Farley v. Berryhill
Farley v. Berryhill
Opinion of the Court
Four years ago, Jennifer Farley filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").
I.
Ms. Farley was nearly 40 years old at the time of the ALJ's decision. (R. 178). Up until about eight years ago, she had a solid work history, most recently in administrative support for a locomotive company. (R. 214-215). The medical record in this case is over 500 pages long. But as the plaintiff deems only about 20 of those pages relevant [Dkt. # 19, at 9, 15], and the Commissioner doesn't refer to a singe piece of medical evidence to support her position, a brief overview will suffice. Ms. Farley began having trouble with her back in 2009 (R. 39) and, as a result, underwent surgical fusion of her spine from L4 through S1. (R. 395). After surgery, she underwent a fourteen-month course of physical therapy, but gained no improvement in her back range of motion, and still had pain during movement. (R. 327-380). She has had injections multiple times in an effort to gain relief from her pain in her lower back above her fusion and in her sacroiliac joint. (R. 400, 405, 437, 452, 455, 458, 461, 464, 466, 469, 474, 581, 583). She has had a "bilateral lumbar radiofrequency ablation. She also takes oxycodone and hydrocodone, and uses lidocaine and declefenac-epilamine patches. (R. 404, 488). She has sought treatment for migraines and right shoulder pain, as well as depression and anxiety. (R. 403, 404, 626, 780).
After an administrative hearing-at which Ms. Farley, represented by counsel, and a medical expert and a vocational expert testified-the ALJ determined she was not disabled. The ALJ found that Ms. Farley had two severe impairments: degenerative disc disease and status post spinal fusion. (R. 19). The ALJ found that her mood disorder caused her no more than a mild limitation in the area of maintaining concentration, persistence, and pace, and so was a non-severe impairment. (R. 19-20). None of Ms. Farley's impairments, singly or in combination, amounted to a condition that met or equaled an impairment assumed to be disabling in the Commissioner's listings. (R. 20-21).
The ALJ then determined that Ms. Farley could perform sedentary work as defined in the Commissioner's regulations. (R. 21). That means work that:
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.
The ALJ also rejected Ms. Farley's allegations regarding her symptoms and limitations. She said they were "not entirely consistent with the medical record and the other evidence in the record ...." (R. 23). Relying on the testimony of the vocational expert from the administrative hearing, the ALJ determined that, while Ms. Farley could no longer perform her past work, but could nevertheless perform other work that exists in significant numbers in the national economy: packer (Dictionary of Occupational Titles (DOT) 737.587-010), assembler (DOT 739.687-066), and inspector (DOT 669.687-014). (R. 27). As a result, the ALJ concluded that Ms. Farley was not disabled and not entitled to DIB. (R. 27).
II.
If the ALJ's decision is supported by substantial evidence, the court on judicial review must uphold that decision even if the court might have decided the case differently in the first instance. See
But, in the Seventh Circuit, the ALJ also has an obligation to build an accurate and logical bridge between the evidence and the result to afford the claimant meaningful judicial review of the administrative findings. Varga v. Colvin ,
III.
Social Security disability appeals nearly always involve the subjective versus the objective. A plaintiff claims he or she can no longer work due to pain, and they queue up for benefits with their medical records-usually, as here, voluminous medical records. The ALJ has to decide whether to believe the plaintiff is in too much pain to work. That is often a challenge, as the Seventh Circuit has explained:
The etiology of pain is not so well understood, or people's pain thresholds so uniform, that the severity of pain experienced by a given individual can be "read off" from a medical report. Pain is a *946complex, multidimensional, subjective experience. The report of pain is related to numerous variables, such as cultural background, past experience, the meaning of the situation, personality variables, attention, arousal level, emotions, and reinforcement contingencies. There is often a poor relationship between the 'subjective' experience of pain and 'objective' or external referents. This may be most evident in the case of chronic pain where apparently similar peripheral pathology, injury, or nociceptive input [pain stimulus] can result in markedly different presentations. Whereas patient self-report, using verbal analogue or other rating scales, is perhaps the most straightforward and appropriate means of determining pain severity (or other aspects of the pain experience), this is prone to response bias like all self-reports.
