Hunt v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DARRIN H.,1 )

)

Plaintiff, )

)

vs. ) Case No. 3:22-CV-2431-MAB

)

COMMISSIONER OF SOCIAL )

SECURITY, )

)

Defendant. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

Plaintiff Darrin H. is before the Court, represented by counsel, seeking review in

accordance with 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social

Security denying his application for a period of disability and disability insurance

benefits (“DIB”) under Title II of the Social Security Act. For the reasons set forth below,

the Court concludes the ALJ made a number of errors in her consideration of the record

and the agency’s decision must be reversed.

PROCEDURAL HISTORY

This case has an unfortunately extensive procedural history, and this is the fourth

time Plaintiff’s case has come before the Court. Plaintiff Darrin H. first applied for

disability insurance benefits (“DIB”) under Title II of the Social Security Act thirteen years

ago, in April 2011. He claimed that he became disabled a year prior, when he was 38 years

1 In keeping with the Court’s practice, Plaintiff’s full name will not be used in this Memorandum and Order

due to privacy concerns. See FED. R. CIV. P. 5.2(c) and the Advisory Committee Notes thereto.

old, following lumbar spine surgery (Tr. 117–24, 143, 146, 160–70). He alleged, in a

nutshell, that despite the surgery, he continued to suffer from chronic and severe lower

back pain and radiating pain and weakness in his legs, which made it difficult to do

almost any type of physical activity (Tr. 146, 160–70).

His disability claim was denied initially and on reconsideration (Tr. 61, 65–69; Tr.

62, 70–74). Plaintiff requested a hearing before an administrative law judge (Tr. 75–78),

which did not take place until over a year later in August 2012. Plaintiff testified at the

hearing, as did vocational expert (“VE”), Thomas Guslof (Tr. 35–61). ALJ William

Sampson then denied Plaintiff’s claim in September 2012 (Tr. 15–34, 35–60, 61–62, 65–73).

Plaintiff sought judicial review, and in April 2015, the court reversed the ALJ’s decision

due to the ALJ’s erroneous belief that the broken screw in Plaintiff’s back had been

repaired and the impact that misunderstanding had on the ALJ’s assessment of Plaintiff’s

credibility and the medical opinions (Tr. 830–44). Hunt v. Colvin, No. 14-CV-345-CJP, 2015

WL 1746307, at *5–6 (S.D. Ill. Apr. 15, 2015).

On remand, Plaintiff’s claim was consolidated with another interim claim that he

had filed (Tr. 851–52). Another hearing was held on May 11, 2016, and Plaintiff once again

testified, as did a new VE, Dr. Leonard Fisher (Tr. 725–64). The ALJ also sought the

opinion of an impartial medical expert, Dr. Peter Schosheim (Tr. 1486–97). The ALJ

denied Plaintiff’s claim for a second time in November 2016 (Tr. 1708–36), but in October

2017, his decision was reversed and remanded by the court (Tr. 1746–63, 1764). Hunt v.

Berryhill, No. 17-CV-00069-JPG-CJP, 2017 WL 4777115, at *8–9 (S.D. Ill. Oct. 23, 2017). This

time, the Court found the ALJ erred in weighing the medical opinions because his reasons

for rejecting or discounting them were improper under Seventh Circuit law, illogical and

unsound, and/or based on misconstrued or cherry-picked facts.

On remand, the case was reassigned to a new ALJ, Gladys Whitfield (Tr. 1574).

Over the course of the next two years, four hearings were held. At the first hearing in

October 2018, Plaintiff and VE Constance Brown testified (Tr. 1577–1609). At the second

hearing seven months later in May 2019, a consulting physician, Dr. Andrew Brown,

testified (Tr. 1631–59). At the third hearing four months later in September 2019, a second

VE, Matthew Lampley, testified (Tr. 1660–1707). And at the fourth hearing ten months

later in July 2020, a third VE, Carrie Anderson, testified (Tr. 1610–30). The ALJ denied

Plaintiff’s claim in September 2020, finding that although he suffered from several serious

medical conditions, including in particular his back problems, he retained the residual

functional capacity to perform sedentary work with some additional restrictions on

lifting and other non-exertional limitations (Tr. 1542–54). After Plaintiff sought judicial

review of the ALJ’s decision, the parties filed a joint motion to remand the case, which

the Court granted on July 13, 2021. See SDIL Case No. 20-cv-1291-MAB, Docs. 20, 21, 22.

On remand, the Appeals Council issued an order outlining the errors committed

in the ALJs’ decisions up to that point and what the ALJ needed to do to rectify them (Tr.

3278–80). A hearing was held on April 21, 2022, at which Plaintiff gave very limited

testimony about his previous work and VE Kenneth Jones also testified (Tr. 3219–42). The

ALJ issued an unfavorable decision on August 15, 2022, imposing a residual functional

capacity nearly identical to the one imposed in her previous decision2 and concluding

that Plaintiff remained able to perform a significant number of jobs in the national

economy (Tr. 3183–3218). Plaintiff elected not to file exceptions with the Appeals Council,

and the Appeals Council did not assume jurisdiction. See 20 CFR § 404.984(d). The ALJ’s

decision thus became final on October 18, 2022. See id. This action was timely filed on

October 19, 2022.

THE EVIDENTIARY RECORD

Plaintiff was born in 1971 and was 38 years old on the alleged onset date of April

15, 2010, which is the date on which he underwent lumbar spine surgery to address

chronic back pain. He is insured for DIB through September 30, 2015 (Tr. 143). The

following summary of the record focuses on the period of time between Plaintiff’s onset

date and date last insured.

A. AGENCY FORMS & EVIDENTIARY HEARINGS

Plaintiff completed a Function Report in May 2011 shortly after he filed his claim

for disability, (Tr. 160–70), and another in July 2011 (Tr. 182–92). He indicated that his

pain made it hard for him to do just about everything (see, e.g., Tr. 165, Tr. 187). He could

stand for one or two hours at a time but would then be in so much pain that he had to lie

down for an hour or more to get relief from the pain (Tr. 160, 161, 167, 170, 192). He could

sit in a recliner for about one or two hours, but then needed to either stand up and stretch

2 The only difference between the RFC in the 2020 decision and the RFC in the 2022 decision is that ALJ

Whitfield said in the former decision that Plaintiff could never crawl, while she said in the latter decision

that he could occasionally crawl (compare Tr. 1548 with Tr. 3194).

his legs or lie down to relieve his pain (Tr. 160, 161, 167, 170, 192) (emphasis added). He

estimated that he could walk about half a block before he needed to stop and rest, but he

could walk farther if he had something to lean on (Tr. 165, 185, 187, 189). After walking,

he needed to lie down for relief (Tr. 170, 192).

Plaintiff said he had a hard time lifting anything over ten pounds (Tr. 160, 167).

For example, picking up and carrying a laundry basket was difficult (Tr. 162, 169, 184,

191). Squatting was “very painful” (Tr. 167, 189). Bending was “impossible to do very

much and extremely painful” (Tr. 167; see also 189). Reaching overhead was also very

painful (Tr. 167, 169, 189, 191). Kneeling was difficult because it was painful to get down

on his knees and then get back up; at times he needed help getting back up (Tr. 167, 189).

Pain affected Plaintiff’s sleep. He took Ambien but was still only able to sleep

between two and four hours a night because it was impossible to get comfortable and

stay asleep for longer (Tr. 161, 183). He had some difficulty putting on pants, socks, and

shoes and difficulty washing his lower body (Tr. 161, 183). Twisting to get in and out of

the car was painful (Tr. 170, 192). Getting up from a chair or the couch or getting out of

bed was very painful and he had to do so carefully and slowly (Tr. 170, 192). At times,

his pain made him moody and grouchy (Tr. 165, 187). He said he took medicine for his

pain but “it doesn’t help” (Tr. 187; see also Tr. 167). He also used a TENSs unit every day,

which “takes a little of the edge off of the pain” (Tr. 188, see also Tr. 166).

On a typical day, Plaintiff got his kids up for school, helped them with their hair

and gave them their medicine (Tr. 161). He would start a load of laundry some days, then

feed the dog, and take a shower (Id.). After that, he had to lie down for a couple hours

(Id.). He would then sit in the recliner for a while, then stand up and go get the mail (Id.).

Getting the mail required him to walk about half a block, and he had to lie down

afterwards (Tr. 161, 163, 185). He basically alternated between sitting, standing, and lying

down for the rest of the day until he went to bed (Tr. 161, 183).

When it came to meals, Plaintiff usually did not do anything more than make

sandwiches for himself for lunch (Tr. 162, 184). His wife cooked for the family (Id.). While

he gave the dogs food and water every day, his wife did everything else (taking them

outside, walking them, cleaning up after them, etc.) (Tr. 161, 183). Plaintiff could start a

load of wash and fold clothes while sitting down if someone brought the basket to him

(Tr. 162, 169, 184). He no longer mowed the grass because it was too painful to ride the

lawnmower; his brother mowed his grass (Tr. 163, 185).

He went to the grocery store with his wife every week but had to lean on the cart

as he walked (Tr. 163, 185). If his pain was really bad that day, he would use the motorized

cart (Tr. 163, 185). He went to lunch on Sundays at his mom’s house (Tr. 186). He

primarily spent his time reading, collecting action figures and comic books, and

occasionally going to the movies with his family (Tr. 164, 186).

After his claim was denied initially and on reconsideration, Plaintiff requested a

hearing before an ALJ, which took place in August 2012 (Tr. 35–61). Plaintiff’s testimony

at the hearing was largely consistent with the Functions Reports he had previously filled

out (see Tr. 160–70, 182–92). At the hearing, Plaintiff described his pain as throbbing,

pinching, and constant pressure and said it was normally between a six and an eight out

of ten (Tr. 41, 43). He took morphine, Neurontin, a muscle relaxer, and an antidepressant,

but did not think the medications worked as well as he thought they should (Tr. 41). He

maintained that in order to alleviate his pain, he had to “constantly sit . . . have [his] feet

up . . . and lay down throughout the day” (Tr. 41). He estimated that he spent four or five

hours of every day (meaning the time that he was not in bed at night) lying on the couch

(Tr. 49). He said that “just not moving” made the pain tolerable (Tr. 43).

Plaintiff testified that he could lift a gallon of milk, but he was unsure whether he

could lift a case of soda (Tr. 42). He said that he could only stand for about 10 minutes at

a time unless he had something to lean on (Tr. 41). If he stood for too long, his pain shot

up to a ten (Tr. 41). He said that he could “sit for a while,” meaning “a couple of hours”

as long as he had a comfortable chair, meaning a recliner, but then he needed to get up

and stretch his legs for a bit because sitting too long would cause his pain to shoot up (Tr.

