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Gilmour v. Colvin

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

August 3, 2016

CAROLYN W. COLVIN, Acting Commissioner of the U.S. Social Security Administration, Defendant.



         Claimant Kathleen Gilmour (“Claimant”) seeks judicial review under 42 U.S.C. § 405(g) of a final decision of Defendant Commissioner of the Social Security Administration (“SSA”) denying her claim for Social Security Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”). See 42 U.S.C. § 423. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons that follow, Claimant’s motion for summary judgment [11] is granted and the Commissioner’s motion is denied [20].

         I. BACKGROUND

         A. Procedural History

         Claimant filed a Title 2 DIB application on April 7, 2011 alleging an onset date of April 1, 2003 due to depression, chronic pain, fatigue, Fibromyalgia (“FMS”), and loss of cognition. (R. 271-82.) The application was denied initially on June 8, 2011 and upon reconsideration on October 18, 2011. (R. 128-29.) After both denials, Claimant filed a hearing request on December 9, 2011 pursuant to 20 C.F.R. § 404.929 et seq. which was scheduled on January 14, 2013 before an Administrative Law Judge (“ALJ”). (R. 43-67, 149-50.) Claimant did not offer testimony at that hearing and another hearing was scheduled on June 5, 2013. (R. 68-127.) Claimant appeared for her hearing along with her representative. (R. 43-127.) A Vocational Expert (“VE”), Medical Expert (“ME”), and Psychological Expert (“PE”) were also present to offer her testimony. (Id.) On June 28, 2013, the ALJ issued a written determination finding Claimant not disabled and denying her DIB application. (R. 15-36.) Claimant sought review by the Appeals Council (“AC”), which was granted. On November 25, 2014, and after a review of the record, the AC issued a written decision upholding the ALJ’s findings. (R. 4-6.) The AC adopted the ALJ’s findings at every step of the sequential evaluation. (R. 5.)

         B. Medical Evidence

         Claimant’s record contains medical evidence from West Suburban Hospital Medical Center that date back to May 9, 1995. (R. 1137.) She complained of pain in her lower back and legs. (Id.) The attending physician, Dr. Max Harris, opined that Claimant suffered from FMS. (Id.) Claimant next visited Dr. Harris on March 13, 1997 due to continuing pain in her shoulder and right arm. (R. 1143.) A physical examination returned mostly normal results, as she had normal range of motion, flexion, and extension in her arm and shoulders. (Id.) Claimant continued to visit Dr. Harris through October 6, 2003. (R. 397.) Throughout his treatment of Claimant, Dr. Harris continued to diagnose Claimant with FMS. (R. 1154.)

         Claimant continued to have pain and flare-ups and began acupuncture therapy with Dr. Jeffrey Oken as early as 2001. (R. 1167.) Records indicate that Claimant first visited the Marianjoy Medical Group (“Marianjoy”) on July 26, 2002 due to radiating pain in her left arm. (R. 353.) Claimant was treated mainly by Dr. Oken. (Id.) A physical examination indicated that she had limited abduction in the left shoulder. (Id.) Her grip strength on the left side was at 20 pounds and 60 pounds on the right side. (Id.) She was advised to continue her prescribed medication regimen, which included Flexeril and Vicodin. (Id.)

         An MRI of her left shoulder taken on July 22, 2002 indicated small joint effusion. (R. 491.) An MRI of her cervical spine on August 2, 2002 found no significant abnormalities in her spine. (R. 490.) On September 10, 2002, Claimant reported a decreased range of motion in her left shoulder. (R. 593.) She was prescribed an aggressive anti-inflammatory therapy for the shoulder. (Id.) On April 24, 2003, Claimant reported feeling “considerably better.” (R. 399.)

         On August 27, 2002, Claimant visited the Hinsdale Orthopaedic Associates (“Hinsdale”) at the referral of Dr. Oken for treatment of her progressive shoulder pain. (R. 370.) She was given an injection in her shoulder and a brace for Carpal Tunnel Syndrome. (Id.) She was also prescribed Vicodin to ease her pain. (Id.) She began physical therapy on September 5, 2002. (R. 372.) Claimant’s progress during physical therapy fluctuated as she reported improvements on some days and increased pain in others. (R. 372-388.) During her later visits in October 2003, Claimant continued to report burning and tightening of her shoulders and arm pains. (R. 387.) Her supervised physical therapy ended on October 15, 2003, and she was to begin a home exercise program. (R. 387-88.)

         Claimant visited Marianjoy again on February 20, 2003. (R. 351.) She indicated that her pain worsened in the previous weeks. (Id.) She was diagnosed with FMS and “frozen shoulder.” (R. 352.) On March 27, 2003, Claimant returned to Marianjoy and underwent a medical acupuncture procedure on her cervical spine. (R. 350.) It was noted that she tolerated the procedure well and she was advised to return to continue the procedure. (Id.) On April 30, 2003, Claimant had an EMG performed at Marianjoy. (R. 348.) After a review of the EMG, Dr. Oken opined that Claimant had radicular pain syndrome, “not manifesting on EMG, but causing her significant pain, ” and suggested that she continue physical therapy. (R. 349.)

