Milligan v. Berryhill

Filing 20

MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the Government's motion is denied, and the case is remanded for further proceedings. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 5/31/2019:(yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Robin M.,
Plaintiff,
v.
Nancy A. Berryhill, Acting
Commissioner of Social Security,
Defendant.

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No. 18 CV 50073
Magistrate Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER 1
Plaintiff, who is now 43 years old and who stays at home taking care of her three
children, filed applications for disability benefits in May 2015. She worked full-time for at least
18 years, but stopped working in 2013 because of an elbow injury suffered at work. The
diagnosis was right lateral elbow epicondylitis. For that injury, she filed a worker’s
compensation claim that was still pending at the time of the administrative hearing in this case.
Although the elbow injury also forms one part of her disability claim here, she has raised no
arguments in this appeal relating to that particular impairment, nor to a separate later ankle
injury. Instead, this appeal focuses on a separate and more diffuse set of symptoms. These
include fatigue, muscle and joint pain, lack of focus, headaches, depression, and anxiety.
Plaintiff’s doctors have not definitively determined the cause (or causes) for these symptoms,
although they have identified thyroid problems, scleroderma, and degenerative disc disease as
possible causes. After a hearing, at which no medical expert was called, the administrative law
judge (“ALJ”) issued a decision finding that plaintiff could do sedentary work. The key part of

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The Court will assume the reader is familiar with the basic Social Security abbreviations and jargon.

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the decision was the ALJ’s determination that plaintiff’s testimony was not entirely consistent.
Plaintiff’s main argument here is that this finding, which will sometimes be referred to as the
credibility finding for the sake of convenience, was flawed. Although the Court does not find all
of plaintiff’s criticisms are valid, the Court agrees that enough questions have been raised to
justify a remand.
BACKGROUND
In May 2015, which was around the time plaintiff filed her disability applications, she
went to her primary care physician, Dr. Katerina Doronila-Hughes, complaining about low
energy, depression, poor appetite, inability to focus, stress, exhaustion, and recent weight loss.
Dkt. #10 at 1. Dr. Doronila-Hughes ordered lab work to check for a connective tissue disease.
Lab results showed elevated SCL-70 antibodies. Dr. Doronila-Hughes referred plaintiff to an
endocrinologist, Dr. Shalini Paturi, to address possible thyroid problems. Another condition that
was suspected was systemic scleroderma, a chronic connective tissue disease. 2 Plaintiff had been
reporting that she had dry skin and brittle nails. Plaintiff was referred to Dr. Robin Hovis, a
rheumatologist, who examined plaintiff on July 13, 2015. Dr. Hovis listed three assessments in
the treatment notes for the visit: arthralgia, systolic murmur, and +SCL70 thyroid antibodies. R.
680. However, Dr. Hovis indicated that there were “[n]o clinical findings of scleroderma.” Id.
Dr. Hovis prescribed Gabapentin, and scheduled a follow-up visit in three months. It is not clear
whether plaintiff ever followed up, but she continued treatment with Dr. Doronila-Hughes and
Dr. Paturi. They prescribed some pain medications. Dr. Doronila-Hughes offered to refer
plaintiff for counseling, but plaintiff declined the offer. R. 582.

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This description is taken from a website as quoted in plaintiff’s brief. See Dkt. #10 at 2, n.1 (“scleroderma.org.”).

