Iain D. Johnston, United States Magistrate Judge.
This is an action challenging the administrative law judge's ("ALJ") denial of social security disability benefits to plaintiff Michael F. Dyer. See 42 U.S.C. § 405(g). Plaintiff alleges that back-related pain prevents him from working a full-time sedentary job.
Plaintiff worked for many years in the maritime industry, where he loaded and unloaded barges and tugs, regularly lifting 75 to 150 pounds in shifts sometimes lasting 14 to 18 hours a day. R. 40. On November 20, 2009, he injured his back while lifting one of these heavy objects. R. 43. He was then 39 years old and had never had any back problems before.
After the injury, he tried physical therapy, but it did not work. Dkt. # 14 at 2 (citing R. 344, 346-359). He had several MRIs and other tests. Then, on November 8, 2010, he had lumbar fusion surgery that resulted in four screws and two rods being inserted. R. 45. The surgery was performed because, as the ALJ later noted in the opinion, plaintiff's "lower back pain
On May 5, 2011, plaintiff had a functional capacity evaluation administered by a company called ATI Physical Therapy.
On May 8, 2014, a hearing was held before the ALJ. In his opening statement, plaintiff's counsel referred to the proceeding as a "relatively straightforward case" involving back pain. R. 37-38 ("it's essentially a pain case"). Plaintiff then testified about his various limitations arising out of his back pain.
On July 11, 2014, the ALJ found that plaintiff, despite ongoing back pain, could perform a sedentary job with exceptions such as the freedom to stand or walk every two hours. The ALJ's reasoning is discussed below.
Plaintiff argues that the ALJ committed two main errors: (1) the ALJ improperly "played doctor" in interpreting the objective medical evidence, and (2) the ALJ cherry-picked or misinterpreted the evidence to reach various conclusions. The Court agrees with these arguments, finding that there are too many unresolved questions, ambiguous statements, and inconsistent or incomplete explanations. In short, the ALJ did not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
Plaintiff focuses his arguments on the credibility analysis. The Court, therefore, will consider this analysis first and then will consider the ALJ's discussion of the medical opinions, some of which are also mentioned in the credibility analysis.
To summarize a few key facts at the outset, the ALJ did not call a medical expert to testify at the hearing. In the opinion, the ALJ agreed that plaintiff had a severe impairment of degenerative disc disease and that this condition could cause the pain and limitations plaintiff allegedly was experiencing. Therefore, the key issue was whether plaintiff's allegations were believable. The ALJ concluded that they were not — specifically, they were "less than fully credible." R. 20. The ALJ's explanation was set forth in the following paragraph:
R. 20-21.
The credibility analysis in this paragraph is insufficient for several reasons.
Consider, as a specific example, the second sentence, which states as follows: "While the claimant elected to undergo lumbar fusion, the record indicates that he had no neurological deficits prior to the surgery (Exhibit 18F/25)." This sentence is hard to decipher. The first half mentions a fact ostensibly supporting plaintiff's position (namely, that his condition was serious enough to warrant surgery), but this point is then undercut by the reference to plaintiff having "elected" to undergo this surgery and by the observation that plaintiff had no neurological deficits "prior to" that surgery. The overall impression from this sentence (to this Court, at least) is that plaintiff needlessly underwent an invasive surgery. If this is the intended message, then it is an odd one. Not only does it cast aspersions on plaintiff's doctor who was willing to perform such a surgery, but it is inconsistent with the ALJ's larger narrative that plaintiff, in fact, had an objectively-demonstrated back condition that improved as a result of the surgery. In short, the Court is baffled as to what larger point the ALJ was trying to convey by this sentence. Therefore, this sentence does not "adequately explain" why it supports the credibility finding. Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015).
Second, and related to the first point, the ALJ was "playing doctor" in this paragraph. See Lewis v. Colvin, No. 14 CV 50195, 2016 U.S. Dist. LEXIS 115969, *11
As an additional illustration of these problems, consider the last sentence of the paragraph, which states as follows: "The record indicates that the claimant's symptoms improved after participating in physical therapy, which suggests that they can be managed through the use of conservative treatment." This sentence addresses an appropriate consideration — nature of the treatment — but does so in conclusory and selective fashion. As for the treatments tried by plaintiff, the Court notes that the record (including the ALJ's own summary of that record) refers to several instances in which plaintiff tried conservative treatments. In 2010, plaintiff tried certain unspecified "conservative" treatments that the ALJ stated were unsuccessful. R. 18. These attempts were before the surgery, but after surgery, plaintiff attended 27 physical therapy sessions in early 2011. This therapy did not lead to a noticeable improvement, although this point needs to be addressed directly on remand. So this round of therapy is not likely the one being referred to in the above sentence. Instead, the ALJ likely is referring to a later round of physical therapy, starting in the latter part of 2012. This interpretation fits with an earlier statement the ALJ made in the narrative portion of the opinion. There, she stated the following about this round of therapy:
R. 19. This description portrays plaintiff as gradually improving over the course of these 12 sessions. But this story rests on a selective and incomplete review of the evidence. Although the ALJ indicated that plaintiff's last therapy session was in January 2013, the records relied on by the ALJ indicate that he had at least one more session, on March 18, 2013, at which point he rated his pain as 4/5 — in other words, higher than in the supposed last session. R. 539. Thus, it is not true that plaintiff's pain was at its lowest in the last session; instead his pain seems to be fluctuating around a common range, although this point needs further examination before any firm conclusion can be reached. These factual discrepancies in the credibility analysis are another reason favoring remand. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (an ALJ may not base a credibility determination on "errors of fact or logic"). In any event, plaintiff has never denied that he had some improvement after physical therapy. So this is not
In the credibility analysis, but also in other parts of the opinion, the ALJ evaluated the medical opinions. The ALJ did not agree with all of these opinions and, in fact, rejected some of them (such as the Agency doctors) giving them only "little weight" or, ambiguously, stating that others were given weight only "to the extent that" they were in line with the ALJ's own RFC formulation. In other words, when the ALJ agreed with the opinion, the opinion was consistent, but if the ALJ disagreed with the opinion, the ALJ simply disregarded it. Still, on balance, the ALJ suggested in various ways that several doctors agreed that plaintiff was not disabled. In its response brief, the Government puts the point more strongly, stating that the "ALJ observed that the reliable medical opinions did not support Mr. Dyer's allegations of subjectively disabling symptoms." Dkt. # 21 at 5 (emphasis added). However, as explained below, the ALJ took an overly aggressive approach in interpreting these opinions.
