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Merriman v. Berryhill

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

May 30, 2017

Jeannie Merriman Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston, United States Magistrate Judge

         This is a Social Security disability appeal. In early 2010, plaintiff Jeannie Merriman began experiencing pain in her neck and back, along with migraines and pelvic pain. Over the next several years, she visited a series of doctors trying to diagnose and treat these and other symptoms, such as fatigue and generalized weakness. Eventually, she was diagnosed with fibromyalgia and then later with interstitial cystitis and endometriosis. Because of her chronic pain, she stopped working in early January 2011, when she was 28 years old, and stayed home helping take care of her four children. She applied for disability benefits in June 2012. After a hearing, the administrative law judge (“ALJ”) found that, although plaintiff was properly diagnosed with these ailments and that they were causing some pain, this pain was not severe enough to prevent her from working full-time.

         This is a complex case for multiple reasons. First, plaintiff's ailments are not easy to diagnose nor easy to treat in a one-size-fits-all way. Fibromyalgia, in particular, is a chronic pain condition that for many years has been the subject of debate in both the medical and legal communities, as illustrated by the differing views expressed by the majority and dissenting opinions in the Seventh Circuit's most recent decision on this issue. Kennedy v. The Lilly Extended Disability Plan, Case No. 16-2314 (7th Cir. May 18, 2017).[2] Second, related to the first point, these cases typically hinge on the believability of the plaintiff's subjective pain allegations.[3] Third, plaintiff saw many doctors (with different specialties) over a relatively short period (i.e. from 2010 to 2014), and their opinions and observations differ in various ways.

         Fourth, at the time of the hearing, plaintiff was receiving new diagnoses and was still undergoing tests and treatments to confirm them. Fifth, the medical expert, whose admittedly difficult task was to synthesize the competing strands of evidence, offered testimony that is not easy to parse, a difficulty compounded by inaudibility gaps in the transcript. To be clear, unfortunately, these factors are not uncommon in social security disability cases, but it is still worth keeping them in mind when assessing these issues and the ALJ's analysis of them.

         The hearing was held on May 28, 2014. Plaintiff testified that she last worked for Kellog's, stocking shelves and putting up displays in retail stores. She quit in January 2011 because the bending, lifting, and squatting caused too much pain. Plaintiff first complained about fibromyalgia-related pain sometime in 2010. She described this pain as follows:

It is still in my back. It's in my neck, it just depends on the day. It's never the same each day. I've had pain in the shoulders, the elbows, the ankles, the knees, the wrists. You name it, I've had it.

R. 41. The pain worsened with activity. She was currently taking Cymbalta and had tried other medications. She explained as follows:

I started out with Savella with the first doctor that had diagnosed me, Dr. Dillard [phonetic]. We tried that for about three to four months and we kept upping the dose, and then Medicaid refused to pay the higher doses. So then I was off of it for probably about a good four to five months. And then when I had changed physicians to Dr. Mohammad [phonetic], she had set me up to see a rheumatologist, Dr. Neka [phonetic]. And then Dr. Neka had put me back on the Savella. I was on it the second time for probably about three months or so. And then I was taken off it because it was not working, and put on Cymbalta.

R. 42. Plaintiff described her pelvic pain as follows:

The pelvic pain, for, you know, the last couple of years, [has] been two to three times a week. When it's menstrual cycle week it hurts and it feels horrible every single day of the menstrual cycle week. Lately, after my last surgery that I just had it's been hurting every day since.

         R. 43. She had surgery on the 13th of the month (i.e. approximately two weeks before the hearing) to “look for” endometriosis. Id. Based on this surgery, she was diagnosed with stage one endometriosis and interstitial cystitis. For the latter condition, she had received, on the morning of the hearing, the first in a series of treatments known as bladder irrigation.

         Plaintiff stated that she had a continuing problem with headaches (or sometimes referred to as migraines). They usually occurred every day of her menstrual cycle, which sometimes lasted up to two weeks. The migraines typically lasted the entire day. She tried a number of medications, including Imitrex and Topamax.

