Longerman v. Astrue
Filing
21
MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 10/28/2011. (ep, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KRISTA DYANNE LONGERMAN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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Case No. 11 CV 383
Magistrate Judge Young B. Kim
October 28, 2011
MEMORANDUM OPINION and ORDER
Plaintiff Krista Longerman (“Longerman”) seeks review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42
U.S.C. § 423(d)(2), and Supplemental Security Income (“SSI”) under Title XVI of the Act,
42 U.S.C. § 1382c(a)(3)(A). Before the court are the parties’ cross-motions for summary
judgment. Longerman asks the court to reverse the Commissioner’s decision and award
benefits, or in the alternative, to remand the case for further proceedings. The Commissioner
seeks an order affirming the decision. For the following reasons, Longerman’s motion for
summary judgment is granted insofar as it requests a remand, and the Commissioner’s
motion is denied:
I. Procedural History
Longerman applied for DIB and SSI on September 17, 2007, alleging that she became
disabled on January 1, 2007, due to chronic headaches, depression, and anemia.
(Administrative Record (“A.R.”) 62, 102-04, 105-06.) Her applications were denied initially
on December 21, 2007, (id. at 52, 53, 58-62), and again on reconsideration on March 21,
2008, (id. at 54, 55, 64-67, 68-71). Thereafter, Longerman requested and received a hearing
before an administrative law judge (“ALJ”). (Id. at 34-49, 73.) On January 27, 2010, the
ALJ issued a decision finding Longerman not disabled. (Id. at 15-23.) The Appeals Council
denied Longerman’s request for review on November 23, 2010, making the ALJ’s decision
the final decision of the Commissioner. (Id. at 1-3.) See Getch v. Astrue, 539 F.3d 473, 480
(7th Cir. 2008). Pursuant to 42 U.S.C. § 405(g), Longerman initiated this civil action for
judicial review of the Commissioner’s final decision. The parties have consented to the
jurisdiction of this court pursuant to 28 U.S.C. § 636(c).
II. Background
A.
Summary of Medical Evidence
1.
Migraine Headaches
Longerman, who is 33 years old, has been suffering from chronic migraine headaches
since she was 16 years old. In March 1994, she first sought treatment for her headaches from
Dr. Donald Kuhlman, a neurologist. (A.R. 46, 488-89.) About 12 years later, in June 2006,
Dr. Kuhlman diagnosed Longerman with longstanding migraine headaches, which were
“somewhat suboptimally controlled.”1 (Id. at 419.) In September 2006, Dr. Kuhlman noted
that Longerman’s chronic headaches were reasonably well-controlled with medication, but
1
The parties have not presented any medical facts for the 12-year period between March
1994 and June 2006.
2
because of the severity of her headaches, he added another medication to Longerman’s
treatment regimen. (Id. at 418.) Two months later, in November 2006, Dr. Kuhlman opined
that Longerman suffers from severe chronic headaches and increased the dosage of one of
her medications. (Id. at 417.) In December 2006, Dr. Kuhlman observed in his treatment
notes that Longerman’s headaches were “largely unchanged” and he continued her thencurrent medications. (Id. at 416.)
Dr. Kuhlman’s April 2007 treatment notes show that Longerman’s headaches had
improved since she began taking Avinza (morphine).2 (Id. at 415.) She reported a significant
decrease in both the frequency and severity of her headaches. (Id.) Dr. Kuhlman diagnosed
chronic headaches, which were relatively stable at that time, and continued her treatment
regimen consisting of four different headache medications (including morphine) and two
anti-depressants. (Id.)
About three months later, in July 2007, a physician at a pain clinic prescribed
Ketoconazole,3 because the pain specialist believed that Longerman’s chronic headaches
were related to an undiagnosed systemic candida infection. (Id. at 413.) Dr. Kuhlman’s
notes indicate that in September 2007 Longerman discontinued using Ketoconazole because
it was not beneficial to her. (Id. at 411.) Treatment notes show that Longerman continued
2
Avinza is used to treat moderate to severe pain requiring continuous, around-the clock
therapy. See http://www.drugs.com/avinza.html (last visited Oct. 28, 2011).
3
Ketoconazole is used to treat fungal infections. See http://www.drugs.com/mtm/ketoconazole.html (last visited Oct. 28, 2011).
3
to experience headaches several times a week and that recent adjustments were made to the
dosage of her anti-depressants. (Id.) Dr. Kuhlman opined that Longerman has longstanding
severe chronic headaches, which were refractory to a wide spectrum of prophylactic and
abortive medications. (Id.) In October 2007, Longerman again complained that she
continued to have headaches several times a week. (Id. at 575.) She was taking MS Contin4
and Norco5, which had been prescribed by her pain specialist. (Id.)
In February 2008, Longerman reported to Dr. Kuhlman that, despite taking numerous
medications, she continued to have headaches on a daily basis and had significant discomfort
for at least 12 hours out of each 24-hour period. (Id. at 823.) Dr. Kuhlman’s treatment notes
indicate that Longerman was taking five different pain medications each day to treat her
severe headache pain. (Id.) He indicated that Longerman continued to have chronic
headaches that were refractory to multiple preventative medications and explained that she
is on an “unusual medical regimen . . . which seems to be about as effective (or ineffective)
as anything else which has been tried recently.” (Id.)
Two months later, in April 2008, Longerman reported that she was participating in
a headache study at the University of Illinois, which involved the implantation of an occipital
nerve stimulator. (Id. at 822.) The following month, she underwent surgery to implant
4
MS Contin is used to treat moderate to severe pain requiring continuous, around-the clock
therapy. See http://www.drugs.com/ms_contin.html (last visited Oct. 28, 2011).
5
Norco is used to treat moderate to severe pain. See http://www.drugs.com/norco.html (last
visited Oct. 28, 2011).
