Seward v. Berryhill

Filing 22

DECISION AND ORDER signed by Magistrate Judge David E Jones. IT IS HEREBY ORDERED that the Commissioner's decision is REVERSED. IT IS FURTHER ORDERED that this action is REMANDED to the Commissioner pursuant to sentence four of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order. FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRY SEWARD,
Plaintiff,
v.

Case No. 17-CV-911

NANCY A. BERRYHILL,
Deputy Commissioner of Operations,
Social Security Administration,
Defendant.

DECISION AND ORDER REVERSING THE COMMISSIONER’S DECISION

Terry Seward alleges that he is unable to work due to migraine headaches
and musculoskeletal issues. After the Social Security Administration denied his
applications for disability benefits, Mr. Seward requested and received a hearing
before an administrative law judge. The ALJ determined that Mr. Seward remained
capable of working notwithstanding his impairments. Mr. Seward now seeks
judicial review of that decision.
Mr. Seward argues that the ALJ erroneously discounted his subjective
complaints concerning the limiting effects of his impairments, failed to include
limitations stemming from his migraine headaches in the residual functional
capacity assessment, and improperly discounted the medical opinions of his treating

medical providers. The Commissioner contends that the ALJ’s decision is supported
by substantial evidence.
The Court agrees with Mr. Seward. Because the ALJ failed to provide
sufficient reasons for not believing Mr. Seward’s subjective complaints of disabling
symptoms and for not crediting the opinions of his medical providers, her decision
denying Social Security benefits to Mr. Seward will be reversed and this matter will
be remanded for further proceedings.
I.

Background
Terry M. Seward was born on August 31, 1971. Transcript 216, ECF No. 17-

3–17-19. In 1994, having completed two years of college, Mr. Seward accepted a job
at a factory working on an assembly line and driving a forklift. Tr. 72–73, 267. He
worked there for about ten years before leaving in 2005 to become a state
correctional officer. Tr. 267.
In 2009, Mr. Seward injured his lower back in a severe motor vehicle
accident. Tr. 597. Around that same time, he began experiencing one to two
migraine headaches each week. Tr. 53–54, 650. Mr. Seward aggravated his back
pain when he slipped on ice and fell while exiting his work vehicle on February 21,
2011. Tr. 522, 597. The fall also resulted in injuries to his shoulder, neck, hip, and
knee, especially on the right side. Mr. Seward underwent physical therapy and
returned to light duty by April. Tr. 373–78. A few months later, he was back at
work full-time performing his normal job. Tr. 395. Mr. Seward stopped working on
October 15, however, because he thought his ailments were too debilitating. Tr. 216,

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266, 473. On October 20, Mr. Seward presented to urgent care complaining about
pain in his lower back and right leg and requesting a medical excuse from work. Tr.
473–80. The examining physician prescribed pain medication but refused to provide
Mr. Seward a work slip, noting that there was no medical basis for being completely
off work at that time. Tr. 479–80.
Mr. Seward never returned to work. Instead, in February 2013, he applied for
disability insurance benefits and supplemental security income, alleging that he
became disabled on October 15, 2011, his last day at work. Tr. 216, 223. Mr. Seward
asserted that he was unable to work due to tendonitis in his right shoulder, a
degenerative right knee, degenerative pain in his back and neck, a tear in his right
hip, and migraine headaches. Tr. 266. After the SSA denied his applications
initially, Tr. 80–99, and upon reconsideration, Tr. 100–123, Mr. Seward requested a
hearing before an ALJ, see Tr. 140–41.
The SSA granted Mr. Seward’s request, see Tr. 144–64, and held an
administrative hearing on February 18, 2016, before ALJ Roxanne Kelsey, see Tr.
38–79. Mr. Seward was represented by an attorney at the hearing. Tr. 40. Mr.
Seward testified that he first experienced migraines in 2009, but they became more
severe after his fall at work in 2011. Tr. 53–54, 65. Mr. Seward did receive
compensation for that work-related injury, but his insurance lapsed when he
stopped working. Tr. 47–49. He continued seeing his primary care physician, paying
out of pocket, but didn’t get x-rays or seek follow-up treatment. Tr. 48–51. He also
had to put off surgery due to lack of insurance. Tr. 63.

