Callese v. Kijakazi

Filing 24

MEMORANDUM Opinion and Order. Signed by the Honorable Heather K. McShain on 9/24/2024. Mailed notice. (evw, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHERRY C.,
Plaintiff,
No. 21 CV 4022

v.
MARTIN O’MALLEY,
COMMISSIONER OF SOCIAL SECURITY,

Magistrate Judge McShain

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Sherry C. appeals the Commissioner of Social Security’s decision
denying her application for benefits. For the following reasons, plaintiff’s motion to
reverse or remand [13] is granted, defendant’s motion for summary judgment [16] is
denied, and the case is remanded for further administrative proceedings. 1
Background
In January 2017, plaintiff applied for a period of disability and disability
insurance benefits with an alleged onset date of February 8, 2015. [10-1] 171. The
claim was denied initially, on reconsideration, and, following a May 2019 hearing
with an administrative law judge (ALJ), in the ALJ’s written decision of July 30,
2019. [Id.] 171-81. The Appeals Council vacated the ALJ’s decision and remanded for
a new hearing. [Id.] 189-90. After that hearing, the ALJ issued a written decision on
January 29, 2021 denying plaintiff’s claim. [Id.] 13-34. The Appeals Council denied
review in May 2021, making the ALJ’s decision the agency’s final decision. See 20
C.F.R. §§ 404.955 & 404.981. Plaintiff then appealed to this Court [1], and the Court
has subject-matter jurisdiction pursuant to 42 U.S.C. § 405(g). 2
The ALJ reviewed plaintiff’s disability claim in accordance with the Social
Security Administration’s five-step sequential-evaluation process. At step one, the
ALJ found that plaintiff had not engaged in substantial gainful activity since her
Bracketed numbers refer to entries on the district court docket. Referenced page numbers
are taken from the CM/ECF header placed at the top of filings, except for citations to the
administrative record [10], which refer to the page numbers in the bottom right corner of
each page.
2 The parties have consented to the exercise of jurisdiction in this case by a United States
Magistrate Judge. [5, 8].
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alleged onset date. [10-1] 16. At step two, the ALJ determined that plaintiff has the
following severe impairments: osteoarthritis of the bilateral hips, episodic migraines
with associated vertigo, and right sided hearing loss. [Id.]. At step three, the ALJ
ruled that plaintiff’s impairments did not meet or equal the severity of a listed
impairment. [Id.] 16-17. Before turning to step four, the ALJ found that plaintiff had
the residual functional capacity (RFC) to perform sedentary work, except that
plaintiff could never climb ladders, ropes, or scaffolds; she could occasionally climb
ramps or stairs, balance, stoop, kneel, crouch, or crawl; she should work in moderate
or quieter noise settings; she should avoid work hazards, including unprotected
heights and moving, dangerous machinery; she should avoid work with vibrating
tools and work surfaces; and she can work at temperature-controlled work
environments but not in extreme temperatures. [Id.] 17. At step four, the ALJ found
that plaintiff could perform her past relevant work as an office manager. [Id.] 33-34.
Because that finding meant that plaintiff was not disabled, the ALJ denied the claim
without proceeding to step five.
Legal Standard
The Court reviews the ALJ’s decision deferentially to determine if it is
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “not a
high threshold: it means only ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Karr v. Saul, 989 F.3d 508, 511 (7th Cir.
2021) (quoting Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019)). “When reviewing a
disability decision for substantial evidence, we will not reweigh the evidence, resolve
debatable evidentiary conflicts, determine credibility, or substitute our judgment for
the ALJ’s determination so long as substantial evidence supports it.” Warnell v.
O’Malley, 97 F.4th 1050, 1052-53 (7th Cir. 2024) (internal quotation marks and
brackets omitted).
Discussion
Plaintiff argues that the ALJ failed to properly evaluate the opinion of her
neurologist, Dr. Thomas Burnstine, under the treating-physician rule that applied in
this case. [13] 13-15.
