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Ocasio v. Astrue

United States District Court, Northern District of Illinois, Eastern Division

January 9, 2015

MICHAEL J. ASTRUE [1], Commissioner of Social Security, Defendant.



Plaintiff Valerie M. Ocasio (“Ocasio”) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her claim for disability insurance benefits. Ocasio asks the court to reverse the Commissioner’s decision and remand the case to the Social Security Administration (“SSA”). The government filed a cross-motion for summary judgment based on the same arguments it raised in its response to Ocasio’s motion for summary judgment. For the reasons stated below, Ocasio’s motion [18] is granted and the government’s motion [24] is denied.

I. Procedural History

On May 5, 2009, Ocasio filed a claim for disability insurance benefits under Title II of the Social Security Act. She alleged a disability onset date of January 22, 2009. On October 7, 2009, the SSA denied Ocasio’s claim. On January 14, 2010, the claim was denied again upon reconsideration. A hearing was held before Administrative Law Judge Lovert Bassett (“ALJ”) on October 1, 2010. The ALJ denied Ocasio’s benefits on November 22, 2010, and on January 10, 2012, the SSA Appeals Counsel denied Ocasio’s request for review of the ALJ’s decision, rendering the Commissioner’s decision final.

After exhausting her administrative remedies, Ocasio filed a complaint in federal court. In support of her motion for summary judgment, Ocasio raises three arguments: (1) the ALJ failed to weigh properly the medical opinions of her treating physicians and the medical expert (“ME”) who testified at her hearing before the ALJ, (2) the ALJ failed to evaluate Ocasio’s credibility properly, and (3) the ALJ relied upon flawed vocational expert (“VE”) testimony that did not take all of her medical conditions into consideration. The government filed a cross-motion for summary judgment, arguing that the court should affirm the Commissioner’s decision because it was supported by substantial evidence.

II. Factual Background[2]

A. Ocasio’s Medical Treatment History

In 1989, Ocasio sustained a fractured cervical vertebrae and right pelvis as a result of a car accident. (R. 587.) The medical issues she bases her disability benefits claim upon are more recent, however. The neck and back pain she complains of reportedly began in 2004. (Id.) She began seeking treatment for her pain in 2007. Because Ocasio’s medical treatment records are voluminous, the court summarizes the relevant history below.

1. Taylor Rehabilitation and Wellness Centers

From February to March 2007, Ocasio sought treatment at Taylor Rehabilitation and Wellness Centers (“Taylor”), a chiropractic center. She presented at Taylor reporting neck and back pain symptoms and received ultrasound therapy for her pain. The medical records provided by Taylor do not indicate why Ocasio stopped receiving treatment at Taylor, although they do indicate that her pain was intermittent, varied in severity, and that she received some treatment for the pain. (See R. 288-312.)

2. Advocate Health Centers

On January 14, 2009, Ocasio presented at Advocate Health Centers reporting neck and shoulder pain, as well as depression. (R. 518.) Her treating physician prescribed Sertraline, a selective serotonin reuptake inhibitor (“SSRI”) commonly prescribed to treat depressive and anxiety disorders.[3] (Id.) At her January 26, 2009 appointment, Ocasio reported that her pain “prevented [her] from working.” (R. 519.)

Around the same time, on January 22, 2009, Dr. Dudek at Weiss Memorial Hospital saw Ocasio for a “consultation.” (R. 419.) In April 2009, Dr. Dudek recorded that “[Ocasio] is tender [illegible] most of the 28 fibromyalgia point[s].” (R. 421.)[4] According to the government, Dr. Dudek “wanted to rule out fibromyalgia” and “started her on Cymbalta [duloxetine], ” a drug that is prescribed to treat depression and generalized anxiety disorder, as well as pain from fibromyalgia.[5] (R. 24.) Dr. Dudek wrote in the same report that he believed Ocasio’s “pain is out of proportion to her X-ray.” (R. 422.)

3. Chicago Institute of Neurosurgery and Neuroresearch

In addition to seeking treatment with Advocate Health Centers, Ocasio also sought treatment at Chicago Institute of Neurosurgery and Neuroresearch (“CINN”). On January 29, 2009, she saw Dr. Stadlan, and reported constant pain over the prior two years, especially while working at a desk. (Id.) Ocasio also reported taking Vicodin several times a day, and also taking tramadol, Flexeril, and ibuprofen.[6] (Id.) Upon examination, Dr. Stadlan noted an “unremarkable” neurologic examination. He opined that her pain seemed to be “musculoskeletal [rather] than anything discogenic.” (Id.) He recommended physiatry and physical therapy to treat her pain. (Id.)

At the request of Dr. Stadlan, Ocasio also saw Dr. Villoch in the physiatry department at CINN. (R. 467.) Dr. Villoch noted that at the time of her examination, Ocasio was taking the following medications: cyclobenzaprine, tramadol, Vicodin, Ortho Evra, sertraline, Lidoderm, and ibuprofen.[7] She prescribed Ocasio Vicodin and instructed her to discontinue taking tramadol. (R. 469.) She also noted Ocasio was “quite tearful . . . in the examination room secondary to being frustrated with the situation.” (R. 468.) After examining Ocasio, Dr. Villoch concluded, “there is a component of both cervical facet-mediated pain as well as possible left shoulder pathology.” (R. 468.) She created a plan to administer cervical facet injections to Ocasio to treat the pain. (Id.) Dr. Villoch also ordered MRI testing. (Id.)