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Mr. Seward further testified that, at the time of the hearing he was having
between two and four migraines each week, each lasting for two to six hours, Tr. 47,
and experiencing significant pain (an 8 or 9 on a 10-point scale) in his back and
neck, right shoulder, right hip, and right knee, Tr. 55. Mr. Seward reported that
during a migraine, he would lie down in a dark room. Tr. 47. He also would lie down
to ease his other pain, spending about six hours each day lying down, Tr. 55–56; his
medications didn’t provide much relief, Tr. 54–55. Mr. Seward acknowledged not
taking his narcotic medication on a few occasions, claiming he was sick at the time
and unable to keep them down. Tr. 57–63.
At the time of the hearing, Mr. Stewart was living with his mother and stepfather. Tr. 51. He reported being able to do some basic household chores, Tr. 52–53,
but indicated that his parents did most of them, as well as the shopping and
cooking, Tr. 65. Mr. Seward stated that he had problems driving due to flare-ups in
his back or overall pain. Tr. 52. He also stated that he had difficulty sleeping at
night. Tr. 64. Mr. Seward estimated that, given his symptoms, he could lift and
carry less than twenty pounds, sit for about thirty minutes, stand for about thirty
minutes, and walk for less than two blocks. Tr. 56.
The ALJ also heard testimony from Kathleen Doehla, a vocational expert.
Ms. Doehla testified that a hypothetical individual with Mr. Seward’s age,
education, and work experience would not be able to perform his past work if he
were limited to a restricted range of light work. Tr. 67–74. He could, however, work
as an assembler, a spinning lathe operator, or an office helper. Tr. 74–75. According

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to Ms. Doehla, all work would be precluded if the individual were off-task thirty
percent of the workday, had three absences per month, were off-task for a few hours
twice per week, or had to lie down during the workday outside normal, scheduled
breaks. Tr. 75–77.
On April 12, 2016, the ALJ issued a decision applying the five-step evaluation
process, see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), that was unfavorable to Mr.
Seward. Tr. 15–37. The ALJ determined that Mr. Seward suffered from five severe
impairments but that he retained the RFC to perform a restricted range of light
work, including his past jobs and other jobs that existed in significant numbers in
the national economy. See Tr. 18–31. Mr. Seward requested review of the ALJ’s
decision by the SSA’s Appeals Council. Tr. 372. On May 8, 2017, the Appeals
Council denied Mr. Seward’s request for review, Tr. 1–6, making the ALJ’s decision
the final decision of the Commissioner of Social Security, see Loveless v. Colvin, 810
F.3d 502, 506 (7th Cir. 2016).
Mr. Seward filed this action on July 5, 2017, seeking judicial review of the
Commissioner’s decision under 42 U.S.C. § 405(g). Complaint, ECF No. 1. The
matter was reassigned to this Court after the parties consented to magistrate judge
jurisdiction. See Order, ECF No. 9; see also Consent to Proceed Before a Magistrate
Judge, ECF Nos. 4, 6 (citing 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73(b)). It is now
fully briefed and ready for disposition. See Plaintiff’s Brief, ECF No. 18; Defendant’s
Memorandum, ECF No. 20; Plaintiff’s Reply Brief, ECF No. 21.

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II.