“A treating source’s opinion in cases filed before March 27, 2017, is entitled to
controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and not inconsistent with other substantial
evidence.” Heidi R. v. Kijakazi, No. 20 CV 5617, 2023 WL 7130374, at *3 (N.D. Ill.
Oct. 30, 2023). “This rule is premised on the treating physician’s greater familiarity
with the claimant’s condition and the progression of [her] impairments[.]” D.K.H. v.
Saul, No. 19-cv-7755, 2021 WL 2566768, at *3 (N.D. Ill. Jun. 23, 2021). Once contrary
evidence is introduced, however, “a treating physician’s opinion becomes just one
piece of evidence for the ALJ to evaluate, and the ALJ must then analyze various
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factors in deciding the weight to afford it, if any.” Heidi R., 2023 WL 7130374, at *3.
These factors include the length, nature, and extent of the treatment relationship;
the frequency of examination; the physician’s specialty; the types of tests performed;
and consistency with and support for the opinion in the record. 20 C.F.R.
§ 404.1527(c). “An ALJ must give good reasons for discounting the opinion of a
treating physician.” Scott v. Astrue, 647 F.3d 734, 739 (7th Cir. 2011) (internal
quotation marks omitted). Although the ALJ need only “minimally articulate” these
reasons, the ALJ “must still support his conclusions with substantial evidence.”
Stocks v. Saul, 844 F. App’x 888, 892 (7th Cir. 2021).
Dr. Burnstine treated plaintiff for migraines and associated vertigo from at
least June 2017 through May 2020. See [10-1] 562-64 (June 15, 2017 treatment note);
[id.] 27 (ALJ discussing Dr. Burnstine’s May 26, 2020 treatment notes). On May 3,
2019, Dr. Burnstine completed a “Physical Residual Functional Capacity Statement”
that addressed the work-related limitations caused by plaintiff’s migraines. [10-2]
909-12. According to Dr. Burnstine, plaintiff experienced head pain due to migraines
that lasted between six and eight hours and occurred as often as four days per week.
[Id.] 909. Burnstine opined that plaintiff’s pain was severe enough to occasionally
interfere with the attention and concentration needed to perform simple work tasks.
[Id.]. Dr. Burnstine further opined that plaintiff “can work well” on “most days,” but
also had a “variable” need to lie down if she experienced a migraine and was likely to
be off-task for 15% of an eight-hour workday. [Id.] 910, 912. Burnstine also opined
that plaintiff would be unable to obtain and retain work in a competitive work
environment “if she has [a] migraine.” [Id.] 912.
The ALJ’s RFC determination did not include a restriction for off-task time, a
variable need to lie down, or an impaired ability to sufficiently pay attention and
concentrate to complete simple work. This was because, according to the ALJ, Dr.
Burnstine’s opinion was entitled to only “some weight”:
At first glance, this opinion appears to be limited in scope by the
claimant and/or her representative in an effort to slant Dr. Burnstine’s
opinion and provide a less than full assessment of the claimant’s
abilities. The document clearly contains handwriting from at least two
different people, with portions filled in or crossed out after the fact. This
renders it somewhat suspect. Additionally, it should be noted the
undersigned considered a letter requesting medication coverage from
the insurance provider at 18F, page 1, which is signed by Dr. Burnstine,
but clearly authored by a medical assistant, a non-medically acceptable
source. It seems possible that other medical staff completes the doctor’s
forms and to what extent his actual medical judgment is accurately
reflected is unknown. However, the undersigned finds that the claimant
can likely perform sedentary work with some environmental and
postural limitations so as not to trigger the claimant’s migraine
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headaches and resultant vertigo. This is supported by the rest of the
record, which indicates that the claimant should avoid a job where she
is required to stand and walk for extended periods, and is capable of
managing most tasks in the absence of headaches (Exhibits 2F, 5F, 8F).
Moreover, Dr. Burnstine’s recent notes from 2019 to 2020 documented
intact findings on exam (i.e., normal neurologic, mental and gait exams)
