Argued July 9, 2014
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:12-cv-00822-CNC -- Charles N. Clevert, Jr., Judge.
For Randy Hanson, Plaintiff - Appellant: Barry A. Schultz, Attorney, Law Offices of Barry A. Schultz, P.C., Evanston, IL.
For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee: Charles R. Goldstein, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL.
Before POSNER, KANNE, and WILLIAMS, Circuit Judges.
Posner, Circuit Judge.
The plaintiff, a former laborer, applied for social security disability benefits, claiming to be unable to work a full 40-hour week because of acute lower back pain that radiates into his right leg. He has had a variety of treatments and takes
a number of medications such as oxycodone and percocet, but the treatments and medications give him, he claims, only limited relief. His application was denied; the Appeals Council of the Social Security Administration affirmed the denial on the basis of the administrative law judge's reasoning and the district court, to which the applicant turned for relief, also affirmed, precipitating this appeal.
The case comes down to whet the administrative law judge thought, probably erroneously, was a disagreement between two physicians whose examination reports were submitted in the administrative proceeding. One was a neurologist named Virendra Misra who diagnosed the plaintiff with severe radiculopathy (a nerve disorder that causes radiating pain), and concluded that the plaintiff would not be able to tolerate more than four hours of working a day, which if true would make him totally disabled within the meaning of the Social Security Act and therefore entitled to the disability benefits that he is seeking. The other physician, David DeWitt (consistently misspelled " Dewitt" in the administrative law judge's opinion), a consulting rather than treating physician (oddly, the administrative law judge did not mention what DeWitt's medical specialty is--he is an orthopedic surgeon), examined the plaintiff only once. While agreeing that the plaintiff had radiculopathy, DeWitt did not state that the condition was so severe as to prevent him from being able to work. He did however say that the plaintiff " should avoid prolonged standing, walking and sitting activities, unless these can be performed with frequent breaks as the symptoms dictate."
The administrative law judge thought well of DeWitt but ill of Misra, about whom he said that " the objectivity of that doctor is brought into question, particularly when he was willing to offer such extreme estimates after conceding that he had only seen claimant twice for relatively short cursory exams. Though he is a neurologist, his statements that claimant had severe radiculopathy are not objectively supported by a majority of the records in the file, including the objective evidence--x-rays and the MRI scan--both of which failed to show any nerve root impingement or disc herniation. The fact that he has shown no interest in confirming claimant's subjective complaints with actual testing (i.e. an EMG-nerve conduction velocity study) also seems strange, particularly if claimant is in the extreme degree of pain he claims to be." The administrative law judge was very critical of the fact that Dr. Misra's treatment notes " border on being illegible and offer little information," and that " there is no indication that Dr. Misra sought any type of diagnostic study to determine whether there [ sic ] surgery was a viable option." He said that he " accords Dr. Misra's two opinions little weight for the reasons stated above, most notably the limited treating history, the lack of objective evidence supporting the doctor's restrictive limitations, and the lack of an explanation that would reconcile the difference between the objective and subjective evidence."
Turning to Dr. DeWitt's evidence, the administrative law judge said that " the most detailed physical examination report comes from Dr. David Dewitt. ... [T]here was a clear subjective element to claimant's presentation, the physician [DeWitt], for example, commenting that sensation was intact to light touch in all dermatomes, but there was a 'subjective' decrease [in] sensation over the lateral aspect of the right foot and calf. ... The undersigned accords Dr. Dewitt's opinions significant weight."
A dermatome is an area of skin in which the sensory neurons all come from a single nerve. The ...