Standard of Review
“Judicial review of Administration decisions under the Social Security Act is

governed by 42 U.S.C. § 405(g).” Allord v. Astrue, 631 F.3d 411, 415 (7th Cir. 2011)
(citing Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010)). Pursuant to sentence
four of § 405(g), federal courts have the power to affirm, reverse, or modify the
Commissioner’s decision, with or without remanding the matter for a rehearing.
Section 205(g) of the Act limits the scope of judicial review of the
Commissioner’s final decision. See § 405(g). As such, the Commissioner’s findings of
fact shall be conclusive if they are supported by “substantial evidence.” See § 405(g).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Moore v. Colvin, 743 F.3d 1118, 1120–21 (7th
Cir. 2014) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (other citations
omitted). The ALJ’s decision must be affirmed if it is supported by substantial
evidence, “even if an alternative position is also supported by substantial evidence.”
Scheck v. Barnhart, 357 F.3d 697, 699 (7th Cir. 2004) (citing Arkansas v. Oklahoma,
503 U.S. 91, 113 (1992)).
In reviewing the record, this Court “may not re-weigh the evidence or
substitute its judgment for that of the ALJ.” Skarbek v. Barnhart, 390 F.3d 500, 503
(7th Cir. 2004) (citing Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir.
2003)). Rather, reviewing courts must determine whether the ALJ built an
“accurate and logical bridge between the evidence and the result to afford the
claimant meaningful judicial review of the administrative findings.” Beardsley v.

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Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citing Blakes v. Barnhart, 331 F.3d 565,
569 (7th Cir. 2003) and Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001)). The
ALJ’s decision must be reversed “[i]f the evidence does not support the conclusion.”
Beardsley, 758 F.3d at 837 (citing Blakes, 331 F.3d at 569). Likewise, reviewing
courts must remand “[a] decision that lacks adequate discussion of the issues.”
Moore, 743 F.3d at 1121 (citations omitted).
Reversal also is warranted “if the ALJ committed an error of law or if the
ALJ based the decision on serious factual mistakes or omissions,” regardless of
whether the decision is otherwise supported by substantial evidence. Beardsley, 758
F.3d at 837 (citations omitted). An ALJ commits an error of law if her decision “fails
to comply with the Commissioner’s regulations and rulings.” Brown v. Barnhart,
298 F. Supp. 2d 773, 779 (E.D. Wis. 2004) (citing Prince v. Sullivan, 933 F.2d 598,
602 (7th Cir. 1991)). Reversal is not required, however, if the error is harmless. See,
e.g., Farrell v. Astrue, 692 F.3d 767, 773 (7th Cir. 2012); see also Keys v. Barnhart,
347 F.3d 990, 994–95 (7th Cir. 2003) (citations omitted).
III.

Discussion
Mr. Seward claims disability on account of migraine headaches and various

musculoskeletal impairments.
A. Migraines
Mr. Seward alleged that he suffered from migraine headaches multiple times
per week that required him to lie down in a dark, quiet room for several hours at a
time. The ALJ determined that Mr. Seward’s migraines constituted a severe

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impairment, Tr. 20–21, but she didn’t include a lie-down or off-task limitation in her
RFC assessment, Tr. 22–29. The ALJ provided a number of reasons for not believing
Mr. Seward’s subjective complaints of disabling symptoms and for not crediting the
opinions of his medical providers. Those reasons, however, lack support in the
record. See Cullinan v. Berryhill, 878 F.3d 598, 603 (7th Cir. 2017) (“A credibility
determination lacks support when it relies on inferences that are not logically based
on specific findings and evidence.”).
1. Supportability
The ALJ erroneously determined that the record did not support the severity
of Mr. Seward’s migraine symptoms. According to the ALJ, despite Mr. Seward’s
claim that his headaches began in 2009 and worsened following his slip-and-fall in
2011, the record showed minimal complaints of headaches prior to 2014. The
earliest mention of headaches appears to be January 2011, when Mr. Seward
sought treatment for nasal congestion. Tr. 505. Over a year later, Mr. Seward began
complaining about headaches to his primary care physician, David M. Kelly, M.D.,
Tr. 555, and treatment notes from May 2012 describe “worsening migraine
headaches” that were not alleviated by pain medication, Tr. 557. Though not
mentioned explicitly, Mr. Seward’s complaints seem to have persisted, as Dr. Kelley
eventually referred him to a neurologist. See Tr. 650. The record therefore shows
support for migraine headaches as early as Spring 2012.
Moreover, Mr. Seward provided a reasonable explanation for why he did not
seek treatment until 2014: his headaches got worse. Mr. Seward testified that in