42, 50). After standing or sitting for any length of time, he had to lie down for about an

hour to get relief from the pain (Tr. 42–43). He could not sleep through the night due to

his pain, which woke him up at least three or four times a night (Tr. 43; see also Tr. 49). He

no longer cooked or did the dishes (Tr. 47). He provided limited help with the laundry

(Tr. 47; see also Tr. 160–67, 182–92). He also no longer did outside work; his brother

mowed the lawn for him (Tr. 47; see also Tr. 160–67, 182–92)

In April 2015, Plaintiff filled out a new Function Report (Tr. 1014–21). He said he

spent half the day lying down or reclining to relieve his pain and fatigue, and he could

not make it through the day without lying down or reclining (Tr. 1014, 1015). His daily

activities and the chores he did around the house remained very limited (see Tr. 1015–17).

He said before his back surgery, he used to make dinner every night for his family, but

now he just made himself a simple breakfast (cereal or poptarts) and lunch (sandwich)

(Tr. 1017). When he went shopping with his wife, she got the groceries while he just

walked along beside her, leaning on the cart for support (Tr. 1017, 1018). He had to lie

down or recline when they got home (Id.). He now avoided bathing and limited himself

to showering once a week due to his pain (Tr. 1015). His pain affected his ability to use

the toilet because it could be difficult and painful to wipe and stand up when he was

finished (Tr. 1016).

After Plaintiff’s claim was remanded back to the agency the first time, another

hearing was held on May 11, 2016, at which Plaintiff testified (Tr. 725–64). He said he was

never free from pain (Tr. 742). He still took pain medications, which kept his pain at a

five or a six (Tr. 742–43). During times that he tried to go off the pain medications, his

pain shot up (Tr. 746). He still used the TENS unit (Tr. 742–43), and he was also getting

injections regularly every six or eight weeks, which he said made his pain “a little more

bearable” (Tr. 747). Despite those measures, he still needed to lie down or recline

throughout the day to manage his pain (Tr. 743); just sitting down did not provide him

with relief (Tr. 744). When asked roughly how much of the day he spent lying down or

reclining, he answered “anywhere from half to three-fourths of the day” (Tr. 738). He

frequently changed positions throughout the day and got up off the couch or out of the

recliner to stand or walk (Tr. 739). He said if he was not able to recline or lie down as

needed, his pain was severe (Tr. 738).

When asked about exercise, Plaintiff testified that he did not do much because it

was painful (Tr. 747). He checked the mail every day, which required him to walk about

half a block, but it aggravated his pain and he had to lie down after he got back to the

house (Tr. 747). As for activities, Plaintiff further testified that he and his family used to

frequently go to the movies but it “just wasn’t any fun anymore” because of all the

planning and strategizing that it required; for example, he had to look and see how long

the movie was, he always had to sit close to the aisle so he could stand up and stretch

during the movie, etc. (Tr. 735–36). Plaintiff was asked hypothetically if his back problems

“were to magically go away,” if there was anything about his heart condition that would

keep him from working (Tr. 740). He said no; if his back pain disappeared, he would go

back to work because he “can’t stand being at home all the time” (Tr. 740–41). He was

asked how many days of work he thought he would miss in an average month due to

having a bad day pain-wise, and he said “at least one day a week for sure, possibly two”

(Tr. 743–44).

When Plaintiff’s claim was on remand to the Social Security agency the second

time, Plaintiff provided very limited testimony at a hearing in October 2018 before ALJ

Whitfield (Tr. 1577–1609). He testified, in response to ALJ Whitfield’s questions, that his

wife drove him to the hearing because driving long distances caused him pain, that they

had to stop after about 20 minutes so he could get out and stretch, and that he sometimes

used a cane (Tr. 1583, 1584).

B. MEDICAL RECORDS

Plaintiff underwent lumbar spine surgery on April 15, 2010, to address chronic

back pain. The surgery was performed by neurosurgeon Dr. Pradeep Narotam, and

consisted of spinal fusion of the L5 and S1 vertebrae, decompressive lumbar laminectomy

at L5 with foraminotomy of the L5 and S1 nerve roots, and L5-S1 discectomy (Tr. 460–61,

513–15).3 Following surgery, Plaintiff was prescribed Percocet or Vicodin for pain, along

with a muscle relaxer (see Tr. 525–530; see also Tr. 521–22, 534–35).

At a three-month postoperative appointment with Dr. Narotam in July 2010,

Plaintiff reported continuing lower back pain and pain in his right leg (Tr. 543–48). Earlier

that month, he reported that the Vicodin “really ha[d]n’t been helping a lot,” and he

“ha[d] been in quite a bit of pain” (Tr. 539). It was noted that Plaintiff’s gait was steady,

but he got up from the chair “stiff/slow.” A right lumbar trigger point was noted on

examination. Dr. Narotam diagnosed Plaintiff with myofascial pain syndrome4 and said

Plaintiff was not fit for duty and could not return to work (Tr. 544, 550, 551). Plaintiff was

referred to a “work hardening program” (Tr. 550; see also Tr. 394), which he began that

month with a physical therapist (see Tr. 239). Plaintiff also received trigger point injections

from a nurse practitioner in Dr. Narotam’s office (Tr. 549).

3 Spinal fusion is surgery to permanently join together two or more vertebrae so there is no movement

between them. A laminectomy involves the removal of the lamina, which is the back portion of a vertebrae,

to make more room in the spinal canal and relieve pressure on the nerves. A foraminotomy widens the

opening in the spine where nerve roots leave the spinal canal (the foramina) in order to take pressure off

the nerve, and a diskectomy is the surgical removal of a herniated disk in the spine. MEDLINE PLUS, Spinal

Fusion, https://medlineplus.gov/ency/article/002968.htm (last visited April 25, 2024) (containing

hyperlinks to pages explaining laminectomy, foraminotomy, and diskectomy).

4 Myofascial pain syndrome “is a chronic pain disorder” that arises from inflammation in the muscles and

fascia in a specific area of the body, like the lower back. Symptoms include pain, tender muscles, weak

muscles, reduced range of motion, and trigger points, which are sensitive points in the muscles and when

they are pushed, they can produce localized pain but also referred pain in other areas of the body.

CLEVELAND CLINIC, Myofascial Pain Syndrome, https://my.clevelandclinic.org/health/diseases/12054-

myofascial-pain-syndrome (last visited April 22, 2024).

The initial evaluation at physical therapy showed that Plaintiff had “impaired

muscle activation, strength, and stability” and that pain and spasms limited his spinal

and hip range of motion (Tr. 239). The functional goals set for Plaintiff were to be able to

walk for 30-45 min, stand for over two hours, sit for one to two hours, and to lift 50–60

pounds from the floor up to his waist—all without significant pain (Tr. 239). Plaintiff

attended therapy consistently (Tr. 253–79). At each session, he did strengthening,

stretching, and stabilizing exercises, and he also received various other treatments,

including hot packs, interferential electrical stimulation (“IFC”), pulsed ultrasound, and

manual myofascial release (Tr. 239, 253–79). He continually reported pain in his lower

back and, at times, in his right leg, which he rated between five and seven (out of ten),

(see, e.g., Tr. 267, 269, 271, 276, 278). He consistently reported that his medications were

not providing any relief (see, e.g., Tr. 271, 273; see also Tr. 554). The treatments he received

at therapy provided him with some relief—his back was less stiff and sore—however, the

relief did not last long (see Tr. 253–79). The therapist noted that Plaintiff’s pain and spasms

limited his range of motion and his progress in therapy (Tr. 241).

After six weeks of physical therapy, Plaintiff saw his primary care physician

(“PCP”) Dr. David Davis on September 3, 2010 (Tr. 392). Dr. Davis noted that Plaintiff’s

“severe low back pain” persisted despite surgery and physical therapy (Tr. 392). On

examination, Plaintiff exhibited diffuse tenderness along his spine and in his paraspinal

muscles, limited flexion and extension of his lower back, and mild weakness in both

lower extremities. Dr. Davis continued Plaintiff’s prescriptions for Vicodin and a muscle

relaxer, gave him a five-day course of prednisone (a steroid), and added a 25mcg Fentanyl

patch.5 In the weeks that followed, Plaintiff continued to report minimal relief from his

pain medications (Tr. 388, 390). The dosage of the Fentanyl patch was increased twice,

and he also started taking Neurontin 300mg three times a day (Tr. 388, 390).6 At physical

therapy, his pain remained unchanged, which led to “slow progress with his exercise

performance” and “limited” progress toward his therapy goals” (see, e.g., Tr. 287, 313).

On October 20, 2010, Plaintiff had a six-month postoperative appointment with

Neurosurgeon Dr. Narotam (Tr. 561–65; see also Tr. 558–59 (x-ray report)). Plaintiff

complained of constant low back pain and said that he “wishe[d] he’d never gotten the

surgery.” Dr. Narotam noted that recent x-rays showed the hardware was in position

with no instability and incomplete fusion mass; he rated Plaintiff’s fusion at grade three.7

On examination, Plaintiff had low back tenderness, but straight leg raising was normal,8

he had no motor or sensory deficits, and he had a steady gait with no limp. Dr. Narotam

5 Fentanyl is a strong opioid, and the patches are used to relieve severe and persistent pain in people who

need pain medication around the clock for a long time and have become tolerant to oral narcotic pain

medications. MEDLINE PLUS, Fentanyl Transdermal Patch,

https://medlineplus.gov/druginfo/meds/a601202.html (last visited April 12, 2024).

6 Neurontin (brand name of the generic drug gabapentin) is an anticonvulsant used to control epileptic

seizures but has also been found to relieve chronic pain, especially chronic nerve pain, and it may relieve

lower back pain. MEDLINE PLUS, Gabapentin,

https://medlineplus.gov/druginfo/meds/a694007.html#brand-name-1 (last visited April 12, 2024);

MAYO CLINIC, Chronic pain: Medication decisions, https://www.mayoclinic.org/chronic-pain-medication-

decisions/art-20360371?p=1 (last visited April 12, 2024).

7 It is unclear from the medical records what “grade 3” meant. The Court will not hazard a guess because

there are a variety of scales/systems for grading the progress of interbody fusion based on radiographic

imaging, and even the most frequently used do not grade fusions in the same manner. See, e.g., Anneli A.