with no significant changes to prescribed treatment, except for the Botox
injections, which the claimant has not yet pursued (23F). Therefore, this
is accorded some weight.
[10-1] 31-32.
The Court concludes that multiple errors in the ALJ’s evaluation of Dr.
Burnstine’s opinion require a remand.
First, it is unclear whether or to what extent the ALJ evaluated Burnstine’s
opinion in accordance with the treating-physician rule. Most obviously, the ALJ
“altogether failed to address whether Dr. [Burnstine’s] medical opinions are
supported by medically acceptable clinical and laboratory diagnostic techniques.”
Moss v. Astrue, 555 F.3d 556, 560 (7th Cir. 2009). Nor did the ALJ consider Dr.
Burstine’s specialty or the frequency with which he examined plaintiff. See Jaquelyn
L. v. Kijakazi, No. 19 C 4223, 2022 WL 1620129, at *7 (N.D. Ill. May 23, 2023)
(remanding based on ALJ’s misapplication of treating-physician rule where ALJ
“omitted any discussion of the fact that Dr. Rao was plaintiff’s treating oncologist, the
doctor who coordinated all of her cancer treatment from July 2016 through September
2017”). And while the ALJ appears to have considered whether Dr. Burnstine’s
opinion was consistent with and supported by his treatment notes from 2019 and
2020, the Court explains below that substantial evidence does not support any finding
that the opinion was inconsistent with or unsupported by the doctor’s treatment
notes.
Second, and contrary to the Commissioner’s argument, see [17] 7, it is readily
apparent that the ALJ discounted the opinion based on several dubious and highly
speculative suppositions. To begin, the ALJ surmised that plaintiff and/or her
representative had intentionally limited the “scope” of Dr. Burnstine’s opinion so that
Burnstine would “provide a less than full assessment of the claimant’s abilities.” [101] 31. The ALJ did not explain what she meant by that, nor is it obvious to the Court
how or why the ALJ drew such a conclusion, so this “reason” is dismissed as pure
speculation. Cf. Rockwell v. Saul, 781 F. App’x 532, 537 (7th Cir. 2019) (“[T]he ALJ’s
notion that treating physicians such as Dr. Smith lie about their patients’ capabilities
is based on nothing but speculation and a general suspicion of treating physicians.
Nothing in the record backs this up.”). The ALJ also stated that Dr. Burstine’s opinion
was “somewhat suspect” because the document containing his findings “clearly
contains handwriting from at least two different people, with portions filled out after
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the fact.” [10-1] 31. The ALJ even suggested it was “possible” that “other medical staff
completes the doctor’s forms and to what extent his actual medical judgment is
accurately reflected is unknown.” [Id.]. But the one page of the record that the ALJ
cited to support this theory undermines it. The ALJ pointed to the fact that a medical
assistant in Dr. Burnstine’s office prepared a letter for plaintiff’s insurer–a letter that
was, admittedly, signed by Burnstine–requesting coverage for plaintiff’s Aimovig
injections, which were “started in Oct 2018” and led to some “improvement.” [10-2]
913. Yet Dr. Burnstine’s own notes corroborate every factual assertion in the letter:
(1) Burnstine had treated plaintiff for migraines for over a year, see [10-2] 914
(plaintiff was “an established patient” as of July 24, 2018); (2) plaintiff had tried
Aleve, Advil, Duloxetine, Nortriptyline, and Propanolol, but continued to experience
regular migraines, see [id.] 917 (documenting plaintiff’s use of these medications and
her ongoing migraines); (3) plaintiff had started Aimovig injections and experienced
some improvement, see [id.] 920 (plaintiff’s migraines were not debilitating after
Aimovig injection); and (4) plaintiff had experienced an interruption in Aimovig due
to issues with her insurer, see [id.] 927-33. The idea that Dr. Burnstine’s treatment
notes did not reflect his own medical judgment was thus the purest of conjecture, and
“[a]n ALJ’s conjecture is never a permitted basis for ignoring a treating physician’s
views[.]” Moss, 555 F.3d at 560.
Third, the ALJ’s apparent finding Dr. Burnstine’s treatment notes from 2019
and 2020 were inconsistent with or did not support his opinion–specifically, his