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2009 he was experiencing two headaches per week, each lasting about three hours.
Tr. 53–54. By January 2014, however, his headaches were more frequent (three to
four each week) and more severe (lasting four to five hours). Tr. 650; see also Tr. 65.
The record after 2014 clearly supports Mr. Seward’s migraine symptoms. In
January of that year, Mr. Seward began seeing Amit Ray, M.D, complaining that
his headaches caused blurred vision and some dizziness, photophobia, phonophobia,
and visual scintillations. See Tr. 650–54. Dr. Ray diagnosed Mr. Seward with
migraines and prescribed him Imitrex. Mr. Seward reported that his symptoms did
not improve during follow-up visits with Dr. Ray in September 2014, December
2014, May 2015, and October 2015. See Tr. 655–77. In October 2015, Dr. Ray
completed a Migraine Headache Medical Assessment Form in which he diagnosed
Mr. Seward with intractable migraines without aura (a visual, sensory, motor, or
motor disturbance) and without status migrainosus (i.e., a migraine lasting more
than 72 hours). Tr. 1020–21. Dr. Ray indicated that Mr. Seward exhibited three to
four headaches per week and that, when Mr. Seward had a headache, he needed to
lie down in a darkened, quiet room for five to six hours to relieve his pain.1
Despite finding that the Migraine Assessment was consistent with Dr. Ray’s
treatment notes, the ALJ declined to adopt the opinions therein. The ALJ noted

Mr. Seward’s chiropractor, Daniel Hyatt, D.C., provided a similar migraine
assessment in February 2016. See Tr. 960. The ALJ reasonably assigned no weight
to Dr. Hyatt’s opinion because Dr. Hyatt did not treat Mr. Seward’s migraines and
because Dr. Hyatt last treated Mr. Seward in 2011. See Tr. 25 (citing Tr. 443–61).
Dr. Hyatt also was not an “acceptable medical source.” See Social Security Ruling
No. 06-3p, 2006 SSR LEXIS 5, at *3–4 (Jan. 1, 2006).
1

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that an MRI of Mr. Seward’s brain was normal, that Mr. Seward infrequently
sought treatment with Dr. Ray, and that Mr. Seward never sought emergency or
urgent care treatment for his headaches. Further, the ALJ found it suspicious that
Mr. Seward claimed to experience migraines 15 to 24 hours per week but no
treating source ever documented an observed migraine. Tr. 25–26.
The ALJ did not provide “good reasons” for rejecting Dr. Ray’s opinion
concerning the nature and severity of Mr. Seward’s migraine headaches. See 20
C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Social Security Ruling No. 96-2p, 1996 SSR
LEXIS 9, at *11 (July 2, 1996); Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir.
2010).2 First, the Migraine Assessment reflects that the MRI was used to rule out
other possible causes of Mr. Seward’s symptoms. See Tr. 1020. Thus, the negative
MRI was actually consistent with Dr. Ray’s migraine diagnosis. See Moon v. Colvin,
763 F.3d 718, 722 (7th Cir. 2014). Second, the ALJ failed to recognize that, aside
from one instance, Mr. Seward sought treatment as often as Dr. Ray suggested. See
Tr. 654 (4 months), 659 (3 months), 664 (6 months), 670 (6 months), 676 (6 months).
The ALJ’s lay observation concerning the frequency of treatment therefore was an
invalid reason for rejecting the treating source’s opinion. See Samuel v. Barnhart,
295 F. Supp. 2d 926, 953 (W.D. Wis. 2003). Third, the ALJ improperly suggested
that emergency care visits were necessary to prove disability and failed to