A. Duits, et al. Radiologic Assessment of Interbody Fusion, JB & JS REVIEWS, Jan. 2024, at p. 6.

8 Straight leg raising is a commonly used procedure for detecting nerve root irritation in a patient’s lower

back. Gaston O. Camino, et al., Straight Leg Raise Test, https://www.ncbi.nlm.nih.gov/books/NBK539717/

(last visited April 22, 2024). This test can be positive in a variety of conditions, though lumbar disc

herniation is the most common. Id.

noted that Plaintiff “continue[d] to smoke heavily despite being informed of its

deleterious effect on his fusion and on worsening spine pathology.” The treatment note

from this appointment lists Plaintiff’s work status as, “[r]eturn to work with light duty

15-30 pound lifting restriction,” (Tr. 562), however, Dr. Narotam’s nurse practitioner

filled out a form that same day that stated Plaintiff “may NOT return to work until seen

for follow-up evaluation” in six months and that he “continues with therapy & [is] not

able to return to work at full duty at this time.” (Tr. 560) (emphasis in original).

Plaintiff continued attending physical therapy and following-up with Dr. Davis

throughout the remainder of 2010 (Tr. 309–351; 372–85). He consistently complained of

lower back pain and limited relief from the pain medications (see Tr. 309–55, 372–73, 377,

383). Treatments at physical therapy provided him with some relief, temporarily

lowering his pain to a four or five out of ten (see Tr. 319, 321, 323, 325, 327, 329, 333).

Plaintiff also told Dr. Davis that he got relief from the pain when he laid down in certain

positions and rested (Tr. 377; see also Tr. 383). Dr. Davis continued noting that Plaintiff

exhibited limited range of motion in his lower back, tenderness along his spine and in his

paraspinal muscles, and mild weakness in both his bilateral extremities (Tr. 383). Dr.

Davis also began noting loss of lumbar lordosis and multiple trigger points (Tr. 377; see

also Tr. 372). Dr. Davis ordered a new MRI (Tr. 378), which he said showed a herniation

above where Plaintiff had surgery (Tr. 375; see also Tr. 405 (MRI report)).9 Dr. Davis also

9 The MRI report states that at L4-5 there was disc desiccation associated with a stable far left lateral disc

herniation lying adjacent to the left exiting L4 nerve (Tr. 405; see also Tr. 485 (July 2009 MRI, prior to surgery,

showed the L4-5 disc was degenerated with some focal protrusion into the caudal left neural foramen,

where there was mild stenosis)).

switched Plaintiff’s pain medication to methadone (5mg, four times a day) because the

Fentanyl patches were causing him to vomit (Tr. 372–373),10 prescribed him Ambien

because he was having difficulty sleeping due to pain (Tr. 382), and referred him to Dr.

Ragai Mitry, an anesthesiologist and pain management doctor, whom Plaintiff had

previously seen pre-surgery for pain management treatment (Tr. 373). Plaintiff was also

given a TENS unit at physical therapy, which he said provided him with “good relief”

and decreased his pain to a four while it was on (Tr. 321, 323; see also Tr. 325, 327, 331).

In the weeks that followed, Plaintiff’s methadone dosage was increased three

times and he was started on a new muscle relaxer for spasms (Tr. 363, 366, 369). On one

occasion when his pain acutely worsened, he was given a five-day course of prednisone

and started on Cymbalta (Tr. 363). 11 He also saw Dr. Mitry for the first time

postoperatively on February 18, 2011, and received epidural steroid injections plus five

trigger point injections (Tr. 407–09, 592–93, 599).

In April 2011, Plaintiff had a one-year postoperative appointment with

neurosurgeon Dr. Narotam (Tr. 568–73). He reported that he still had low back pain and

some posterior thigh pain. Dr. Narotam noted that current x-rays and a recent MRI

(which seems to be the one ordered by Dr. Davis and done in December 2010) showed

10 Methadone is a strong opioid used to treat severe, chronic pain. MEDLINE PLUS, Methadone,

https://medlineplus.gov/druginfo/meds/a682134.html (last visited April 12, 2024).

11 Cymbalta (generic name duloxetine) is an antidepressant, specifically a serotonin-norepinephrine

reuptake inhibitor, that is also used to treat certain types of chronic pain, including lower back pain. MAYO

CLINIC, Chronic pain: Medication decisions, https://www.mayoclinic.org/chronic-pain-medication-

decisions/art-20360371?p=1 (last visited April 12, 2024).

the hardware was in a good position and there was no instability, no nerve root

compression, and no stenosis. It did show a far lateral disc herniation at L4-5, but there

was no active root compression. Dr. Narotam noted that Plaintiff had a normal, steady

gait and upright posture. On examination, paraspinal tenderness was noted, but his

straight leg raise was normal, and he had no motor or sensory deficits. Dr. Narotam

diagnosed Plaintiff with mechanical lower back pain and post-laminectomy syndrome,

also known as “failed back surgery syndrome,” which refers to persistent pain

experienced after a spinal surgery.12 Dr. Narotam directed Plaintiff to attend a pain clinic

and instructed him on how to use heat as a treatment, the detrimental effects of smoking,

and the importance of exercise and good posture. Dr. Narotam encouraged Plaintiff to

quit smoking, to start exercising daily, and told him to “walk with head erect, shoulders

back. Use good body mechanics when bending, twisting, and lifting. Avoid sitting for

more than 30 minutes at a time. Sit in a firm chair with a straight back.” There is nothing

in the notes about Plaintiff’s work status (see Tr. 568–73).

In May 2011, Plaintiff saw Dr. Mitry a second time and received epidural steroid

injections and eight trigger point injections (Tr. 590–91, 599). That same month, Dr. Davis

noted that Plaintiff’s general appearance was “uncomfortable, fatigued” and his mood

was “depressed.” His medications were switched up: Cymbalta and methadone were

discontinued and he was started on MS Contin for pain (60mg three times a day, which

12 HOSPITAL FOR SPECIAL SURGERY, Post-Laminectomy Syndrome, https://www.hss.edu/conditions_post-

laminectomy-syndrome.asp (last visited April 22, 2024).

was later increased to four times a day),13 in addition to continuing to take Neurontin

(see Tr. 362–63, 614, 621). He was also started on an antidepressant (Celexa) and

lorazepam (as needed) based on his reports that his pain medications were not helping

and he was irritable, having mood swings, and crying regularly (Tr. 614–15).14

It was around this time that Plaintiff filed his application for disability benefits. On

May 25, 2011, non-examining physician and agency consultant, Dr. Michael Nenaber

(who is an internist), reviewed Plaintiff’s medical records to conduct an initial disability

determination (Tr. 578–585). Dr. Nenaber said Plaintiff had a medically determinable

impairment that would reasonably be expected to produce his pain (Tr. 583). The

intensity, persistence, and functionally limiting effects of Plaintiff pain were

“substantiated by the objective medical evidence.” (Tr. 583) And Plaintiff was “seen as

credible.” (Tr. 583). Dr. Nenaber found that Plaintiff had the residual functional capacity

13 MS Contin is a brand name for the generic drug morphine, which is a strong opioid, in long-acting,

extended-release form. This medication is used to relieve pain that is severe and persistent enough to

require daily, around-the-clock, long-term opioids and when other pain medications did not work well

enough or cannot be tolerated. MAYO CLINIC, Morphine (Oral Route), https://www.mayoclinic.org/drugs-

supplements/morphine-oral-route/side-effects/drg-20074216?p=1 (last visited April 23, 2024).

14 It is well-established that many people who suffer from chronic pain, such as low back pain, also have

depression and anxiety. Adam KM Woo, Depression and Anxiety in Pain, REVIEWS IN PAIN, March 2010, at

pp. 8–12 2010, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4590059/; THE UNIV. OF

ARIZ. HEALTH SCI., Study Shows Millions of People Live with Co-Occuring Chronic Pain and Mental Health

Symptoms, https://healthsciences.arizona.edu/news/releases/study-shows-millions-people-live-co-

occuring-chronic-pain-and-mental-health-symptoms (last visited April 25, 2014). Antidepressants are

beneficial in treating pain, even when depression isn’t recognized as a factor, as are anxiety medications.

MAYO CLINIC, Antidepressants: Another weapon against chronic pain, https://www.mayoclinic.org/pain-

medications/art-

20045647#:~:text=These%20drugs%20may%20also%20be,may%20help%20relieve%20chronic%20pain.

(last visited April 25, 2014); see also AABHA A. ANEKAR, ET AL., WHO ANALGESIC LADDER,

https://www.ncbi.nlm.nih.gov/books/NBK554435/ (last visited April 25, 2024).

to perform light work, (see Tr. 579, 580; see also Tr. 69),15 and Plaintiff’s application for

disability benefits was therefore denied (Tr. 61, 65–69). Plaintiff asked the agency to

reconsider, and in July 2011, a second non-examining physician and agency consultant,

Dr. Sumanta Mita, agreed with Dr. Nenaber’s assessment (Tr. 636–38), and Plaintiff’s

claim was once again denied (Tr. 62, 70–74).

Plaintiff requested a hearing before an administrative law judge (Tr. 75–78), which

did not take place until over a year later in August 2012. In the meantime, Plaintiff

continued to see his doctors. He reported to Dr. Mitry that the epidural steroid injections

and trigger point injections he received in May 2011 did not provide him any relief and

the injections were discontinued (Tr. 599). Dr. Davis noted on multiple occasions that

Plaintiff appeared uncomfortable and fatigued and exhibited diffusely tender paraspinal

muscles, loss of lumbar lordosis, multiple trigger points, and generalized weakness in

both lower extremities (Tr. 616–31, 645, 652–59). Dr. Davis continued to prescribe and

adjust Plaintiff’s medications, including MS Contin, Neurontin, a muscle relaxer,

lorazepam, and an antidepressant.

On February 14, 2012, Plaintiff underwent an independent medical evaluation

with David Fletcher, M.D., who is board-certified in Occupational and Preventative

Medicine (Tr. 670–85). Dr. Fletcher reviewed Plaintiff’s postoperative medical records

and also examined Plaintiff. Plaintiff reported that his pain was a “7–8,” which meant

“severe pain” and “[u]nable to perform daily tasks and unable to perform job” (Tr. 670,

15 See Social Security Ruling 83-10, 1983 WL 31251, at *5–6 (Jan. 1, 1983) (defining sedentary, light, and

medium levels of exertion).

679; see also Tr. 671). Dr. Fletcher noted that Plaintiff walked with a limp with decreased

weight bearing on his right leg (Tr. 680). On examination, Plaintiff had reduced range of

motion in his lumbar spine, which Dr. Fletcher believed was an accurate representation

of his abilities (Tr. 680). Plaintiff had tenderness in the low back area but no muscle

spasms (Tr. 680). He had normal reflexes in his ankles and knees, which indicated there

was no nerve root entrapment (Tr. 681). Other objective tests, however, were positive for

nerve root involvement or compression at the right L5 nerve (Id.). Tests aimed at

identifying whether a patient was magnifying his symptoms or malingering were

negative (Tr. 681–82), and Dr. Fletcher noted there was no evidence of overt symptom

magnification (Tr. 670). He further stated that Plaintiff’s subjective complaints of pain

were consistent with the objective findings, and Plaintiff’s functional and daily activity

levels were likewise consistent with the objective findings, the medical records, and the

severity of his subjective complaints (Tr. 670, 671).

