Michael Gibbons v. Andrew M. Saul ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 18, 2019
Decided January 23, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 19-1885
MICHAEL ANTHONY GIBBONS, Appeal from the United States District
Plaintiff-Appellant, Court for the Central District of Illinois.
v. No. 17-2224
ANDREW M. SAUL, Eric I. Long,
Commissioner of Social Security, Magistrate Judge.
Defendant-Appellee.
ORDER
In 2011, a sheet of ice struck Michael Gibbons in the head and exacerbated a
preexisting neck injury. By 2013, the pain in his neck, shoulders, and arms had
worsened to the point he could no longer work. He applied for disability benefits. An
administrative law judge determined Gibbons had several severe impairments related
to neck and shoulder pain but nonetheless denied benefits, concluding Gibbons could
still perform light work with limitations.
The ALJ’s findings were based on the opinion of an agency physician who
reviewed Gibbons’s application for benefits but did not examine him. Because that
opinion had several flaws the ALJ did not address, and because the ALJ did not support
No. 19-1885 Page 2
her decision with other medical evidence, the ALJ’s decision was not based on
substantial evidence. The ALJ further erred by relying on her own lay interpretation of
medical findings to discount a treating surgeon’s opinion Gibbons could never reach
overhead. We therefore vacate the ALJ’s decision and remand to the agency for further
proceedings.
I. Background
Gibbons has spent almost a decade in severe pain. During that time, at least eight
medical professionals opined on how the pain affected him. This appeal concerns four
of them: (1) Dr. Daniel Riew, the orthopedic surgeon who performed Gibbons’s most
recent surgery; (2) Dr. Harel Deutsch, a physician who examined Gibbons on behalf of a
worker’s compensation provider; (3) Dr. Arash Farahvar, a neurosurgeon who
examined Gibbons but did not operate on him; and (4) Dr. Richard Bilinsky, an agency
consulting physician who reviewed Gibbons’s application for benefits but did not
examine him.
A. Medical history
In 2003, Gibbons, then 40 years old, slipped and fell on his back. The accident
caused extreme pain in his neck and arms, and he ultimately needed two surgeries to
fuse three vertebrae in his neck. After the surgeries, Gibbons recovered and worked as a
facility manager for a local church, performing building maintenance and other work
that required heavy exertion.
In February 2011, a piece of ice fell off a building and struck Gibbons in the head
while he was at work. He suffered a concussion and experienced renewed pain in his
neck, shoulders, and arms. A CT scan showed his vertebrae were still fused but he had
suffered degeneration elsewhere in his spine.
Over the next five years, Gibbons experienced increasing pain. His doctors
cycled him through an array of different painkillers, including narcotics like Norco
(hydrocodone and acetaminophen), Opana (oxymorphone), Oxycontin (oxycodone),
methadone, Avinza (morphine tablets), Percocet (oxycodone and acetaminophen), and
fentanyl.
Shortly after the concussion, Gibbons’s doctor allowed him to return to work, but
with orders to lift no more than 15 pounds and to avoid overhead work. Gibbons
continued to work full time until September 2011, when his pain increased to the extent
he could work only four hours a day, even with the limitations recommended by his
No. 19-1885 Page 3
doctor. In December 2011, an electromyogram showed a possible injury in Gibbons’s
right long thoracic nerve (a nerve that runs from the spine through the shoulder and
upper chest). Although Gibbons complained the pain was more serious in his left arm,
no similar injury was discovered in his left shoulder, suggesting the pain on his left side
originated in his spine.
Gibbons worked part time until February 2013. A CT scan taken then showed
mild to severe foraminal stenosis (a narrowing of the passageway through which the
spinal nerve root runs) and facet arthrosis (arthritis of the joints between vertebrae) at
several points in his upper vertebrae. Although Gibbons demonstrated normal strength
and range of motion in his upper extremities, he complained of worsening headaches
and shoulder pain radiating from his neck. He stopped working and successfully filed
for worker’s compensation.
In May 2013, Gibbons saw orthopedic surgeon Dr. Riew for the first time,
reporting pain in his neck, arms, and shoulders, especially on his left side. Dr. Riew
observed Gibbons had normal reflexes and motor strength but noted Gibbons’s left-
hand grip was weaker than his right, even though he was left-handed. After viewing
Gibbons’s previous CT scan and an earlier MRI, Dr. Riew diagnosed Gibbons with a
possible pinched nerve. That August, he operated on Gibbons and fused two more
vertebrae in his neck. Two months later, Dr. Riew again examined Gibbons and opined
he could return to work in two weeks, and lift up to 30 pounds, but should not perform
overhead activity.