4
occipital nerve stimulation electrodes. (Id. at 869-71.) About five months later, in October
2008, she reported that the stimulator was helpful in reducing the severity of her headaches,
but she still continued to have headaches. (Id. at 820.) Even though Longerman was
participating in the clinical trial, she continued with her then-current treatment regimen. (Id.
at 855-56.) Dr. Kuhlman’s treatment notes indicate that Longerman was taking four different
pain medications and two anti-depressants. (Id. at 820.) Dr. Kuhlman recommended that
Longerman see “a specialty pain physician to oversee and manage the use of her chronic long
and short-term narcotics.” (Id. at 821.)
In June 2009, Dr. Kuhlman completed a Headaches Impairment Questionnaire at the
request of Longerman’s attorney. (Id. at 838-43.) He noted that Longerman has daily
chronic refractory migraine headaches of moderate to severe intensity that typically last from
one to eight hours.
(Id. at 838-39.)
Her symptoms include mood changes and
photosensitivity. (Id. at 839.) Stress and hunger triggered her headaches. (Id. at 839-40.)
Dr. Kuhlman had been unable to relieve Longerman’s pain despite substituting medications
to relieve her symptoms. (Id. at 841.) He opined that her pain and other symptoms were
frequently severe enough to interfere with her attention and concentration and estimated that
Longerman would be absent from work for more than three days a month and she was
capable of performing only low-stress jobs. (Id. at 841-42.) He marked that when she
experienced a headache she could not perform even basic work activities.6 (Id. at 842.)
6
The questionnaire asked, “[d]uring times your patient had a headache, would he/she
generally be precluded from performing even basic work activities and need a break from the
5
Dr. Kuhlman also noted that Longerman suffers from psychological limitations that also
affect her ability to work on a sustained basis. (Id.)
2.
Depression
Longerman also has received treatment for depression for a number of years. In
September 2007, she underwent a psychiatric evaluation with Dr. Jerry Gibbons. (A.R. 65860.) At that time, Longerman complained of feeling depressed and reported that she had
been hospitalized in March 2007 following a suicide attempt. (Id. at 658, 719-20.) Because
her mental status examination was indicative of a depressed mood, Dr. Gibbons prescribed
an anti-depressant and recommended that Longerman continue with her individual therapy
sessions. (Id. at 659-60.) Dr. Gibbons assessed Longerman’s overall level of functioning
and assigned her a Global Assessment of Functioning (“GAF”) score of 55.7 (Id. at 659.)
Dr. Gibbons diagnosed major depressive disorder (single episode), obesity, status post-gastric
bypass surgery, migraine headaches, and anemia. (Id.)
In October 2007, Longerman’s mood had improved, but she was having vivid dreams
and experiencing hypersomnia (excessive amounts of sleepiness). (Id. at 670.) In December
workplace?” (A.R. 842.) Then the questionnaire gave two options, “Yes,” or “No.” (Id.)
Dr. Kuhlman checked “Yes.” (Id.)
7
The GAF includes a scale ranging from zero to 100, and is a measure of an individual’s
“psychological, social, and occupational functioning.” American Psychiatric Association,
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Rev. 2000) (“DSMIV-TR”). A GAF score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).”
Id. at 34.
6
2007, she complained of feeling depressed, being sick a lot, and having less energy. (Id. at
676.) Dr. Gibbons noted that Longerman’s mood was depressed and he increased her antidepressant dosage. (Id.) A month later, Longerman’s depression had not improved. (Id. at
679.)
Next, in March 2008, Margaret Wharton, Psy.D., a state agency psychologist,
reviewed Longerman’s medical file and completed forms assessing her mental residual
functional capacity (“RFC”) to perform work-related activities. (Id. at 635-52.) Dr. Wharton
opined that Longerman’s cognitive and attention skills are intact and adequate for “simple
one-two step work tasks as well as detailed tasks.” (Id. at 651.) She described Longerman’s
mental status and adaptive skills as being within normal limits, but her interpersonal skills
were moderately limited by depressive symptoms. (Id.) In assessing the degree of
Longerman’s functional limitations, Dr. Wharton opined that she has mild restrictions in her
daily activities, mild difficulties in maintaining concentration, persistence, and pace, and
moderate difficulties in maintaining social functioning. (Id. at 645.)
About one year later, in April 2009, Dr. Eva Kurilo, a psychiatrist, evaluated
Longerman. (Id. at 886-88.) Longerman reported a long history of depression with
symptoms of disrupted sleep, loss of enjoyment of activities, sadness, decreased
concentration, fatigue, irritability, and some anxiety. (Id. at 886.) She had not worked since
2007, when she was fired from her job due to frequent absences related to her depression and
migraine headaches. (Id. at 887.) Dr. Kurilo assessed Longerman’s overall level of
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functioning and assigned her a GAF score of 50.8 (Id.) She diagnosed major depression
(moderately severe and recurrent), migraine headaches, anemia, and status post-gastric
bypass surgery. (Id.) Dr. Kurilo continued Longerman’s anti-depressant medications and
recommended psychotherapy. (Id. at 888.)
Several weeks later, in May 2009, Longerman continued to have problems with
motivation and feeling tired. (Id. at 885.) Dr. Kurilo prescribed a new anti-depressant to
help Longerman’s symptoms. (Id.) Although in June 2009 Longerman reported that her
medications were working well, a month later Dr. Kurilo noted that Longerman continued
to have very poor stress tolerance, fluctuating anxiety, depression, and concentration
problems. (Id. at 883-84.)
In July 2009, Dr. Kurilo completed a Psychiatric/Psychological Impairment
Questionnaire at the request of Longerman’s attorney. (Id. at 845-52.) She reported that
Longerman’s primary symptoms include depression, anxiety, and concentration problems
beginning in 2007, when she attempted suicide. (Id. at 847, 852.) Dr. Kurilo explained that
her clinical findings show that Longerman has a poor memory, mood disturbance, emotional
lability, pervasive loss of interests, feelings of guilt or worthlessness, difficulty thinking or
concentrating, decreased energy, generalized persistent anxiety, hostility, and irritability. (Id.
at 846.) She diagnosed Longerman with major depression and she noted that her psychiatric
8
A GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).” DSM-IV-TR at 34.