Dr. Fletcher’s primary diagnosis was failed low back syndrome with chronic right

L5 radiculopathy, and his secondary diagnosis was depression, which added to Plaintiff’

decreased function and deconditioning (Tr. 670-671, 684–85). Dr. Fletcher opined that

Plaintiff had incurred “moderate permanent loss” to his functionality, and permanent job

restrictions were necessary, including: no lifting more than 10 pounds, no repetitive waist

bending, and he must have the ability to alternate from the sit to stand position at will

(Tr. 671, 673). Dr. Fletcher recommended that Plaintiff undergo a Functional Capacity

Evaluation “to best define his work capacity” (Tr. 671). He further opined that Plaintiff

was only capable of working “20–30 hours per week in the beginning” because he was

“deconditioned and need[ed] to build up to a 40-hour work week” (Tr. 672). Dr. Fletcher

believed that Plaintiff had been undertreated and recommended that he quit smoking,

switch from Neurontin to Cymbalta, undergo additional diagnostic testing (electrical

studies and a myelogram or CT scan), and potentially consider the insertion of a spinal

stimulator for pain control (Tr. 671). Dr. Fletcher stated that Plaintiff’s prognosis was

“[v]ery guarded” and “if additional testing shows no surgically remedial correctable

problem [then] he is MMI,” which means maximum medical improvement (Tr. 673).

Following Dr. Fletcher’s examination, Plaintiff underwent a functional capacity

exam (also referred to in the records as a “Physical Work Performance Evaluation”) in

April 2012, which was conducted by physical therapist Chet Clodfelter (Tr. 686–95). The

exam lasted nearly three and a half hours (Tr. 686). Mr. Clodfelter noted that Plaintiff

reported back pain at the start of and throughout the exam, bilateral thigh pain as the

exam progressed, and a slight increase in overall pain level at the end of the exam (Tr.

687, 689; see also Tr. 691–93). Plaintiff also demonstrated pain behaviors throughout the

exam, like rubbing his thighs, putting hands on his hips, leaning to try to change the

pressure of the pain, decreased weight bearing on one leg, and shifting his weight when

standing and stooping (Tr. 687, 692, 693). Mr. Clodfelter found that Plaintiff’s dynamic

strength and position tolerance were major areas of dysfunction and that he was

generally deconditioned, (Tr. 689), but concluded that Plaintiff was capable of sustaining

full-time work at the light exertional level with the following postural limitations: he

could never “work bent over— standing/stooping,” and could only occasionally stand,

kneel, climb stairs, and repetitively squat (Tr. 686–95). Plaintiff later testified that during

this exam, he “lift[ed] all kinds of heavy stuff,” and “it proved that I could pick it up, but

I mean . . . the pain was ridiculous while I was doing it.” (Tr. 42). He also said that he had

to stop twice on his way home from the exam because his pain was so bad, and he spent

the next couple days lying down and only getting up when he absolutely had to (Tr. 737).

The following month, Plaintiff saw neurosurgeon Dr. Narotam for a two-year

postoperative follow-up on May 9, 2012 (Tr. 647–51, 661–69). The notes do not say much

about Plaintiff’s subjective complaints other than he reported low back pain but no leg

pain or claudication. Dr. Narotam noted that recent x-rays showed one of the screws in

Plaintiff’s back was broken and slight retrolisthesis of the L5 vertebrae on S1.16 And he

graded Plaintiff’s fusion as “2 poor.” On exam, Plaintiff had paraspinal tenderness and

straight leg raising was limited to 70 degrees, but he had no focal neurological deficits.

Dr. Narotam observed that Plaintiff had a normal gait both before and after the exam and

sat cross-legged in the waiting room. Dr. Narotam wrote that Plaintiff “[d]isplays

symptom exaggeration behavior.” He again recommended that Plaintiff apply heat for

30 minutes on and 30 minutes off and walk as tolerated for exercise. He also noted that

Plaintiff’s work status was “Return to work with light duty 15–30 pound lifting

restriction.”

16 Retrolisthesisis is when one vertebrae slips backward onto the vertebra immediately below. Michael

Shen, et al., Retrolistesis and Lumbar Disc Herniation: A Pre-operative Assessment of Patient Function, THE SPINE

JOURNAL, July 2007, at pp. 406-413, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2278018/ (last

visited April 25, 2024).

ALJ Sampson denied Plaintiff’s disability claim in September 2012, and Plaintiff

sought judicial review (Tr. 15–34, 35–60, 61–62, 65–73). While awaiting the court’s

decision, Plaintiff’s medical care and attempts to alleviate his pain continued. He saw his

PCP Dr. Davis throughout 2013 for medications (Tr. 1379–84, 1406). Despite taking

Neurontin, a muscle relaxer, and morphine, he continued to complain of pain, which was

significantly worse at times (Id.). He went to the emergency room on one occasion when

his back pain became “exceptionally worse” (Tr. 1173–74). The ER physician gave him an

injection of Dilaudid (hydromorphone) and discharged him with enough

hydromorphone tablets to last him through the weekend (Tr. 1173–74).17 During another

period of worsening pain, he received injections of Kenalog and Toradol at Dr. Davis’s

office and he was started on a nine-day course of steroids (Tr. 1379–80).18 He also started

taking Lexapro for his depression and anxiety (Tr. 1380). And he was sent back to

physical therapy (Tr. 1381–82; see also Tr. 1086–94).

At his initial physical therapy evaluation on November 5, 2013, Plaintiff reported

that his pain was in his lower back and radiated down his right leg, and he also regularly

17 Dilaudid is the brand-name version of the generic drug hydromorphone, which is said to be more potent

than morphine. Padma Gulur, et al., Morphine versus Hydromorphone: Does Choice of Opioid Influence

Outcomes?, PAIN RESEARCH AND TREATMENT, Nov. 2015, available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4644543/#B15 (hydromorphone is five to ten times

more potent than morphine).

18 Kenalog is a brand-name version of the generic drug triamcinolone; it is a corticosteroid and relieves

inflammation. MAYO CLINIC, Triamcinolone (Injection Route), https://www.mayoclinic.org/drugs-

supplements/triamcinolone-injection-route/description/drg-20074674 (last visited April 23, 2024).

Toradol is a brand-name version of the generic drug ketorolac; it is a nonsteroidal anti-inflammatory drug

used for short-term relief of moderately severe acute pain. MEDLINE PLUS, Ketoralac Injection,

https://medlineplus.gov/druginfo/meds/a614011.html (last visited April 23, 2024).

experienced numbness and paresthesia in his right leg (Tr. 1086–87). He said the pain was

constant—a five at best and a ten at worst. Plaintiff said that standing, walking, bending,

and lifting aggravated his pain. He could tolerate sitting for two hours but could only

walk for 15-20 minutes without significant pain. He also reported that he had difficulty

washing his lower body, carrying a basket of clothes, and loading/unloading the wash

machine. He also had to wear slip-on shoes. He had difficulty falling and staying asleep

due to his pain, and only got an average of three hours of sleep per night. On examination,

Plaintiff demonstrated some gait abnormality, moderate tenderness and very reduced

active range of motion in his lower back, weakness in all twelve muscles assessed,

impaired flexibility in all areas tested, and a positive straight leg raise test (Tr. 1087–89).

The goals set for Plaintiff included regaining some strength in all areas and some range

of motion in his lumbar spine, and being able to stand or walk for one hour.

Plaintiff attended thirteen physical therapy sessions from November 5, 2013,

through December 30, 2013 (Tr. 1086-1118). He was initially scheduled for twenty

sessions but was unable to attend more due to insufficient funds for transportation and

the expiration of his insurance authorization (Tr. 1218). Throughout the seven weeks of

physical therapy that he did attend, Plaintiff’s pain varied from a high of 8–9 (out of ten)

and never got lower than a six (see Tr. 1095–1118). He commonly exhibited guarded and

slow movements, and his effort was never questioned (see id.).

Throughout 2014, Dr. Davis continued prescribing morphine, Neurontin, muscle

relaxers, and antidepressants to Plaintiff (Tr. 1183–1201, 1219–21, 1265–78). In early

March 2014, Plaintiff complained of chest pain to Dr. Davis (Tr. 1389–90). He was sent to

the emergency room and admitted to the hospital, where he underwent catheterization,

angioplasty, and stent placement (Tr. 1127–32; 1208–15). Plaintiff then had regular follow-

up appointments with a cardiologist throughout 2014 and 2015 (Tr. 1239, 1316, 1322,

1328). Plaintiff also followed-up with Dr. Davis (Tr. 1189–90, 1195–96). He described his

back pain as a constant dull ache relieved with rest along with a sharp, shooting pain

after standing for more than 15 minutes (Tr. 1189–90, 1398–99). His muscle relaxers were

switched, and he was also referred back to pain management physician Dr. Mitry.

Plaintiff saw Dr. Mitry in May 2014, however, he had to wait six-months to get

injections due to medication he was on for his heart (Tr. 1177, 1183). Dr. Mitry also

requested an updated MRI, which showed worsening degenerative changes, including

mild circumferential disc bulging at three levels (L2-L3, L3-L4, and L4-L5), facet

hypertrophy at all levels, mild stenosis at L2-L3 and L3-L4, and mild to moderate

foraminal narrowing at four levels (Tr. 1205-06).

In August 2014, Plaintiff underwent an examination with state agency medical

examiner, Dr. Vittal Chapa (Tr. 1226–28). The exam lasted 26 minutes. Plaintiff told Dr.

Chappa that he could not stand for long periods of time, he had difficulty bending,

physical activity aggravated his back pain, and he lied down most of the day. On

examination, Plaintiff’s gait was normal, he had sensation in both legs and no motor

weakness or muscle atrophy, but he did have diminished reflexes. He could only bend

over 30 degrees and the straight leg raise was positive bilaterally at 70 degrees.

On September 3, 2014, Dr. Davis completed an “abbreviated residual functional

capacity report,” which asked him to assume that Plaintiff would engage in sedentary

work (Tr. 1293–95, 1419-21). Dr. Davis opined that Plaintiff would miss work about twice

a month due to his pain and treatment for his pain (Tr. 1295). Dr. Davis also opined that

Plaintiff did not need to take extra breaks at work due to pain (Tr. 1294). However, in

subsequent sworn testimony, Dr. Davis retracted the latter opinion (Tr. 1439–40).

