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Marston v. Berryhill

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

July 12, 2017

Linda Marston Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge

         After working many years as an administrative assistant in the healthcare field, plaintiff Linda Marston was diagnosed in August 2007 with non-Hodgkin's mantle cell lymphoma. She underwent seven months of full-dose chemotherapy, and then returned to work in the summer of 2008. R. 540. But the cancer returned soon thereafter, and she stopped working and applied for disability benefits, which were quickly granted based on her meeting a listing. In December 2008, she had a stem cell transplant to further treat the cancer. This treatment apparently worked because, since that time, the cancer has been in full remission.

         In the summer of 2012, the Social Security Administration conducted a continuing disability review and found that plaintiff was no longer disabled as of July 1, 2012. Plaintiff was almost 60 years old at this time. There was no dispute that she no longer met the listing requirements for cancer, but a new question emerged as to whether she could separately qualify as disabled based on other ailments, including hearing loss, back pain, gastrointestinal issues, fatigue, a cognitive impairment, and a hand tremor. Her doctors speculated that some of these problems may have been caused or exacerbated by the cancer treatments (a “chemo brain theory” as plaintiff described it), but there has not been any clear determination regarding this assertion. The other possibility is that these conditions were simply arising coincidentally over this general period. There was a family history of tremors, for example. Over the next three years, plaintiff was treated by various doctors and seen by Agency consultative examiners.

         This information was reviewed by the administrative law judge (“ALJ”) who also held a hearing on June 24, 2015. Plaintiff testified that she could not work in her old job as an administrative assistant because of her multiple impairments. She testified that she had memory and concentration problems. She previously was an avid reader but did not read much anymore because she could not remember what she read. She had a tremor, mostly in her right dominant hand. The tremor started when she was in the hospital for the stem cell transplant. It affected her in various ways. She used a battery-operated toothbrush because she could not hold a regular one steady enough. The tremor affected her writing, and made it difficult to make jewelry and do crafting, two hobbies she liked to do. If she took a cup of coffee from the kitchen to the living room, she would spill it all the way there due to hand shaking. She could only type a half hour to perhaps an hour. She had balance issues due to right leg weakness. The hearing problems began in 2004, before the cancer, and mostly affected the right ear. She had some gastrointestinal problems and reflux issues for which she took medication.

         On October 22, 2015, the ALJ issued a written decision finding plaintiff not disabled. The ALJ found that plaintiff should be limited to sedentary work to account for her problems with fatigue and balance. As for the hand tremor, the ALJ agreed that it was a documented impairment. To account for it, in the residual functional capacity “RFC” evaluation, the ALJ limited plaintiff to doing only frequent fine fingering (up to two-thirds of the work day) with her right hand. This was an accommodation because it was less than constant fine fingering. The ALJ rejected plaintiff's assertion that she could, at best, do only occasional fine fingering (up to one-third of the work day), a limitation which if accepted would have precluded all relevant work according to the vocational expert. The ALJ found that the cognitive problem did not qualify as an impairment because it had no “discernible effect” on plaintiff's ability to work. R. 45. As a result, no RFC limitation was included for this impairment.

         Plaintiff argues that a remand is required because the ALJ's failed to adequately consider her cognitive impairment and hand tremor and that the ALJ played doctor in interpreting the evidence. Plaintiff also argues that the ALJ wrongly rejected an opinion of her treating neurologist (Dr. Wallery) and, in so doing, failed to follow the treating physician rule. Plaintiff finally argues that the Appeals Council erred in failing to consider a new doctor's opinion.

         The Court begins with the hand tremor because it is the impairment that the ALJ identified as the “most obvious.” R. 53. This Court agrees that it is plaintiff's best argument for a remand. Although it is a close question, this Court finds that a remand is warranted.[2]

         This is a narrow issue. The ALJ agreed that the tremor was a documented impairment and one that validly would require some RFC limitation (frequent but not constant fingering). Thus, the precise issue is the frequency or durability of plaintiff's fingering abilities over a full work day. Although the ALJ's decision is 16 pages, this question received only a brief analysis, as discussed below. It is true that the decision contains a long narrative section summarizing plaintiff's doctor visits with treating and consulting doctors and psychologists, and that this section contains references to the hand tremor. Doctors performed tests to diagnose the tremor, used varying medical terminology to describe it, speculated about possible causes, and finally recommended various medications. But for the most part, these facts are not relevant here given that, as noted above, the ALJ did not question the diagnosis of a hand tremor.

         In considering the ALJ's analysis, the Court notes there is no medical opinion directly addressing this issue of frequency. The ALJ did not call a medical expert at the administrative hearing. The State Agency physicians did not comment on the tremor issue in their written assessments. See Exs. 8F, 12F.[3] There was some evidence indirectly supporting the ALJ's conclusion about frequency. Specifically, Dr. Ramchandani, a consulting physician, examined plaintiff on one occasion and observed that plaintiff was “able to make a fist, pick up objects, open and close the door, oppose the thumb to fingers, and flip pages.” R. 308. However, aside from recording these observations, Dr. Ramchandani did not provide a broader diagnosis or explanation and did not opine on the frequency with which plaintiff could perform these tasks. Could plaintiff flip pages and pick up objects repetitively for a good portion of the work day? Could she type and do other fine fingering tasks for a sustained period?

         The ALJ specifically analyzed the hand tremor issue in two places. The first was the following passage:

To accommodate limitations performing fine manipulative activities due to tremor, the claimant is limited to frequent, but not constant, fine fingering using the right dominant extremity. She is not further limited, however, as she admitted that she is able to do most activities of daily living; she has reported to her oncologist that the tremor has lessened in intensity and the symptoms are tolerable.

R. 54. The second place was later in the decision where the ALJ analyzed the weight given to the expert opinions. There, the ALJ rejected Dr. Wallery's opinion, which stated in pertinent part that plaintiff's tremor was “interfering with her ability to perform activities of daily living including tasks such as writing, eating, typing.” R. 399. Here is the ALJ's reasoning:

As noted above, and in the claimant's own testimony, she retains the ability to function independently. She can use a keyboard, crochet, feed herself, perform household tasks, care for plants and flowers, and manage her personal care and hygiene[.]

R. 55. Taken together, these two passages articulate two rationales-one being plaintiff's ability to do activities of daily living and the other being the report to her oncologist. In this Court's view, these rationales are not ...

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