8
condition exacerbated her migraine headaches. (Id. at 845, 851.) Dr. Kurilo found
Longerman’s overall level of functioning to be consistent with a GAF score of 55. (Id. at
845.)
Dr. Kurilo assessed Longerman as being markedly limited9 in her ability to: (1) carry
out detailed instructions; (2) maintain attention and concentration for extended periods; (3)
perform activities within a schedule, maintain regular attendance, and be punctual within
customary tolerance; (4) complete a normal workweek without interruptions from
psychologically-based symptoms and perform at a consistent pace without an unreasonable
number and length of rest periods; and (5) respond appropriately to changes in a work
setting. (Id. at 848-49.) She noted that Longerman experienced episodes of deterioration or
decompensation in work or work-like settings that caused her to withdraw from that situation
and experience exacerbation of her symptoms due to very poor stress tolerance, fluctuating
sadness, anxiety, poor concentration, and frequent migraine headaches. (Id. at 850.)
Dr. Kurilo opined that Longerman was incapable of tolerating even low stress work due to
her depressive symptoms and migraine headaches and, as a result, she would be absent from
work more than three times a month. (Id. at 851-52.)
B.
Longerman’s Testimony
At the hearing before the ALJ, Longerman described the multiple limitations she
believes interfere with her ability to work. She explained that she has headaches every day
9
Markedly limited is defined as “effectively preclud[ing] the individual from performing
the activity in a meaningful manner.” (A.R. 847.)
9
of varying severity. (A.R. 38-39.) Her headaches typically last part of a day, but her more
severe headaches will sometimes last for hours to days. (Id. at 45.) About once a week, she
experiences intense throbbing headaches, which are so severe that she is unable to do
anything. (Id. at 39.) When she has these types of headaches, she stays in a dark room by
herself and does not get dressed or take a shower. (Id. at 39, 41.) She described difficulty
thinking, concentrating, and focusing when she has a headache. (Id. at 40.) Although she
does not have any problems walking, standing, sitting, or lifting on those days when she does
not have a headache, she has difficulty falling asleep and staying asleep, even though she
takes medicine to help her sleep. (Id. at 41.) Longerman most recently worked as an
engineering assistant and estimated that she has been laid off from her last six or eight jobs
because of frequent absences. (Id. at 38, 45, 183-84.) In her previous jobs she missed one
day of work per week. (Id. at 45.)
On headache-free days, Longerman is able to shop, cook, and perform household
chores. (Id. at 41-43.) On days she has headaches, she is able to drive and watch children.
(Id. at 42-43, 45.) Longerman does not like to drive on days she has severe headaches, but
“sometimes it’s unavoidable” if she develops a headache when she is already out and has to
return home. (Id. at 42.) She also takes care of a child who is almost five years old, but if she
has a headache while caring for the child, she will let the child play by herself. (Id. at 43,
45.) Longerman goes to restaurants, ball games, movies, and concerts on days when she does
not have a headache and there is no heat or humidity. (Id. at 43-44.) She occasionally cross-
10
stitches pictures, reads magazines and newspapers, watches television, and uses her
computer. (Id.)
About two years before the hearing, in October 2007, Longerman completed an
Activities of Daily Living Questionnaire. (Id. 172-79.) She reported on the questionnaire
that she performed household chores, which included among other things, cleaning the
kitchen every day and doing laundry on a weekly basis. (Id. at 172.) Longerman indicated
that she often watched children, worked on her hobbies, watched television, and listened to
the radio. (Id. at 175.) She noted that she sometimes drove, read, fixed things, played cards
or games, and socialized. (Id. at 174-75.) Longerman also performed volunteer activities,
went to restaurants, and saw movies. (Id. at 175.) She, however, could not “do anything”
two or three times a week when she had a bad headache and needed “to be left alone in [a]
dark, quiet place.” (Id. at 172, 175.) Longerman further indicated that her headaches
affected her ability to bathe and groom herself. (Id. at 173.)
C.
Vocational Expert’s Testimony
The ALJ asked a vocational expert, Edward Pagella, whether an individual of
Longerman’s age, education, and work experience who is limited to unskilled work due to
interference with concentration, persistence, and pace from headaches, and who should avoid
concentrated exposure to noise, vibration, cold, heat, humidity, and wetness, could perform
any jobs in the national economy. (A.R. 47-48.) Pagella concluded that the hypothetical
person the ALJ described could perform light exertional work as a file clerk, general office
clerk, and information clerk. (Id. at 48.) The ALJ next asked Pagella if there were any jobs
11
that the hypothetical individual could perform if that individual should have only occasional
contact with the public. (Id.) Pagella stated that such an individual could perform light
exertional work as a hand assembler, hand packer, and hand sorter. (Id.) He further
indicated that there would be no work available for that individual if she would “be off task
20 percent of the time” and “missed two days a month” because of headaches. (Id. at 48-49.)
D.
The ALJ’s Decision
The ALJ evaluated Longerman’s claim under the required five-step analysis. See 20
C.F.R. §§ 404.1520, 416.920. She concluded that: (1) Longerman had not engaged in
substantial gainful activity since January 1, 2007, the alleged onset date of her disability; (2)
her chronic migraine headaches and depression constitute severe impairments; (3) these
impairments do not individually or collectively meet or equal a listed impairment; (4)
Longerman has the RFC to perform a full range of work at all exertional levels but she must
avoid concentrated exposure to noise, vibration, temperature extremes, humidity, wetness
and is limited to unskilled work with occasional contact with the public; and (5) based on this
RFC she cannot perform her previous work but can do unskilled light work as a hand
assembler, hand packer, and hand sorter.