Specifically, he said the only reason he could think of as to why he check-marked that

Plaintiff did not need extra breaks was because he did not fully understand the question

being asked (Id.) He further testified that he did believe that from April 2010 forward,

Plaintiff needed to take additional breaks to lie down during the day in order to manage

his pain (Id.).

In November 2014, Plaintiff resumed getting epidural steroid injections from Dr.

Mitry (Tr. 1258–59, 1282–83, 1303–04), which Plaintiff indicated “did seem to improve his

back pain some” (Tr. 1266–67). Plaintiff got additional injections in January 2015 (Tr.

1256–57, 1279–80, 1306–07, 1445–46), but two months later reported less than 50% relief

and less benefit than prior injections (Tr. 1345, 1447). Dr. Mitry noted that Plaintiff’s pain

was in his lower back and went into both buttocks and down both legs, with the left being

worse than the right (Tr. 1447–48). Plaintiff reported that he had a hard time walking,

bending forward, and doing pretty much most activities. He had not been doing any back

exercises due to the severity of the pain. Dr. Mitry noted that Plaintiff walked with a

wide-based gait and slight limp (Tr. 1447), which PCP Dr. Davis also noted a week and a

half later (Tr. 1345–46 (“walking with noticeable limp, able to bear weight but painful”)).

Dr. Mitry noted that heel walking and toe walking could be done but it exacerbated

Plaintiff’s pain (Tr. 1447). Plaintiff could not bend forward more than 30 degrees. Bending

backward and to the side was “limited and painful.” Straight leg raising was limited to

20 degrees. Deep tendon reflexes could not be elicited at all in the lower extremities. And

there were multiple areas of muscle spasms, tenderness, and trigger points in the lower

back. Dr. Mitry’s diagnosis was post lumbar laminectomy, lumbar radiculopathy, and

myofascial pain. He talked through the different options available to Plaintiff and

emphasized the importance of doing some kind of physical activity, even if it hurt.

Plaintiff opted to try lumbar epidural lysis of adhesions,19 which Dr. Mitry

performed on April 22, 2015, at the L4– L5 level, along with five trigger point injections

(Tr. 1309-10, 1449–50). He noted that if Plaintiff did not respond well to this procedure,

the next logical step would be to consider a spinal cord stimulator (Tr. 1310). Following

this procedure, PCP Dr. Davis filled out a second “abbreviated Functional Capacity

Report,” opining that Plaintiff would have some environmental restrictions, but his

opinions otherwise remained the same (Tr. 1422–24).

At a follow-up with Dr. Mitry in June 2015, Plaintiff reported that the lysis of

adhesions did not help as much as the prior epidural steroid injections (Tr. 1451). Plaintiff

19 Epidural adhesions are scar tissue formed in the epidural space after surgery. These adhesions can cause

back and leg pain by compressing nerve roots, decreasing range of motion in the back, and inducing pain

with movement. Adhesions may contribute to or cause failed back surgery syndrome and also compromise

the efficacy of epidural steroid injections. Lysis of adhesions is a minimally invasive procedure used when

conservative treatment has failed. It involves inserting a catheter into the epidural space, which physically

breaks up scar tissue and as well as medications and fluids (such as steroids, local anesthetic, and enzyme

and hypertonic saline) to relieve pain, dissolve scar tissue, and reduce inflammation. SARAH BUSH LINCOLN,

Lysis of Epidural Adhesions, https://www.sarahbush.org/services/interventional-pain/lysis-epidural-

adhesions/ (last visited April 23, 2024); Frank Lee, et al., Epidural Lysis of Adhesions, KOREAN J. PAIN, Jan. at

pp. 3–15, available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3903797/; Zafeer Baber, et al.,

Failed Back Surgery Syndrome: Current Perspectives, J. PAIN RES, Nov. 2016, at pp. 979–987, available at

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5106227/.

said that in hindsight, the epidural steroid injections “were actually quite decent as far as

pain relief goes.” Dr. Mitry examined Plaintiff and his findings were largely the same as

the previous visit in March 2015 (Tr. 1451; see also Tr. 1456 (same in Sept. 2015), Tr. 1457

(same in December 2015)). The plan was to resume epidural steroid injections and trigger

point injections the following month (Tr. 1451). Before that happened, however, Plaintiff

saw Dr. Davis for an acute flare of pain (Tr. 1353–54). He was given shots of Kenalog and

Toradol in the office and started on a nine-day course of prednisone (Doc. 1452). Three

weeks later, he received epidural steroid injections plus trigger point injections (Tr. 1312-

13, 1365–66, 1452–53).

In August 2015, Dr. Davis filled out a third “abbreviated Functional Capacity

Report” (Tr. 1426–29). Dr. Davis opined that as of April 15, 2010, which is Plaintiff’s

disability onset date, he would require breaks from work activity greater than one hour

a day, would miss work more than three times a month due to his pain or pain treatment,

and needed various environmental restrictions. Dr. Davis subsequently testified that, to

the extent this report differed from his previous report where he said Plaintiff would miss

work up to two times per month, it simply reflected there was some degree of variability

as to how often he would miss work (Tr. 1439–40). But the overall picture was that,

following his back surgery in April 2010, Dr. Davis found it credible that Plaintiff would

have bad days on which he would not be able to make it in to work (Id.). Plaintiff

continued taking his pain medications and receiving epidural steroid injections and

trigger point injections throughout 2015 and 2016 (Tr. 1359–60, 1454–59, 1500–05, 1511–

12, 1524–25).

In July 2016, ALJ Sampson sought the opinion of an impartial medical expert, Dr.

Peter Schosheim (Tr. 1486–97). Dr. Schosheim did not examine Plaintiff but rather

completed interrogatories and a Medical Source Statement of Ability to Do Work-Related

Activities (Physical) form (Tr. 1533–1541). He opined that Plaintiff could sit for two hours

at a time and six hours total during an eight-hour workday. He could stand for 20 minutes

at a time and one hour total during an eight-hour workday. And he could walk for one

minute at time for a total of one hour during an eight-hour workday. Dr. Schosheim

opined that Plaintiff could occasionally lift and carry up to 10 pounds, but never anything

heavier. He could frequently reach in all directions, including overhead, and push and

pull with both arms. He could occasionally operate bilateral foot controls, balance, stoop,

kneel, crouch, crawl, and climb ramps and stairs but could never climb ladders and

scaffolds.

When Plaintiff’s claim was on remand to the Social Security agency the second

time, consulting physician, Dr. Andrew Brown, testified at a hearing in May 2019 (Tr.

1631–59). Dr. Brown had reviewed Plaintiff’s medical records but had not examined him.

He opined, amongst other things, that Plaintiff could sit for six hours in an 8-hour

workday; stand and walk for two hours in an 8-hour workday. Dr. Brown further opined

that Plaintiff could lift up to 10 pounds occasionally, but later clarified that Plaintiff

should never lift anything from the ground/floor up to desk level. Plaintiff could lift from

the desk level and carry up to 10 pounds occasionally and five pounds for 50% of the day.

Dr. Brown gave conflicting testimony about Plaintiff’s ability to reach overhead and in

all directions, first saying Plaintiff could do so frequently and then saying he could do so

only occasionally. Dr. Brown opined Plaintiff could occasionally use foot controls, climb

stairs and ramps, balance, kneel, and crouch. But crawling should be avoided, as well as

ladders and scaffolds.

THE ALJ’S DECISION

To qualify for DIB, a claimant must prove that they became disabled by their date

last insured. 42 U.S.C. § 423(a)(1)(A); 20 C.F.R. § 404.131; Shideler v. Astrue, 688 F.3d 308,

311 (7th Cir. 2012 (“the claimant must establish that he was disabled before the expiration

of his insured status . . . to be eligible for disability insurance benefits.”); Stevenson v.

Chater, 105 F.3d 1151, 1154 (7th Cir. 1997). Under the Social Security Act, a person is

disabled if they have an “inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to last for a continuous period of

not less than twelve months.” 42 U.S.C. § 423(d)(1)(a); see also 20 C.F.R. § 404.1505.

Here, ALJ Whitfield concluded that Plaintiff was not disabled and could perform

sedentary work as defined in 20 C.F.R. § 404.1567(a) with some additional restrictions. In

reaching this determination, the ALJ followed the familiar five-step sequential analysis.

See 20 C.F.R. § 404.1520; Butler v. Kijakazi, 4 F.4th 498, 501 (7th Cir. 2021). At step one, the

ALJ determined that Plaintiff had not engaged in substantial gainful activity from the

alleged onset date of April 15, 2010, through his date last insured of September 30, 2015

(Tr. 3189). At step two, the ALJ found that through the date last insured, Plaintiff had the

severe impairments of lumbar degenerative disc disease and fracture, status-post

laminectomies and spinal cord stimulator, and a history of cardiac pathology (as well as

non-severe impairments of trigger finger and obesity) (Tr. 3189–92). At step three, the

ALJ determined that none of Plaintiff’s severe impairments, alone or in combination, met

or medically equaled a listed impairment (Tr. 3192–94). The ALJ then found that, despite

Plaintiff’s medical conditions, he retained the residual functional capacity through the

date last insured, to perform sedentary work with some additional restrictions on lifting

and other non-exertional, postural, and environmental limitations. Specifically, the ALJ

determined that Plaintiff could:

• Sit for six hours in an eight-hour workday

• Stand and/or walk for two hours in an eight-hour workday;

• Lift/carry 10 pounds occasionally and less than 10 pounds frequently,

but could not lift from the ground/floor to table top level and could not

carry more than five pounds for 50 percent of the workday;

• Frequently push and/or pull with bilateral upper extremities;

• Occasionally balance, stoop, kneel, crouch, crawl, and climb ramps or

stairs;

• Never crawl or climb ladders, ropes, or scaffolds;

• Frequently reach forward and sideways, and occasionally reach

overhead with bilateral upper extremities;

• Continuously handle, finger, and feel;

• Occasionally operate bilateral foot controls but never perform work

where driving is required to perform functions of the job;

• Occasionally be exposed to extreme heat, extreme cold, wetness,

humidity, and vibrations;

• Never be exposed to fumes, odors, dusts, gases, poorly ventilated areas,

and hazards such as unprotected heights and moving machinery.

(Tr. 3194). See 20 C.F.R. § 404.1567(a) (defining sedentary work).

At step four, the ALJ concluded that Plaintiff could no longer perform his previous

jobs (Tr. 3201). At step five, the ALJ determined, based on the testimony of three

vocational experts, there were unskilled, sedentary jobs that existed in significant

numbers in the national economy that the claimant could have performed through the

date last insured of September 30, 2015, such as a food and beverage order clerk, charge

account clerk, assembler, sorter, address clerk, and table worker (Tr. 3201). Therefore,

Plaintiff was not disabled.

