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Lisa anderson v. Michael J. Astrue

June 13, 2011


The opinion of the court was delivered by: Magistrate Judge Sheila Finnegan


Plaintiff Lisa Anderson brings this action under 42 U.S.C. § 405(g), seeking to overturn the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits under Title II of the Social Security Act. The parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and Plaintiff filed a motion for summary judgment seeking reversal of the ALJ's decision. On April 26, 2010, the case was reassigned to this Court for all further proceedings. After careful review of the parties' briefs and the record, the Court now grants Plaintiff's motion and remands the matter for further proceedings consistent with this ruling.


Plaintiff applied for disability insurance benefits on August 9, 2006, alleging that she became disabled on August 25, 1996 from a variety of impairments, including a brain tumor, fibromyalgia, depression, detached retinas, cataracts, headaches and a dislocated knee cap. (R. 112, 123). The Social Security Administration denied the application initially on November 2, 2006, and again on reconsideration on February 22, 2007. (R. 54, 55, 67-71, 76-79). Pursuant to Plaintiff's timely request, Administrative Law Judge ("ALJ") Joel G. Fina held an administrative hearing on January 8, 2008. The ALJ heard testimony from Plaintiff, who appeared with counsel, Plaintiff's husband, and a vocational expert. Approximately two weeks later, on January 23, 2008, the ALJ found that Plaintiff is not disabled because she is capable of performing a significant number of jobs available in the national economy. (R. 59-66). The Appeals Council denied Plaintiff's request for review on February 26, 2009, and Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. (R. 1-3).

Plaintiff advances three grounds for reversal, all of which concern the ALJ's analysis at Step 5 where he decided that Plaintiff could make an adjustment to other jobs that existed in the economy, given her vocational factors of residual functional capacity ("RFC"), age, education, and work experience. See 20 C.F.R. § 404.1520(g)(1). Plaintiff first argues that the ALJ erred by applying the age categories of the regulations in a mechanical manner to classify her as a "younger individual" rather than considering whether her borderline age made it more appropriate to categorize her in the next higher age category, resulting in a finding of disabled. Plaintiff next asserts that the ALJ erred in finding her testimony concerning the severity of her headaches less than fully credible, and in omitting discussion of certain evidence. Finally, Plaintiff contends that the ALJ failed to include any limits in her RFC that her headaches might impose on her ability to sustain full-time work.


Plaintiff was born on March 24, 1952, and was 49 years old as of her date last insured ("DLI") of December 31, 2001. (R. 16, 112). She is a high school graduate, and has additional certifications from her local school district. (R. 17). Her past relevant work was as a teacher's aide. (R. 124, 147).

A. Plaintiff's Medical History

1. Brain Lesion

In 1995, Plaintiff was diagnosed with an "enhancing mass in the right cavernous sinus and extending inferiorly into the skull base," which caused her to suffer painful right ophthalmoplegia,*fn1 diplopia (double vision) and headaches. (R. 278). On August 25, 1995, Dr. Gail L. Rosseau of the Chicago Institute of Neurosurgery and Neuroresearch performed a right temporal craniotomy for biopsy of the cavernous sinus lesion. Following the surgery, Plaintiff's diplopia resolved, and steroids alleviated her headaches with continued use. (Id.).

On September 13, 1996, an MRI revealed that "the right cavernous sinus was possibly larger and that the adenoid tissues were significantly larger than on previous studies, particularly on the right." (Id.). Plaintiff had a nasopharyngeal biopsy on December 3, 1996, and in January 1997, Dr. Rosseau recommended that she get second opinions to "help in establishing an as-yet elusive diagnosis." (R. 279). Dr. Rosseau described Plaintiff as having "an eighteen month history of intractable headaches," and offered to refer her to a headache specialist. (R. 278-79). Plaintiff declined to seek any headache treatment at that time. (R. 279).

Plaintiff had regular follow-up exams with Dr. Rosseau in 1997 and 1998 to monitor the lesion. MRI results from those years all showed little to no significant changes in the size of the lesion. (R. 287-95). On June 23, 1998, Dr. Rosseau observed that Plaintiff's condition was stable, and that she was experiencing "no further headaches or visual obscurations." (R. 273). On December 15, 1998, Plaintiff told Dr. Rosseau that she had "occasional stress-related headaches for which she is taking, at worst, up to six ibuprofen a day and . . . up to three Tylenol #3 per day." Plaintiff indicated that the headaches are related to what she believed to be "an unusually large intake of coffee and chocolate, which she is not able to reduce." (R. 272).