         Dr. Ashok Jilhewar, the medical expert, testified next. His testimony is important because the ALJ would later give it great weight over against other conflicting opinions. Dr. Jilhewar began by stating that he could not find the medical records about the alleged endometriosis and interstitial cystitis. However, plaintiff's attorney explained that these records had just been submitted the day of the hearing and that the endometriosis was diagnosed only the previous week and that additional records would be submitted after the hearing. Dr. Jilhewar stated that this information would be “critical” to the analysis because the intensity of plaintiff's pain was not “documented.” R. 50. Dr. Jilhewar then noted that there was no rheumatology evaluation in the record. But again, plaintiff's counsel provided an explanation, stating that there was a rheumatology evaluation in the record.

         Dr. Jilhewar explained that interstitial cystitis was “a group of diseases similar to the irritable bowel syndrome” and often co-existed with “mild headaches” and fibromyalgia. R. 51. He emphasized that a proper diagnosis could not be made “until and unless a neurologist performs a cystectomy” and also a urinary dynamics study. R. 52. He found no “documentation” that these procedures had been done. Plaintiff's counsel noted that the documentation would be part of the post-hearing records. Plaintiff stated that she had a laparoscopy on the 13th to which Dr. Jilhewar stated that “[y]ou cannot diagnose interstitial cystitis with a laparoscopy.” R 54. The ALJ then asked whether the laparoscopy could be used to diagnose endometriosis. He agreed that it could be used for this diagnosis. The ALJ stated that he would need to “see what” the post-hearing records indicated on these issues. R. 55. But the ALJ confirmed that Dr. Jilhewar's opinion, based on “the way the record stands now, ” was that neither the interstitial cystitis nor endometriosis were “documented.” R. 56.

         Dr. Jilhewar next discussed fibromyalgia. He noted that the evidence varied on whether plaintiff had the requisite number of tender points to diagnose this condition, but he ultimately agreed that there it was sufficiently “documented” based on (among other things) the findings of 18 out of 18 tender points by Dr. Saha, a consultative examiner. R. 57. However, as for treatment, Dr. Jilhewar found it significant that plaintiff had not undergone treatment of tender points, which he explained was a non-standard treatment but one that “some physicians” would offer if the “pain is extremely serious.” R. 59.[4] Plaintiff's counsel asked if Dr. Jilhewar was aware that plaintiff had received injections from Dr. Nika, a neurologist. Dr. Jilhewar responded that he “missed that.” R. 67. Plaintiff's counsel then referred him to the page in the record documenting that plaintiff received four Kenalog injections, each three months apart. Dr. Jilhewar explained as follows why Kenalog injections were not appropriate for fibromyalgia:

[A Kenalog injection] is not the same as a tender point presentation, this is a general system [INAUDIBLE]. Most of the doctors would not have given that because of the side effects injury what claimant mentioned, increasing the blood pressure. It is [INAUDBLE] device. What I was talking about, as small dose of just [INAUDIBLE] with usually one cc of the [INAUDIBLE] and one cc of the normal saline injected in a star like fashion in the tender points. And this is not-that was what I was talking about the tender points, not the general systemic steroid injections. They are only useful, not for the fibromyalgia, but for the inflammation of varieties of rheumatoid arthritis. And only the physician knows the reason for that, I don't know the answer why it was given.

R. 69. Plaintiff's then counsel asked Dr. Jilhewar whether his specialty was rheumatology. He stated that it was not, but added that, over the 30 years of his practice, he has had “thousands, not hundreds, thousands of patients with tender points.” Id.

Migraine headache. In the [INAUDIBLE], and this is number 10F, page number around 50, date 1/20/2014. As of that page number I found now is 10F, page 46. The physician is writing that for one year claimant has been reporting chronic daily headaches. And no mention of intractable nature of the headache was mentioned. I did not find any emergency room visits or hospitalization for intractable headaches. I [INAUDIBLE] medications used for fibromyalgia syndrome are also used to prevent the attacks of migraine headaches. From the claimant's testimony today, claimant has mentioned migraine. There are certain medications approved for the nature of migraine, and because of the health insurance reasons, I believe the claimant cannot be prescribed those because the Department of Public Aid does not pay for it. The cost is extremely high at $20 a tablet. Public Aid Department ...

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