ISSUES RAISED BY PLAINTIFF

1. Whether the ALJ erred when she determined Plaintiff’s RFC by omitting

discussion of important evidence?

2. Whether the ALJ erred when she evaluated the medical opinion evidence?

3. Whether the ALJ erred when she found Plaintiff’s statements concerning the

intensity, persistence, and limiting effects of his symptoms are not entirely

consistent with the medical evidence and other evidence in the record?

(Doc. 21-1; Doc. 30).

DISCUSSION

The scope of judicial review is limited to determining whether the ALJ applied the

correct legal standard in reaching their decision, whether the ALJ’s decision is supported

by substantial evidence, and whether the ALJ “buil[t] an accurate and logical bridge from

the evidence to [their] conclusion” that the claimant is not disabled. Jeske v. Saul, 955 F.3d

583, 587 (7th Cir. 2020) (internal citations omitted). In other words, "the ALJ must explain

her decision in such a way that allows us to determine whether she reached her decision

in a rational manner, logically based on her specific findings and the evidence in the

record.” McKinzey v. Astrue, 641 F.3d 884, 890 (7th Cir. 2011). The court reviews the entire

administrative record but does not reweigh evidence, resolve conflicts, decide questions

of credibility, or substitute its own judgment for that of the ALJ. Deborah M. v. Saul, 994

F.3d 785, 788 (7th Cir. 2021). The ALJ’s decision will be reversed “only if the record

compels a contrary result.” Deborah M., 994 F.3d at 788 (internal quotation marks and

citation omitted).

Plaintiff argues that the ALJ erred in formulating his RFC because the ALJ ignored

critical evidence, improperly evaluated opinion evidence from physicians, and

improperly discounted Plaintiff’s own statements regarding the intensity, persistence,

and limiting effects of his pain (Doc. 21-1). After carefully reviewing each of Plaintiff’s

arguments and the Commissioner’s response, the Court agrees that the ALJ erred in

formulating Plaintiff’s RFC. In the interest of judicial economy, the Court will address

only the arguments that it finds persuasive and which it considers to be the most

significant errors.

A claimant's RFC is “the maximum that a claimant can still do despite his mental

and physical limitations.” Craft v. Astrue, 539 F.3d 668, 675–76 (7th Cir. 2008); 20 C.F.R. §

404.1545(a)(1), (3). The ALJ must determine the claimant’s RFC based on “all the relevant

evidence in [the] case record,” which includes the objective medical evidence as well as

statements from medical sources, the claimant’s own statements about their symptoms

and limitations, and statements from non-medical sources, like family, friends,

neighbors, and agency personnel. 20 C.F.R. § 404.1545(a)(1), (3); see also Craft, 539 F.3d at

676. “[A]lthough an ALJ does not need to discuss every piece of evidence in the record,

the ALJ may not analyze only the evidence supporting her ultimate conclusion while

ignoring the evidence that undermines it. The ALJ must confront the evidence that does

not support her conclusion and explain why that evidence was rejected.” Moore v. Colvin,

743 F.3d 1118, 1123 (7th Cir. 2014). See also Social Security Ruling 96-8p (“SSR 96-8p”),

1996 WL 374184, at *7 (July 2, 1996).

A. FAILURE TO PROPERLY ANALYZE MEDICAL OPINIONS

Plaintiff’s strongest contention is that the ALJ inadequately analyzed a number of

crucial medical opinions. “An ALJ must consider all medical opinions in the record.”

Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing 20 C.F.R. § 404.1527(b), (c)). If the

RFC determination conflicts with an opinion from a medical source, “the adjudicator

must explain why the opinion was not adopted.” SSR 96-8p, 1996 WL 374184, at *7.

1. Opinion re: Inability to Work 40 Hours a Week

The first opinion that the ALJ failed to properly analyze is the opinion of

independent medical examiner, Dr. David Fletcher, that Plaintiff was not capable of

working full-time as of February 2012 (Tr. 672). This opinion was important because “[a]

claimant unable to work full-time is considered disabled.” Day v. Astrue, 334 Fed. Appx.

1, 7 (7th Cir. 2009). Accord Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (“[A]person

who cannot work eight hours a day, five days a week, or the equivalent, is disabled . . .

.”) (citing SSR 96-8p, 1996 WL 374184, at *1). See also Elder v. Astrue, 529 F.3d 408, 414 (7th

Cir. 2008) (citing Bladow v. Apfel, 205 F.3d 356, 359 (8th Cir. 2000) (explaining that, under

Social Security Ruling 96–8p, ability to work only part-time mandates disability finding)).

The ALJ was clearly aware of the opinion because the ALJ noted that Dr. Fletcher

“recommended the claimant to return to work as it is one of the most important parts of

therapy, but due to deconditioning, he should start at 20 to 30 hours per week and build

up to a 40 hour work week.” (Tr. 3199). And the ALJ said she gave “great weight” to Dr.

Fletcher’s opinions (Id.). However, the ALJ went on to conclude that Plaintiff was not

disabled between his onset date and his date last insured, which makes clear that she

implicitly rejected Dr. Fletcher’s opinion that Plaintiff was unable to work full-time.

This rejection came without any explanation. In other words, the ALJ omitted any

analysis regarding aspects of a medical opinion the ALJ otherwise found persuasive but

which conflicted with the assigned RFC. “An ALJ may not selectively discuss portions of

a physician's report that support a finding of non-disability while ignoring other portions

that suggest a disability.” Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (citation

omitted). The ALJ’s failure to offer any explanation as to why she rejected Dr. Fletcher’s

opinion that Plaintiff was not capable of working 40 hours per week leaves the decision

without an accurate and logical bridge from the evidence to the conclusion that Plaintiff

could work full time. See Roddy, 705 F.3d at 636. See also Spicher v. Berryhill, 898 F.3d 754,

758 (7th Cir. 2018) (where ALJ gave great weight to doctor’s opinion but RFC imposed

contradicted and implicitly rejected that opinion, ALJ “was required to provide enough

analysis to allow a re-viewing court to determine why she rejected it.”).

2. Opinion re: Additional Breaks

Plaintiff’s primary care physician, Dr. Davis opined that, due to pain and fatigue,

Plaintiff would require extra breaks totaling more than one-hour in an eight-hour

workday (Tr. 1427; see also Tr. 1294, 1439–40). The ALJ erroneously stated that Dr. Davis

“did not indicate the claimant would need extra breaks or time off task” (Tr. 3198), and

therefore altogether failed to evaluate this opinion.

Relatedly, there are numerous statements in the record from Plaintiff that suggest

he would require extra breaks at work. In particular, he said in his Function Reports that

anytime he stood or sat for an extended period of time, he would have to lie down or

recline for an hour or more afterwards to get relief from his pain (Tr. 160–70; 182–92;

1014–20). He said he could not make it through the day without lying down, and he

estimated that he spent half the day either lying down or reclining (Id.). Plaintiff twice

provided sworn testimony to the same effect (Tr. 41, 42–43, 49, 738, 743–44, 747). The

ALJ’s decision failed to acknowledge Plaintiff’s statements about needing to lie down or

recline throughout the day to manage his pain (see Tr. 3186–3203). The ALJ cannot simply

ignore a claimant’s testimony and was required to explain why Plaintiff’s testimony was

not accepted. Schmidt v. Barnhart, 395 F.3d 737, 746–47 (7th Cir. 2005) (an ALJ is required

“to articulate specific reasons for discounting a claimant's testimony as being less than

credible” and is precluded from “merely ignoring” the testimony . . . .”).

Dr. Davis’s opinion that Plaintiff would require extra breaks and Plaintiff’s

statements that he had to repeatedly lie down during the day to relieve his pain are

important because the vocational experts who testified at the various hearings said extra

breaks that led a claimant to be off task more than ten percent of the day would exceed

employer tolerances and make the claimant unemployable (Tr 759-62; Tr. 1592-93, 1598;

Tr. 1680–81, 1695–96; Tr. 1624-1627; Tr. 3231). Some of the vocational experts also testified

that there would be no tolerance for lying down and limited tolerance for needing to

leave work early to lie down (Tr. 1593; Tr. 1697–98; Tr. 3236). Because the need for extra

breaks to lie down would eliminate employment for Plaintiff, the ALJ’s failure to

adequately analyze Dr. Davis’s opinions is reversable error.

3. Opinion re: Absenteeism

Dr. Davis also opined that Plaintiff would miss work about twice a month due to

his impairments or treatment (and later said that Plaintiff would miss work more than

three times a month) (Tr. 1421, 1428). This opinion is important because the vocational

experts who testified at the various hearings said that if a claimant misses work more

than once a month (which includes a half-day, coming in late, or leaving early), it would

exceed employer tolerances and make the claimant unemployable (Tr. 1599, 1607; Tr.

1624; Tr. 1695, 1697; Tr. 3231). The ALJ acknowledged Dr. Davis’s opinion regarding

Plaintiff’s absenteeism but rejected it, stating:

[T]he records, including Dr. Davis’ findings[,] do not support the claimant

. . . would be absent from work more than two days per month. Dr. Davis’

records all show findings that the claimant’s back was diffusely tender with

loss of lumbar lordosis, multiple trigger points, and healed surgical scar low

midline back until 2014 when only diffusely tender appears with occasional

mention of reduced range of motion. Furthermore, the evidence also shows

the claimant has been resistant to the recommendations of Dr. Davis

including exercising and smoking cessation.

(Tr. 3198–99).

The ALJ’s explanation for rejecting Dr. Davis’s opinion regarding Plaintiff’s

absenteeism is not sufficient because the Court simply cannot discern any of the ALJ’s

reasons for setting aside Dr. Davis’s opinion. While the ALJ cited medical signs and

clinical findings from Dr. Davis’s records, she did not explain how or why those signs and

findings undermined the doctor’s opinion regarding Plaintiff’s absenteeism, nor is not

apparent to the Court. Additionally, the ALJ did not accurately recount the contents of

Dr. Davis’s records and the overall picture that they portrayed. His records in 2014 and

beyond showed far more than “diffusely tender with occasional mention of reduced

range of motion,” like the ALJ said. The records actually mentioned decreased range of

motion regularly and continued to indicate loss of lumbar lordosis throughout 2014 and

2015 (Tr. 1183–97, 1219, 1266–75, 1345, 1349, 1353). In 2015, Dr. Davis noted that not only

were Plaintiff’s paraspinal muscles tender, but so was his spine itself, and he was walking

with a noticeable limp (Tr. 1345, 1359). The records also showed that Plaintiff complained

of sharp, shooting pain after standing for 15 minutes (Tr. 1189–90); that he was referred

to pain management specialist Dr. Mitry, whom he began to see regularly for procedures

(Id.); that Dr. Davis continued to prescribe very strong opioid pain medication and

neuropathic pain medication to Plaintiff (Tr. 1183, 1189, 1195, 1197, 1219–20, 1267, 1272,

1275, 1345, 1349, 1353); and that his pain did not improve at any point in 2014 or 2015,

and in fact, it was acutely worse on at least one occasion (Tr. 1266, 1272, 1353).