The ALJ denied benefits because she concluded that the objective medical evidence
supported an RFC for a full range of work at all exertional levels (with some nonexertional
limitations) and she found Longerman’s statements regarding “the intensity, duration, and
limiting effects” of her symptoms not credible. (Id. at 19-21.) The ALJ accorded “no
significant weight” to the opinions of Dr. Kuhlman and Dr. Kurilo because, according to the
12
ALJ, there was no “medical documentation” supporting their opinions and both opinions
were inconsistent with Longerman’s daily activities. (Id. at 21.) The ALJ instead gave more
weight to the opinion of the state agency consultant because her opinion was consistent with
the record evidence. (Id.) The ALJ concluded that there was no evidence in the record to
indicate that Longerman cannot perform at least simple unskilled work on a sustained basis
that does not require a great deal of social interaction. (Id.) For these reasons, the ALJ
concluded that the medical evidence did not corroborate Longerman’s claimed limitations.
(Id. at 19-21.) The ALJ did not address Pagella’s testimony that if Longerman would be off
task 20 percent of the time and missing two days of work each month then there would be
no work available for her in the economy. (Id. at 48-49.)
II. Analysis
In moving for summary judgment, Longerman challenges two aspects of the ALJ’s
decision. She first argues that the ALJ erred under the treating-physician rule by not
according controlling weight to the opinions of Dr. Kuhlman and Dr. Kurilo. Alternatively,
Longerman argues that, even if the ALJ did not err by giving her treating physicians’
opinions less than controlling weight, she failed to analyze the required factors to determine
what weight to assign to the opinions. Next, Longerman takes issue with the ALJ’s
credibility assessment contending that she erred when she assessed the credibility of her
testimony only after she developed the RFC finding. Longerman further asserts that the
ALJ’s credibility determination was improper because she mischaracterized her daily
13
activities and did not consider the fact that she took narcotic medications for her severe
headache pain.
This court must confine its review to the reasons offered by the ALJ, Steele v.
Barnhart, 290 F.3d 936, 941 (7th Cir. 2002) (citing SEC v. Chenery Corp., 318 U.S. 80, 9395 (1943)), and determine whether the ALJ’s decision is supported by substantial evidence,
O’Connor-Spinner v. Astrue, 627 F.3d 614, 618 (7th Cir. 2010). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008) (citing Richardson v.
Perales, 402 U.S. 389, 401 (1971)). This court may not reevaluate the facts, reweigh the
evidence, or substitute its judgment for that of the Social Security Administration. Binion
on Behalf of Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997). However, where the
Commissioner commits an error of law, and the error is not harmless, the court must reverse
the decision regardless of the evidence supporting the factual findings. Id.
14
A.
Treating Physician Rule
Longerman contends that the ALJ made a number of reversible errors in evaluating
and weighing the medical evidence. She primarily asserts that the ALJ failed to give
appropriate weight to the medical opinions of Dr. Kuhlman and Dr. Kurilo, when she
credited the opinion of the state agency psychologist over those of her treating physicians.
(R. 14, Pl.’s Mem. at 9-13.) The Commissioner defends that the ALJ reasonably declined
to give controlling weight to the treating physicians’ opinions because they were not properly
supported by the medical evidence and were inconsistent with Longerman’s daily activities.
(R. 19, Def.’s Mem. at 3-7.)
This court finds that the ALJ erroneously credited the opinion of the state agency
psychologist over the views of Dr. Kuhlman and Dr. Kurilo in evaluating Longerman’s
chronic migraine headaches and mental impairments. An ALJ must give a treating
physician’s opinion controlling weight if two conditions are met: (1) the opinion is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques”; and (2) it
“is not inconsistent with the other substantial evidence” in the case.
20 C.F.R.
§§ 404.1527(d)(2); 416.927(d)(2); Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011). This
rule takes into account the advantage the treating physician has in personally examining the
claimant, while controlling any bias the treating physician may develop, such as a friendship
with the patient. Hofslien v. Barnhart, 439 F.3d 375, 377 (7th Cir. 2006). On the other hand,
if well-supported contradicting evidence is introduced, the treating physician’s evidence is
no longer entitled to controlling weight. Id. at 376. At that point, “the treating physician’s
15
evidence is just one more piece of evidence for the administrative law judge to weigh.” Id.
at 377. An ALJ must offer “good reasons” for discounting the opinion of a treating
physician. Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir. 2011).
In deciding how much weight to accord a treating physician’s opinion, when
controlling weight does not apply, the ALJ must consider the following factors: (1) the length
of the treatment relationship and the frequency of examination; (2) the nature and extent of
the treatment relationship; (3) the supportability of the opinion, including medical signs and
laboratory findings; (4) the consistency of the opinion with the record as a whole; (5) the
specialization of the treating physician; and (6) any other factors which tend to support or
contradict an opinion. 20 C.F.R. §§ 404.1527(d); 416.927(d); Moss v. Astrue, 555 F.3d 556,
561 (7th Cir. 2009).
Here, the ALJ failed to offer good reasons for discounting the opinions of
Longerman’s treating physicians. In her decision, the ALJ accorded “no significant weight”
to Dr. Kuhlman’s June 2009 opinion that Longerman’s headaches are disabling in part
because she found that it was not supported by “medical documentation.” (A.R. 21.)
