WILLIAM E. DUFFIN, Magistrate Judge.
Plaintiff Dana Stenholtz alleges that she has been disabled since March 24, 2017, due to "bipolar disorder, anxiety, posttraumatic stress disorder, other mental illness, fibromyalgia, obesity, and diabetes[.]" (Tr. 13, 21.) In March 2017 she applied for supplemental security income benefits. (Tr. 255-63). After her application was denied initially (Tr. 128-43) and upon reconsideration (Tr. 144-59), a hearing was held before an administrative law judge (ALJ) on March 20, 2018 (Tr. 43-81). On May 15, 2018, the ALJ issued a written decision concluding Stenholtz was not disabled. (Tr. 13-34.) The Appeals Council denied Stenholtz's request for review on July 10, 2018. (Tr. 1-3.) This action followed. All parties have consented to the full jurisdiction of a magistrate judge (ECF Nos. 4, 7), and this matter is now ready for resolution.
In determining whether a person is disabled an ALJ applies a five-step sequential evaluation process. At step one, the ALJ determines whether the claimant has engaged in substantial gainful activity. The ALJ found that Stenholtz "has not engaged in substantial gainful activity since March 24, 2017, the application date[.]" (Tr. 15.)
The analysis then proceeds to the second step, which is a consideration of whether the claimant has a medically determinable impairment or combination of impairments that is "severe." 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment is severe if it significantly limits a claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1522(a). The ALJ concluded that Stenholtz has the following severe impairments: "fibromyalgia, obesity, bipolar disorder/depression, and anxiety disorders (including generalized anxiety disorder and posttraumatic stress disorder)[.]" (Tr. 16.)
At step three the ALJ is to determine whether the claimant's impairment or combination of impairments is of a severity to meet or medically equal the criteria of the impairments listed in 20 C.F.R. Part 4, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 416.1526, 416.920(d), and 416.926) (called "The Listings"). If the impairment or impairments meets or medically equals the criteria of a listing and also meets the twelve-month duration requirement, 20 C.F.R. § 416.909, the claimant is disabled. If the claimant's impairment or impairments is not of a severity to meet or medically equal the criteria set forth in a listing, the analysis proceeds to the next step. The ALJ found that Stenholtz "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments[.]" (Tr. 18.)
In between steps three and four the ALJ must determine the claimant's residual functional capacity (RFC), "which is [the claimant's] `ability to do physical and mental work activities on a regular basis despite limitations from her impairments.'" Ghiselli v. Colvin, 837 F.3d 771, 774 (7th Cir. 2016) (quoting Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014)). In making the RFC finding, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 C.F.R. §§ 404.1529, 416.929; SSR 96-4p. In other words, the RFC determination is a "function by function" assessment of the claimant's maximum work capability. Elder v. Astrue, 529 F.3d 408, 412 (7th Cir. 2008). The ALJ concluded that Stenholtz has the RFC
(Tr. 20-21.)
After determining the claimant's RFC, the ALJ at step four must determine whether the claimant has the RFC to perform the requirements of her past relevant work. 20 C.F.R. §§ 404.1526, 416.965. Stenholtz's past relevant work was as an instructor and administrative assistant. (Tr. 33.) The ALJ concluded that Stenholtz "is unable to perform any past relevant work[.]" (Id.)
The last step of the sequential evaluation process requires the ALJ to determine whether the claimant is able to do any other work, considering her RFC, age, education, and work experience. At this step the ALJ concluded that, "considering [Stenholtz's] age, education, work experience, and [RFC], there are jobs that exist in significant numbers in the national economy that [she] can perform." (Tr. 33.) In reaching that conclusion, the ALJ relied on testimony from a vocational expert, who testified that a hypothetical individual of Stenholtz's age, education, work experience, and RFC could perform the requirements of occupations such as a document preparer and sorter. (Tr. 34.) After finding that Stenholtz could perform work in the national economy, the ALJ concluded that she was not disabled. (Id.)
The court's role in reviewing an ALJ's decision is limited. It must "uphold an ALJ's final decision if the correct legal standards were applied and supported with substantial evidence." LD.R. by Wagner v. Berryhill, 920 F.3d 1146, 1152 (7th Cir. 2019) (citing 42 U.S.C. § 405(g)); Jelinek v. Astrue, 662 F.3d 805, 811 (7th Cir. 2011). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017) (quoting Castile v. Astrue, 617 F.3d 923, 926 (7th Cir. 2010)). "The court is not to `reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment for that of the Commissioner.'" Burmester v. Berryhill, 920 F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 539 (7th Cir. 2003)). "Where substantial evidence supports the ALJ's disability determination, [the court] must affirm the [ALJ's] decision even if `reasonable minds could differ concerning whether [the claimant] is disabled.'" L.D.R. by Wagner, 920 F.3d at 1152 (quoting Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008)).