As for the statement that “the claimant has been resistant to the recommendations

of Dr. Davis including exercising and smoking cessation,” the Court is once again unsure

what the ALJ is getting at here. The ALJ did not explain how Plaintiff’s avoidance of

exercise or failure to quit smoking has any bearing on Dr. Davis’s opinion that Plaintiff

would miss work too much to sustain employment. Again here, the connection is not

apparent to the Court. Normally, if a claimant fails to follow prescribed treatments that

might improve their pain, that gives rise to an inference that the intensity and persistence

of their pain is not as bad as they claim. SSR 16-3p, 2017 WL 5180304, at *9. However, that

inference cannot be drawn without considering the possible reasons that the claimant is

not complying with treatment. Id. Here, the record is rife with statements and instances

where physical activity was unbearably painful for Plaintiff, which the ALJ neglected to

mention. When it comes to smoking, the Seventh Circuit has long recognized that people

“continue to smoke, not because they do not suffer gravely from [pain], but because other

factors such as the addictive nature of the product impacts their ability to stop.” Martinez

v. Kijakazi, 71 F.4th 1076, 1082 (7th Cir. 2023) (quoting Shramek v. Apfel, 226 F.3d 809, 813

(7th Cir. 2000)). Furthermore, there is no evidence that smoking caused Plaintiff’s pain or

that stopping would significantly improve his health and restore his ability to work.

Childress v. Colvin, 845 F.3d 789, 793 (7th Cir. 2017); Shramek, 226 F.3d at 813. The Court

therefore does not see how Plaintiff’s failure to exercise or to quit smoking could fairly

be considered as a reason to discount Dr. Davis’s opinion regarding Plaintiff’s

absenteeism.

In sum, the ALJ’s explanation as to why she rejected Dr. Davis’s opinion regarding

Plaintiff’s absenteeism was factually inaccurate and did not contain sufficient analysis to

allow the Court to determine why she rejected it, let alone assess the validity of the ALJ’s

reasoning. See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010) (noting ALJ's “must

provide a ‘logical bridge' between the evidence and the conclusions so that we can assess

the validity of the agency's ultimate findings and afford the claimant meaningful judicial

review”). Indeed, the records seem to fully support Dr. Davis’s opinion that Plaintiff

would miss work multiple times per month given that Plaintiff had days where his pain

was particularly bad and that he had regular and frequent medical appointments for his

various impairments.

B. FAILURE TO PROPERLY EVALUATE PLAINTIFF’S STATEMENTS RE: HIS PAIN

The Court also finds that the ALJ erred in evaluating Plaintiff’s statements

concerning the intensity, persistence, and limiting effects of his symptoms. While the ALJ

had no doubt that Plaintiff’s impairments caused a variety of symptoms, including pain,

the ALJ thought that Plaintiff’s “statements concerning the intensity, persistence, and

limiting effects of these symptoms [were] not entirely consistent with the medical

evidence and other evidence in the record” (Tr. 3195, 3196). In other words, the ALJ did

not believe Plaintiff’s pain was as bad as he said it was.

Once the ALJ has determined there is an underlying physical impairment that

could reasonably be expected to produce an individual's symptoms, the ALJ must then

evaluate the intensity and persistence of those symptoms to determine the extent to

which they limit the claimant’s ability to perform work-related activities. Social Security

Ruling 16-3p (“SSR 16-3p”), 2017 WL 5180304, at *4, 5 (Oct. 25, 2017); 20 C.F.R.

404.1529(c)(1). In evaluating the intensity, persistence, and limiting effects of an

individual's symptoms, the ALJ must examine the entire case record, beginning with the

objective medical evidence. SSR16-3p, 2017 WL 5180304, at *4, 5 (emphasis added); 20

C.F.R. §§ 404.1529(c)(3). If the claimant’s subjective statements about the severity of their

symptoms is not fully substantiated by the objective medical evidence, then the ALJ must

carefully consider whether the claimant’s statements are consistent with the other

medical and non-medical evidence in the record. SSR 16-3p, 2017 WL 5180304, at *6–7.

Per the agency regulations, the ALJ must also consider various factors, including the

claimant’s daily activities; the duration, frequency, and intensity of the claimant’s pain;

things that precipitate or aggravate the pain; the claimant’s medications; and other

treatments or measures used to alleviate the pain. SSR 16-3p, 2017 WL 5180304, at *7–8;

20 CFR 404.1529(c)(3).

An ALJ's findings concerning the intensity, persistence, and limiting effects of a

claimant's symptoms must be explained sufficiently and supported by substantial

evidence. Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015); Terry v. Astrue, 580 F.3d 471,

477 (7th Cir. 2009). So long as the ALJ issues a reasoned explanation, the credibility

determination is afforded “considerable deference” and will be overturned only if it is

“patently wrong.” Ray v. Berryhill, 915 F.3d 486, 490 (7th Cir. 2019) (quoting Terry, 580

F.3d at 477). See also Getch v. Astrue, 539 F.3d 473, 483 (7th Cir. 2008) (“Reviewing courts .

. . should rarely disturb an ALJ's credibility determination, unless that finding is

unreasonable or unsupported.”). “Patently wrong is a high threshold—only when the

ALJ's determination lacks any explanation or support . . . will [we] declare it to be

‘patently wrong’ and deserving of reversal.” Ray v. Saul, 861 Fed. Appx. 102, 107 (7th Cir.

2021) (quoting Elder v. Astrue, 529 F.3d 408, 413–14 (7th Cir. 2008)) (internal quotation

marks omitted).

The ALJ correctly stated the proper test for analyzing a claimant’s credibility and

then summarized medical records, the medications Plaintiff took, the treatments he

underwent, his daily activities, things that precipitated and aggravated his pain, the

functional limitations he claimed, and the opinions of various medical sources (Tr. 3196–

3201). But from the Court’s perspective, there are a multitude of issues with the ALJ’s

analysis.

As an initial matter, the ALJ omitted any discussion regarding the duration,

frequency, and intensity of Plaintiff’s pain. Plaintiff testified that his pain was constant

and he was never not in pain. He testified that even with pain medications, his pain was

usually somewhere between a five and an eight out of ten. The record is replete with

instances where Plaintiff reported to medical providers and physical therapists that his

pain was either not improved or even worsening despite using narcotics and undergoing

various treatments to try to control it.

As it relates to those medications and treatments, the ALJ provided a cursory

summary, stating:

[T]he claimant’s treatment included medications; injections; physical

therapy; home exercise program; use of pain patches; use of TENS unit; use

of back brace; recommendations to quit smoking; and encouragement to

perform any physical activity, even if it hurts, with checking into water

exercises so there is not so much pain.

(Tr. 3196; see also Tr. 3197). The ALJ listed his medications as Augmentin (which is an

antibiotic), hydrocodone-acetaminophen, ibuprofen, ProAir (which is an inhaler),

Nitroglycerin, Metoprolol, Atorvastin (which are all cardiac medications), Gabapentin,

and MS Contin (Tr. 3196–97). The ALJ acknowledged that the various treatments Plaintiff

received for his allegedly disabling symptoms, including surgery, and the fact that he

“was prescribed and took appropriate medications for the alleged impairments,” would

normally weigh in his favor (Tr. 3196, 3197). However, the ALJ thought that weight was

counterbalanced by the conclusion that the medications and treatments were “relatively

effective” and “generally successful” in controlling Plaintiff’s pain (Tr. 3196, 3197).

To begin with, the list of treatments and the list of medications are incomplete.

Moreover, the way in which the medications and treatments are noted obscures the true

nature of Plaintiff’s treatment history. In particular, half of the medications listed have

nothing to do with controlling Plaintiff’s pain. The list fails to acknowledge that Plaintiff

cycled through various powerful narcotic pain medications at ever-increasing doses,

including Vicodin, Fentanyl pain patches, methadone, and morphine, in an attempt to

find something that provided him with adequate relief. The list also fails to mention that

Plaintiff took muscle relaxers on-and-off (but mostly on) for the entire duration of the

time period at issue and that he tried various anti-anxiety medications and

antidepressants, which also play a role in a pain management regimen (see Tr. 3196–97).

The ALJ failed to mention that despite taking a raft of medications, there were still times

where Plaintiff had severe and worsening breakthrough pain, which was addressed with

oral steroids, shots of Toradol and Kenalog, and on one occasion the powerful opioid

Dilaudid. As for treatments other than medication, Plaintiff tried physical therapy twice,

used a TENS unit, repeatedly underwent epidural steroid injections as well as trigger

point injections, and also underwent a procedure to break up the scar tissue in his spine,

which the ALJ wholly failed to mention.

The ALJ also failed to explain how she concluded that Plaintiff’s medications and

treatments were effective or successful in controlling his pain (see Tr. 3196–32). The record

is replete with instances where Plaintiff reported that his pain medications were not

working and that his pain was either not improving or even worsening. He consistently

reported that his pain level was a five or higher despite the medications and that he spent

much of his day lying in a recliner or on the couch. The record as a whole clearly shows

that Plaintiff continuously struggled with serious and chronic pain throughout the five-

and-a-half-year period at issue and the various medications and treatments he tried only

provided him with limited (and sometimes very temporary) relief.

As the Seventh Circuit previously commented, what is significant is the

improbability that Plaintiff would have undergone all the pain-treatment procedures that

he did just to create the impression that he was experiencing pain and to increase his

chances of obtaining disability benefits. Heeman v. Astrue, 414 Fed. Appx. 864, 868 (7th

Cir. 2011); Carradine v. Barnhart, 360 F.3d 751, 755 (7th Cir. 2004). See also Plessinger v.

Berryhill, 900 F.3d 909, 916 (7th Cir. 2018) (“Plessinger’s allegations of pain were consistent

with the strong prescription pain medication he was taking.”); Nimmerrichter v. Colvin, 4

F. Supp. 3d 958, 971 (N.D. Ill. 2013) (“Mr. Nimmerrichter was taking narcotic pain

relievers and psychotropic drugs, as well as seeking relief through epidurals and

radiofrequency lesioning, suggesting that he wasn't faking his symptoms and perhaps

not exaggerating to the extent the ALJ assumed.”); SSR 16-3p, 2017 WL 5180304, at *9

(“Persistent attempts to obtain relief of symptoms, such as increasing dosages and

changing medications, trying a variety of treatments, referrals to specialists, or changing

treatment sources may be an indication that an individual's symptoms are a source of

distress and may show that they are intense and persistent.”) Simply put, the ALJ’s

conclusion that Plaintiff’s medications and treatments were effective at controlling his

pain is not supported by an objective review of the record.

