IAIN D. JOHNSTON, 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.
For good reasons, there was no cinematic sequel to Groundhog Day.
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 Case 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.
In this appeal, plaintiff raises seven specific arguments for a remand.
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.
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.
The ALJ addressed the "good days/bad days" argument with the following analysis (the Court has added labels to identify the three rationales):
R. 992.
Although this analysis is nominally different from that in the two prior decisions, it is still insufficient. As an initial point, the ALJ did not clearly set forth his bottom-line conclusion. He seems to have believed that plaintiff had no bad days, which if true, is a strong position to take. In any event, the three reasons are not availing.
Reason #1—Dr. Jilhewar's statement that there was no "specific documentation"—is vague. What type of documentation was Dr. Jilhewar expecting to find? He provided no explanation. Moreover, he did not confront plaintiff's argument that, in fact, documentation was available. In plaintiff's opening brief, she provided a long list of record citations. See Dkt. #18 at 26 (listing 30 separate citations). For example, on November 23, 2009, Dr. Crowe wrote down separate 1-to-10 pain rankings to differentiate plaintiff's pain on good and bad days. R. 360.
Reason #2—that plaintiff did not "fully" describe her bad days—is also a non-starter. Plaintiff provided both general and specific testimony. See R. 1022-23 ("I can get stuff done if it's a good day. If I can't get stuff done or if I get up and it takes a lot of energy just to do simple tasks, then it's bad day."). More specifically, she described how, on a bad day, she had to use a cane while grocery shopping, and after a while, had to lean on the cart and stop and take breaks. R. 1022. She stated that on a bad day she just sat on a couch. R. 983. Additionally, at the third hearing, plaintiff's friend Jamie Wilkins testified that on bad days plaintiff would ask her to come over and help clean the house. Id. It is unclear how much more detail the ALJ was hoping to hear. But if the ALJ believed the above testimony was too vague, then the ALJ had an easy way to fix the problem—ask a few follow-up questions. The ALJ did so on other topics. Plaintiff has now testified at three administrative hearings over a six-year period. This should have provided enough opportunity to build the factual record on this issue.
Reason #3 is a riddle. It begins with the observation that there were some "normal" examination findings (a separate topic to be discussed next) and then pivots from this fact to reach the conclusion that these findings "might encompass good as well as bad days." The Court is unsure what point the ALJ was intending to make. The word "might" makes it hard to prove or disprove the ALJ's rationale. If anything, this statement seems to support plaintiff's theory that normal findings were explainable by plaintiff having a good day and not because her problems were not severe. Ultimately, this third rationale has the same malleability as a fortune cookie aphorism.
To sum up, the ALJ was on notice from this Court's 2017 decision that the "good days/bad days" issue should be addressed more thoroughly, but the ALJ's three reasons do not meet this standard. The main problem is that the ALJ seems to be rejecting plaintiff's claim that she had bad days at all or, if she did, that they were irrelevant to the analysis. This is a hard position to defend, especially with an impairment like fibromyalgia. Perhaps, if the ALJ had taken a more nuanced position—for example, challenging the frequency or severity of the bad days—then it might be a different matter.
One of the few places where the ALJ was more explicit in identifying which pieces of objective evidence were significant was in discussing Dr. Crowe's opinion. There, the ALJ identified synovitis as the key finding.
The danger of uncritically accepting normal findings is one that both the Seventh Circuit and this Court have repeatedly emphasized. Plaintiff's opening brief cites to some of these such cases.
The ALJ's decision did not acknowledge this issue in any way. This is not a criticism that comes out of the blue. In the 2017 decision, the Court criticized the ALJ because she "provided no explanation as to what objective tests should have been performed" to confirm plaintiff's subjective allegations. R. 1104. Despite this statement, neither Dr. Jilhewar nor the ALJ identified what type of evidence would have been sufficient to bolster plaintiff's allegations.
