Bjornson v. Astrue

• Decision Date: 31 January 2012
• Docket Number: No. 11–2422.,11–2422.
• Citation: 176 Soc.Sec.Rep.Serv. 436,671 F.3d 640
• Parties: Christine BJORNSON, Plaintiff–Appellant, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

176 Soc.Sec.Rep.Serv. 436

671 F.3d 640

Christine BJORNSON, Plaintiff–Appellant,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant–Appellee.

No. 11–2422.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 2011.Decided Jan. 31, 2012.

James R. Schiff (argued), Law Office of Barry A. Schultz, P.C., Evanston, IL, for Plaintiff–Appellant.

Charles R. Goldstein (argued), Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Region V, Thomas P. Walsh, Attorney, Office of the United States Attorney, Chicago, IL, for Defendant–Appellee.

Before POSNER, MANION, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

This is an appeal from a decision by the district court affirming the denial of social security disability benefits by an administrative law judge, whose decision became final when the Social Security Administration's Appeals Council denied the applicant leave to appeal the Council's decision.

After an automobile accident in 1999 Christine Bjornson began having severe back pains. Three years later she was diagnosed with a “Chiari malformation,” which is a protrusion of brain tissue into the spinal canal. The malformation may have been caused by the accident, but probably not; the cause, however, is irrelevant. After three operations on her brain and spine in 2002, the vision and speech problems that the Chiari malformation had caused lessened substantially but she developed hydrocephalus—a buildup of cerebrospinal fluid in the brain—that required the installation of a shunt in her brain, to drain the fluid. It took three installations to place the shunt properly, the last in 2003. To alleviate the severe headaches caused or aggravated by what appears to have been a total of nine brain and spinal operations that she had undergone, she was prescribed a number of powerful pain medications, including OxyContin, Percoset, Lyrica, and methodone, often in conjunction.

She hasn't worked since the auto accident. She was last insured for social security disability benefits in June 2005 (when she was 34 years old), so only if she was disabled from full-time work by that date is she eligible for benefits.

At the first of two disability hearings she testified that since before her last-insured date she has had constant, excruciating headaches four or five days a week, which cause her to vomit when she stands up. She takes her pain medications when she wakes up and then goes back to bed for hours because she “could not do anything else because of her pain medications.” She also has severe back pain, aggravated by obesity, but it does not appear that the back pain is disabling in itself, though it compounds the effects of the headaches on her ability to work.

At the first hearing the administrative law judge decided that Bjornson should be examined by a physician hired by the Illinois Department of Human Services, which works with the Social Security Administration in determining eligibility for social security disability benefits. See Illinois Department of Human Services, “Disability Determination Services,” www. dhs. state. il. us/ page. aspx? item= 29979 (visited Dec. 30, 2011). This was done, and the physician, Dr. Muhammad Rafiq, reported that Bjornson “gets frequent severe headaches three to four times per week during which she cannot stand,” and that in an 8–hour day she can sit for an hour and a half, stand for an hour, and walk for half an hour—the rest of the time she has to lie down. The limitation on standing may be caused by her back pain as well as her headaches, but this is unclear from Rafiq's report.

Other doctors' reports note Bjornson's “chronic headaches, neck pain, intermittent visual problems, swallowing problems, slurred speech, and bilateral finger numbness.” Dr. Ira Goodman, a pain specialist who had treated Bjornson since 2003, noted her complaints of constant headaches and diagnosed her with (among other things) occipital neuralgia, a type of headache that involves piercing, throbbing, or “electric-shocklike” chronic pain in the neck and head. He also remarked her cervical spine pain, lower-back pain, a three-week stretch of nonstop headaches, and daytime somnolence because of her pain medications. The administrative law judge did not mention the diagnosis of occipital neuralgia.

All the evidence we've described thus far, except for Dr. Rafiq's, concerns diagnoses and treatments that Bjornson received before June 2005. The record also contains a good deal of evidence, besides Rafiq's, concerning Bjornson's diagnoses and treatments since then. None of this evidence indicates that her symptoms have worsened—that if she is disabled today, nevertheless she wasn't disabled before her last insured date. Yet the government's brief argues the irrelevance of all post-June 2005 medical data, an argument that both is factually mistaken and violates the Chenery rule, because the administrative law judge ruled that post-June 2005 medical data could be considered—and he was right, as there was no reason to believe that Bjornson's ability to work had declined since then. Ray v. Bowen, 843 F.2d 998, 1004–06 (7th Cir.1988); Potter v. Secretary of Health & Human Services, 905 F.2d 1346, 1348 (10th Cir.1990) (per curiam); Dousewicz v. Harris, 646 F.2d 771, 774 (2d Cir.1981).