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On March 2, 2017, the ALJ held an administrative hearing. Plaintiff was represented by
counsel who argued in a short opening statement that plaintiff could not work full-time “mainly
due to the ongoing effects of scleroderma as well as decreased thyroid functioning.” R. 41.
Counsel also argued that plaintiff suffered from a work-related injury to her elbow in 2013; that
she broke her ankle the previous year and had complication with it; that her physical symptoms
had “worsened both her depression and anxiety”; and that she had “gained some weight due to
inactivity.” R. 41-42.
Plaintiff then testified about her symptoms. She stated that she was not able to “sit or
stand too long.” R. 50. She got tired quickly and took five to six naps every day. On a typical
day, she woke up early to get her three children off to school and then would nap. The length of
the naps varied from a half hour to “three to four hours at a time.” R. 51. Plaintiff stated that she
took Norco and Xanax. R. 57. Plaintiff did not know for certain what was causing these
problems. She stated that she thought her problems had “a lot to do [] with [her] scleroderma”
and also speculated that stress and an autoimmune disease might be causes. R. 50.
On June 1, 2017, the ALJ issued his decision. At Step Two, he found that the following
impairments were severe: “hypothyroidism; right lateral elbow epicondylitis; degenerative disc
and joint disease of the cervical spine; and depression with anxiety.” R. 18. However, he did not
find the scleroderma qualified as a severe impairment. The ALJ noted that Dr. Doronila-Hughes
diagnosed plaintiff with scleroderma “based on [a] high SCL-70 count,” but the ALJ chose to
rely on Dr. Hovis’s finding that there was “no clinical evidence” for this condition. R. 19.
The ALJ found that plaintiff had the residual functional capacity (“RFC”) to do sedentary
work. The ALJ followed the traditional two-part framework, first finding that plaintiff had some
impairments that collectively “could reasonably be expected to produce” plaintiff’s pain and

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other symptoms, but then concluding that plaintiff’s allegations were not “entirely consistent”
with the medical and other evidence. R. 22-23.
The ALJ then summarized the medical evidence (sometimes referred to as the “objective
evidence”), devoting a paragraph each to plaintiff’s elbow problems, spine problems, joint pain,
thyroid problems, and psychological problems. The ALJ then considered the “other evidence,”
ostensibly evaluating the seven factors listed in SSR 16-3p. 3 But the ALJ did not analyze these
factors in a rigorous way. Instead, the ALJ set forth several rationales in the following
discussion:
[Rationale #1] The claimant’s allegations of extreme fatigue and need for frequent
rest and nap breaks are not supported anywhere in the medical records. [Rationale
#2] She manages to perform all basic household activities and is apparently able to
care for young children at home, which can be quite demanding both physically
and emotionally, without any particular assistance.
[Rationale #3] Although the claimant has received treatment for the allegedly
disabling impairments, that treatment has been essentially routine and/or
conservative in nature. She rejected both surgical and conservative management of
right lateral epicondylitis, preferring instead to monitor [the] condition (16F/16-18).
Furthermore, the record reflects that the prescribed treatment and medications have
improved her condition (15F/21-22; 13F/33, 48, 63).
R. 24 (bolded labels added by the Court). 4
DISCUSSION
Plaintiff raises two arguments for a remand. The first and primary one is that the ALJ’s
credibility rationales were flawed and that the ALJ ignored nearly all of the seven 16-3p