The ALJ did not explicitly acknowledge Ms. Palmer's testimony, although the ALJ generically referred to plaintiff's "friends" (plural). So it is not clear whether the ALJ was aware of, and considered, Ms. Palmer's testimony. As for Ms. Wilkens, the ALJ ambiguously stated that her testimony was "generally consistent" with plaintiff's testimony. R. 994. This statement suggests that the ALJ found this testimony to be credible. But if so, the ALJ gave plaintiff no benefit from this finding because, as noted previously, the ALJ elsewhere in the opinion doubted plaintiff's testimony about issues such as whether she had any bad days or needed to elevate her feet. This analysis is internally inconsistent. This is another repeated error supporting remand.
The Government points out a few instances in the record suggesting that plaintiff's treatment was working. For example, the government notes that, in February 2013, Dr. Gregg noted that plaintiff's fibromyalgia was "adequately controlled through her medication regimen with her primary care physician." Dkt. #27 at 8; R. 987. But this argument is not fully developed and can be criticized as cherry-picking. If the treatment was working, then why were there so many more doctor visits and new treatments? Neither the Government nor the ALJ confronts the larger arc of the treatment history. This issue ties back to plaintiff's argument that her symptoms fluctuated and that a permanent and stable solution remained elusively out of reach. At this point, the Court cannot state that plaintiff's view of this treatment history is necessarily the only reasonable one, but the Court does note that, for the third time, the ALJ failed to meaningfully grapple with this argument. It is an important issue in almost every credibility analysis.
In this appeal, plaintiff again argues, as she did twice before, that the ALJ cursorily rejected this opinion. To counter the ALJ's claim that Dr. Crowe's opinion was not supported by any record evidence, plaintiff has included a long paragraph filled with record citations supposedly corroborating Dr. Crowe's opinion (hereinafter, creatively labeled "The Long Paragraph"). Dkt. #18 at 27-28. The Long Paragraph lists various complaints plaintiff made and sought treatment for, such as shoulder pain, pelvic pain, tenderness in many body parts, swelling in various places, limited range of motion, severe edema, and other findings. The Long Paragraph was included in plaintiff's first appeal (see Case No. 13-50007, Dkt. #11 at 14-15); it then reemerged almost verbatim in the second appeal (see Case No. 15-50248, Dkt. #15 at 23-24); and it finally was again reprised here in this third appeal. The Long Paragraph has reappeared almost as often as Minnie Minoso reappeared in a White Sox uniform. But none of the three ALJ decisions has confronted the evidence contained in it. The ALJ should tackle this evidence head on, by acknowledging and analyzing it. At the same time, the Court notes that it would have strengthened plaintiff's argument if her counsel had pointed out this evidence more forcefully at the three administrative hearings.
Another problem is that none of the ALJ decisions follow the treating physician rule. Plaintiff raised this error in her last appeal, although she curiously omits it from the current appeal. In this Court's 2017 opinion, the Court noted this failure on the ALJ's part and also the Government's recognition of it. See R. 1107 ("The Government wisely concedes that the ALJ failed to follow this rule.") The ALJ's opinion here again does not apply this rule. The ALJ made a few indirect references to the rule. For example, the ALJ stated that Dr. Crowe was plaintiff's "longstanding treating physician." R. 993. But the ALJ's implication was that this was a negative, which is contrary to the SSA's own rulings. Moreover, as is often the case, the ALJ's weighing analysis is contradictory. He gives more weight to Dr. Jilhewar, who is the ME and who never treated plaintiff, than to Dr. Crowe, the physician with the longest relationship with plaintiff, and then gives "very little weight" to the opinion of Dr. O'Laughlin because he was a "onetime examiner." Dr. O'Laughlin's "onetime" is still more than Dr. Jilhewar's never. More perplexing is that the ALJ accepted Dr. Jilhewar's opinion when Dr. Jilhewar repeatedly stated that he saw no evidence of 3+ edema in the records, when there were at least two records establishing this fact. So, the ALJ gave the most weight to the physician who failed to find critical evidence in the record and who based his opinion upon that supposed lack of record evidence. The ALJ should properly, systematically, and explicitly apply both steps of the rule as well as the checklist as required by the SSA's own rules.
