Dolores R. v. Saul

          MEMORANDUM OPINION AND ORDER

          Hon. Jeffrey Cummings United States Magistrate Judge

         Claimant Dolores R. (“Claimant”)^[1] brings a motion for summary judgment to reverse the final decision of the Commissioner of Social Security (“Commissioner”) that denied Claimant's application for a period of disability and Supplemental Security Income (“SSI”) under the Social Security Act. 42 U.S.C. §§ 416(i), 402(e), and 423. The Commissioner has brought a cross-motion for summary judgment seeking to uphold the Social Security Agency's (“SSA”) decision finding that Claimant is not disabled. The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). This Court has jurisdiction to hear this matter pursuant to 42 U.S.C. §§ 405(g) and 138(c)(3). For the reasons stated below, Claimant's motion for summary judgment [8] is granted and the Commissioner's cross-motion for summary judgment [19] is denied.

         I. BACKGROUND

         A. Procedural History

         On August 10, 2010, Claimant filed a disability application alleging a disability onset date of July 31, 2010. Her claim was denied initially on November 24, 2010 and upon reconsideration on March 2, 2011. On May 29, 2012, an Administrative Law Judge (“ALJ”) issued a written decision denying benefits to Claimant. After the Appeals Council denied review, Claimant requested review of the Commissioner's decision in District Court on March 4, 2013. On May 21, 2014, Magistrate Judge Susan Cox reversed the Commissioner's decision and remanded the case to the SSA for further review. Judge Cox directed the SSA to reconsider Claimant's alleged need to raise her legs to relieve pain, claims that she experienced fatigue, testimony concerning her activities of daily living (“ADLs”), and Claimant's residual functional capacity (“RFC”). Robinson v. Colvin, No. 13 C 1654, 2014 WL 2119270, at *6-7 (N.D.Ill. May 21, 2014).

         The ALJ held a new hearing on November 13, 2014 at which Claimant and a vocational expert (“VE”) testified. (R. 504-577). On December 8, 2014, the ALJ again found that Claimant was not disabled. The Appeals Council denied review and Claimant once more sought judicial review on May 11, 2016. On May 19, 2017, Magistrate Judge Mary Rowland reversed the Commissioner's decision and remanded the case for a second time. Robinson v. Berryhill, No. 16 C 5152, 2017 WL 2215022 (N.D.Ill. May 19, 2017). Following Judge Rowland's directive, the Appeals Council ordered the ALJ to (1) evaluate Claimant's fibromyalgia with greater care, (2) consider her alleged need to elevate her legs, (3) consider the fluctuating nature of fibromyalgia symptoms, (4) reconsider Claimant's symptom testimony in light of her treatment history, (5) consider the barriers Claimant experienced to further medical treatment for arthritis in her right big toe, (6) evaluate the side effects of her medications, and (7) reconsider her fatigue. (R. 1007-08).

         On January 10, 2018, a new ALJ held a third administrative hearing at which Claimant, a VE, and a medical expert testified. The ALJ issued a decision on March 5, 2018 finding that Claimant was not disabled. This time, however, Claimant did not file exceptions to the ALJ's decision with the Appeals Council. The Appeals Council may assume jurisdiction over an ALJ's decision under those conditions within 60 days of its issuance, 20 C.F.R. § 404.985(c), but did not do so. Accordingly, the ALJ's decision became the Commissioner's final decision. 20 C.F.R. § 404.985(d). Claimant subsequently filed this action in District Court on May 28, 2018.

