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Potega v. Berryhill

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

June 7, 2017

Kayla Potega 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. Based on the record, Plaintiff Kayla Potega can be portrayed in at least two ways.

         On the one hand, Plaintiff can be viewed as a young, articulate person who does yoga and pole fitness, writes a healthy living and lifestyle blog, makes jewelry that she sells on Etsy, shops at thrift stores and garage sales, goes fishing, has a boyfriend, is in a book club, but who also just happens to be a malingerer, or even faker, of a disease that is difficult to dispute

         On the other hand, Plaintiff can be portrayed as a bedridden person with a long history of difficult-to-diagnose-and-treat possible diseases, including, but not limited to, fibromyalgia, Lyme disease and postural orthostatic tachycardia syndrome, who needs either a walker or wheelchair to locomote and suffers from “fibro fog.”

         The Court certainly understands how the Administrative Law Judge (“ALJ”) chose the latter portrait of Plaintiff, as there is ample record evidence to support that view. But because the ALJ's route to that choice was faulty (succumbing to the elaborate array of Social Security regulations and Seventh Circuit case law pitfalls), this Court is compelled to remand the case.

         Plaintiff alleges that she suffers from fibromyalgia and other, possibly-related conditions. In 2013, she filed an application for supplemental security income. She was 23 years old. But her medical problems first emerged nine years early, when she was 14. In March 2004, she went to the hospital complaining of body-wide pain, fatigue, cognitive problems, and weakness in her legs. R. 365. Over the years, she saw numerous doctors in an effort to pinpoint the cause of her problems. Doctors offered various diagnoses along the way, some of which were later rejected, including Guillain-Barre syndrome and reflex sympathetic dystrophy and Lyme disease. In 2005, plaintiff's parents took her to the Mayo Clinic (apparently at their own expense), and those doctors diagnosed her with postural orthostatic tachycardia syndrome (“POTS”). Eventually, her treating physicians settled on a working diagnosis of fibromyalgia. Plaintiff alleges that she experiences flares during which she is sometimes bedridden. She also alleges that she has used a wheelchair or walker for many years. The administrative law judge (“ALJ”) agreed that plaintiff's fibromyalgia qualified as a severe impairment, but doubted the allegations about the intensity of her pain. Most notably, the ALJ concluded that plaintiff's wheelchair/walker allegation was fabricated. As explained below, the Court finds that the ALJ's decision rests on ambiguous or not-fully-developed evidentiary foundations and also lacks a supporting medical opinion.


         The hearing was held on October 28, 2014. Plaintiff testified that she was 24 years old and lived with her parents. The only place she had worked was at Rock Cut Concessions in 2008 (for three months), and then again in 2012 (for two weeks). She quit each time because of relapses. The ALJ asked plaintiff to describe her relapses. She answered as follows:

Usually when I had a relapse I start feeling very, I don't know, draggy I guess, very fatigued. My legs start to feel very achy, painful, and they have issues working. I have to have a wheelchair and a walker. Sometimes I have to even take a potty chair into my room because I can't make it to the bathroom. I go [] several weeks without showering because I'm just too tired to do it, too tired and in pain. A lot of global body pain, that's a daily thing and it depends on the day if it's manageable or over the manageable limit. A lot of brain fog, trouble concentrating. Sometimes I'm bed bound, sometimes I'm able to walk with the aid of a walker. And if it's really bad it has to be a wheelchair. And I would say these flares occur-it depends on the year. Last year was a decent enough year. This year it's probably once every-once a month I would say, on average. [] They can last for a couple days to several months. The longest I've had was 10 months, the shortest I've had was maybe three or four days. The current one I'm in is lasting three months.

R. 37-38. Plaintiff testified that there was no rhyme or reason as to when the flares would occur, although she speculated seasonable changes were a cause and that food and stress played a role.