2. Headache Treatment

Several months later, Plaintiff decided to pursue Dr. Rosseau's suggestion and seek treatment for her headaches with Dr. Seymour Diamond of the Diamond Headache Clinic ("DHC"). She completed some intake paperwork on May 6, 1999, and scheduled an appointment for May 20, 1999. (R. 235-39). Over the next eight years, Plaintiff received regular treatment from both Dr. Diamond and Dr. Rosseau.

When Plaintiff saw Dr. Rosseau on May 7, 1999, she reported "intermittent headaches, which are unchanged in the last year." (R. 271). She told Dr. Rosseau that decreasing her coffee intake did not change the headaches, and that she continued to take four to six ibuprofen tablets a day and up to three Tylenol #3 per day. (Id.). An MRI taken at the same time showed no significant change in the size of the brain lesion. (R. 285-86).

On May 20, 1999, Dr. Diamond examined Plaintiff and started her on Vivactil and Indocin. (R. 229). Four days later, Plaintiff told Dr. Diamond that she was "overall doing well," but that over the previous four days, she had had one headache at a pain level of 7 to 8 out of 10, and one headache at a level of 5 out of 10. (Id.). On June 3, 1999, Dr. Diamond took Plaintiff off Indocin because of the side effects (muscle weakness, loss of energy, drowsiness, stomachaches and heartburn), but kept her on Vivactil and added Midrin. (R. 228). Shortly thereafter, on June 23, 1999, Dr. Diamond switched Plaintiff to Vioxx, along with Tylenol #3 as a "rescue drug." (Id.). By August 12, 1999, Plaintiff reported she "feels great" on the Vioxx, but had experienced five severe headaches that left her bedridden, and was still having one mild headache per week. (R. 227). The following month, she called Dr. Diamond for medication refills, and reported having headaches once a week. (Id.).

At her next appointment on November 16, 1999, Plaintiff told Dr. Diamond that she was having one to two severe headaches and one to two mild headaches per week. (R. 226). For the previous two weeks, she had woken up in the middle of the night with a headache. (Id.). Dr. Diamond increased her Vivactil and continued her on Vioxx and Tylenol #3. (Id.). Plaintiff returned to Dr. Rosseau on November 23, 1999, and reported that her headaches "are currently well tolerated on the medications prescribed by Dr. Diamond," including Vivactil and Vioxx. (R. 270). An MRI taken that day showed no significant change in the size of the lesion, and Dr. Rosseau instructed Plaintiff to return in six months. (R. 270, 284).

Three days later, on November 26, 1999, Plaintiff told Dr. Diamond that she was experiencing an increase in headache frequency due to "family stress," and she requested more Tylenol #3. (R. 226). Dr. Diamond increased Plaintiff's Vivactil at that time. (Id.). On February 4, 2000, Plaintiff complained of headaches at a level of 5 out of 10, along with nausea and vomiting. (R. 225). Tylenol #3 was not providing any relief, so Dr. Diamond prescribed Vicodin. (Id.). Plaintiff saw Dr. Rosseau for an early follow-up exam on February 18, 2000 due to recurrent headaches that month. (R. 269). An MRI taken that day showed no significant change in the size of the lesion. (R. 269, 282). Dr. Rosseau indicated that Dr. Diamond was treating Plaintiff with prednisone, and urged her to continue in his care. (R. 269). Shortly thereafter, on February 29, 2000, Dr. Diamond noted that Plaintiff was "doing better" since he switched her from a generic form of Vivactil back to the brand name. (R. 224). Plaintiff complained of headaches that start around 3 p.m., for which she takes Tylenol #3 and then goes to sleep. (Id.). She complained that the headaches initially go away, but then return in the late evening along with double vision. (Id.). Dr. Diamond prescribed Decadron to help with the pain. (Id.).

At an appointment with Dr. Diamond on July 27, 2000, Plaintiff was "doing well," and reported that Tylenol #3 relieved a headache she had the previous night. (R. 222). By November 16, 2000, Plaintiff was experiencing no severe headaches, and three to four mild to moderate headaches per week. (R. 221). On March 27, 2001, Dr. Rosseau observed that her headaches were "much improved," and she "has them perhaps 3 times a week and they are well controlled with the medications prescribed by Dr. Diamond." (R. 268). Dr. Rosseau found Plaintiff to be stable, and noted that there was a decrease in size of the right cavernous sinus lesion. (R. 268, 280-81).

In May 2001, Plaintiff told Dr. Diamond that she was having three to four moderate to severe headaches per week, but was "able to abort" them with medications. (R. 220).

