Gwendolyn B. v. Saul
| Decision Date | 06 May 2021 |
| Docket Number | No. 20 C 3244,20 C 3244 |
| Parties | GWENDOLYN B., Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income under Titles II and Title XVI of the Social Security Act, 42 U.S.C. §§416(i), 423, 1381a, 1382c, over seven years ago. (Administrative Record (R.) 493-505). She claimed that she became disabled as of November 5, 2013, due to lupus, fibromyalgia, and arthritis. (R. 597). She is also obese, with a BMI ranging from 34.5 to 38, (R. 64, 1207). Over the next six years, there were three administrative hearings and two decisions by administrative law judges. Plaintiff's application was denied at every level of administrative review: initial, reconsideration, administrative law judge (ALJ), and appeals council. It is the most recent ALJ's decision that is before the court for review. See 20 C.F.R. §§404.955; 404.981. Plaintiff filed suit under 42 U.S.C. § 405(g) on June 1, 2020. The parties consented to my jurisdiction pursuant to 28 U.S.C. § 636(c) on June 9, 2020. [Dkt. #9]. Plaintiff asks the court to remand the Commissioner's decision, while the Commissioner seeks an orderaffirming the decision.
Plaintiff was born on November 27, 1969, and was almost 50 years old at the time of the ALJ's decision on May 3, 2019. (R. 493). She has an excellent work record, working steadily for 25 years following three years of military service in the Army. (R. 551, 557-58). She has two years of college (R. 598) and has worked in a variety of occupations, mostly in customer service. (R. 620). She last worked in December of 2013. (R. 144). Since then, she claims that she has flare ups of lupus and fibromyalgia that leave her bed-ridden for two or three months. (R. 145-146). But there is no evidence she's ever mentioned these dire consequences to her doctors.
This case has pinballed around the Social Security Office of Hearings and Appeals for at least six years. The record, at over 3600 pages long, had to be filed in six separate installments. The medical record starts in 2007, jumps to 2013, leaves off in 2015 and goes back to 2014, then to 2016 and 2017, and back to 2013. It continues on through thousands of pages in this fashion as though organized by a blackjack dealer shuffling decks at a casino. So, one has to sympathize with the attorneys. More than once during these proceedings, plaintiff's own counsel understandably complained that he was unable to find evidence in the record because there were so many pages (R. 56, 93, 98, 112, 115); that (R. 94).
But, it must be underscored, as the ALJs attempted to do at the administrative hearings, no matter the bulk of the plaintiff's medical record, it is the plaintiff's burden to prove she is disabled with medical evidence. See Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010); Eichstadt v. Astrue, 534 F.3d 663, 668 (7th Cir. 2008). That means that the claimant "bears the risk of uncertainty."Accord Scheck v. Barnhart, 357 F.3d 697, 702 (7th Cir. 2004); 20 C.F.R. § 404.1512(c) (). "It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so." Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987). Certainly, especially in the Seventh Circuit, see, e.g., Carradine v. Barnhart, 360 F.3d 751, 763-67 (7th Cir. 2004)(Coffey, J., dissenting), subjective complaints cannot be ignored. But, it remains incumbent upon a claimant for disability benefits to prove he is disabled with medical evidence. Castile, 617 F.3d at 927; Scheck, 357 F.3d at 702; Yuckert, 482 U.S. at 146, n. 5. It is up to the plaintiff's lawyer to sift through the record, even a massive one, and point that evidence out to the court. "[C]ourts do not have to scour the record or make a party's argument for it." Varlen Corp. v. Liberty Mut. Ins. Co., 924 F.3d 456, 460 (7th Cir. 2019). It remains an "advocate's job is to make it easy for the court to rule in his client's favor....". Dal Pozzo v. Basic Mach. Co., 463 F.3d 609, 613 (7th Cir. 2006).
Moreover, while plaintiff's doctors may report that she is suffering from fibromyalgia or lupus, that does not decide the topic of whether she can work. Diagnosis does not equal disability. Schmidt v. Barnhart, 395 F.3d 737, 746 (7th Cir. 2005); Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998). For example, while "[s]ome people may have such a severe case of fibromyalgia as to be totally disabled from working . . . most do not . . . ." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996). See also Hendricks v. Astrue, 2009 WL 648610, at *9 (S.D. Ind. 2009)(Hamilton, J.). What matters is the severity of the condition and how it limits a plaintiff's capacity to work based on clinical and/or laboratory findings. See Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008) ().