         The ALJ asked whether the cause was the POTS, Lyme disease, fibromyalgia, or something else. Plaintiff stated that her current doctor, Dr. Sridhar, stated that the cause was “probably” fibromyalgia. Plaintiff added that she had talked to “several Lyme literate[] [doctors] in the past [and they] agree that the Lyme can flare up every now and again with certain-like the weather, stuff like that.” R. 40. Plaintiff had not seen one of these doctors since 2009. When asked why she did not continue with these doctors, plaintiff stated that one of them “wanted to do antibiotic treatment, and [she was] very sensitive to Western medicine.” R. 40-41. Plaintiff explained that the doctor “wanted to do three separate antibiotics in a port straight to the heart.” R. 41. Plaintiff declined this treatment due to her “medicine sensitivity” and opted to pursue alternative treatments such as acupuncture, herbals, homeopathics, and massage therapy. The ALJ asked plaintiff about the fact that she was “just on Cipro” (an antibiotic), and plaintiff stated that she received this medication in the emergency room and that taking this drug for two weeks was much different than the invasive, year-long treatment the Lyme doctor proposed.

         Plaintiff's counsel asked about plaintiff's “sensitivity to Western medicine, ” and plaintiff stated that she was referring to side effects ranging from “severe migraines to emotional reactions to physical [reactions] like hive reactions.” R. 44. In the last year, she had been confined to bed “at least once a month for on average a week to a week and a half.” Id. Plaintiff was currently using a walker and had used it every day for the past three or four months and “prior to that probably once a month again for at least a week to a week and a half.” R. 44-45. When not having a flare, plaintiff could “pretty much do everything normally.” R. 45.

         Plaintiff stated that her high school had a homebound program so that when she was not feeling well she could stay at home and send her work in. There was some confusion about when plaintiff last took college classes, with plaintiff explaining that she took some online courses and some regular “physical” classes. Plaintiff had earned 15 college credits. The ALJ noted that plaintiff had recently started working with a pain management doctor, Dr. Rosche, who she had seen twice. Dr. Rosche prescribed a Fentanyl patch for pain, and had ordered an MRI.

         Plaintiff had taken herbals and homeopathics and had also done acupuncture. When the ALJ asked “who's in charge of [] all this stuff, ” plaintiff explained as follows:

I am when I'm able to. If-when I'm having my good days I have a whiteboard in my room and I write down everything that I need to take for the day. I have alarms set because sometimes I need to take things several times a day. So in order for me to actually remember I'll have the alarms. And when I'm bed bound or not feeling too well my mom will help out. She'll make my teas, she'll remind me to do things, to take things.

R. 54. The ALJ observed that plaintiff's activities did not “seem entirely compatible with somebody spending a lot of time in bed in the fall” and noted that plaintiff indicated to Dr. Sridhar in October 2013 that she was doing yoga two times a week along with pole fitness and that plaintiff was “making jewelry, blogging, reading, other exercising.” R. 56. Plaintiff explained that last year, including the fall “was anomaly” and that she “was doing very well last year.” Id. She stated that the last time she did yoga or pole fitness was in the beginning of the spring because she had since relapsed.

         The ALJ asked about other medications. Plaintiff stated that she took “some Tylenol 3 with Codeine or Ultram or Advil” when the pain got unmanageable. R. 59-60. Dr. Sridhar prescribed these medications. The ALJ asked plaintiff how often she blogged. Plaintiff stated that the “good thing about blogging is I can do that in bed” and that she did it “quite often.” R. 61. Plaintiff's blog was called The Eclectic Element, which was a healthy living and lifestyle blog. She had a couple advertisers and made about an average of $100 a month. Plaintiff enjoyed doing crafts but was focusing recently on handmade jewelry, which she sold through two Etsy accounts. The vintage jewelry was “anything that [she found] at like garage sales and Salvation Army and thrift stores.” R. 62. She had not been to a garage sale in several months, but stated that “thankfully now that [she was] actually able to walk with the wheelchair and the walker [] [she] would say within the last week is when [she had] been able to go to garage sales and pick up at the thrift stores.”[2] R. 63.

         The ALJ then asked about references to plaintiff being “quite an outdoors person, liking hunting, fishing[, ] kayaking.” R. 63. Plaintiff stated that she was not able to go kayaking this summer but “the most I was able to do was go fishing with my boyfriend maybe three or four times.” R. 64. The ALJ described plaintiff as sounding “incredibly literate” in her testimony, and asked what she was reading. Plaintiff stated that she had not been reading “too much, ” but that she recently joined a book club. R. 65. The ALJ asked whether plaintiff was required to contribute money to the house or do chores in exchange for still living with her parents. Plaintiff stated that, when she was able, she would do “chores around the house like vacuuming, maybe cleaning the windows, doing dishes” and that she did her own laundry “when [she was] ...

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