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Luna v. Colvin

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

August 17, 2016

Angel Michelle Rose Luna, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          IAIN D. JOHNSTON MAGISTRATE JUDGE

         Plaintiff Angel Michelle Rose Luna brings this action under 42 U.S.C. §405(g), challenging the denial of social security disability benefits.

         BACKGROUND

         In 2010, when she was 19 years old, plaintiff filed applications for disability benefits and supplement security income. She alleged that she has ongoing pain in her knee stemming from two surgeries, one in 2003 and one in 2004, and shoulder, neck, and back pain from a 2005 car accident. Dkt. #27 at 4. These problems continued and, in 2010, she had thoracic outlet surgery and first rib resection.[1] The surgery was performed by Dr. Zarnke who prescribed various pain medications. Dkt. #27 at 6. Plaintiff also has alleged that she suffers from anxiety and migraine headaches, the latter problem began around April 2011. In the summer of 2012, plaintiff began treatment with a neurologist, Dr. Lawrence Wilkin. Id. at 7. He prescribed pain medications for plaintiff’s migraines, but they made her feel “foggy.” In letter dated October 12, 2012, Dr. Wilkin opined that plaintiff had suffered severe and disabling pain “over the last eight years without any improvements” and that she is “completely and totally disabled from any occupation.” R. 462.

         On May 21, 2013, a hearing was held before an administrative law judge (“ALJ”). Plaintiff testified that she graduated from high school and had four months of college education; that she had two knee surgeries; that she was in a car accident in 2005 and another one in 2008; that she had surgery (performed by Dr. Zarnke, an orthopedist) in 2010; that she last worked as a nursing assistant but was fired in December 2009 for working “at a slower pace”; that she has shooting pain going from her left shoulder into her arm; that if she walks half a block it feels like her lung is caving in “where [her] rib is gone”; that Dr. Zarnke told her a few months after the surgery that there was nothing more he could do to address the pain; that she then saw Dr. McCarty, an orthopedist, who told her that she did not need any further surgery and that plaintiff was “going to [have to] live with” her problems; that she then began seeing Dr. Wilkin who “prescribed [her] a lot of medicine that’s made it a lot better”; that she gets migraine headaches lasting anywhere from one to five days; that after she started taking Topamax for the headaches, they occurred once or twice a week; that she has two children, a one and five years old; that her mom and husband do most of the child care; and that she has trouble playing with her children.

         During this testimony, the ALJ asked plaintiff about two alleged discrepancies that had “caught [his] attention” and would later become key anchor points in his ALJ’s decision. R. 97.

         The first concerned a motorcycle ride. Here is the testimony, with the ALJ asking the questions:

Q Let me bring something to your attention. It’s from August, of 2010. It’s at Exhibit 3-F. It was when you were still going to the Pain Center.
She happens to mention that you got pain from the top of the shoulder, the trapezius muscle, that went down to your waist. It stopped at the mid-biceps and the elbow; but it was the way that the specialist wrote it down that caught my attention.
She mentioned that you had the discomfort when you were riding a-on a motorcycle for a ride.
A Yes.
Q So I don’t know if you remember saying that. []
CLMT: Yes. I do remember saying that. My brother had got a new motorcycle. He lives right across the street, and we live on a dead-end. He’s, like, you know, do you want to get on and try to ride. I’m, like, well, okay. And we rode to the stop sign.
When I-his bike seat sat taller than his seat. So I’d have to lean down over him, and I couldn’t do it. My arms started to shake. It sent a shooting pain from my elbow up the back of my arm and into my shoulder and one from rotator cuff up into my neck. It runs, like, right behind my ear.
Because she had asked what movements are worse, or have you noticed anything now than you had before.
BY THE ADMINISTRATIVE LAW JUDGE:
Q Okay. So this is not something you were making a habit of; it just happened to be an isolated occasion. Correct?
A Yes. My family was trying to find something that I would enjoy doing with the problems I had, and I ...

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