Longerman, however, argues that Dr. Kuhlman’s opinion is, in fact, supported by extensive
medical records, but as the Commissioner points out in its response, she has not cited to any
of those records. (R. 19, Def.’s Mem. at 5.) While the ALJ did not explain what she meant
by “medical documentation,” if she was referring to medical records demonstrating
Longerman’s visits to Dr. Kuhlman for treatment and his medical care of her and his
diagnosis, this court’s review of the administrative record shows that Dr. Kuhlman’s
16
treatment notes support his June 2009 opinion. For example, Dr. Kuhlman’s treatment notes
document the longitudinal nature and severity of Longerman’s chronic migraine headaches
since he began treating her in 1994 when she was 16 years old. (Id. at 488-89.) He
consistently diagnosed longstanding chronic migraine headaches of severe intensity, which
did not improve with medications. (Id. at 411, 823.) Dr. Kuhlman’s notes also reflect that
even though Longerman was taking four or five different narcotic and non-narcotic pain
medications each day, her severe headache pain was not relieved. (Id. at 823.) His records
also show that Longerman experienced migraine headaches on a daily basis. (Id.) Thus,
when viewing the record as a whole, Dr. Kuhlman’s notes—which document his frequent
clinical observations of Longerman and his failed attempts to control her pain with
medication—are consistent with his June 2009 opinion that Longerman suffers from daily
chronic migraine headaches, which were largely unresponsive to various attempts at
treatment. (Id. at 838, 839, 841.) The ALJ did not comment on these notes.
If in referring to “medical documentation,” the ALJ meant objective medical evidence
showing some type of neurological abnormality, the absence of medical evidence may be
explained by the nature of migraine headaches. Migraines “do not stem from a physical or
chemical abnormality that can be detected by imaging techniques, laboratory tests, or
physical examination.” Stebbins v. Barnhart, No. 03-C-0117, 2003 WL 23200371, at *10
(W.D. Wis. Oct. 21, 2003). There appears to be no specific test that can confirm the
diagnosis of migraine headache. Id.; see also Tyson v. Astrue, No. 08-cv-383, 2009 WL
772880, at *9 (W.D. Wis. Mar. 20, 2009). Instead, a physician will diagnose migraine
17
headaches when certain clinical findings are present. Id. These findings may include a
recurrent throbbing headache of moderate to severe intensity localized on one side of the
head that lasts from four to 72 hours and is associated with nausea, vomiting, or sensitivity
to light, sound, or smell. Id.
Because there is no medical test available to confirm the presence or severity of
migraine headaches, the ALJ may have improperly relied on the absence of objective medical
evidence to discount Dr. Kuhlman’s assessment. Although a claimant’s self-reported
symptoms alone are insufficient to establish disability, see 20 C.F.R. §§ 404.1528(a), 416.
928(a), when these symptoms are documented by a physician in a clinical setting, they are
“medical signs which are associated with severe migraine headaches, and are often the only
means available to prove their existence.” Stebbins, 2003WL 23200371, at *10 (internal
quotation omitted); see also Social Security Ruling (“SSR”) 96-4p, 1996 WL 374187, at *3
n. 2 (when a manifestation of pain is “an anatomical, physiological, or psychological
abnormality that can be shown by medically acceptable clinical diagnostic techniques, it
represents a medical ‘sign’ rather than a ‘symptom’”).
Here, Dr. Kuhlman confirmed the existence of Longerman’s migraine headaches when
he first began treating her in March 1994. (A.R. 488.) For example, he noted that
Longerman described a consistent headache she had for five or six weeks as throbbing at
times and noted she had “constant bifrontal or hemicranial pain which can affect either side”
of her head. (Id.) Thus, while the court cannot tell for sure, the ALJ may not have
considered Dr. Kuhlman’s clinical findings, which document the nature and severity of
18
Longerman’s chronic headaches as well as his treatment regimen, as constituting medical
signs supporting his opinion. (See e.g., id. at 411, 413, 417, 488, 823.) See Stebbins, 2003
WL 23200371, at *10-11 (remanding the ALJ’s decision because it was based on errors,
“foremost of which was a fundamental misunderstanding of the diagnosis and treatment of
migraine headaches”).
The ALJ also declined to give Dr. Kuhlman’s opinion controlling weight because she
found it to be inconsistent with Longerman’s hearing testimony and her description of the
activities she reported in her October 2007 Activities of Daily Living Questionnaire. (A.R.
21, 172-79.) However, both Longerman’s hearing testimony and her reported activities
appear to be consistent with Dr. Kuhlman’s opinion. For example, Longerman testified that
she was laid off from her previous jobs because her headaches frequently caused her to be
absent from work, just as Dr. Kuhlman opined that she likely would be absent from work
more than three times a month as a result of her impairments. (Id. at 38, 45, 842.)
Longerman also testified and reported that on those days when her headaches were not as
severe or not present, she was able to do a number of activities, which included among other
things, driving and taking care of children. (Id. at 41-44, 172, 174-75.) However, on those
days when she experienced a severe headache, she was unable to do anything. (Id. at 39, 41,
172, 175.) Thus, Longerman’s testimony and reported activities seem to be consistent with
Dr. Kuhlman’s opinion that, during times when Longerman had a severe headache, she
would generally be precluded from performing even basic work activities and would need
to take a break from the workplace. (Id. at 842.)
19
The Commissioner, however, contends that Dr. Kuhlman’s opinion is contradicted by
Longerman’s testimony with respect to the frequency and intensity of her headaches. (R. 19,
Def.’s Mem. at 3-5.) For example, Dr. Kuhlman reported that Longerman suffers from daily
headaches that last from approximately one hour to eight hours and are not relieved by
medications. (A.R. 839, 841.) But Longerman’s hearing testimony that her headaches could
last for days at times does not appear to contradict Dr. Kuhlman’s opinion because he
reported the approximate duration of Longerman’s headaches. The Commissioner also
argues that Longerman’s testimony about her ability (even on days she has headaches) to
drive and watch children is inconsistent with Dr. Kuhlman’s statement that she has daily
headaches lasting up to eight hours. (R. 19, Def.’s Mem. at 4.) However, Longerman
testified that she tries to avoid driving on days she has a severe headache, but “sometimes
it’s unavoidable” because she would develop a headache after she was already out and has
to return home. (A.R. 42.) She also explained that if she had a headache while she was
caring for the five year-old child in question, she would simply let the child play by herself.