In early 2017, the SSA eliminated the “treating source rule.” See Revisions to
Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18,
2017). Those revisions, however, do not apply here because Mr. Seward’s claim was
filed before March 27, 2017. See id.; see also 20 C.F.R. §§ 404.1527, 416.927.
2

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appreciate Mr. Seward’s lack of insurance and inability to pay for treatment.
Finally, the fact that Mr. Seward did not have a headache at the precise time of his
doctor visits did not reveal anything about the frequency or severity of his
migraines. See Moon, 763 F.3d at 721. Indeed, Mr. Seward did not claim to have a
headache during any time (2/27/14, 4/29/14, 6/10/14, 6/30/14) he had a doctor
appointment while he was keeping his headache journal. Compare Tr. 343 with Tr.
729; Tr. 352 with Tr. 732; Tr. 358 with Tr. 736; Tr. 361 with Tr. 740.
2. Credibility
The ALJ also improperly assessed Mr. Seward’s character when she
concluded that he was seeking narcotic prescriptions for secondary gain rather than
pain relief. In February 2011, Mr. Seward was prescribed Vicodin after slipping and
falling at work. See Tr. 523. He subsequently entered into a pain management
contract with Dr. Kelley, who switched Mr. Seward to Percocet. See Tr. 553. Mr.
Seward remained on narcotic pain medication for several years. See Tr. 767. In May
2015, Mr. Seward’s urine drug screen was negative. See Tr. 766–71, 989–90. He
admitted to not taking his medications and claimed to have been sick for the last
two weeks and unable to keep anything down. However, Mr. Seward’s doctors
remained suspicious and recommended that he seek alternative pain management.
Tr. 777, 993–94. Based on this single failed drug test, the ALJ concluded that Mr.
Seward did not actually need narcotics to treat his pain. See Tr. 23–24, 26.
The ALJ’s determination that Mr. Seward was seeking narcotic prescriptions
for secondary gain is not supported by the evidence she cites. The ALJ indicated

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that the record showed “repeated blood tests showing the claimant does not have
narcotic pain medication in his system,” Tr. 23–24, but she mentioned only the
single negative screen from May 2015. The record does not reference any other
negative drug screens. Similarly, the ALJ inaccurately determined that “there was
no indication [Mr. Seward] actually took any of the prescribed medications he
filled.” Tr. 26. It can be inferred from the lack of another negative screen, in light of
years-long prescriptions, that Mr. Seward was taking his medications as directed.
See Tr. 583 (referencing “annual random urine drug screen”). Indeed, in June 2015,
Mr. Seward’s doctor noted that the recent drug screen was “appropriate.” Tr. 766.
The ALJ also unfairly faulted Mr. Seward for being unable to tell a straight
story regarding the negative drug screen. See Tr. 24. At the administrative hearing
in February 2016, the ALJ confronted Mr. Seward about “a couple” negative blood
tests. Tr. 57. The only negative screen Mr. Seward specifically remembered was the
one from May 2015. See Tr. 57–63. He explained that he had been sick at the time
and that he tried to take his medications but he was unable to keep them down.
That is the same explanation Mr. Seward offered at the time of the negative screen
nine months prior; his “story” was consistently straight.
The ALJ’s questioning at the hearing and attempt to reshape the record to fit
her decision shows that she did not believe Mr. Seward was a truthful person. Such
determinations, however, have no place in non-adversarial administrative
proceedings. See SSR No. 16-3p, 2016 SSR LEXIS 4, at *1 (Mar. 16, 2016)

