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Thorn v. Berryhill

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

February 27, 2017

Dawn K. Thorn Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1]Defendant.


          Iain D. Johnston United States Magistrate Judge.

         This is an action challenging the administrative law judge's (“ALJ”) denial of social security disability benefits to plaintiff Dawn K. Thorn. See 42 U.S.C. §405(g). Plaintiff alleges that she cannot work because of fibromyalgia and edema.[2] The ALJ found that plaintiff's allegations were not credible and that she could work a full-time sedentary job if allowed to stand for one to two minutes after sitting for three hours. The Court finds that a remand is required to address several unresolved medical questions.


         Plaintiff filed her disability applications on April 24, 2009. A hearing was held on February 24, 2011. Plaintiff and a vocational expert testified, but no medical expert was called to testify. On March 30, 2011, the ALJ issued a 10-page ruling finding that plaintiff's fibromyalgia qualified as a severe impairment, but concluding that she could work a sedentary job if allowed to “stand for 1-2 minutes after sitting for an hour.” R. 29.

         After exhausting administrative remedies, on January 4, 2013, plaintiff filed a complaint in this Court challenging the ALJ's ruling on multiple grounds. Case No. 13-50007. Soon after plaintiff filed her opening brief, the parties filed an agreed motion to remand, which was granted by this Court. See Dkt. #14, 16. On October 22, 2013, the Appeals Council issued a three-page order remanding the case to the ALJ for a new hearing and decision. The Order specifically directed the ALJ to (among other things) “[o]btain additional evidence concerning the claimant's Fibromyalgia.” R. 689. Before a new hearing was held, plaintiff underwent a new consultative examination performed by Dr. Charles J. O'Laughlin on February 27, 2014.

         On July 1, 2014, the same ALJ held a second hearing. Plaintiff and a vocational expert testified. Also, plaintiff's friend testified. Again, no medical expert was called.

         On October 29, 2014, the ALJ issued a second opinion, again finding plaintiff not disabled. Although this opinion was longer (18 pages), it follows the same general outline as the first with a few variations. The ALJ found that plaintiff had the following severe impairments: “obesity, fibromyalgia/polyarthritis/ lymphedema.” R. 552. The ALJ concluded that plaintiff had the residual functional capacity (“RFC”) to perform sedentary work subject to certain restrictions, one of which was that “after sitting for 3 hours she must be allowed to stand for 1-2 minutes.”[3] R. 553. The ALJ's analysis is contained mostly in the following three paragraphs:

I am not persuaded that the claimant's impairments have precluded her from all competitive work activity. Although the claimant has received treatment for the allegedly disabling impairment(s), that treatment has been essentially routine and/or conservative in nature. Given the claimant's allegations of totally disabling symptoms, one might expect to see some indication in the treatment records of restrictions placed on the claimant by the treating doctor. Yet a review of the record in this case reveals no restrictions recommended by the treating doctor in her progress notes. There is also no objective evidence to support the claimant's allegations of “bad days”.
* * *
While the claimant's lymphedema is recognized, it is noted that when she has edema it is mostly “trace” (Exhibit 18F). It is reported in the record that the claimant had edema issues particularly after getting tattoos but continues to keep getting them (Exhibit 18F, pp. 20 and 26). At the hearing, I observed the claimant to have multiple tattoos. Although the claimant allegedly uses a cane twice a week, she did not use the cane during exams at Exhibit 5F, 10F, 14F, and 15F and was noted to have a normal gait. There is no indication in the record that the claimant has to elevate her legs above heart level during the day.
Additionally, the claimant has described daily activities which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations. At one point the claimant stated that she needed help washing her hair but at the initial hearing, I observed that her hair is very long. It is reasonable to assume that if this were a significant problem she would cut her hair in order to relieve herself of this burden. While the claimant complains of difficulty using her lower extremities and hands and testified that she occasionally uses a cane, she has also reported that she drives, fishes, performs daily activities, and uses a computer (Exhibits 5E, 8E, and 9F, p 2). More recently, at the consultative exam in February 2014, the claimant reported that she was able to prepare food, shop, take her child to school and therapy, do housework and drive regularly. The claimant testified that her fibromyalgia has gotten bad lately with flare-ups 2-3 times a week during which she cannot wipe herself after using the restroom and is tired. However, this is not documented in the record and the claimant is seen as functional in that she is not placed in nursing care and does not have a care provider. She also admitted to doing housework and other activities per Exhibit 14F.

R. 562. The ALJ then evaluated the medical opinions, giving “no weight” to the State agency physicians, to plaintiff's treating physician, and to plaintiff's friend. However, the ALJ gave “some weight” to Dr. O'Laughlin's opinion.


         On appeal plaintiff raises four main arguments: (1) the ALJ erred in rejecting her assertion that she must elevate her legs; (2) the ALJ erred in evaluating plaintiff's credibility; (3) the ALJ erred in rejecting third party testimony; and (4) the ALJ failed to apply the treating physician rule. In Russian-nesting-doll fashion, several of these arguments include multiple sub-arguments, making the total number greater than four. Before considering them, two overarching points should be noted.

         First, the ALJ did not adequately address plaintiff's fibromyalgia, which is the issue at the heart of this case. In remanding this case, the Appeals Council specifically ordered the ALJ to obtain additional evidence about this impairment. However, the ALJ did not do so insofar as this Court can determine. For example, the ALJ did not call a medical expert at the second hearing. It is true that an additional consultative examination was ordered, but as discussed below, Dr. O'Laughlin offered no additional insight into this issue.

         The ALJ mentioned fibromyalgia often in the opinion, but the ALJ gave mixed signals about it, leaving this Court confused as to the ALJ's basic position. To summarize, at Step Two, the ALJ found that fibromyalgia was a severe impairment, but the ALJ never explained why she reached this conclusion. At Step Three (the listing analysis), the ALJ gave the following ambiguous statement:

Pursuant to SSR 12-2p, fibromyalgia is not a listed impairment. Per Frederick Wolfe et al, “The American College of Rheumatology 1990 Criteria for the Classification of Fibromyalgia”, an individual must have pain in 11 of 18 tender point sites on digital palpation. The diagnosis of fibromyalgia is a conclusion which should be based upon the exclusion of other medically determinable impairments as a cause for pain complaints.

R. 553. This passage is confusing in several respects. It refers to two specific criteria (pain in 11 out of 18 tender points and exclusion of other causes), but then never clearly answers the obvious question of whether they have been met. Based on the context of the passage, the ALJ gives the impression that the criteria were not met, which would presumably mean that plaintiff did not have fibromyalgia. But if this were true, then it would contradict the ALJ's Step Two finding that fibromyalgia was a severe impairment and the ALJ's later RFC restriction that plaintiff must be limited to simple and routine tasks due to ...

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