On February 27, 2009, an MRI revealed that Ocasio had “rotator cuff tendinopathy . . . without evidence of rotator cuff tear” and a small joint effusion. (R. 463.) Ocasio followed up with Dr. Villoch on March 11, 2009. (R. 482.) Ocasio reported that pain in her shoulder and neck had begun to be aggravated by overhead activities, such as washing her hair. (Id.) She also reported that physical therapy aggravated her symptoms. (Id.) At this appointment, Dr. Villoch administered a steroid (facet) injection to Ocasio’s left shoulder.

On April 24, 2009, Ocasio underwent a behavioral medicine consultation at CINN. (R. 434.) Dr. Kostas, the psychologist who evaluated her, noted that Ocasio reported that her internist, Dr. Lee, had diagnosed Ocasio with fibromyalgia and prescribed Cymbalta, which Ocasio could not tolerate. (Id.) As a result Ocasio reported that she had switched back to Zoloft.[8] (Id.) Dr. Kostas evaluated Ocasio in part using the Beck Depression Inventory, on which she scored a 30, indicating moderate to severe depression.[9] (Id.) On the Hospital Anxiety and Depression Scale, she scored 16 on anxiety (severe), and 11 on depression (moderate). (Id.) According to Dr. Kostas, these scores were consistent with Ocasio’s subjective experience of emotional distress. (Id.) Dr. Kostas also observed:

[T]he interview suggests that much of Mrs. Ocasio’s current level of depression and anxiety stems not only from her pain and from the ways in which it has prevented her from living a full and productive life, but also from her interpretation of the pain when it increases in its severity.


Ocasio followed up with Dr. Villoch again on April 29, 2009, at which point Dr. Villoch recommended increasing the dosages of Ocasio’s Zoloft and Xanax. Consistent with Dr. Kostas’s findings, Dr. Villoch’s treatment notes indicate that Dr. Villoch believed “there is a significant, very strong component of depression and anxiety that is heightening the patient’s perception of her pain.” (R. 480.)

4. Dr. Stanley Tomczyk

On August 26, 2009, Ocasio met with another treating physician, Stanley Tomczyk. (R. 580.) In his report, Dr. Tomczyk noted that Ocasio was following up for her pain, and that she had seen multiple physicians before presenting at his practice. (Id.) Dr. Tomczyk recorded that Ocasio was on several medications: ibuprofen, alprazolam, Zoloft, diazepam, vicodin, and a lidocaine patch.[10] (Id.)

Dr. Tomczyk’s final assessment of Ocasio consisted of the following:

(1) Cervical Syndrome/Possible Fibromyalgia. The patient was given [Neurontin] 300 mg. May consider TENS and acupuncture versus also injection on next visit. (2) Anxiety and depression. The patient was given Pristiq . . . . (3) The patient is on multiple medications. We discussed addiction problems considering benzodiazepines and Vicodin.

(R. 581.)[11]

Ocasio followed up with Dr. Tomczyk on September 16, 2009. Ocasio reported improvement as a result of her Seroquel prescription. (R. 621.) Dr. Tomczyk’s assessment stated that Ocasio reported that some of her pain had improved since her last visit with him, but that “[Ocasio] does have some tender points and muscle spasms along [her] side.” (Id.) He applied TENS to treat her pain. His assessment also noted Ocasio’s anxiety and Dr. Tomczyk’s recommendation that she follow up with a psychiatrist.

In a letter dated January 27, 2010, that was sent to Ocasio’s retained law firm, Dr. Tomczyk wrote that Ocasio had diagnoses of “cervical syndrome, fibromyalgia and a rotator cuff tear. Because of these conditions she has difficulty sitting for a prolonged period of time and limited range of movement of her neck.” (R. 637.)

5. Dr. Joanna Poniatowicz

On December 7, 2009, Ocasio saw Dr. Poniatowicz, a psychiatrist. (R. 735.) Ocasio reported anxiety, depression, and continued neck pain to Dr. Poniatowicz. (Pl.’s Memo. at 4, ECF No. 19.)[12] According to plaintiff, Dr. Poniatowicz diagnosed depressive disorder. (Id.) Over the course of the next several months, as Ocasio reported increased anxiety and panic attacks as well as continued pain, Dr. Poniatowicz diagnosed Ocasio with generalized anxiety disorder and fibromyalgia. (Id.) Dr. Poniatowicz also prescribed Ocasio additional medications, including Effexor, Xanax, Valium, Klonopin, Savella, and Topamax.[13] (Id.)