         Claimant first visited the Chiropractic Healing Center (“CHC”) on July 7, 2005 to seek treatment for her spine. (R. 852.) The treating physician noted that she had decreased cervical spine rotation and suggested that she return for chiropractic therapy. (Id.) Claimant received near weekly therapy sessions at CHC through May 5, 2011. (R. 1021.) Treatment notes from CHC indicate that Claimant’s progress fluctuated and there were certain days where her pain was much more severe than other days. (R. 872, 885, 900, 965.) She would also present with new issues on occasion, such as new pain in her neck and thighs. (R. 913, 946.) Generally, the treating practitioner considered her prognosis to be “good.” (R. 873, 913, 1008.)

         Medical records show that Claimant was treated by Dr. Yolanda Co since 2003 for FMS and depression. (R. 459.) The treatment notes indicate that she provided Claimant with routine checkups and examinations and regularly prescribed Vicodin. (R. 450-460.)

         Since April 25, 2009, Claimant has seen Dr. Keri Topouzian, who specializes in thyroid disorders. (R. 547.) During her April 25, 2009 visit, Dr. Topouzian noted that Claimant complained of FMS, chronic fatigue, and “brain fog.” (Id.) Dr. Topouzian noted that Claimant suffered from a hormone imbalance and suggested additional diagnostic tests. (R. 566.) Claimant continued to visit Dr. Topouzian through April 8, 2011. (R. 620-21.) Much like the findings at CHC, Claimant’s progress fluctuated greatly. On May 20, 2009, she was diagnosed not only with FMS but with Lyme Disease. (R. 564.) Claimant continued to visit Dr. Topouzian for help in treating her FMS, fatigue, and Hashimoto’s disease, a form of thyroiditis. (R. 554, 550, 552.) Claimant continued to see Dr. Topouzian for her various conditions including bloating, leg pain, and sinus infections. (R. 535, 648.) On January 21, 2010, Claimant reported feeling depressed and suffering from crying spells lasting five days. (R. 529.) Dr. Topouzian diagnosed her with seasonal affective disorder and depression. (Id.)

         On March 3, 2010, Dr. Gail Rosseau of the Northshore University Medical Group (“Northshore”) conducted a neurological evaluation due to Claimant’s complaints of head pain. (R. 691.) He reviewed an MRI of Claimant’s brain and found that she had a frontal tumor that she believed was meningioma, a non-cancerous tumor. (Id.) An April 23, 2011 neurological evaluation yielded no change in Claimant’s chronic mild headaches. (R. 689.) Dr. Rosseau noted that Claimant had good power in all extremities, a normal gait, and normal balance. (Id.)

         On June 11, 2012, Claimant returned to Marianjoy and underwent a physical evaluation. (R. 1044.) After the evaluation, Claimant was found to have mobility dysfunction secondary to FMS, depression, chronic pain syndrome, and myofascial pain syndrome. (R. 1048.) On June 25, 2012, she entered into a comprehensive pain program at Marianjoy, which included treatment in the form of physical therapy, psychology, biofeedback and education. (R. 1093-94.) Her progress throughout the program fluctuated, as did her symptoms. On June 29, 2012, she reported feeling increased morning pain and was almost unable to return to therapy. (R. 1062.) On July 16, 2012, she reported feeling much better but that her pain level is at an eight out of ten. (R. 1077.) On July 25, 2012, Claimant stated that she had increased pain in her upper back region and increased neck tightness. (R. 1088.) She was given trigger point injections to treat her myofascial pain syndrome. (R. 1090.) On August 1, 2012, she was discharged from pain management therapy. (R. 1100.) She was prescribed pain medication and advised to do aqua-therapy two times a week for eight weeks. (Id.)

         On January 4, 2013, Melanie Weller, a clinical counselor, wrote a statement regarding her treatment of Claimant’s mental impairments. (R. 1122-1123.) Ms. Weller indicated that she had been treating Claimant since March 24, 2011 for her depression and anxiety, both of which she opined were related to her FMS. (R. 1122.) She further indicated that Claimant was able to detox off of her pain medication. (Id.) However, Ms. Weller opined that Claimant’s pain could still be chronic at times and less so at other times. (Id.) She further stated that “her intermittent sleep/pain problems leave her unable to function well during mornings and sometimes whole days.” (Id.) Ms. Weller stated that Claimant’s depression was in part due to her inability to return to a normal life because of her pain. (Id.) As a result, Ms. Weller noted that she “d[oes] not see how [Claimant] can hold a job with any regularity.” (Id.)

         C. Claimant’s Testimony

         Claimant was present at both the January 14, 2013 and June 5, 2013 hearing, but only offered testimony on June 5, 2013. (R. 95-127.) She testified that from the relevant disability period between 2003 through 2005, she did not work. (R. 95-96.) Claimant further testified that she had been treated for depressive episodes in the 1980’s and sought treatment from 35 to 50 doctors while working. (R. 96.) She returned to school during the spring of 2004 and saw both Dr. Harris, her rheumatologist, and Dr. Cullany, a treating physician. (R. 100, 103.) Claimant explained that she visited Dr. Harris once to twice a year, and he would refer her to Dr. Cullany, who treated her for her FMS. (Id.) Dr. Cullany prescribed Lexapro for her depression but she testified that she felt “terrible” while taking it. (R. 101.) Claimant further testified that Dr. Cullany ...

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