United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cummings United States Magistrate Judge
Dolores R. (“Claimant”) 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  is granted and the
Commissioner's cross-motion for summary judgment  is
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,
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).
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.
Evidence from Claimant's Treatment History
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.
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. 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).
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).
Evidence From State-Agency Doctors
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).
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.
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.
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).
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.
Evidence From Claimant's Testimony
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.
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).
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).
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).
Evidence From the Medical Expert's Testimony
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.