opinion that plaintiff’s migraines would interfere with her attention and
concentration, cause her to be off-task for 15% of the workday, and require a variable
period of lying down–has no substantial evidentiary support. Even accepting the
ALJ’s characterization of Dr. Burnstine’s notes as reflecting “intact” neurological
findings, those notes unambiguously demonstrate that plaintiff experienced severe,
recurring migraine despite Burnstine’s efforts to treat them with different
medications. The July 1, 2019 treatment note reflects that Dr. Burnstine previously
treated plaintiff’s headaches with Duloxetine, which initially resolved “all headaches
and vertigo.” [10-2] 1084. However, plaintiff continued to experience “headache and
vertigo 1/week”; these migraines were “milder”, but only because they lasted “6-8
hours instead of 24 hours or more,” and plaintiff was not experiencing brain fog. [Id.]
1084-85. Plaintiff began receiving Aimovig injections in or around March 2019, which
“helps her” because “[t]he migraine[s] are not as severe for the first 2 weeks” after
the injection, “but the migraines return as before for the last 2 weeks.” [Id.] 1086.
According to a November 2019 treatment note, plaintiff reported that “Aimovig still
helps but not as much” and that she had “3-4 migraines per week” or “7 migraines
per week.” [Id.] 1088. Dr. Burnstine assessed plaintiff with “intractable migraine
without aura” and recounted that plaintiff experienced only “partial relief with
Aimovig.” [Id.] 1089. Burnstine discussed “alternative medication” with plaintiff, and
plaintiff said she would consider Botox. [Id.]. In February 2020, plaintiff reported
that she did not have Aimovig “for awhile” and had a “3 day severe migraine” and
“[v]ertigo since then”; plaintiff also believed she was not thinking clearly. [Id.] 1091.
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Dr. Burnstine noted that plaintiff would continue using Aimovig and referred her to
a pain specialist, Dr. Jay Hurh, for Botox injections. [Id.]. At a March 2020
evaluation, Dr. Hurh found that plaintiff “does meet criteria for Botox injection for
migraine headaches” because she had “failed multiple medications” and only one of
those medications “provid[ed] some relief.” [Id.] 1097. In May 2020, plaintiff reported
during a telephone virtual appointment with Dr. Hurh that “[s]he did not get Botox
because of the pandemic. She is not going out because she stated she is
immunocompromised.” [Id.] 1100. Dr. Hurh prescribed Memantine for migraine
prevention. [Id.] 1102.
The treatment notes provide no substantial support for the ALJ’s apparent
determination that Dr. Burnstine’s opinion was either inconsistent with, or
unsupported by, the treatment record. To the contrary, the treatment notes
demonstrate that plaintiff’s migraines persisted despite multiple medication changes
and were sufficiently intractable that Dr. Burnstine and Dr. Hurh agreed that Botox
treatment was warranted. By any measure, this was an apparently “significant”
change in plaintiff’s medication regimen because her insurer previously indicated it
would not cover Botox until plaintiff first “failed” other medications. See, e.g., [10-2]
923. The ALJ acknowledged this significant change, but apparently dismissed it
because plaintiff had “not yet pursued” the Botox treatment by the time of the
hearing. [10-1] 32. Plaintiff explained, however, that it was the arrival of the Covid19 pandemic that caused her not to seek Botox treatment in May 2020 because she
was immunocompromised. [10-2] 1100. It is unclear how–or whether–the ALJ
considered that fact in weighing Dr. Burnstine’s opinion. Cf. Jose V. v. Kijakazi, No.
21 CV 896, 2023 WL 8934938, at *5 (N.D. Ill. Dec. 27, 2023) (“The ALJ must consider
and address reasons for not pursuing treatment that are pertinent to an individual’s
case and explain how [she] considered the individual’s reasons in [her] evaluation of
the individual’s symptoms.”). Finally, while the ALJ observed that plaintiff’s
migraines were “well managed with current treatment,” the ALJ also acknowledged
that plaintiff “continues to experience headaches with vertigo” and that “she still has
problems” despite experiencing some “improve[ment].” [10-1] 33. The Court therefore
finds that the ALJ failed to build a logical bridge between Dr. Burnstine’s treatment