         B. Medical Evidence

         1. Evidence from Claimant's Treatment History

         The Court only addresses Claimant's treatment history in brief because Judge Cox discussed the relevant records at length in her May 21, 2014 decision. See Robinson, 2014 WL 2119270, at *2-3. Claimant was diagnosed with a major depressive disorder during a hospitalization for psychiatric problems in 2000. She was prescribed Prozac and Paxil and sought treatment after her release from the hospital from Sara Kozera at Metropolitan Family Services. Id. at *2. From 2005 through 2008, her symptoms were controlled with medication. Dosages of Prozac were increased in 2009 and again in 2010 after Claimant reported increased symptoms of depression. Id. Claimant began treatment in November 2010 with psychiatrist Dr. Morris Blount and therapist Kristine Fox. Ms. Fox found Claimant to be attentive and within normal limits for most of her mental functioning. Id. Claimant also told Dr. Blount in April 2011 that she did not feel depressed and slept well at night. By March 2012, she again reported that she felt well, was not depressed, and slept well. Id.

         Claimant's physical health conditions were treated by Dr. Robert Boll and nurse practitioner Cathy Moynihan. Ms. Moynihan's notes show primary complaints of fibromyalgia and a “mild hallux valgus and degenerative changes in the first metastarsophalangeal joint” of Claimant's right foot.^[2] Id. Claimant complained in January 2010 that her fibromyalgia pain was “really bad” and Ms. Moynihan prescribed higher doses of Cymbalta to treat it and also started Claimant on Flexeril. (R. 259). Claimant told Ms. Moynihan in January 2011 that Cymbalta helped to manage her pain but that she was also experiencing increased anxiety and confusion. (R. 393).

         Claimant also sought treatment in October 2010 with a podiatrist at John Stroger Hospital. She complained that the pain in her right toe had increased over the past four years. The podiatrist noted that surgery might be necessary in the future to correct Claimant's hallux valgus but recommended a “rocker shoe” and an orthotic extension to treat her condition. (R. 354). Claimant did not seek treatment after January 2011 for her physical condition until April 2012 when she saw nurse practitioner Maya Karam. Claimant complained of pain in her upper extremities for which Ms. Karam recommended exercise. (R. 498). The record shows that Claimant's medications at that time included Prozac, amitriptyline, amlodipine, ciprofloxacin, gabapentin, Lopressor, lorazepam, metoprolol, and pravastatin. (R. 496).

         2. Evidence From State-Agency Doctors

         On November 19, 2010, state-agency psychologist Dr. Michael Schneider found that Claimant suffered from an affective disorder that did not constitute a severe mental impairment. (R. 368). Dr. Schneider concluded that Claimant would experience mild limitations in her daily activities, social functioning, and in her ability to maintain concentration, persistence, or pace. (R. 378). Dr. Young-Ja Kim found on November 22, 2010 that Claimant suffered from the non-severe impairments of fibromyalgia and hypertension. (R. 382).

         Psychiatrist Dr. Herman Langner interviewed Claimant on November 10, 2010 at the request of the SSA. Claimant told Dr. Langner that she spent much of her time in bed because she was fatigued, cried easily, and was depressed. At times she also heard whispers. Dr. Langner found that Claimant was oriented to time and place and could recall one out of three items after three minutes had passed. He diagnosed Claimant with depression but did not assess any specific restrictions in her functioning. (R. 359-61).

         Claimant was examined the same day by examining physician Dr. Mahesh Shah. Claimant told Dr. Shah that she had pain “all over her body” and had been diagnosed with fibromyalgia. The pain affects different joints at different times and sometimes causes problems with her legs and back. Dr. Shah noted that Claimant was able to move about his office “without problems” and had a full range of motion in her upper and lower extremities. No. trigger point tenderness was noted. Her gait was normal though some tenderness was noted in Claimant's right big toe. Dr. Shah diagnosed high blood pressure and fibromyalgia pursuant to Claimant's self-reported history, high cholesterol, and - for reasons that are unclear - bipolar disorder. (R. 363-66).

         On January 27, 2011, Claimant's treating psychiatrist Dr. Blount submitted a statement titled “Ability to do Work-Related Activities (Mental).” Dr. Blount found that Claimant had an “excellent” ability to make simple work decisions, a “good” capacity to understand and carry out simple instructions, work with others, and complete a normal workday, and a “fair” ability to carry out detailed instructions, maintain concentration for extended periods, and perform activities within a fixed schedule. (R. 409-410).