Moreover, the ALJ’s assessment of the medical records is also problematic. The

ALJ distilled almost 800 pages of notes from various physicians and physical therapists

into the following four-sentence blurb, which the ALJ repeated throughout the decision:

The claimant’s back examinations [demonstrate] tenderness, reduced range

of motion, and occasional positive straight leg raising. His gait is found with

slight limp to normal and he is able to do heel and toe walking. There is full

strength, sensation, and reflexes in all areas. The claimant is also noted to

display symptom exaggeration behavior.

(Tr. 3196; see also Tr. 3189, 3193, 3197, 3198, 3199).

The ALJ did not mention whether she thought the summarized medical records

were consistent or inconsistent with the pain and limitations Plaintiff claimed. Some of

the things the ALJ said appear to weigh in Plaintiff’s favor and support his contention

that he was in significant pain and greatly limited in his ability to function, while others

things appear to weigh against Plaintiff and support the ALJ’s decision to discount his

statements. In particular, it appears that the ALJ thought being able to heel and toe walk

and having full strength, sensation, and reflexes undermined the claimed severity of

Plaintiff’s pain and limitations. But the ALJ failed to explain how or why that was so or

to cite to any medical opinion explaining the significance of these medical signs. The ALJ

also failed to explain why these medical signs trumped the other objective findings that

supported Plaintiff’s account such as tenderness, reduced range of motion, trigger points,

palpable spasms, and loss of lumbar lordosis. It is also not obvious to the Court as to how

these particular medical signs are inconsistent with the pain and limitations Plaintiff

claimed, especially when the records show that Plaintiff was still able to heel and toe walk

normally and had full strength and sensation in his lower extremities in early 2010 shortly

before he had spinal surgery, when nerve compression was evident on his MRI (Tr. 494,

495, 496).

The second issue with the ALJ’s assessment of the medical records is that portions

of the ALJ’s blurb do not fairly summarize the evidence in the record. Specifically, the

ALJ repeatedly stated that Plaintiff was “able to do heel and toe walking” and had “full

strength, sensation, and reflexes in all areas” (Tr. 3189, 3193, 3196, 3197, 3198, 3199), but

there were medical records that said the opposite, which the ALJ seemingly ignored.

Treating pain management physician Dr. Mitry said throughout 2015 that while heel and

toe walking could be done, they both exacerbated Plaintiff’s pain (Tr. 1447, 1451, 1456,

1457). State agency medical examiner Dr. Vittal Chapa noted diminished reflexes in

August 2014, (see Tr. 1227), and nine months later, Dr. Mitry noted Plaintiff’s reflexes

were completely absent (Tr. 1447). Plaintiff’s primary care physician, Dr. Davis,

repeatedly noted weakness in both of Plaintiff’s legs (Tr. 383, 388, 390, 392, 652–53, 654,

656). And the records of various physical therapists also consistently noted decreased

strength (Tr. 239–354 (2010 physical therapy records); Tr. 686–95 (Clodfelter evaluation);

Tr. 1086–1118 (2013 physical therapy records)). The ALJ was required to confront this

contrary evidence and explain why she did not credit it. See Stephens v. Berryhill, 888 F.3d

323, 329 (7th Cir. 2018) (“The ALJ may not select and discuss only that evidence that

favors [her] ultimate conclusion, but must confront the evidence that does not support

[her] conclusion and explain why it was rejected.”) (internal citations and quotations

marks omitted); Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003) (“In assessing

a plaintiff’s RFC, an ALJ must consider all relevant evidence in the case record and

evaluate the record fairly.”); SSR 96-8p, 1996 WL 374184, at *7 (“The adjudicator must

also explain how any material inconsistencies or ambiguities in the evidence in the case

record were considered and resolved.”). In sum, the ALJ failed to build an accurate and

logical bridge between the evidence and her conclusion that the medical evidence did not

support Plaintiff’s claims.

Another issue is that the ALJ glommed onto the one record where treating

neurologist Dr. Narotam said that Plaintiff displayed “symptom exaggeration behavior”

and used it as a reason to discount Plaintiff’s subjective statements (Tr. 3189, 3193, 3196,

3197, 3198). The ALJ, however, said nothing about the various providers who explicitly

stated that they thought Plaintiff was credible (Tr. 670, 680–81 (Dr. Fletcher, independent

medical examiner); Tr. 1435 (Dr. Davis, primary care physician); Tr. 583 (Dr. Michael

Nenaber, non-examining state agency medical consultant)). Nor did the ALJ explain why

she chose to credit Dr. Narotam’s statement, which was unaccompanied by any

explanation, over Dr. Fletcher’s statement, which was supported by objective medical

signs, and the sworn testimony of Plaintiff’s primary care physician Dr. Davis.

Additionally, Dr. Narotam’s lack of explanation for his statement makes it possible, as

Plaintiff argued, that the ALJ misinterpreted it and Dr. Narotam simply meant Plaintiff

complained of pain greater than expected without implying that Plaintiff was

malingering. See Adaire v. Colvin, 778 F.3d 685, 688 (7th Cir. 2015) (explaining the ALJ

mistakenly thought “the doctor who reported that Adaire might be ‘having an

exaggerated pain response’ was accusing him of malingering, but this expression is

actually medical jargon for a patient's experiencing more pain than his purely physical

problems would be expected to cause.”).

As for Plaintiff’s activities of daily living, the ALJ briefly summarized Plaintiff’s

answers on the various forms he provided to the Social Security agency (Tr. 3197 (citing

Ex. 4E, 8E, 21E)).20 However, the ALJ failed to mention any of the testimony Plaintiff

provided at three separate hearings (see Tr. 3186–3203). And once again, the summary

contains so few details that it begs the question of whether the ALJ considered all of the

evidence Plaintiff presented. For example, the ALJ wrote that Plaintiff “was able to

prepare meals.” (Doc. 3197). While Plaintiff did indeed check the box indicating that he

prepared meals, that was not the full extent of his answer. The summary neglected to

mention that Plaintiff said he only prepared things like cereal or poptarts for breakfast

and sandwiches for lunch, which took no more than five minutes, while his wife did all

of the cooking for the family (Tr. 162, 1016).

Furthermore, there is no mention whether the ALJ thought Plaintiff’s daily

activities were consistent or inconsistent with the pain and limitations he claimed (see Tr.

3197). It is not enough just to describe the claimant’s testimony; the ALJ must also analyze

how the testimony factored into the credibility analysis. See Villano v. Astrue, 556 F.3d 558,

562 (7th Cir 2009). Hollingsworth v. Saul, No. 3:19-CV-744-RLM, 2020 WL 2731008, at *2

(N.D. Ind. May 26, 2020) (“A summary of evidence isn't the same as meaningful

20 The ALJ wrote that Plaintiff said “he was able to prepare meals.” (Doc. 3197). While Plaintiff did indeed

checkmark the box indicating that he prepared meals, that was not the full extent of his answer. The ALJ

neglected to mention that Plaintiff said he normally only prepared things like cereal or poptarts for

breakfast and sandwiches for lunch, which took no more than five minutes (Tr. 162, 1016). His wife did the

cooking for the family (Tr. 162).

analysis”). It seems to the Court that Plaintiff’s extremely limited day-to-day activities

are consistent with his claims of severe pain and limitations.

All of these issues lead the Court to conclude that he ALJ’s decision to discount

Plaintiff’s statements regarding the intensity, persistence, and limiting effects of his pain

is not supported by sufficient explanation or substantial evidence. Because the

determination of whether benefits were warranted depended largely on the ALJ’s

assessment of the Plaintiff’s subjective statements concerning his pain, the decision to

deny Plaintiff benefits must be overturned again. In light of this conclusion, the Court

need not explore in detail the remaining errors claimed by Plaintiff. But the

Commissioner should not assume these issues were omitted from this Order because no

error was found or that other issues do not exist in the underlying decision.

Notably, Plaintiff asks that the Court remand the case for rehearing, rather than

remand with instructions to grant benefits (Doc. 21-1, p. 25). The latter remedy is a

departure from the typical practice of remanding to the agency for further proceedings.

Martin v. Saul, 950 F.3d 369, 376 (7th Cir. 2020) (citing Briscoe ex rel. Taylor v. Barnhart, 425

F.3d 345, 357 (7th Cir. 2005)). It is only appropriate “when the evidence before the court

compels an award of benefits,” meaning “all factual issues have been resolved and the

‘record can yield but one supportable conclusion.’” Briscoe, 425 F.3d at 355 (quoting

Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993)). Given that Plaintiff did not ask the

Court to make this finding and neither party provided any input on the issue, the Court

declines to undertake the analysis of whether the record demonstrates that the only

possible outcome in this case is a finding that Plaintiff was disabled.

However, the Court believes that it is time for this case to come to a close. Plaintiff

is now in his fifties. It has been fourteen years since his alleged disability onset date in

April 2010, thirteen years since he first applied for disability benefits, and over eight years

since his date last insured, which was September 30, 2015 (Tr. 143, 3189). As the Seventh

Circuit has said, “it should not take [this long] to determine whether a claimant’s

impairments prevent him from engaging in full-time employment, especially a claimant

who appears to have a well-documented and well-supported claim for disability.” Israel

v. Colvin, 840 F.3d 432, 441 (7th Cir. 2016). And that seems to be the case here—Plaintiff

has presented substantial evidence which can be read in favor of an award of benefits.

The evidence that could seemingly be read to undermine his claim is minimal by

comparison. That said, it remains to be determined by the Social Security Administration

whether the available evidence indicates that an award of benefits is appropriate for

Plaintiff. On remand, if the agency again rejects Plaintiff’s claim, it must provide a logical

explanation, supported by a fair reading of the record and an attention to detail, for

disregarding the opinions of Plaintiff’s primary care physician and the independent

medical examiner, his extensive medical history of treatments and his own consistent and

unwavering statements about the severity and limiting effects of his pain. The

Administration is strongly encouraged to expedite the proceedings in order bring this

case to a close.

CONCLUSION

The Commissioner’s final decision denying Plaintiff Darrin H’s application for

social security disability benefits is REVERSED and REMANDED to the Commissioner,

pursuant to sentence four of 42 U.S.C. §405(g), for further proceedings consistent with

this Order. The Clerk of Court is directed to enter judgment in favor of Plaintiff

IT IS SO ORDERED.

DATED: May 9, 2024

s/ Mark A. Beatty

MARK A. BEATTY

United States Magistrate Judge