In November, Gibbons returned to Dr. Riew with complaints of serious left
shoulder pain. Gibbons had normal strength in both arms during the examination, but
he had a positive Spurling’s sign (a physical test used to assess the presence of
nerve-root pain). Dr. Riew recommended Gibbons refrain from work for one week and
not lift more than 40 pounds for the next three months. A follow-up exam in January
2014 revealed global weakness and atrophy in Gibbons’s left arm, and his left upper
arm and forearm were 1.5 centimeters smaller than on his right. But Dr. Riew
nonetheless opined Gibbons could return to work with the same restrictions against
lifting more than 40 pounds or reaching overhead.
In April 2014, however, Dr. Riew examined Gibbons again and changed his
prognosis. After viewing an updated CT scan, he diagnosed Gibbons with a chronic
pinched nerve caused by a surgical screw impinging the joint between two vertebrae at
the base of the neck. That scan also revealed severe left foraminal stenosis near the
vertebrae where Dr. Riew had performed surgery. Dr. Riew filled out a worker’s
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compensation form stating Gibbons should remain off work for the next three to six
months, and he ordered Gibbons to return for a follow-up appointment in four months.
For unexplained reasons, Gibbons did not see Dr. Riew again.
That June, Dr. Deutsch examined Gibbons on behalf of Gibbons’s employer’s
worker’s compensation provider. Dr. Deutsch said he concurred with Dr. Riew’s earlier
opinions that Gibbons could lift up to 40 pounds, but he did not mention Dr. Riew’s
most recent opinion that Gibbons should remain off work. He also said he disagreed
with the December 2011 electromyogram showing a long thoracic nerve injury on the
right side because later electromyograms did not replicate those results.
In October, the neurosurgeon Dr. Farahvar examined Gibbons. He disagreed
with Dr. Riew’s diagnosis regarding the cause of Gibbons’s pain. Rather than an
impinging screw at the base of the neck, he thought a pinched nerve near the top of the
neck was the primary source of Gibbons’s pain. But he recommended delaying surgery
until he could verify his diagnosis and determine whether conservative treatment
would be effective. In the meantime, he ordered several tests and a neck brace for
Gibbons to wear in the car. Dr. Farahvar then filled out a medical-source statement for
Gibbons’s disability application, opining Gibbons could never lift any weight (even
under 10 pounds) and never reach overhead, handle, push, or pull with either arm. He
also stated Gibbons could not sit, stand, or walk for more than one hour per day, and
that Gibbons needed to spend the majority of the day resting in bed. A year and a half
later, in February 2016, Dr. Farahvar filled out a second questionnaire without
examining Gibbons again, now opining Gibbons could occasionally lift objects less than
10 pounds, but could not sit or stand for more than 20 minutes at a time, and could not
walk at all. He also opined Gibbons should avoid exposure to odors, fumes, and
pulmonary irritants, even though he cited no diagnosis that would require such a
restriction and was not himself a pulmonologist.
B. Procedural history
Gibbons applied for disability insurance benefits, alleging he became disabled in
January 2013, around the time he stopped working. His claim was denied initially and
on reconsideration.
At the reconsideration level, the determination included a medical opinion from
Dr. Bilinsky, an agency consultant who reviewed the record but did not examine
Gibbons. Unlike Drs. Riew’s and Farahvar’s opinions, which had concluded Gibbons
could not perform any work, Dr. Bilinsky found Gibbons could perform actions
No. 19-1885 Page 5
consistent with light work. He opined Gibbons could occasionally lift 20 pounds and
frequently 10 pounds, occasionally reach overhead with his right arm, and occasionally
handle with his left hand.
At a hearing before an ALJ, Gibbons described how the pain radiating from his
neck affected his daily life. He testified he could lift a gallon of milk with his right hand,
but not with his dominant left hand, and he had difficulty reaching for things in
overhead cabinets, especially with his left arm. He stated he avoided driving because of
his prescriptions for fentanyl, Percocet, and valium. He said his wife and daughter do
all the household chores, and he shaves only once a week because of the pain in his
arms and shoulders. Finally, he testified Dr. Farahvar does not want to perform surgery
because his pinched nerve is located near his brain stem and scar tissue from his
previous surgeries makes it too risky.
The ALJ found Gibbons was not disabled. She determined Gibbons’s left carpal
tunnel, cervical radiculopathy (pinched nerve), degenerative disc disease, and right
shoulder disorder were severe impairments. But based on Dr. Bilinsky’s opinion—the
only opinion the ALJ assigned “great weight”—the ALJ concluded Gibbons could still
perform light work so long as, among other restrictions, he was limited to only frequent
handling with the left hand; occasional reaching overhead with the right arm;
occasional head turning; and no driving. A vocational expert testified a person with
these limitations would be able to find work as a small-products assembler or a retail
marker.