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(clarifying that “subjective symptom evaluation is not an examination of an
individual’s character”).
3. Remedy
Overall, the ALJ failed to sufficiently justify why she did not believe Mr.
Seward’s testimony concerning the limiting effects of his migraine headaches and
why she did not credit the opinion of Mr. Seward’s treating neurologist. If Mr.
Seward did need to spend several hours multiple days each week lying down in a
dark, quiet room, then he could not have held a full-time job. See Tr. 75–77. The
Court has not determined that Mr. Seward’s testimony and Dr. Ray’s opinion must
be credited. Rather, the Court concludes that the ALJ failed to build an accurate
and logical bridge between substantial evidence and her conclusion that Mr. Seward
could perform a restricted range of light work after October 2011. See Moon, 763
F.3d at 723. If on remand the Commissioner determines that Mr. Seward’s migraine
symptoms and resulting limitations are supported by the record, then she should reevaluate the onset date of that impairment and how it impacted his ability to work.
B. Musculoskeletal impairments
Mr. Seward further alleged that he suffered from severe pain and limitation
due to injuries he sustained in the February 2011 slip-and-fall. The ALJ determined
that Mr. Seward had “severe” musculoskeletal impairments but found that the
record did not support the degree of symptoms he alleged. Specifically, the ALJ
reasoned, the record showed that Mr. Seward did not want to return to work after
the fall, that Mr. Seward suffered from no greater than “minimal abnormalities,”

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that Mr. Seward “was seeing his physicians with a secondary goal of obtaining
narcotic pain medications,” and that Mr. Seward could still perform his daily
activities. See Tr. 26–28.
In analyzing Mr. Seward’s musculoskeletal impairments, the ALJ never
discussed the Musculoskeletal Impairment Medical Assessment Short Form
completed by his treating chiropractor, Daniel Hyatt, D.C., in February 2016. Dr.
Hyatt opined that Mr. Seward’s impairments would cause him to be off task 30% of
the workday and that he would be half as efficient as the average worker. Dr. Hyatt
further opined that Mr. Seward could sit and stand/walk for about two hours in an
eight-hour workday, that Mr. Seward needed four unscheduled breaks during an
average workday, and that Mr. Seward would be absent from work three days per
month due to his impairments. See Tr. 958–59. According to the vocational expert,
such limitations would be work preclusive. See Tr. 75–76.
The Commissioner argues that the ALJ’s failure to address the
musculoskeletal parts of Dr. Hyatt’s opinion was harmless “because her decision
made clear that she discounted those opinions because Dr. Hyatt had not treated
Plaintiff for several years.” Def.’s Mem. 11 (citing Tr. 25). The Court respectfully
disagrees. The ALJ did mention Dr. Hyatt’s treatment relationship in the context of
his Migraine Headache Medical Assessment, but her decision contains no discussion
whatsoever of the Musculoskeletal Assessment. The Court is not convinced that a
five-year break in treatment alone is a good enough reason to wholly discount the
work-preclusive opinion of a treating source, especially given the ALJ’s finding that

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several of Mr. Seward’s musculoskeletal impairments were “degenerative.”
Moreover, given the issues identified above concerning Mr. Seward’s migraine
headaches, directing the Commissioner to also re-examine Dr. Hyatt’s
Musculoskeletal Assessment would not be “a waste of time and resources.” See
McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011).
IV.

Conclusion
For all the foregoing reasons, the Court finds that the ALJ erred when

assessing Mr. Seward’s migraine headaches and analyzing the musculoskeletal
opinions of his treating chiropractor. Based on this record, however, the Court
cannot determine whether Mr. Seward was disabled as of October 2011.
Accordingly, the Court concludes that it is necessary to remand this matter to the
Commissioner for reconsideration of the ALJ’s RFC assessment and, potentially,
her step-four and step-five findings.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Commissioner’s
decision is REVERSED.
IT IS FURTHER ORDERED that this action is REMANDED to the
Commissioner pursuant to sentence four of section 205(g) of the Social Security Act,
42 U.S.C. § 405(g), for further proceedings consistent with this Decision and Order.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment
accordingly.

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Dated at Milwaukee, Wisconsin, this 6th day of December, 2018.
BY THE COURT:
s/ David E. Jones
DAVID E. JONES
United States Magistrate Judge

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