Johnson v. Barnhart ,
In this case, the ALJ's assessment of Ms. Farley's allegations regarding her pain falls short of what the applicable case law requires. The ALJ got off to a bad start in discussing Ms. Farley's allegations by employing a paragraph of boilerplate. The ALJ said that "the claimant's statement concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (R. 23-24). This appears to be the current version of the boilerplate that has concerned reviewing courts for a number of years, with previous versions coming under fire repeatedly, generally to no avail. See, e.g., Stark v. Colvin ,
*947The ALJ then said that Ms. Farley's allegations were not supported by the medical records, but did not mention any "other evidence" that failed to support them. It is well-settled that an ALJ cannot discount a plaintiff's allegations based on the medical evidence alone. See Vanprooyen v. Berryhill ,
The Commissioner points out that the ALJ mentioned Ms. Farley's resort to medication, injections, and physical therapy to quell her pain. [Dkt. # 22, at 8]. But mentioning them-or "recognizing" them, as the Commissioner puts it-doesn't let the reviewing court know what the ALJ thought about them and how they played into the ALJ rejecting Ms. Farley's allegations. See Stage v. Colvin ,
Rather than acknowledge that connection, the ALJ focused on the few reports immediately after injections where Ms. Farley said her pain was reduced. (R. 23, 24). So, the ALJ noted that Ms. Farley reported improvement after injections, citing reports from May 18, 2011; May 30, 2013; March 7, 2013; November 16, 2013; and December 18, 2013. (R. 440, 443, 455, 461, 474). But even those few reports show that relief was sporadic; Ms. Farley continued to have flareups and bad days along with the good. More importantly, even the few reports the ALJ mentioned show that relief was temporary at best. For example, while the report from November 16, 2013 states that the October 7th injection provided some relief, Ms. Farley was back for another injection a week and a half later, on November 25th. (R. 439-40, 442-43). Indeed, Ms. Farley also had to get injections to relieve her pain on February 24, 2011; March 10, 2011; March 24, 2011; August 22, 2011, November 17, 2011; February 23, 2012; July 9, 2012; April 15, 2013; December 30, 2013; and February 10, 2014. (R. (R. 403, 405, 437, 452, 455, 458, 461, 464, 466, 469, 474, 581, 583). So, the record tends to show, not the successful course of treatment the ALJ's opinion depicts, but unrelenting pain that returns time and again no matter what. The ALJ improperly fixated on a few positive reports that supported her finding without addressing the negative aspects of those reports and others. See *948Gerstner v. Berryhill ,
The Commissioner also points out that the ALJ noted Ms. Farley's daily activities, which were very limited. [Dkt. # 22, at 8]. But, as with Ms. Farley's treatment, the ALJ simply mentioned them without discussion. All the ALJ said was:
In a disability report, [Ms. Farley] reported she had difficulty bathing, dressing, caring for her hair, shaving, feeding herself, using the toilet, and cooking. In a function report, she said she was unable to do most chores around the house.