When Plaintiff saw Dr. Diamond on November 8, 2001 (approximately seven weeks before her DLI of December 31, 2001), she reported having "the best summer," without severe headaches. (R. 219). On six or seven occasions, however, she experienced headaches at a level of 7 out of 10, and in the fall she sometimes had headaches twice a week. (Id.). She generally took Tylenol #3 and laid down to treat the pain. (Id.). Dr. Diamond noted that when Plaintiff has a headache, she experiences nausea and sensitivity to light and sound, and that strong smells can trigger her headaches. (Id.).

Plaintiff returned to Dr. Rosseau for a follow-up appointment on March 27, 2002, and reported that was "very pleased with her current headache management by Dr. Seymour Diamond," and that her "headaches are well controlled with Vivactil, occasional Vioxx, and ibuprofen and Tylenol #3 once to twice per week." (R. 257). Dr. Rosseau observed that Plaintiff's most recent MRI dated March 12, 2002 showed that the lesion was "the same size or slightly smaller when compared with the previous study of 3/20/2001." (Id.). She instructed Plaintiff to return in one year. (Id.).

On June 18, 2002, Plaintiff told Dr. Diamond that she was still having headaches two to three times a week at a level of 5 to 7 out of 10. (R. 218). She said that she could stop the headaches with Vioxx, ibuprofen, Tylenol #3 and rest. (R. 217-18). On November 5, 2002, Plaintiff reported she was experiencing an average of two migraines a week at a level of 5 to 6 out of 10. (R. 217). Dr. Diamond continued her on Vivactil, Vioxx and Tylenol #3. (Id.).

At her annual visit with Dr. Rosseau on May 6, 2003, Plaintiff reported doing well until approximately April 20, 2003, when she developed "spontaneous diplopia" that "was associated several days later with a sudden headache in the back of her head." (R. 253).

Plaintiff did not have a headache at the time of the exam, but Dr. Rosseau noted that an MRI taken that day showed an increase in the size of the lesion. (Id.). When Plaintiff returned to Dr. Rosseau's office on May 23, 2003, Dr. Kenneth Heiferman indicated that her headaches were stable and she had no new complaints. (R. 251).

On August 7, 2003, Plaintiff told Dr. Diamond that she was experiencing three severe headaches per week. (R. 213). Nine months later, on April 27, 2004, she still reported having two to three severe headaches per week. (R. 211). On June 22, 2004, however, the headaches were increasing in frequency and she was having difficulty getting them under control. (R. 210). In July 2004, Plaintiff reported stress associated with her father being in hospice and complained of a constant headache. (R. 209). The headaches were also more frequent in September and November 2004. (R. 208-09).

On February 23, 2005, Dr. Diamond questioned, "HA [headaches] better overall?" (R. 207). At a subsequent visit on September 27, 2005, Plaintiff's headaches were better, but she was still having them three to four times per week. (R. 205). Dr. Diamond's final note of April 10, 2006 indicates that Plaintiff was having about four to five headaches per week, and was sensitive to light, sound and smells. (R. 204).

3. Agency Reviewing Physicians

On November 1, 2006, Donald MacLean, Ph.D., completed a Psychiatric Review Technique of Plaintiff for the Bureau of Disability Determination Services ("DDS"). (R. 311-23). Dr. MacLean found insufficient evidence of any mental impairment or related functional limitations, and concluded, "[e]vidence is insufficient to establish a disability prior to [Plaintiff's] date last insured." (R. 311, 321, 323). Also on November 1, 2006, Dr. Marion Panepinto completed a Request for Medical Advice for DDS. (R. 308-310). Like Dr. MacLean, Dr. Panepinto concluded that "[t]he medical evidence in file appears insufficient to indicate a finding of disabled can be made prior to DLI of 12/31/01." (R. 310). On February 20, 2007, Dr. Terry Travis affirmed Dr. Panepinto's evaluation. (R. 325-27).

B. Plaintiff's Testimony

At the January 8, 2008 hearing before the ALJ, Plaintiff testified that she began to experience headaches and double vision in 1996, leading to brain surgery in August of that year. (R. 19). She was diagnosed with a tumor on her optical nerve that cannot be removed. (R. 34). Prior to the surgery, Plaintiff worked as a teacher's aide. (R. 17). She resumed working from December 1996 to June 1997, but she had to make accommodations for her condition by skipping lunch and going into a dark room. (R. 18, 41-42). Plaintiff's contract was not renewed for the following school year, and she was unsuccessful in finding other ...

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