In reaching these conclusions, the ALJ discounted Dr. Farahvar’s opinions, which
she reasoned were inconsistent, contradicted by the record, and included opinions
outside Dr. Farahvar’s expertise. She also discounted Dr. Riew’s opinion that Gibbons
could never reach overhead because she said there was not sufficient evidence of a
thoracic nerve injury. But she assigned “some weight” to Dr. Riew’s earlier opinions
that Gibbons could lift up to 40 pounds (as well as Dr. Deutsch’s concurrence with it),
stating the suggested limitations “appear reasonable within the period of necessary
healing for the claimant’s neck surgery.” Considering Gibbons’s more recent complaints
of pain, however, the ALJ concluded more significant restrictions were necessary and
adopted those suggested by Dr. Bilinsky.
Gibbons appealed the ALJ’s decision, and the Appeals Council determined the
ALJ erred by giving great weight to Dr. Bilinsky’s opinion without adopting his
recommendation that Gibbons be limited to only occasional handling with his left hand.
The Appeals Council altered the ALJ’s findings to include this limitation, as well as an
No. 19-1885 Page 6
additional limitation—unexplained—of no overhead reaching with the nondominant
right hand. Otherwise the Appeals Council adopted the ALJ’s findings. Because the
vocational expert had testified someone with those two additional limitations could still
find work as an usher, photo counter clerk, or furniture rental clerk, the Appeals
Council upheld the ALJ’s determination that Gibbons was not disabled.
The district court affirmed the Appeals Council’s decision.
II. Analysis
A. Standard of review
We will uphold the agency’s final decision if supported by “substantial
evidence,” meaning “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). Our
role is not to “reweigh evidence, resolve conflicts, decide questions of credibility, or
substitute [our] judgment for that of the Commissioner.” Burmester v. Berryhill, 920 F.3d
507, 510 (7th Cir. 2019) (internal citations and alterations omitted). The agency’s
decision, however, must build a “logical bridge” from the evidence to its conclusions.
Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018).
B. Discussion
Gibbons contends the ALJ erred by adopting Dr. Bilinsky’s opinion instead of
Dr. Farahvar’s opinions, and by failing to give weight to Dr. Riew’s opinion that
Gibbons could not reach overhead. The Commissioner responds the ALJ was faced with
a sea of medical opinions and took a reasonable course in weighing them.
The Commissioner is only partially correct. It is true the ALJ did not err in
assigning little weight to Dr. Farahvar’s opinions. An ALJ may assign limited weight to
a treating physician’s opinions if the ALJ articulates “good reasons” for doing so.
20 C.F.R. § 404.1527(c)(2); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir. 2010). And here,
the ALJ articulated several reasons for discounting Dr. Farahvar’s opinions. For
example, the ALJ noted Dr. Farahvar’s extreme limitations for Gibbons (including the
inability to walk even short distances) were contradicted by evidence of Gibbons’s
consistently normal gait and ability to walk without a cane or other assistive device.
And as the ALJ explained, Dr. Farahvar opined on subjects outside his expertise and
gave inconsistent opinions on whether Gibbons could lift up to 10 pounds. These were
all valid reasons to assign little weight to Dr. Farahvar’s opinions; an ALJ is not
required to accept opinions contradicted by other medical evidence. Burmester, 920 F.3d
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at 512, and may discount opinions that are inconsistent or fall outside the doctor’s
expertise, Alvarado v. Colvin, 836 F.3d 744, 748 (7th Cir. 2016).
After discounting Dr. Farahvar’s opinions, however, the ALJ needed to point to
other evidence supporting her decision. See Stephens, 888 F.3d at 327 (ALJ must build
“logical bridge” from evidence to conclusion). Rather than adopt the opinions of one of
the many other medical professionals who treated Gibbons, the ALJ turned to
Dr. Bilinsky. But Dr. Bilinsky did not examine Gibbons, and there are several aspects of
his opinion that suggest he did not undertake a careful review of the medical records.
For example, Dr. Bilinsky repeatedly referred to Gibbons as “she,” even though
Gibbons is male. And Dr. Bilinsky incorporated into his opinion a disability examiner’s
conclusion that Gibbons was not entitled to benefits—suggesting Dr. Bilinsky already
had this conclusion in mind when he wrote the opinion.