Given time following the administrative hearings and the filing of this case, plaintiff's counsel has now directed the court to the evidence he feels makes out his client's best case for disability. Harris v. Saul, 835 Fed.App'x 881, 885 (7th Cir. 2020); Summers v. Berryhill, 864 F.3d 523, 527 (7th Cir. 2017); Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir. 2007); [Dkt. #19, at 3-6]. Thus, the focus is on that evidence the plaintiff believes is integral to this review.
As just noted, the medical record goes back over seven years to early November 2013, when plaintiff sought treatment for joint swelling and pain that had begun three weeks earlier. (R. 919). Examination revealed tenderness to palpation of the hands and knees, but no other abnormalities. (R. 920). A week later, she was admitted to the hospital for two days to treat leg swelling and bilateral shoulder pain. (R. 870-874). She was having difficulty raising her arms above her head. (Id.). Grip was good, and there was no swelling. (R. 870). She had no problems with leg range of motion. (Id.). There was no tenderness or swelling. (Id.). A history of lupus was noted, along with the possibility of fibromyalgia. (871-72).
In January 2014, plaintiff saw her rheumatologist, Dr. Lichtenberg: gait was normal, and there was no swelling, and full range of motion in all joints except for shoulders, wrists, and hands, where there were signs of synovitis. (R. 887). Muscle strength was 5/5 throughout. (R. 887). The doctor found 12 tender points and assessed Plaintiff with lupus, myofascial pain, and anemia. R. 889. At a follow-up examination in March 2014, plaintiff had no complaints. (R. 1009). Strength, reflexes, and sensation were again normal throughout. Gait was normal, and there was a full rangeof motion in all joints. There was no synovitis or swelling, but there were some unspecified tender points. (R. 1010).
In April 2014, strength, reflexes, and sensation were normal throughout. (R. 1016). There were agin unspecified tender spots and valgus of the knee, but range of motion and gait were normal. (R. 1016). In June 2014, plaintiff sought treatment for a mild body rash. (R. 1060-61). She had no joint or muscle pain. (R. 1060, 1063). In September 2014, plaintiff sought treatment for generalized pain and pain in all joints on both sides of her body; degree was minimal. (R. 1044). Neurological and musculoskeletal exams were normal. (R. 1045).
In May 2015, plaintiff was treated for a splenic infarct, compromised blood flow to the spleen and was treated with Coumadin. (R. 2811). Five months later, when she presented to the supervising hematologist, she was found to be markedly anemic. (R. 2811, 2821). She was a little weak and had a little shortness of breath. (R. 2811). She responded to continued outpatient treatment, but, in February 2016, there was a recurrence of AIHA secondary to a lupus flare-up. (R. 3293). Another course of steroids was prescribed, and her doctor began a regimen of Rituoxan infusion, in mid-March, 2016. (R. 3293). Plaintiff responded well and her hemoglobin concentration was stable, though she was still experiencing fluctuating fatigue. (R. 3293).
In March 2017, plaintiff sought treatment at the VA with migraine headaches, reporting that she had endured them since childhood and still had one or two per week, sometimes lasting all day. (R. 1330). Exam was normal throughout; gait was normal and steady. (R. 1332). In June 2017, imaging of the brain revealed scattered small foci of T2 abnormal signal in the centrum semiovale mostly in the frontal regions, possibly due to microvascular ischemia. (R. 1228-1229).
Treatment records from the VA in November 2008 mention that plaintiff had also been assessed with mood disorder associated with her general medical condition. (R. 1156-1157). In July 2013, plaintiff's primary care physician restarted fluoxetine and alprazolam because of plaintiff's reports of uncontrolled anxiety (R. 824). In September 2015, plaintiff re-established mental health treatment at the VA for the first time since 2010. (R. 1390). She reported that despite taking prescription venlafaxine, she was still feeling depressed and her mood was exacerbated by financial and medical worries. (R. 1390-91). Psychological exam was normal. (R. 1392-93). In October 2015, plaintiff was diagnosed with anxiety, and was prescribed suloxetine. (R. 1160, 1172). In September 2016, plaintiff was prescribed buspirone. (R. 1172).
In January 2017, plaintiff underwent a psychiatric consult at the VA. (R. 1358). She reported...
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