(Id. at 43, 45.) As such, there does not appear to be a conflict between Dr. Kuhlman’s
opinion and Longerman’s description of her daily activities. See e.g., Clifford v. Apfel, 227
F.3d 863, 872 (7th Cir. 2000) (noting “minimal daily activities . . . do not establish that a
person is capable of engaging in substantial physical activity”).
In addition, the ALJ may have improperly credited Dr. Wharton’s opinion over that
of Dr. Kuhlman. The Commissioner asserts that the ALJ reasonably relied on Dr. Wharton’s
March 2008 opinion because her findings regarding Longerman’s memory, concentration,
20
and forgetfulness are consistent with Longerman’s testimony describing her abilities in those
areas. (R. 19, Def.’s Mem. at 5.) But even if the Commissioner is correct, this court’s
review of the record shows that Dr. Wharton never evaluated Longerman’s migraine
headaches. And she is a psychologist without the qualifications to render a medical opinion.
Thus, the ALJ seems to have improperly relied on Dr. Wharton’s assessment to discount
Dr. Kuhlman’s June 2009 opinion regarding Longerman’s migraine headaches. Because
Dr. Wharton’s assessment does not amount to a medical opinion that contradicts
Dr. Kuhlman’s assessment, the ALJ failed to point to some “well-supported contradicting
evidence” before discounting Dr. Kuhlman’s opinion. Hofslien, 439 F.3d at 376.
The ALJ also discounted Dr. Kurilo’s July 2009 opinion regarding Longerman’s
depression because she found that it was not supported by medical documentation and was
inconsistent with Longerman’s daily activities. (A.R. 21.) While the ALJ did not identify
what documentation she meant, if she was referring to treatment notes, this court’s review
of the record shows that Dr. Kurilo’s July 2009 opinion is supported by her treatment notes.
Dr. Kurilo’s monthly treatment notes offer insight into Longerman’s depression and
associated symptoms. For example, in April 2009, she offered a diagnosis of major
depression, with a GAF score of 50, continued Longerman’s anti-depressant medications,
and recommended that she undergo psychotherapy. (Id. at 887-88.) In May 2009, Dr. Kurilo
noted that Longerman continued to have problems with motivation and feeling tired. (Id. at
885.) And in July 2009, she assessed Longerman as displaying a number of symptoms
related to her depression, including very poor stress tolerance, fluctuating anxiety, and
21
concentration problems. (Id. at 883.) Contrary to the ALJ’s conclusion, those treatment
notes identify medical signs which support Dr. Kurilo’s opinion. These findings are
consistent with Dr. Kurilo’s July 2009 opinion that Longerman suffers from major depression
and has poor memory, mood disturbance, emotional lability, pervasive loss of interests,
feelings of guilt or worthlessness, difficulty thinking or concentrating, decreased energy,
generalized persistent anxiety, hostility, and irritability. (Id. at 845-46.) Furthermore, the
ALJ also discredited Dr. Kurilo’s opinion because it was inconsistent with Longerman’s
daily activities. However, the ALJ did not explain why her limited activities are inconsistent
with her claim of disabling depression.
The Commissioner’s defense of this aspect of the ALJ’s decision relies on precluded
post-hoc rationalizations. Here, the Commissioner asserts that the ALJ appropriately rejected
Dr. Kurilo’s July 2009 opinion because it is inconsistent with her short treatment history with
Longerman between April 2009 and July 2009. (R. 19, Def.’s Mem. at 6-7.) For example,
the Commissioner points out that Dr. Kurilo noted that Longerman did not have a history of
mania, psychosis, physical aggression towards others, obsessive compulsive disorder, or
panic attacks. (Id. at 6.) The Commissioner also relies on a host of Dr. Kurilo’s other
medical findings, including that Longerman did not exhibit any abnormal movements or a
formal thought disorder, in an attempt to establish that her treatment notes are inconsistent
with her July 2009 opinion. (Id. at 6-7.) But the ALJ never articulated these reasons for
discrediting Dr. Kurilo’s assessment and the Commissioner’s after-the-fact contentions are
not a substitute for the ALJ’s analysis. See Golembiewski v. Barnhart, 322 F.3d 912, 916
22
(7th Cir. 2003) (“[G]eneral principles of administrative law preclude the Commissioner’s
lawyers from advancing grounds in support of the agency’s decision that were not given by
the ALJ.”).
Besides articulating unsupported reasons for declining to give Dr. Kurilo’s opinion
controlling weight, the ALJ seems to have improperly credited Dr. Wharton’s opinion over
that of Dr. Kurilo. Here, the Commissioner asserts that the ALJ properly relied on
Dr. Wharton’s opinion because she reviewed the records from Longerman’s 2007
hospitalization and five months of treatment notes (the reports from Dr. Gibbons). (R. 19,
Def.’s Mem. at 5-6.) The Commissioner further contends that Dr. Wharton reasonably relied
on the activities Longerman reported in her October 2007 Activities of Daily Living
Questionnaire because Longerman did not allege a change or worsening in her condition
since that time. (Id. at 6.) Dr. Wharton’s assessment of Longerman is based on a limited
review of the record because it did not include Dr. Kurilo’s treatment notes and her July 2009
assessment. Here, Dr. Wharton rendered her assessment in March 2008,10 more than 15
months before Dr. Kurilo made her assessment. Because Dr. Wharton did not have an
opportunity to review Dr. Kurilo’s clinical findings that show the extent to which Longerman
struggled with a significant depressive disorder and associated symptoms, her opinion is not
comprehensive and does not contradict Dr. Kurilo’s assessment.