In rejecting Dr. Crowe's opinion, the ALJ focused heavily on the edema issue and also placed significance on the fact that no synovitis was found. The Court has already discussed these two shortcomings.
In sum, the ALJ still has not adequately analyzed Dr. Crowe's opinion. Among other things, the ALJ should explicitly apply the treating physician rule; should consider all aspects of Dr. Crowe's opinion including the finding that plaintiff would miss four or more days a month due to the cumulative effect of all her impairments, not just from the leg swelling; and should dig deeper into the question of whether the objective evidence supported Dr. Crowe's opinion, including addressing the evidence set forth in The Long Paragraph.
To summarize, Dr. Jilhewar adopted a bright-line rule in analyzing whether plaintiff's edema would make it impossible to work. He announced, right at the beginning of his testimony, that no doctor found that plaintiff's leg swelling reached the 3+ level on a numerical scale used to assess pitting edema. This premise was faulty. Two such findings exist in the record. He then took the position that, if a person only had swelling rated at 2+ or lower, then that was merely "cosmetic" swelling and could not "have any effect on residual functional capacity." R. 1030. On the question of how to treat the leg swelling, Dr. Jilhewar stated that he did not see any "documentation that [plaintiff] needs to elevate the leg during the working hours" or "documentation that she needs to use the [lymphedema] pump during working hours."
The ALJ relied on Dr. Jilhewar's testimony. In addition, the ALJ relied on a few statements in the record stating that plaintiff's leg swelling "became worse over the course of the day if she spent several hours on her feet." R. 992.
Plaintiff criticizes both Dr. Jilhewar's and the ALJ's analyses. Plaintiff complains that Dr. Jilhewar's reliance on the bright-line 3+ rule was too narrow and failed to account for some findings by doctors that her edema was "severe."
Other unresolved questions exist regarding the remedies plaintiff was using for the leg swelling and whether they were recommended by her doctors and in what situations and how frequently they were used. The factual record needs more development. The three main remedies appear to be leg elevation, compression boots, and simply staying off her feet. As noted above, the ALJ seemed to believe that plaintiff would not have to elevate her leg at all during an 8-hour workday (the ALJ included no RFC limitation for it) because plaintiff would be able to stay off her feet during the work day. This conclusion rests on two ambiguous statements that plaintiff believes were cherrypicked from the record. She argues that, although excessive standing and walking aggravated her leg swelling, they were not the only causes. As a result, plaintiff argues that doing a sedentary job was not the simple solution the ALJ believed it was. Moreover, the ALJ's RFC finding assumes plaintiff would be able to stand or walk two hours out of the day. Unless the standing or walking were all done in the last two hours of the work day, this would presumably mean that plaintiff would have some swelling while on the job, which in turn would require her to take some remedial measures during the day.
Another issue concerns the compression boots. At the 2017 hearing, plaintiff testified that she was wearing compression boots that went all the way up to her hips, that the pressure had been increased to 50 psi, and that the boots only reduced the swelling for 45 minutes. R. 1020. Based on this testimony, it is unclear whether plaintiff would have to use the boots during the workday. If she did, then they would presumably prevent her from working capably, although this conclusion is not firmly established. These factual questions need further development.
For all the above reasons, the Court finds that questions remain regarding the edema issues. The Court notes, however, that the ALJ relied more heavily on Dr. Jilhewar's testimony as to plaintiff's edema. Plaintiff's edema arguments are weakened somewhat by the fact that, other than Dr. Crowe's opinion from 2010, she has no clear statement from a treating physician regarding the need to elevate her legs or wear compression boots at certain times. On the other hand, Dr. Jilhewar's insistence that there must be a "prescription" for leg elevation seems unrealistic. Is this something that a doctor would issue a written prescription for?
The final question to be addressed is whether this Court should merely remand this case for a new hearing and decision, as has been done twice before, or whether the Court should order the Commissioner to award plaintiff benefits outright.