On May 1, 2010, Dr. Poniatowicz completed a psychiatric/psychological impairment questionnaire at the request of Ocasio’s attorneys. (R. 737.) Dr. Poniatowicz reported that she diagnosed Ocasio with major depressive disorder and anxiety. The parties dispute whether Dr. Poniatowicz rated Ocasio’s GAF (Global Assessment of Functioning) at a 40 or 90, and the treatment notes are illegible. (Pl.’s Memo. at 5, ECF No. 19.) Plaintiff asserts that Ocasio’s primary symptoms, according to Dr. Poniatowicz, were depressed mood, crying spells, and anhedonia. (Id.) She also stated that Ocasio had marked limitations due to: personality change; mood disturbance; emotional lability; anhedonia (pervasive loss of interests); feelings of guilt/worthlessness; difficulty thinking or concentrating; social withdrawal or isolation; blunt, flat, or inappropriate affect; and decreased energy. (R. 739.)

6. North Shore University Health System (“North Shore”)

Ocasio began seeking care at North Shore on March 4, 2010, for pain management. (R. 749.) According to plaintiff, the examination “noted decreased range of motion in the neck, tenderness in the left upper quadrant of the back, and decreased motion in the shoulder.” (Pl.’s Memo. at 6, ECF No. 19.) On May 6, 2010, doctors at North Shore prescribed Voltaren, Opana ER, and Tapentadol to Ocasio.[14] (Id.)

7. Dr. Myers

Ocasio saw Dr. Myers, a rheumatologist. In a letter dated February 18, 2010, Dr. Myers discussed Ocasio’s reports that Ocasio had experienced neck pain for the past three to five years and failed to respond to multiple therapies, including physical therapy, chiropractic treatment and massage. (R. 654.) Dr. Myers recommended facet injections to help with Ocasio’s pain. She also discussed Dr. Lee’s diagnosis of fibromyalgia and noted that Ocasio had a “poor sleep cycle due to her chronic pain and multiple tender points.” (Id.) Dr. Myers also pointed out to Ocasio that she was “on . . . the right type of medications for fibromyalgia.” Dr. Myers examined Ocasio and diagnosed her with (1) neck pain with history of cervical stenosis, (2) fibromyalgia, (3) rotator cuff tendinopathy. (R. 653-654.) She also noted Ocasio’s diagnosis of and treatment for chronic depression and anxiety. (Id.)

8. Dr. Kale

On October 27, 2010, Dr. Kale, a rheumatologist, completed a fibromyalgia impairment questionnaire with respect to Ocasio. (R. 785.) He identified his clinical findings as generalized body pain – tenderness, “fibro fog, ” and non-restorative sleep. (Id.) Dr. Kale listed Ocasio’s primary symptoms as: constant pain, fatigue, dizziness, and decreased cognitive skills. (R. 786.)

B. Hearing Testimony

In addition to review of the extensive medical record, the ALJ heard testimony from Ocasio, a medical expert, and a vocational expert. The relevant portions are described below.

1. Ocasio’s Testimony

Ocasio testified at a hearing before the ALJ on October 1, 2010. She was born in Chicago, Illinois, and attended high school until 1989 but did not graduate. (R. 73.) She had to drop out because of injuries from a motor vehicle accident, although she subsequently obtained her GED. (Id.)

Ocasio most recently worked at Banco Popular. (R. 69.) She stopped working in January 2009. At Banco Popular she processed loan data by inputting it into Banco Popular’s data system. When the ALJ asked why she left her position at Banco Popular, she stated:

Because I’m currently . . . because, due to my car accident [in 1989] that I was in, it left me in basically, after all these years, I came across a lot of – enduring a lot of pain, discomfort. I’ve had a lot of disabilities that I’ve had . . . over the years I did not know I had. I just was having chronic pains, things of that nature, and I followed through with several doctors . . . I found out there was a lot of different things wrong with me, which were a lot of neurological problems with my cervical spine and found out I had depression, anxiety, and basically, that’s what was going on with me.

(R. 73-74.)

She elaborated that when she looked down at documents at work she was “always feeling pain . . . in [her] neck and was feeling stressed and . . . lightheaded, dizzy . . . .” (R. 79.) In addition to recounting her medical diagnoses and treatment history, Ocasio told the ALJ that she has trouble walking, and is only capable of walking “maybe a block, block and a half” because she injured her right knee after falling. (R. 82.) She also testified that she “can’t lift overhead” and that it’s “very, very hard” for her to dress herself or button and unzip clothing. (R. 83.) She stated that her husband helps her dress when he is available to do so but that she only bathes every other day “because of [her] chronic pain and nobody’s [always] there to help [her] get dressed.” (R. 115.)

Ocasio also testified regarding her fibromyalgia diagnosis. She reported experiencing pain throughout her body, and being told she had fibromyalgia by Drs. Poniatowicz, Lee, and Tomczyk. (R. 118.) She treats the fibromyalgia with Cymbalta (duloxetine) and Gabapentin (used to treat, among other things, neuropathic pain)[15], but reports that these medications have not substantially reduced her pain. (R. 119.)

Ocasio also discussed her psychological conditions at the hearing. The ALJ asked Ocasio why she was able to work and handle the pain at one point ...

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