dawn T. v. Saul

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

August 26, 2019

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

          MEMORANDUM OPINION AND ORDER

          Iain D. Johnston. United States Magistrate Judge.

         The digital clock radio flips from 5:59 to 6:00 a.m.

         Sonny & Cher's “I Got You Babe” starts to play.

         It's Groundhog Day.[1]

         For good reasons, there was no cinematic sequel to Groundhog Day.[2] In addition to transformation, redemption and morality, among other themes, [3] at least to the Court, a point of the movie was to move forward and not commit the same errors of the past.[4]

         Unfortunately, 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. 1998).

         A 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 cause.

         Unhappily, 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.

         At a 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 much 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.

         * * *

         In 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 long-lasting improvement.

         Before 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.

         Plaintiff 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.

         On 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 tasks.[5]

         In this appeal, plaintiff raises seven specific arguments for a remand.[6] 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.

         DISCUSSION

         The 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 most persuasive.

         A good 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.[7] 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.[8] 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.

         Turning 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.

         Failure To Acknowledge That Plaintiff Had Good and Bad Days.

         This 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.

         The ALJ 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 ...

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