notes and her conclusion that Burnstine’s opinion deserved only some weight. Indeed,
the ALJ’s reasoning simply does not address Burnstine’s conclusion that,
notwithstanding some improvement in her condition, plaintiff’s recurring migraines
would interfere with her attention and concentration, cause her to be off-task for up
to 15% of a workday, and possibly require that she lie down at work if she experienced
a migraine.
The Commissioner’s arguments to the contrary lack merit. The Commissioner
first argues that the ALJ reasonably “elevat[ed] other medical opinions over that of
Dr. Burnstine.” [17] 8. But two of the state agency reviewers who gave opinions–in
May and August 2017, well before Dr. Burnstine was treating plaintiff’s migraines in
July 2018 and beyond–did not even address migraines. See [10-1] 145-53 (initial
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review in May 2017); [id.] 156-65 (reconsideration review in August 2017).3 What’s
more, the ALJ specifically rejected the reviewers’ conclusions that plaintiff could
perform light work based on the ALJ’s review of additional evidence of plaintiff’s
dizziness that was submitted post-hearing. See [id.] 32 (giving “some weight” to
agency reviewers’ opinions but finding that plaintiff “is more appropriately limited to
sedentary exertional work due to hip osteoarthritis and dizziness”). The ALJ also
gave only “partial weight” to the opinion of Dr. Steven Goldstein, an independent
medical expert who testified at the hearing. [Id.] 33. Relevant here, the ALJ cited the
“new medical evidence submitted post hearing”–i.e. Dr. Burnstine’s later treatment
notes, which Goldstein did not review–as grounds for rejecting Dr. Goldstein’s opinion
that plaintiff could perform light work. [Id.]; see also [id.] 24 (acknowledging that
additional records, including Dr. Burnstine’s 2019-2020 treatment notes, were
submitted after Dr. Goldstein testified). This, then, was not a case where the ALJ
permissibly decided to credit one medical opinion on the severity and limiting effects
of plaintiff’s migraines over another, and the ALJ’s supposed “elevati[on of] other
medical opinions over that of Dr. Burnstine” is not a good reason to reject the treating
neurologist’s opinion. The Commissioner also argues that there were “contradictions
between [Burnstine’s] opinion and the doctor’s own treatment notes,” [17] 8, but these
contradictions are not identified in the Commissioner’s brief–or, more importantly,
in the ALJ’s decision.
In the end, there is grave doubt whether the ALJ even applied the treatingphysician rule when evaluating Dr. Burnstine’s opinion. The ALJ impermissibly
speculated about the manner in which plaintiff obtained the opinion and, contrary to
all indications, whether Dr. Burnstine’s treatment notes reflected his own medical
judgment. To the extent the ALJ found that Dr. Burnstine’s opinion was inconsistent
with, or unsupported by, his own treatment records, such a finding has no substantial
basis in the evidence. As a result, the ALJ’s RFC determination focused on
“environmental and postural limitations so as not to trigger the claimant’s
migraines,” [10-1] 31-32, but included no restrictions to account for the limitations
that, according to Dr. Burnstine, would arise if and when plaintiff experienced a
migraine at work. Because substantial evidence does not support the ALJ’s handling
of Dr. Burnstine’s opinion, a remand is required. 4

The ALJ did not mention the opinion of a third agency reviewer whom the Commissioner
relies on. See [10-1] 631 (July 9, 2018 opinion of Dr. Robysina James).
4 Because this issue is dispositive, the Court does not reach plaintiff’s other ground for
remand.
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7

Conclusion
Plaintiff’s motion to reverse or remand [13] is granted and defendant’s motion
for summary judgment [16] is denied. The decision of the Social Security
Administration is reversed, and, in accordance with the fourth sentence of 42 U.S.C.
§ 405(g), this case is remanded for further proceedings consistent with this
Memorandum Opinion and Order.

_____________________________________
HEATHER K. McSHAIN
United States Magistrate Judge
DATE: September 24, 2024

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