10
The Commissioner asserts in its response that Dr. Wharton “reviewed the record in March
2009,” (R. 19, Def.’s Mem. at 5), but the administrative record shows that Dr. Wharton
completed her assessment on March 16, 2008, (A.R. 635).
23
Even if the ALJ had articulated good reasons for refusing to give the opinions of
Dr. Kuhlman and Dr. Kurilo controlling weight, the ALJ still would have been required to
determine what weight the assessments did merit. See 20 C.F.R. §§ 404.1527(d); 416.927(d);
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010). “If an ALJ does not give a treating
physician’s opinion controlling weight, the regulations require the ALJ to consider the
length, nature, and extent of the treatment relationship, frequency of examination, the
physician’s speciality, the types of tests performed, and the consistency and supportability
of the physician’s opinion.” Moss, 555 F.3d at 561 (citation omitted). Here, many of these
considerations seem to favor crediting the assessments of Dr. Kuhlman and Dr. Kurilo: both
physicians are specialists; they saw Longerman on a frequent basis, and the treatment
relationship lasted anywhere from several months to years.
Based on the shortcomings in the ALJ’s consideration of the opinions of Dr. Kuhlman
and Dr. Kurilo, the ALJ’s decision lacks a basis for concluding that she applied the correct
legal standard. In crediting Dr. Wharton’s opinion over the views of Dr. Kuhlman and
Dr. Kurilo, the ALJ appears to have selected only those pieces of evidence that favored her
ultimate conclusion. See e.g., Binion, 108 F.3d at 788-89; Herron v. Shalala, 19 F.3d 329,
333 (7th Cir. 1994). On remand, if the ALJ cannot identify well-supported evidence
contradicting Longerman’s treating physicians, then the ALJ must accord those opinions
controlling weight. See 20 C.F.R. §§ 404.1527(d)(2); 416.927(d)(2). If good reasons do
exist for discounting their opinions, the ALJ must apply the factors listed in Sections
404.1527(d) and 416.927(d) when deciding what weight to give those opinions. Furthermore,
24
while Longerman herself has not raised this issue, the ALJ must explain why she does not
believe that Longerman’s limitations would not require her to be off task 20 percent of the
time or miss two days of work per month, which would preclude substantial gainful activity.
B.
Credibility
Longerman argues that the ALJ erred in assessing her credibility because she
improperly evaluated the credibility of her testimony only after developing her RFC finding.
(R. 14, Pl.’s Mem. at 14-15.) She also claims that the ALJ mischaracterized her daily
activities by ignoring the fact that her activities were confined to days when she was not
suffering from a severe headache. (Id. at 15.) And Longerman complains that the ALJ did
not consider the fact that she took multiple narcotic pain medications, which support her
allegations of severe headache pain. (Id.)
The Commissioner defends that the ALJ
reasonably found Longerman’s testimony not credible because it was contradicted by her
daily activities and the objective medical evidence of record. (R. 19, Def.’s Mem. at 8.)
This court finds that the ALJ failed to properly assess the credibility of Longerman’s
testimony at the hearing. An ALJ’s credibility finding will be afforded “considerable
deference” and overturned only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d
731, 738 (7th Cir. 2006) (citations omitted). “A credibility assessment is afforded special
deference because the ALJ is in the best position to see and hear the witness and determine
credibility.” Shramek v. Apfel, 226 F.3d 809, 811 (7th Cir. 2000) (citation omitted).
However, where the credibility determination is based on objective factors rather than
25
subjective considerations, an ALJ is in no better position than the court and the court has
greater freedom to review it. Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008).
SSR 96-7p establishes a two-step process for evaluating symptoms, such as pain. SSR
96-7p, 1996 WL 374186, at *2. First, the ALJ must consider whether there is an underlying
medically determinable physical or mental impairment that could reasonably be expected to
produce a claimant’s pain or other symptoms. Id. Second, if there is an underlying physical
or mental impairment that could reasonably be expected to produce a claimant’s pain or other
symptoms, the ALJ must evaluate the intensity, persistence, and limiting effects of a
claimant’s symptoms to determine the extent to which the symptoms limit a claimant’s ability
to perform basic work activities. SSR 96-7p, 1996 WL 374186, at *2. If a claimant’s
statements about the intensity, persistence or functional limiting effects of pain or other
symptoms are not substantiated by objective medical evidence, the ALJ must make a finding
on the credibility of a claimant’s statements based on consideration of the entire case record.
Id.
An ALJ cannot discredit a claimant’s testimony about her pain and limitations “solely
because there is no objective medical evidence supporting it.” Villano v. Astrue, 556 F.3d
558, 562 (7th Cir. 2009) (citations omitted). In other words, an ALJ is not permitted to
“disbelieve [a claimant’s] testimony solely because it seems in excess of the ‘objective’
medical testimony.” Johnson v. Barnhart, 449 F.3d 804, 806 (7th Cir. 2006) (citation
omitted). SSR 96-7p specifically requires the ALJ to consider “the entire case record,
including the objective medical evidence, the individual’s own statements about symptoms,
26
statements and other information provided by treating or examining physicians or
psychologists and other persons about the symptoms and how they affect the individual, and
other relevant evidence in the case record.” Arnold v. Barnhart, 473 F.3d 816, 823 (7th Cir.
2007) (citation omitted).