One physician, Dr. Chukwuemeka Ezike, testified that while Bjornson has a history of chronic headaches attributable to the Chiari malformation and has been treated for “headaches, nausea, vomiting, and some parasthesia” (numbness or tingling in the limbs), he “did not find enough ... in the medical records” to justify Dr. Rafiq's opinion. He believed that her “pain was not well substantiated after 2003,” and he did “not find the evidence that says she cannot sustain [a] sedentary job.” His testimony goes on and on, but what we have quoted is the only intelligible portion of it that bears on Bjornson's ability to hold a full-time job. Elsewhere he did say that “because of the persistence of the symptoms and the fact that she was on high dose opiates, that's not in my professional opinion based on reasonable degree of medical certainty that physically she would be unable to sustain unemployment at that time.... [W]e do not have any evidence physically.” But we don't know what this passage means.

The rest of Dr. Ezike's testimony, which was continually and confusingly interrupted by the administrative law judge, is epitomized in the following exchange and seems, to the limited extent that it is even intelligible, irrelevant:

BY ADMINISTRATIVE LAW JUDGE:

Q Dr. Azekee [ sic ], are we in the general realm of what that chiari malformation is? Are we all, what?

A Yeah. I think you have the basic, you have the basic correct pathology of this kind. Just basically the brain is not supposed to be in the spinal canal. That's all.

Q Right.

A Any time you have any part of the brain which in the spinal canal then you describe as a chiari malformation of which you have four types. That's one and two times and type four. At one, of course, is the most common, which is what the patient had or had. And they usually, they try to first [INAUDIBLE] they don't have any symptoms or they do not have any abnormality. But when you have injuries, such as in this case, she has a lumbar top, or a lumbar idete surgery procedure that precipitated the, the brain to remove a little bit more lower in the canal, resulting in symptoms that she was experiencing. And at that point, most doctors will recommend that you have surgery to, to prevent further herniation down. The problem when brain goes down more into the canal, the spinal canal, of course, is smaller than the brain. So the more it goes down, the more you have strangulation.

Q Right

A The more you—

Q I got it.

A —strangulation—

Q I think I—

A —then it goes from [INAUDIBLE] deformity is smaller than the brain, and is pulling down. Then you have a filter will collect and cut off some of the ceiling. And the ceiling will not result in, most of the time, what it causes, it causes damage of the spinal tract, neck, in the columns, of the spinal tract, so that the most of the time it gives you symptoms of problem with [INAUDIBLE] syndrome, the lower extremity, the lower muscle nerve syndrome the upper extremities.

Q Okay. So it might be related to left arm weakness? I mean it's possible?

A Well, it's possible, but it is absolutely I think it's more if, if the left arm was [INAUDIBLE] when they get to, if as a result of the surgery, part of the malformation itself.

Q Okay. Well maybe, from the surgery. But something might have gone, happened, which would cause some left arm weakness. Right? Possibly?

A Many things are possible, Your Honor.

Q Well okay.

One turns with relief to a November 2008 evaluation by Dr. Goodman:

Christine Bjornson has been a patient of mine since October, 2003. She is being treated for chronic headache related to multiple surgeries for Chiari malformation as well as for low back pain related to degenerative disk disease, lumbar facet arthropathy and sacroiliitis with lower extremity pain related to lumbar radiculopathy. She has responded some to interventional treatments and medical management but remains unable to work primarily due to noticeable increases in pain with prolonged sitting or standing. The last MRI of the lumbar spine was performed in June 2006 and showed degenerative disk disease at both L4–5 and L5–S1 with disk protrusion. She has failed to gain significant improvement with IDET and is not willing to undergo a lumbar spinal fusion at these levels, which I think is appropriate. It is my opinion that she will need ongoing treatment of her pain with periodic interventional procedures, which do give benefit for up to months at a time, as well as pharmacological management. Even with these forms of treatment she experiences great difficulty caring for her family, and I think that functioning in a job on a...