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Moore v. Astrue

May 27, 2010


The opinion of the court was delivered by: Magistrate Judge Young B. Kim


Before the court are the parties' cross-motions for summary judgment. Marsha Moore seeks disability insurance benefits ("DIB") and supplemental security income ("SSI") under the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1382c, claiming that her persistent severe migraine headaches and lower back pain render her disabled. The Commissioner of Social Security issued a final decision denying her claims, and Moore appeals. See 42 U.S.C. §§ 405(g), 1383(c). For the following reasons, Moore's motion is granted and the Commissioner's is denied. This case is remanded for further proceedings consistent with this opinion.

Procedural History

Moore applied for DIB and SSI in December 2005, claiming that her disability began on January 15, 2003. (A.R. 98, 101.) The Social Security Administration denied her claim initially and on reconsideration. (Id. at 39-40.) Moore then requested, and was granted, a hearing before an administrative law judge ("ALJ"). (Id. at 6.) The ALJ concluded that Moore was not "disabled" as defined in the Social Security Act. (Id. at 56.) When the Appeals Council denied review, the ALJ's decision became the final decision of the Commissioner. See Schmidt v. Astrue, 496 F.3d 833, 841 (7th Cir. 2007). Moore then filed the current suit seeking judicial review of the ALJ's decision. See 42 U.S.C. §§ 405(g), 1383(c). The parties have consented to the jurisdiction of the United States Magistrate Judge. See 28 U.S.C. § 636(c).


In her applications for DIB and SSI, Moore claimed that her disability began on January 15, 2003, when she was fired from her job as an ophthalmology technician because of excessive absenteeism brought on by her persistent and debilitating migraine headaches. (A.R. 14, 98, 101.) She also claimed that the side-effects of her migraine medication adversely impact her ability to work, and that she suffers from increasingly severe low back pain. (Id. at 12, 32.) At her hearing before an ALJ, Moore provided both documentary and testimonial evidence to support her claims.

A. Moore's Evidence

Moore testified that the most serious of her impairments are her migraine headaches, which arrive without warning up to three times per week. (A.R. 14, 21.) Her primary care physician, Dr. Merrill Zahtz, prescribes Imitrex pills to treat the migraines once they appear, but she is unable to tolerate medicine that in some people prevents migraines. (Id. at 15-17, 20.) When Moore has a migraine, she is "laid out for the day," and has to lie down in a dark room with white noise until the headache subsides. (Id. at 15.) It usually takes two hours for the Imitrex to work, and even after it reduces the headache, her sensations are heightened uncomfortably and she feels tired and physically drained. (Id. at 15, 20.) Moore also testified that she experiences panic attacks with every migraine, which cause a painful tightening in her chest that can last up to eight hours. (Id. at 23-24.) Dr. Zahtz prescribes Klonopin to control the panic attacks. (Id. at 20.) She explained that her medications can cause her to experience rapid heartbeat or sleepiness, and based on those side effects, she let her drivers' license lapse two years earlier. (Id. at 13, 24, 32.) Moore explained that her typical migraine lasts only a couple of hours, but stated that she has experienced headaches that last up to three days. (Id. at 31.) Moore testified that she cannot predict the onset of a migraine, but that bright sunlight, flashing lights, and stress are all triggers. (Id. at 14, 29-31.)

The ALJ questioned Moore about what additional steps she was taking to reduce the impact of her migraines. Moore testified that she had cut caffeine and chocolate out of her diet, but she admitted that she still smokes a pack of cigarettes about every three days, despite Dr. Zahtz's suggestion that quitting smoking might help reduce the migraines. (A.R. 18-19, 30.) She also testified that she had seen only one neurologist about her migraines, and that was years before the hearing. (Id. at 15-16.) Moore explained that the neurologist had not prescribed any treatment that varied from Dr. Zahtz's, so she did not think returning would be beneficial. (Id. at 16.) She testified that she had sought emergency-room treatment for a migraine only once, and the ALJ noted that there was no record of that visit in the evidence she submitted. (Id. at 19.)

To support her testimony describing her migraines, Moore submitted medical records from Dr. Zahtz and Dr. Scott Kale, an internist who performed a consultative examination. Dr. Zahtz's treatment records show that he treated Moore for migraines beginning in October 2002. (A.R. 239-40.) In March 2006 he noted that Moore complained that her headaches were occurring two to five times per week. (Id. at 246.) He prescribed Imitrex and Soma. (Id.) In 2007 he described Moore's prognosis as "very guarded" based in part on "recurrent severe migraines." (Id. at 231.) Similarly, Dr. Kale noted that he examined Moore in March 2006 and that she complained of increasingly severe and frequent migraines that occurred three to four times per week. (Id. at 175.) Moore told Dr. Kale that the headaches prevented her from concentrating or being able to tolerate light or sound. (Id.) Dr. Kale diagnosed Moore as suffering from "uncontrolled migraines by history" and "status migrainosus." (Id. at 178.)