An ALJ’s credibility finding will be upheld if the reasons for that finding are
supported by substantial evidence. Moss, 555 F.3d at 561; see also SSR 96-7p, 1996 WL
374186, at *2 (the written decision “must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that weight”). Without an adequate
explanation, neither the claimant nor subsequent reviewers will have a fair sense of how the
claimant’s testimony is weighed. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
Therefore, where “the reasons given by the trier of fact do not build an accurate and logical
bridge between the evidence and the result,” an ALJ’s credibility determination will not be
upheld. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
The ALJ did not find Longerman’s testimony credible because it was contradicted by
the medical evidence, her hearing testimony, and the activities she reported being able to do
in her October 2007 Activities of Daily Living Questionnaire. (A.R. 19-20.) But as
discussed above, Longerman’s description of her limitations are supported by numerous
medical signs and findings. See 20 C.F.R. §§ 404.1529(a); 416.929(a). Dr. Kuhlman
repeatedly diagnosed longstanding chronic migraine headaches of severe intensity, which did
27
not improve with medications. (Id. at 411, 823.) His notes reflect that even though
Longerman was taking four or five different narcotic and non-narcotic pain medications each
day, her severe headache pain was not relieved. (Id. at 823.) And Dr. Kurilo’s treatment
notes and July 2009 assessment indicate that Longerman suffers from major depression with
associated symptoms, has a GAF score of 55, and takes daily anti-depressants. (Id. at 84546, 883, 885, 887-88.) Therefore, both the treating physicians’ clinical observations and their
treatment of Longerman support her allegations of disabling limitations. See Carradine v.
Barnhart, 360 F.3d 751, 755 (7th Cir. 2004) (it was improbable that the claimant “is a good
enough actress to fool a host of doctors . . . into thinking she suffers extreme pain; and . . .
that this host of medical workers would prescribe drugs and other treatment for her if they
thought she were faking her symptoms”).
And even if Longerman’s allegations of pain related to her chronic migraine
headaches is not fully supported by objective medical evidence, the Seventh Circuit has
instructed that if a claimant’s allegation of pain is not supported by objective medical
evidence and the claimant indicates that pain is a significant factor in her inability to work,
the ALJ must obtain a claimant’s description of her daily activities by asking specific
questions about the pain and how it effects the claimant. Luna v. Shalala, 22 F.3d 687, 691
(7th Cir. 1994) (citation omitted). The ALJ is required to investigate all avenues that relate
to pain, which include a claimant’s prior work record, information and observations by
treating physicians, examining physicians, and third parties. And the ALJ must also consider
the nature and intensity of a claimant’s pain, precipitation and aggravating factors, dosage
28
and effectiveness of any pain medications, other treatment for the relief of pain, functional
restrictions, and the claimant’s daily activities. Id.; see also Villano, 556 F.3d at 562.
Here, the ALJ did not explain why the medical evidence does not support
Longerman’s claims of disabling pain and limitations. Rather, the ALJ offers Longerman’s
daily activities as substantial evidence to discredit Longerman’s allegations of severe
headache pain. This analysis, however, is not sufficient because minimal daily activities,
such as those described by Longerman, do not establish that she has the ability to engage in
substantial gainful activity. Clifford, 227 F.3d at 872. The ALJ found Longerman’s claims
of pain incredible because, among other things, she is able to drive and watch children on
those days she has headaches. (A.R. 19-20.) However, Longerman testified that she tried
to avoid driving on days she has a severe headache, but “sometimes its unavoidable” because
she would develop a headache after she was already out. (Id. at 42.) She also explained that,
if she had a headache while she was caring for the five year-old child in question, she would
simply let the child play by herself. (Id. at 43, 45.) More significantly, Longerman testified
that at least once a week she could not do anything when she suffered a severe headache. (Id.
at 172, 175.) The ALJ did not address this limitation at all in her credibility determination.
Thus, Longerman’s testimony about her daily activities does not undermine her claim of
disabling pain. See Gentle v. Barnhart, 430 F.3d 865, 867 (7th Cir. 2006) (ALJ improperly
equated work in the labor market to household work, including caring for children);
Carradine, 360 F.3d at 755-56 (ALJ improperly found that the claimant could work because
she could occasionally drive, shop and do housework).
29
Furthermore, the ALJ failed to consider the numerous narcotic medications
Longerman took to treat her severe headache pain. Here, the ALJ never acknowledged the
fact that Longerman was prescribed four or five daily pain medications (including narcotics)
but, despite these medications, she continued to experience severe headache pain. The ALJ
did not explain why Longerman’s testimony was not credible in light of the ineffectiveness
of these prescribed medications. Thus, the ALJ’s failure to analyze the relevant credibility
factors warrants reversal. See Villano, 556 F.3d at 562 (because the ALJ did not consider the
factors required under SSR 96-7p, “[t]he ALJ failed to build a logical bridge between the
evidence and his conclusion that [the claimant’s] testimony was not credible”).
Finally, the ALJ’s conclusory statement that she rejected Longerman’s description of
her symptoms “to the extent they are inconsistent with the above residual functional capacity
assessment” raises the concern that she discounted her credibility simply because her
testimony did not mesh with her view of her RFC. As the Seventh Circuit has made clear,
finding statements that support the RFC credible and disregarding statements that do not
“turns the credibility determination process on its head.” Brindisi ex. rel. Brindisi v.
Barnhart, 315 F.3d 783, 787-88 (7th Cir. 2003). The ALJ is required to assess a claimant’s
credibility before developing the RFC. Id. at 788. Given the ALJ’s failure to properly
analyze Longerman’s testimony regarding her pain symptoms and daily activities, this court
cannot be sure that she evaluated her credibility independently rather than dismissing her
testimony to the extent it did not fit neatly within her RFC assessment. Furthermore, because
the ALJ does not appear to have considered those aspects of Longerman’s testimony that she
30
believed were not incredible or, in other words, supported Longerman’s allegations of severe
disabling pain, the court cannot tell that the ALJ’s conclusion that Longerman is not disabled
is supported by substantial evidence. Based on these shortcomings, this court cannot uphold
the ALJ’s credibility determination. On remand, the ALJ must reevaluate Longerman’s
complaints of severe pain in light of the record as a whole.
Conclusion
For the foregoing reasons, Longerman’s motion for summary judgment is granted
insofar as it requests a remand and the Commissioner’s motion for summary judgment is
denied.
ENTER:
____________________________
Young B. Kim
United States Magistrate Judge
31
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