More critically, Dr. Bilinsky misread Dr. Riew’s April 2014 examination by
stating the exam revealed “no atrophy.” Dr. Riew found only that there was no atrophy
in Gibbons’s hands; he stated there was atrophy in Gibbons’s left upper arm and
forearm (his dominant arm), which were measured 1.5 cm smaller than his right arm.
Dr. Bilinsky then compounded this error by stating Gibbons’s grip was decreased in his
nondominant hand, rather than his dominant left hand, as indicated by the
examination. These errors were significant because the April 2014 examination marked
a turning point in Gibbons’s treatment. It was the examination at which, after
repeatedly opining that Gibbons was on the cusp of returning to work with only minor
limitations, Dr. Riew ultimately decided Gibbons could not work for at least another
three to six months. And Dr. Bilinsky’s misunderstanding of Dr. Riew’s notes relates
directly to his assessment of Gibbons’s ability to lift, carry, and reach with his dominant
left arm. An ALJ must consider whether a medical opinion is consistent with the record
before assigning it weight. 20 C.F.R. § 404.1527(c)(4). Yet the ALJ did not address these
inconsistencies; she merely stated the opinion was “consistent with the record as a
whole” and more restrictive than Dr. Riew’s older, 40-pound lifting restriction.
The Commissioner maintains the ALJ also relied on the opinions of Dr. Riew and
Dr. Deutsch in addition to Dr. Bilinsky. But although both those doctors opined at
different times Gibbons could lift up to 40 pounds, the ALJ assigned their opinions only
“some weight” and reasoned Gibbons’s testimony warranted stricter lifting restrictions.
Ultimately, she seems to have adopted the opinions only to the extent they agreed with
Dr. Bilinsky. But even if the ALJ had meant to adopt Dr. Riew’s recommendations in
part, she conflated Dr. Riew’s final two examinations, stating Dr. Riew had opined in
“early 2014” that Gibbons could “lift up to 40 pounds and return to work in three to six
No. 19-1885 Page 8
months.” These opinions were actually months apart: In January, Dr. Riew opined
Gibbons could work with modest limitations but changed his prognosis in April and
ordered Gibbons to refrain from work pending reexamination in four months. So the
ALJ failed to appreciate the progression of Gibbons’s condition. See Lambert v. Berryhill,
896 F.3d 768, 775 (7th Cir. 2018) (explaining that physicians may update their views
based on a patient’s changed condition).
The ALJ also impermissibly “played doctor” when she rejected Dr. Riew’s
proposed restrictions on overhead reaching with either arm. Although the Appeals
Council later found Gibbons could never reach overhead with his right arm, neither the
ALJ nor the Appeals Council placed a similar restriction on his left arm (which Gibbons
alleged was more limited). The ALJ explained the restriction was unwarranted because
“only [the December 2011 electromyogram] demonstrated any abnormal findings, and
others revealed no evidence of a long thoracic nerve injury.” But Dr. Riew did not cite a
thoracic nerve injury as the reason for his overhead-reaching restriction. And the doctor
who examined Gibbons after his head injury in February 2011 gave similar precautions,
almost a year before the electromyogram in question. Without relying on any medical
evidence, the ALJ assumed a thoracic nerve injury was required for an
overhead-reaching restriction, contrary to the well-established rule that ALJs should not
attempt to analyze the significance of medical findings without input from an expert.
See McHenry v. Berryhill, 911 F.3d 866, 871 (7th Cir. 2018).
We are not persuaded by the Commissioner’s response that, rather than playing
doctor, the ALJ was echoing the report of Dr. Deutsch. Although the Commissioner is
correct that Dr. Deutsch disagreed with the diagnosis of a thoracic nerve injury on
Gibbons’s right side, nothing in Dr. Deutsch’s report said he disagreed with Dr. Riew’s
opinions on overhead reaching. And ultimately, whether Gibbons had a nerve injury on
his right side is irrelevant because the Appeals Council already placed a reaching
restriction on Gibbons’s right arm. Only Gibbons’s left arm is at issue, and doctors
consistently found the limitations in Gibbons’s left arm were caused by pain radiating
from his spine. No doctor suggested Gibbons also had a nerve injury on his left side; the
ALJ simply conflated two separate impairments. See Meuser v. Colvin, 838 F.3d 905, 911
(7th Cir. 2016) (“[T]he ALJ improperly played doctor when he ignored expert opinions
to arrive at his own, incorrect, interpretation of the medical evidence.”).
III. Conclusion
Because the ALJ’s decision was not based on substantial evidence, we vacate the
judgment and remand to the agency for further proceedings.