In addition to the evidence regarding her migraine headaches, Moore testified that she suffered from debilitating lower back, knee, and shoulder pain. (A.R. 22.) She testified that she has three extra vertebrae and decreased cushioning in her spine, which causes constant lower back pain. (Id. at 18, 22.) She stated that her knee and shoulder pain come and go depending on her physical activity and stress levels. (Id. at 22-23.) She explained that her orthopedist, Dr. Patrick Schuette, prescribes Vicodin and Dr. Zahtz prescribes a muscle relaxant to treat her pain. (Id. at 17-18, 20.) When the ALJ asked about her daily activities, Moore testified that she spends 80% of her day lying on a heating pad while she watches tv or reads in short intervals. (Id. at 25-26.) She explained that she rarely cooks and does not clean, do laundry, or go to the grocery store (her fiancé does most of the household chores). (Id.) She testified that the last time she traveled was in January 2003, but she spent most of the trip in bed with migraines and did not do any sight-seeing. (Id. at 27-28.) The ALJ noted that Dr. Schuette had advised her to exercise to increase her strength level, but Moore testified that walking exacerbates her knee pain. (Id. at 24.) The ALJ also noted that Dr. Schuette wanted her to try decreasing her Vicodin intake, but Moore explained that she takes only the Vicodin dosage that Dr. Schuette prescribes. (Id. at 17.)

Moore offered medical records from Drs. Schuette and Kale and from Cook County Hospital in support of her testimony regarding her back, knee, and shoulder pain. The Cook County Hospital records show that between March 2004 and October 2006 Moore was treated for symptoms of sciatica, lower back pain, and left hip/lower extremity pain. (A.R. 198-203.) Those records also note that Moore complained of migraine headaches. (Id. at 203.) An MRI of Moore's spine in October 2006 showed minimal degenerative disc disease. (Id. at 204.)

Dr. Schuette's treatment records cover the period from July 2003 through October 2006. In her initial visit with Dr. Schuette, Moore complained of intermittent lower back pain and some left hip and upper thigh pain, as well as periodic muscle pain on the left side of her body. (A.R. 224.) She reported that the pain grew much worse after activity, and at times was severe enough to wake her from a sound sleep. (Id.) She also reported a history of migraine headaches. (Id.) Dr. Schuette noted that Moore has rotary scoliosis and could lift her leg to only 85, rather than 90, degrees. (Id. at 224-25.) He prescribed Bextra and Soma to treat Moore's pain, but warned Moore that Soma could negatively impact her cognitive functioning. (Id. at 225.) In August 2003 Dr. Schuette noted that x-rays of Moore's lumbar spine showed no significant abnormalities, but stated that "Moore has persistent back pain." (Id. at 221.) Dr. Schuette counseled Moore about the long-term use of narcotics like Vicodin, but said that she was "clearly in a fair amount of pain" that needed management. (Id.) He also noted that Moore's lack of health insurance was complicating her ability to get treatment. (Id.) In January 2004 Dr. Schuette noted that Moore continued to complain of back pain that radiated into her left hip and leg but that the etiology of the pain was unclear. (Id. at 217.) He again noted that determining the etiology of her pain was "complicated by the inability to get an adequate workup performed given her insurance status." (Id.) Moore's pain persisted and in June 2005 Dr. Schuette noted that x-rays, a CAT scan, and an MRI of the lumbar spine did not reveal any specific abnormalities. (Id. at 213.) He diagnosed modest scoliosis with muscle pain as the etiology of Moore's back pain, and noted his hope that she would "push the envelope" in trying to exercise and cut back on her Vicodin use. (Id. at 213-14.) He reduced her Vicodin dosage in 2004 and 2005. (Id. at 213, 216.) In his last treatment notes in October 2006 Dr. Schuette noted that Moore's lower back pain was "quite significant" and "persistent," and that she "continues to require fairly high doses of Vicodin as ongoing treatment." (Id. at 212.)

Following his March 2006 consultative examination of Moore, Dr. Kale noted that Moore complained of low back pain, but could stand and walk normally. (A.R. 175.) Dr. Kale diagnosed low back pain with "sciatic ...

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