Plaintiff raised this argument in the last paragraph (page 30) of her opening brief. She cited to two cases to support the claim that this Court has the authority to order such a remedy. The primary case was Wilder v. Apfel, 153 F.3d 799, 801 (7th Cir. 1998) where the Seventh Circuit found that the ALJ had failed to follow the Seventh Circuit's previous remand ruling, made three years earlier, and again committed the same basic errors. Id. at 802. The Seventh Circuit noted that the ALJ's decision "makes no reference to our opinion and it is unclear whether this administrate law judge ever saw it." Id. The Court found that the Agency was obdurate in not following the remand instructions and making the same errors twice. Based on the finding of "obduracy," the Court declared it was time "to bring the charade to an end," and ordered the Agency to award the claimant "the benefits that she applied for." Id. at 801. The other case plaintiff cited was a district court case—Briscoe v. Barnhart, 309 F.Supp.2d 1025, 1042 (N.D. Ill. 2004)—a case relying on Wilder to order an award of benefits. Based on these cases, plaintiff argues that the Commissioner has been obdurate and should be penalized for it.
The Government did not respond to this portion of plaintiff's argument. The Court, therefore, does not have the benefit of the Government's position on whether this Court has the power to remand with an order to award benefits outright and, if so, what criteria must be met. A second problem is that plaintiff's argument is not well developed. In particular, plaintiff's argument is weakened considerably by the fact that the Briscoe decision she cited, a district court ruling, was overturned on appeal. See Briscoe v. Barnhart, 425 F.3d 435 (7th Cir. 2005). There, the Seventh Circuit made clear that the Wilder decision was limited—specifically, the Seventh Circuit stated that "Wilder did not hold [] that obduracy alone could ever warrant an award of benefits." Id. at 356. Instead, the Seventh Circuit held that the Wilder case also satisfied a second requirement, which was that the medical evidence corroborating plaintiff's claim was "uncontradicted," meaning that there were "no reasonable" arguments for finding that plaintiff was not disabled. Id.
Here, the Court would have no trouble finding that the SSA, as a whole, was obdurate in repeatedly failing to correct the errors or follow this Court's remand instructions. Over a many year period, the same arguments keep arising making this quintessential Groundhog Day litigation. The ALJ ignored specific remand instructions from this Court, instructions reflecting well-known holdings from Seventh Circuit case law. It would be difficult for anyone to contest the proposition that three administrative hearings and three ALJ decisions should be enough. Viewing the 10-year history of this case, the Court does not hold out great hope that a fourth hearing and decision will lead to greater clarity. Over the course of this litigation, the ALJ decisions have certainly gotten longer each go round (10 pages, then 18, and now 23), as have the briefs (plaintiff's opening brief has grown from 16 to 25 to now 30 pages), but it still feels like it's just 6:00 a.m. all over again, which is why plaintiff's suggestion that this Court end this case now is appealing.
However, the Court does not believe that the evidence is uncontradicted or can yield only one conclusion, as Briscoe requires. For this reason, the Court is not persuaded that it has the authority to order benefits outright. The decision to again remand this case is obviously not a satisfying outcome.
On remand, the Court directs that the SSA order the new ALJ to read this decision in its entirety, as well as this Court's 2017 decision, as well as the three prior ALJ decisions, and that the ALJ explicitly summarize these holdings and acknowledge that this review has been conducted. Further, the ALJ obviously should explicitly address all the issues raised herein, and any other issues that the ALJ believes need to be addressed to meet the legal standards. Also, the ALJ must call a rheumatologist as an expert witness. Correspondingly, the Court requires that plaintiff's counsel explicitly raise all her arguments at the new hearing and point out to the ALJ any evidence she believes is important to her case. Failure to explicitly raise these arguments will result in a finding of waiver in any subsequent appeal.
For the foregoing reasons, plaintiff's motion for summary judgment is granted; the government's motion is denied; and this case is remanded for further consideration.