         Nurse practitioner Ms. Moynihan issued also issued a statement titled “Ability to do Work-Related Activities (Physical)” that was co-signed by Dr. Boll. She found that Claimant could only lift ten pounds frequently, could stand and/or walk two hours a day, but that her fibromyalgia placed limits on her ability to sit or to push or pull. (R. 396-97).

         C. Evidence From Claimant's Testimony

         Claimant appeared at the first administrative hearing held on May 7, 2012. She told the ALJ that pain affected her knees and shoulders and that it kept her from being able to grasp or tighten items unless she uses both hands. (R. 66-68). Claimant is unable to climb up a ladder without help because she loses her balance and might fall. (R. 68). She takes amitriptyline for pain every day. Nevertheless, Claimant stated that she could only stand or sit for one hour at a time and could only walk for a block and a half. (R. 70). Even then, she has a hard time getting up after sitting and had lately begun to fall. (R. 83-84). Claimant's depression causes her to cry “sometimes for days” and she has difficulty staying focused and completing tasks. (R. 71).

         Claimant told the ALJ that her daily activities were limited in scope. She can do some dishes and other household chores but must take breaks. She also needs to nap up to two to three hours a day due to fatigue. (R. 75). She cleans the bathroom and goes grocery shopping but must have someone help her bring the groceries in because they are too heavy to carry. (R. 76). Claimant told the ALJ that gardening was her favorite activity. However, she stopped gardening a year prior to the hearing because she could not lift the planting pots or get up once she kneeled down. At the time of the hearing, she was only able to grow six tomato plants in buckets instead of in her garden. (R. 76).

         At the second hearing on November 13, 2014 Claimant expanded her testimony concerning her daily activities. She told the ALJ that when she was planting tomatoes in 2010 she was unable to squat down and required help to plant and pick the tomatoes even though her garden was only the size of a table. (R. 558). Even then, it took Claimant two to three days to complete the planting. (R. 566). Claimant reiterated her earlier testimony that fatigue requires her to nap two to three hours each day. (R. 560). Claimant also stated that she needs to elevate her legs up to three times a day for 45 minutes especially after carrying out tasks like sweeping and doing the dishes. (R. 552-53). She even has to raise her legs at times in the middle of doing a chore. (R. 553).

         At the third hearing held on January 10, 2018, Claimant testified once more that she needed to nap two to three hours daily. (R. 1055). Claimant told the ALJ that she saw her therapist and psychiatrist once a month and that she was currently taking Prozac for depression, lorazepam for anxiety, and an unspecified medication to help her sleep. (R. 1049). The ALJ pointed out that no treating source had ever diagnosed Claimant with fibromyalgia even though the prior two ALJ decisions stated that it constituted a severe impairment. (R. 1050-51). Nevertheless, Claimant testified that she had been prescribed amitriptyline to treat her pain as well as gabapentin and Lyrica. (R. 1052). No. doctor ever told her that she should elevate her legs to relieve pain but Claimant continued to do so through the end of 2011. (R. 1055).

         D. Evidence From the Medical Expert's Testimony

         Medical expert Dr. Allan Duby also testified at the January 2018 hearing. Dr. Duby told the ALJ that nothing in the record supported a diagnosis of fibromyalgia for Claimant. Her medical impairments through 2011 included hypertension, elevated cholesterol, and osteoarthritis of the right big toe. (R. 1059). Dr. Duby stated that Claimant could lift or carry up to ten pounds frequently and 20 pounds occasionally. She could sit for two hours at a time for a total of seven hours a day. She could also stand for one hour at a time up to three hours a day. Dr. Duby assessed Claimant's ability to walk the same as her ability to stand. She would be able to climb stairs and ramps frequently, climb ladders occasionally, and could kneel, crouch, and crawl frequently. (R. 1060).

         E. The ...