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Newcomb v. Colvin

United States District Court, N.D. Illinois, Eastern Division

January 21, 2015

AMY NEWCOMB, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Amy S. Newcomb, Plaintiff: Barry Alan Schultz, Law Offices of Barry Schultz, Evanston, IL.

For Carolyn W. Colvin, Defendant: Kathryn Ann Kelly, LEAD ATTORNEY, AUSA-SSA, United States Attorney's Office (NDIL), Chicago, IL.


SIDNEY I. SCHENKIER, United States Magistrate Judge.

Amy Newcomb seeks an order reversing and remanding the Commissioner's decision denying her claim for disability benefits (doc. # 18), and the Commissioner has filed a motion asking the Court to affirm (doc. # 22). For the reasons that follow, we grant Ms. Newcomb's request to remand and deny the Commissioner's motion to affirm.


In applying the familiar five-step sequential inquiry for determining disability, see 20 C.F.R. § 404.1520(a)(4)(i)-(v), the ALJ found at Step 2 that from Ms. Newcomb's alleged onset date of September 1, 2008, through her date last insured of June 30, 2010, Ms. Newcomb suffered from the severe impairments of narcolepsy, anemia and fibromyalgia (R. 20). The ALJ reviewed the Paragraph B criteria as to Ms. Newcomb's alleged depressive disorder and found that she had no limitations in activities of daily living and social functioning, and only mild limitation in concentration, persistence or pace as related to her mental impairment, as well as no episodes of decompensation (R. 21). Rather, the ALJ stated that Ms. Newcomb's difficulties in these areas resulted from her narcolepsy condition (Id.). Thus, the ALJ found that Ms. Newcomb's alleged depressive disorder was not a severe impairment (Id.). The ALJ then determined, at Step 3, that Ms. Newcomb's impairments did not meet or medically equal a Listing (R. 22). However, in so doing, the ALJ only specifically addressed Ms. Newcomb's fibromyalgia, for which the ALJ noted there was a lack of evidence of ineffective ambulation and numerous unremarkable diagnostic and physical examinations in the record (R. 22). The ALJ's Step 3 discussion omitted any mention of Ms. Newcomb's other severe and non-severe impairments.

The ALJ then set out to determine Ms. Newcomb's residual functional capacity (" RFC"). The ALJ reviewed Ms. Newcomb's allegations that she has significant difficulty performing general tasks due to experiencing confusion, pain, lack of concentration and " brain fog" twice per week (R. 23). In addition, the ALJ noted that Ms. Newcomb testified that she suffers from ten to fifteen migraine headaches per month, some of which preclude significant activity for " numerous days 2-3 times per month" (Id.). At her hearing on April 23, 2012, Ms. Newcomb testified that she stopped working in 2008 because her lethargy and brain fog made it difficult for her to concentrate and remember things, and it took her all afternoon to do a thirty minute project (R. 48-49, 51). Ms. Newcomb takes Cymbalta, which helps address her brain fog and depression, as well as her fibromyalgia (R. 58). Ms. Newcomb also testified that while she gets injections (Imitrex) to help with her migraines, if she does not catch the migraine in time she becomes nauseated and vomits (R. 53-55).

The ALJ found Ms. Newcomb's statements concerning the intensity, persistence and limiting effects of her symptoms " not entirely consistent with the overall record" (R. 24). He stated that he had given Ms. Newcomb's hearing testimony " the greatest allowable consideration, " but that he could not rely " solely" on the testimony because " it must necessarily be supported by objective, clinical medical evidence" (Id.).

The ALJ noted that in October 2009, Ms. Newcomb was diagnosed with narcolepsy and anemia, and she has a history of daytime fatigue resulting from recurrent cycles of hypersomnia (excessive sleepiness) alternating with insomnia (sleeplessness) (R. 24-25). Dr. Philip Leung, consulting for a sleep study, opined that Ms. Newcomb's sleep problems were mostly related to psychiatric issues, including depression and anxiety (R. 267-68). After a sleep study in December 2012, Dr. Leung opined that the study was compatible with narcolepsy and recommended treatment for that as well as hypothyroidism, depression and chronic pain (R. 281). However, the ALJ found that no psychiatric issues were established or identified (R. 24).

In addition, the ALJ described Ms. Newcomb's treatment prior to the date last insured as " routine and conservative in nature" (R. 25). The ALJ noted that Ms. Newcomb's mental health treatment prior to her date last insured was minimal and not well-documented in the record, and though her primary physician prescribed Cymbalta (which may be used to treat depressive and anxiety disorders), it was primarily used to treat her fibromyalgia (Id.). In addition, while Ms. Newcomb was hospitalized for two days in October 2009 due to altered mental status and hallucinations stemming from lack of sleep for three days, neurological testing was normal and she had only minimal signs of impaired thought process or notable depression (R. 24, 309, 320).

The ALJ also reviewed the progress notes of Ms. Newcomb's treating physician, Dr. Abhinav Singla, whom she saw regularly. In March 2009, Dr. Singla noted that Ms. Newcomb was depressed and spent most of her days watching television and sleeping, and he prescribed Wellbutrin (R. 259-60). The ALJ noted that Ms. Newcomb's complaints of insomnia, fatigue, difficulty concentrating, and fibromyalgia joint pain increased throughout 2009, but that on June 22, 2010, Ms. Newcomb reported " a 'tremendous' increase in energy due to medication titration, " and her treating physician thought she looked " great" (R. 25). Medical notes from August 2010 and Ms. Newcomb's hearing testimony confirmed that she was doing well with her medications (R. 25).

In determining Ms. Newcomb's RFC, the ALJ largely adopted the physical RFC opinion of Dr. Ashok Jilhewar, who reviewed the medical record in April 2012 at the request of the Social Security Administration (R, 390). The ALJ, like Dr. Jilhewar, found that Ms. Newcomb had an RFC that permitted her to perform sedentary work, except that she could: stand or walk for thirty minutes at a time; frequently operate foot controls, reach in all directions, handle, finger, feel, push/pull and climb ramps; occasionally balance, stoop, kneel, crouch, crawl, climb stairs and operate a motor vehicle; and frequently tolerate exposure to unprotected heights, dangerous moving machinery, humidity and various pulmonary irritants (R. 22). In addition, due to her daytime fatigue, the ALJ further limited Ms. Newcomb to " understanding and remembering simple instructions to perform simple, routine, and repetitive tasks in work environments that are not fast-paced and that do not require a production rate race, as on an assembly line" (R. 22-23). The ALJ determined that this last limitation " adequately accommodated" Ms. Newcomb's mild limitation in concentration, persistence or pace resulting from her depressive disorder (R. 24).

The ALJ found that " [t]here are no opinions in the records from any treating medical sources, " but that the " reports from numerous examining and treating physicians" do not support greater limitations than those assessed in the RFC (R. 26).[2] He gave " minimal weight" to a December 2010 non-examining state agency assessment which found, with no discussion, no medically determinable physical impairments other than non-severe hypertension (Id., citing R. 369-71). The record also contains a Psychiatric Review Technique Form (" PRTF") from December 2010, but that form's mental RFC questions were left blank, and the non-examining state agency physician checked the box indicating that ...

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