As quoted by the ALJ, these factors are: “1) the claimant’s activities of daily living, 2) the location, duration,
frequency, and intensity of pain or other symptoms, 3) precipitating and aggravating factors, 4) the type, dosage,
effectiveness, and side effects of medications taken to alleviate pain or other symptoms, 5) treatment, other than
medication, for relief of pain or other symptoms, 6) any measures other than medication used to relieve pain or other
symptoms, and 7) any other factors concerning functional limitations and restrictions due to pain or other
symptoms.” R. 24.
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Plaintiff raises no arguments about the opinion evidence. The ALJ noted, among other things, that none of
plaintiff’s treating physicians provided an opinion about the non-elbow-related symptoms.
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factors—in other words, the analysis was both flawed and incomplete. The Court finds that the
best starting point is to consider the ALJ’s rationales on their own terms.
As summarized above, the ALJ relied on the lack of objective evidence and then offered
several “other” rationales. The Court will consider them individually. 5 In doing so, it is
important to remember that plaintiff’s chief complaint was fatigue. She supposedly took five to
six naps every day, with some naps lasting three to four hours.
Objective Evidence. The main problem with this portion of the decision is that the ALJ
never squarely addressed how the objective evidence was relevant to specific symptoms, such as
fatigue. The ALJ presented the medical facts in a narrative, offering little explicit analysis. Also,
no medical expert was called at the hearing to explain the possible connections between the
objective tests and the alleged symptoms. As a result, this Court must make educated guesses
about what the ALJ believed the objective evidence was indicating. As noted above, plaintiff’s
doctors were somewhat unsure, and not in entire agreement, about the causes of the fatigue and
other symptoms such as muscle pain and headaches. The main contenders appear to have been
thyroid problems and scleroderma, and perhaps also degenerative disc disease, although the latter
condition was not discussed in much detail in the ALJ’s decision or in the briefs here. At Step
Two, the ALJ concluded that plaintiff’s scleroderma was not a severe impairment, leaving the
thyroid problems as presumably the most likely cause. But in the ALJ’s discussion of this
condition, the ALJ seemed to cast doubt on how severe it really was. The ALJ stated as follows:
The claimant has had hypothyroidism since 2009, four years prior to her alleged
onset date, with thyroid nodules that are common and asymptomatic (14F/42, 62).
A parathyroid scan was negative for parathyroid adenoma (13F/16).

The Seventh Circuit has repeatedly stated that a court should not overturn a credibility finding unless it was
“patently wrong” and has further stated that not all of the ALJ’s rationales need be found valid to affirm. Sawyer v.
Colvin, 512 Fed. Appx. 603, 607 (7th Cir. 2013); Halsell v. Astrue, 357 Fed. Appx. 717, 722 (7th Cir. 2009).

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R. 23. Because the ALJ did not indicate what takeaway conclusions were being drawn from
these facts, questions naturally have arisen. Did the ALJ believe that the thyroid problems played
no role in any of plaintiff’s conditions? If not, then what was causing the fatigue problem? Or did
the ALJ believe that there was no medical cause for the fatigue? Or was it merely that the thyroid
problems were relatively minor and would only cause a mild fatigue (i.e. more limited than
plaintiff portrayed it)? If so, how much less so? As the record exists, there are too many gaps and
unanswered questions. These questions should be clarified on remand with the help of a medical
expert. It is possible that gaps will remain even after an expert is consulted, but if so, then it will
be clearer about what inference can be properly drawn.
The Court next considers the “other” rationales set forth in the two paragraphs quoted
above.
Rationale #1. The first rationale is short, only one sentence long, but is arguably the most
important one because it addresses the question of fatigue. The ALJ stated that plaintiff’s
allegation of extreme fatigue and her need for frequent naps were not “supported anywhere” in
the record. The ALJ did not provide any further explanation beyond this categorical assertion,
perhaps on the theory that if nothing is there, then there is nothing to discuss. Nor did the ALJ
elaborate on what the arguably vague statement—allegations were “not supported”—meant in
concrete terms.
Plaintiff essentially argues that the ALJ’s statement was factually wrong. Plaintiff asserts
that, contrary to the ALJ’s statement, she “often” complained about fatigue to her doctors. See
Dkt. #10 at 6 (11 record citations). In other words, plaintiff basically construes the ALJ’s
statement to be a claim about the lack of complaints of fatigue, rather than a claim that there was
no evidence to confirm the allegation of fatigue. In its response brief, the Government did not