(R. 24). The ALJ then went on to indicate that she didn't believe Ms. Farley because injections had provided relief and she hadn't had additional surgery. (R. 24). There's no logical bridge there. As already discussed, the record shows injections provided only temporary relief at best. And neither the ALJ nor the Commissioner have pointed out any evidence that additional surgery would help. See Hill v. Colvin ,
So, this case must be remanded to the Commissioner for another go-round, but it is worthwhile to address Ms. Farley's concerns about the manner in which the ALJ handled the opinion from her treating physician, Dr. Ghani. Dr. Ghani filled out a form from Ms. Farley's attorney on August 18, 2015. (R. 772-779). Dr. Ghani reported that Ms. Farley could sit for a total of just two hours in an eight-hour workday, and stand for one hour. Even then, she had to alternate between standing and sitting. As for the remaining five hours of the day, one must assume she had to lie down. (R. 772). The doctor added that Ms. Farley suffered from such a level of fatigue that she could not even work at a sedentary job. (R. 774). As the basis for this opinion, Dr. Ghani attached a list of diagnoses: "degenerative disc, lumbar introvert, nerve damage, osteoarthritis, spondylosis, bulging disc, herniated disc, scoliosis, bone spurs, sacroilitis, facet syndrome w/o myelop lumbar, myofascial pain syndrome, ankylosing spondylitis, sciatica or lumbar radiculopathy, migraines, depression, anxiety, PTSD, nerve pain from cervical, fatigue from chronic pain per above, medications, sleeping issues." (R. 780). He said she suffered pain due to lumbar radiculopathy that also was of a degree that prevented her from working even a sedentary job (R. 775), and that this resulted in a moderate restriction on her ability to maintain concentration. (R. 776). In essence, Dr. Ghani rendered a portrait of Ms. Farley as what ALJs used to call a "dead claimant." See Terry v. Astrue ,
First, the ALJ said she rejected Dr. Ghani's opinion because it was based on Ms. Farley's subjective complaints and appeared to be "sympathetic." A treating doctor's opinion may be properly discounted if it is based upon the claimant's subjective complaints rather than objective *949medical evidence. Ghiselli v. Colvin ,
The Seventh Circuit explained the dichotomy that can accompany a physician's familiarity with a patient this way:
The advantage that a treating physician has over other physicians whose reports might figure in a disability case is that he has spent more time with the claimant. The other physicians whose reports or other evidence are presented to the administrative law judge might never even have examined the claimant (that was true here), but instead have based their evidence solely on a review of hospital or other medical records. But the fact that the claimant is the treating physician's patient also detracts from the weight of that physician's testimony, since, this did not follow along as is well known, many physicians (including those most likely to attract patients who are thinking of seeking disability benefits, ...) will often bend over backwards to assist a patient in obtaining benefits."
Hofslien v. Barnhart ,
The other reason the ALJ gave for discounting Dr. Ghani's opinion-that it was unsupported by medical findings and inconsistent with other medical evidence-was appropriate as well. As already noted, all Dr. Ghani supported his form with was a list of diagnoses. Diagnoses are not necessarily disabilities. As such, it is "reasonab[e]" for an ALJ to "demand[ ] from [a treating physician] some explanation for finding limitations so ... severe ...." McFadden v. Berryhill , No.
Significantly, Ms. Farley cannot even direct the court to any treatment notes from Dr. Ghani. She cites to none in her brief [Dkt. # 19, at 9], and the only mention of Dr. Ghani seeing Ms. Farley in the parties' joint statement of facts is when he performed injections on April 6 and May 15, 2015. [Dkt. # 21, ¶ 13]. Even this is questionable, as the reports indicate that Dr. Goodman performed the procedures. (R. 816, 819).
*950Ms. Farley suggests that, because Dr. Ghani treated her in conjunction withy Dr. Goodman, Dr. Goodman's clinical notes should have satisfied the ALJ as support for Dr. Ghani's opinion. But, again, Ms. Farley directs the court to no clinical or laboratory findings; no x-rays, MRIs, examination reports, etc. She cites only to the reports of injection procedures. [Dkt. # 19, at 9].
All this is not to say that Dr. Ghani's assessment of Ms. Farley's capabilities was wrong. But, in the end, the ALJ provided two valid reasons for rejecting the doctor's opinion; that is sufficient. See Alvarado v. Colvin ,
CONCLUSION
For the foregoing reasons, the ALJ's decision is remanded to the Commissioner for further proceedings.
See also Parker v. Astrue ,
Each report clearly indicates the date of the "surgery" and that the surgeon was Dr. Goodman. For whatever reason, the Commissioner stipulated to the fact that Dr. Ghani performed the procedures in the parties' combined statement of facts. The parties should take care in the future as cases can sometimes turn on such things. In any event, the stipulation here seems improvident.
Plaintiff asks that the ALJ's decision be reversed and an award of benefits ordered. "It remains true that an award of benefits is appropriate only if all factual issues have been resolved and the record supports a finding of disability." Allord v. Astrue ,
Reference
- Full Case Name
- Jennifer E. FARLEY v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 21 cases
- Status
- Published