To evaluate these assertions, it is important to consider the underlying source document. In his June 28, 2011 letter, Dr. Herman stated, in pertinent part, the following about the FCE:
R. 465 (emphasis added). As suggested by the italicized portions, this letter contains several statements undermining the ALJ's and the Government's interpretations. First, as Dr. Herman noted, the effort plaintiff exerted during the FCE aggravated his back pain, which then took over three weeks to return to the pre-FCE level.
R. 20. As an initial matter, there is a wrinkle here in that the ALJ did not accept this opinion — that plaintiff is able to sit and do other activities "without limitation" — in full. Instead, the ALJ accepted it only "to the extent that [it was] consistent with" the ALJ's own RFC. In other words, the ALJ disagreed in part with Dr. Osafo's opinion. The ALJ used this "to the extent that" language in connection with several other opinions. It is not only vague but it gives the impression that the ALJ followed a Procrustean bed approach, first deciding on an RFC and then paring down the medical opinions so that they would fit the predetermined structure.
In any event, the Government ignores this wrinkle and argues more straightforwardly that Dr. Osafo's opinion is simply yet another piece of evidence supporting the ALJ's conclusion. Dkt. # 21 at 5. However, like the other medical opinions, Dr. Osafo's opinion is not nearly as clear-cut as the ALJ and the Government suggest. It is true that Dr. Osafo's office notes dated May 21, 2013 contain a single sentence along the lines quoted by the ALJ (i.e. that plaintiff could sit and do the other activities "without limitations"). R. 576. But this sentence on its face is ambiguous as to how long and how often plaintiff could do these various tasks. In addition, other statements in these very same notes raise a question as to whether Dr. Osafo truly believed that plaintiff could do these activities on a consistent basis in a full-time job. For example, in the patient history section, Dr. Osafo stated that plaintiff's description of his pain and various limitations was "reliable." R. 573. This is a statement by a treating doctor directly stating that plaintiff was credible; yet the ALJ never acknowledged this evidence in finding that plaintiff was not credible. Moreover, in summarizing plaintiff's history, Dr. Osafo noted that plaintiff had reported that the "pain in his lower back is aggravated by prolonged walking, sitting, standing, bending and lifting with pain radiating to his right leg" and that he "is unable to work due to constant daily pain to his lower back and inability to stand, sit or stand of any length of time without his lower back hurting." R. 573. Again, Dr. Osafo stated that this history was reliable. The ALJ should have acknowledged this contrary evidence or alternatively have re-contacted Dr. Osafo to resolve these apparent discrepancies.
In addition to the above arguments, which justify a remand, the Court notes that it encountered anomalies throughout the ALJ's opinion. Although most of them did not involve major issues, they were nonetheless nagging inconsistencies that raised doubts about the ALJ's overall approach. Two examples will be noted.
First, plaintiff alleged that he suffered from a bereavement disorder arising from the death of his teenage son. Although this was not plaintiff's chief complaint, the ALJ addressed this allegation in several places. The first was in considering whether the bereavement disorder could qualify as a severe impairment. There, the ALJ concluded that it did not because plaintiff "did not actually seek treatment for this condition (Exhibit 18F)."
Second, similar concerns about consistency arise regarding the ALJ's analysis of plaintiff's medications. As stated in the sentence quoted above, the ALJ believed that side effects from plaintiff's medications were another reason to limit him to simple and routine work. This statement, which is not accompanied by any explanation, assumes that plaintiff was legitimately experiencing medication side effects hindering his ability to concentrate. However, earlier in the opinion, the ALJ made statements suggesting that plaintiff's condition was not serious because, for example, he was "only taking ibuprofen for his symptoms."
Having concluded that a remand is warranted, the Court need not address plaintiff's argument that the ALJ failed to consider whether plaintiff met a closed period of disability from November 2009 through June 2011. This argument, and any other arguments not addressed herein, can be raised on remand. In light of all the unresolved medical issues discussed herein, the ALJ must call a medical expert on remand. HALLEX I-2-5-34.A.1.
For these reasons, plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further consideration.
