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Preusser v. Berryhill

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

August 29, 2017

Katie Preusser Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston, United States Magistrate Judge.

         In July 2013, Katie Preusser filed applications for disability benefits. She was 33 years old with two teenage children. Beginning in 1999, she worked for seven years as a desk clerk and laundry aid at a motel and then worked the next five years as a laundry aid in a nursing facility. In May 2012, she quit the latter job so that she could move to Iowa to be with a new boyfriend and also because she felt that her health ailments made it too hard to keep working. In her disability applications, she listed her ailments as fibromyalgia, carpal tunnel, anxiety disorder, dyslexia, and depression.

         On March 2, 2016, the administrative law judge (“ALJ”) issued a decision finding that plaintiff was not disabled. The ALJ concluded that plaintiff did not have fibromyalgia as she claimed and that her various symptoms-back pain, migraines, sleep problems, mental problems (among others)-were caused by other conditions and that they did not prevent her from doing light work. The ALJ concluded that plaintiff's allegations were not credible because she only sought routine treatment; the objective clinical findings were unremarkable; doctors encouraged her to exercise; she did not take narcotics; and she engaged in a wide variety of activities.

         Plaintiff argues that the case should be remanded for multiple reasons. Her main argument- and one that warrants a remand-is that the ALJ erred in summarily concluding, without relying on any medical opinion, that plaintiff's doctors were wrong in diagnosing her with fibromyalgia. The Court begins with, and will focus mostly on, this argument. It includes several general criticisms- cherry-picking and doctor playing-that are applicable to plaintiff's remaining arguments, which will be addressed more briefly at the end of this opinion.

         At Step Two in the five-step analysis, the ALJ considered which alleged ailments qualified as severe impairments. Although the ALJ found that a number of these were severe-specifically, degenerative disc disease, osteoarthritis, anxiety disorder, personality disorder, and carpal tunnel syndrome-the ALJ found that plaintiff's fibromyalgia was not one of them. In fact, the ALJ concluded that it was not even a medically determinable impairment, which meant that the ALJ did not even reach the severity question. Plaintiff argues that the ALJ's analysis was insufficient.

         Before discussing the ALJ's specific analysis, it should be noted that the key piece of evidence plaintiff now relies on to support her fibromyalgia argument is five pages of treatment notes from her visit to Dr. Petar Lenert on August 8, 2012. See R. 598-603. Dr. Lenert was a rheumatologist at the University of Iowa Hospitals where plaintiff's primary care physician referred her for a consultation about fibromyalgia. Dr. Lenert reviewed plaintiff's medical history and examined her and concluded that her multiple symptoms were consistent with fibromyalgia. However, despite the seeming importance of this evidence, the ALJ glossed over it.

         The ALJ's analysis of plaintiff's fibromyalgia consisted of the following paragraph:

The claimant reported fibromyalgia and the treatment record documents Fibromyalgia with Cymbalta prescribed (Exhibits 4E; 3F). I considered the claimant's allegations of fibromyalgia and SSR 12-2p when evaluating this case. However, the medical evidence and treatment record do not support tender point findings to support this diagnosis. Also, there are other severe medical conditions as enumerated above that are documented and supported by diagnostic testing that explain her pain. Accordingly, I do not find a medically determinable impairment of fibromyalgia. However, I have considered her reported pain complaints throughout her body in assessing the residual functional capacity.

R. 38.

         A few preliminary observations can be noted. First, this paragraph does not specifically refer to Dr. Lenert's August 8, 2012 diagnosis. However, it states that “the treatment record documents Fibromyalgia” and then cites Exhibit 3F, which is a 72-page exhibit containing the 5 pages of Dr. Lenert's notes. Based on these references, the ALJ appears to be vaguely alluding to Dr. Lenert's diagnosis, although this point is not clear based solely on reading this paragraph.[2] Not only did the ALJ omit any specific reference to Dr. Lenert's diagnosis, the ALJ generally did not refer to or discuss specific evidence in this paragraph. Second, this relatively short paragraph contains the only reference to fibromyalgia in the entire 18-page decision. It is surprising that the ALJ devoted so little attention to this ailment. Plaintiff's fibromyalgia was not a peripheral part of her case. Indeed, it was identified as her primary impairment. R. 124. At the administrative hearing, her attorney identified it first in the list of problems, referring to a “long standing” diagnosis. Fibromyalgia is also a recurrent issue in Social Security disability cases. To be sure, as many have noted, it is hard to diagnose, but this is not a reason to engage in a summary analysis-in fact, it suggests greater care is warranted.

         Despite its brevity and lack of detail, this paragraph still contains a few clues about the ALJ's reasoning. However, these clues suggest that the ALJ relied on an outdated legal standard. The ALJ cited to Social Security Regulation 12-2p (“Evaluation of Fibromyalgia”) and then stated that there were no “tender point findings.” This is the only substantive analysis. Based on the ALJ's statements, the Court infers that the ALJ believed that SSR 12-2p required that there be tender point findings. However, as plaintiff correctly points out, this is not true. SSR 12-2p was issued in 2012 to clarify the Agency's position on the difficult task of assessing fibromyalgia claims. SSR 12-2p provided two alternative sets of criteria. The first set includes, as one of three requirements, that there be tender point findings (specifically, 11 out of 18 tender points). However, SSR 12-2p included a second set of criteria that notably omitted this requirement, allowing a claimant to substantiate a diagnosis with other evidence. Plaintiff argues that her case qualifies under this second set of criteria. Without now deciding whether plaintiff meets this second set of criteria, which is an issue that the parties have not adequately briefed and one which should be addressed in the first instance by the ALJ, this Court agrees that the ALJ erred in failing to consider this second set of criteria. This failure requires a remand.

         The Government does not directly respond to plaintiff's argument about tender point findings. Instead, the Government argues that the Step Two finding was merely a threshold issue, and that the ALJ, in the later RFC analysis at Step Four, “considered [plaintiff's] reported pain complaints throughout her body.” Dkt. #11 at 5. This argument builds off the statements the ALJ made at the end of the fibromyalgia paragraph. The gist of this argument is that the particular cause of plaintiff's problems-whether it be fibromyalgia, osteoarthritis, mental problems, or some combination thereof- was not important because the ALJ validly concluded that plaintiff's pain allegations were not credible. Essentially, this is a harmless error argument. Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (the harmless error doctrine applies when the court can conclude with certainty that the ALJ would reach the same conclusion absent the error).

         The Court is not certain this error was harmless. The ALJ's belief that plaintiff did not have fibromyalgia could have affected the ALJ's subsequent analysis about what medical findings and specific treatments were relevant, and also about what daily activities plaintiff could be expected to engage in, all of which in turn could have affected how the ALJ assessed plaintiff's credibility. To understand why this is so, it will be helpful to return to Dr. Lenert's notes and ...

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