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address this line of argument, nor dispute plaintiff’s claim that she complained often.
Accordingly, this Court finds that this first rationale was flawed, mostly because it was vague
and conclusory and perhaps relied on an “error of fact.” Allord v. Barnhart, 455 F.3d 818, 821
(7th Cir. 2006) (an ALJ may not base a credibility determination on “errors of fact or logic”);
Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (remanding because the ALJ’s credibility
determination “misstated some important evidence and misunderstood the import of other
evidence”).
Rationale #2. The ALJ stated that plaintiff “manages to perform all basic household
activities and is apparently able to care for young children at home.” R. 24. Putting aside the
uncertainty suggested by the word “apparently,” the ALJ concluded that plaintiff’s daily
activities undermined her fatigue and other allegations.
Plaintiff raises a traditional counter-argument—namely, cherrypicking. Plaintiff argues
that the ALJ left out the following mitigating points, among others: although plaintiff gets her
children ready for school, she takes naps after they’re gone; although she cleans, she only does
so during periods when she feels better; she loses track of dates and times; and her children are
old enough to do many things themselves. Dkt. #10 at 6.
Plaintiff is correct that the ALJ did not fully acknowledge these points. This is not a case
where the ALJ was relying on an outside source to contradict plaintiff’s self-reports. The ALJ’s
summary is based solely on plaintiff’s testimony and the Adult Function Report she completed—
the same two sources that plaintiff argues contained these mitigating facts. The ALJ also should
have acknowledged that, unlike with work activities, a claimant often can perform household
activities under a more flexible standard and then these activities are typically judged by a lower
standard of performance. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012); Hamilton v.

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Colvin, 525 Fed. Appx. 433, 438 (7th Cir. 2013) (“We have admonished ALJs to appreciate that,
unlike full-time work, the ‘activities of daily living’ can be flexibly scheduled”). Also, the ALJ’s
observation that “young children” can be “quite demanding both physically and emotionally”
seems more fitting for a person taking care of infants or toddlers, not for pre-teens, as is the case
here. 6 R. 24.
In sum, the Court finds that the ALJ’s reliance on plaintiff’s daily activities was not based
on a complete summary. At the same time, the Court does not find that the ALJ’s discussion
contained any outright factual error or egregious overstatement. This second rationale does not
cut strongly either way.
Rational #3. The third and final rationale was the claim that plaintiff’s treatment was
“essentially routine and/or conservative in nature” and that this treatment led to improvement. R.
24. But the ALJ’s discussion of the evidence supporting this claim only related to plaintiff’s
elbow problem.
Plaintiff argues that the ALJ’s conclusion overlooked salient facts about her treatment for
her other problems and symptoms. Plaintiff notes that, among other things, she had “regular
follow up with two specialists (the endocrinologist and rheumatologist)”; her thyroid levels were
checked regularly; she took Gabapentin but discontinued it because of side effects; and she had
no significant treatment gaps. Dkt. #10 at 7. In its response, the Government only briefly
addresses this issue, basically just reiterating the ALJ’s conclusion that plaintiff’s treatments
were routine and conservative. Dkt. #15 at 6. The ALJ and the Government may ultimately be
proven correct on remand. On the surface, plaintiff’s treatments do not appear to be extensive, at
least as compared to some of the treatment protocols this Court sees in disability case. However,

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At the time of the hearing, plaintiff’s children were 13, 12, and 8. R. 59-60.

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to properly assess whether a treatment is conservative, it is necessary to know what treatments
are available. This in turn leads back again to the same underlying unresolved questions about
the possible causes for these diffuse symptoms.
In sum, it is far from clear that plaintiff will be able to prevail in her claim on remand, but
the Court finds that the record contains too many unanswered questions and needs to be
developed further with the assistance of an impartial medical expert. The ALJ and the medical
expert should address these issues explicitly, and also should specifically address each of
plaintiff’s symptoms individually. Having found that this case should be remanded based on this
first argument, the Court need not address plaintiff’s second argument, which is that the
vocational expert erred in the Step Five finding that a significant number of jobs were available
in the national economy. However, on remand, plaintiff should explicitly raise these arguments,
if still appropriate, with the ALJ and the vocational expert during the hearing to avoid a finding
of forfeiture in any subsequent appeal to this Court.
CONCLUSION
For the above reasons, plaintiff’s motion for summary judgment is granted, the
Government’s motion is denied, and the case is remanded for further proceedings.

Date: May 31, 2019

By:

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___________________________
Iain D. Johnston
United States Magistrate Judge