Stenholtz argues that the ALJ erred (1) in evaluating her statements concerning the intensity, persistence, and limiting effects of her symptoms; and (2) in evaluating and giving little weight to the opinions of Lauren Bremberger, M.D., Carmen Kosicek, NP, and Arriann Tauer, MS, LPC. (ECF No. 12.)
In making his RFC determination, the ALJ must engage in a two-step process to evaluate a claimant's symptoms. First, the ALJ "must consider whether there is an underlying medically determinable physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms, such as pain." SSR 16-3p, 2017 WL 5180304 at *3; see also 20 C.F.R. § 416.929. "Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual's symptoms is established, [the ALJ] evaluate[s] the intensity and persistence of those symptoms to determine the extent to which the symptoms limit an individual's ability to perform work-related activities. . . ." SSR 16-3p, 2017 WL 5180304 at *3. The ALJ's evaluation of a claimant's symptoms is entitled to "special deference" and will not be overturned unless it is "patently wrong." Summers v. Berryhill, 864 F.3d 523, 528 (7th Cir. 2017) (citing Eichstadt v. Astrue, 534 F.3d 663, 667-68 (7th Cir. 2008)).
After considering the evidence in the record, the ALJ found that "the medical evidence documented [Stenholtz's] fibromyalgia, obesity, bipolar disorder/depression, generalized anxiety disorder, and posttraumatic stress disorder." (Tr. 25.) However, "[a]s for [Stenholtz's] statements about the intensity, persistence, and limiting effects of her symptoms, [the ALJ found that] they are inconsistent with the evidence as a whole." (Id.) The ALJ explained:
(Id.) (Internal citations omitted.) As such, the ALJ did not accept Stenholtz's testimony that her impairments are work preclusive.
Stenholtz contends that the ALJ improperly evaluated her statements concerning the intensity, persistence, and limiting effects of her fibromyalgia. (ECF No. 13 at 12-13.)
Stenholtz reported significant physical problems due to fibromyalgia, including constant pain all over the body. (Tr. 21.) (Citing Tr. 978.) "She described the pain as `burning, sharp, aching, throbbing, shooting and tingling." (Id.) (Citing Tr. 978.) "She asserted that prolonged activity such as sitting, standing, or walking made the pain worse." (Tr. 21-22.) (Citing Tr. 978.)
The ALJ found Stenholtz's statements concerning her fibromyalgia to be inconsistent with "the treatment records [that] showed that she exhibited reasonably good function during a number of examinations throughout the period at issue." (Tr. 22.)
(Tr. 22-23.) (Internal citations omitted.)
However, the Court of Appeals for the Seventh Circuit has recognized that "[t]he extent of fibromyalgia pain cannot be measured with objective tests aside from a triggerpoint assessment." Gerstner v. Berryhill, 879 F.3d 257, 264 (7th Cir. 2018) (citing Vanprooven v. Berryhill, 864 F.3d 567 (7th Cir. 2017)); Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) ("[I]t is difficult to determine the severity of [fibromyalgia] because of the unavailability of objective clinical tests."); (see Tr. 22 ("Dr. Tylici stated that [Stenholtz] had several abnormalities upon examination including more than 13 tender points above and below the waist. . . . Dr. Skamra observed that [Stenholtz] had 18 out of 18 tender points . . . .).)
As such, Stenholtz's "relatively good function" during examination (i.e., normal muscle strength, normal gait, symmetrical reflexes, intact sensation, and no edema) is not substantial evidence that her fibromyalgia is not disabling. See Sarchet, 78 F.3d at 307 ("Since swelling of the joints is not a symptom of fibromyalgia, its absence is no more indicative that the patient's fibromyalgia is not disabling than the absence of a headache is an indication that a patient's prostate cancer is not advance."); Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) ("What is unusual about [fibromyalgia] is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal. Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling. . . . . There are no laboratory tests to confirm the diagnosis.") (internal quotations, citations, and alterations omitted).
Since the ALJ misstated the evidence about the manner in which Stenholtz's fibromyalgia affected her ability to perform full-time work, remand is necessary. On remand, the ALJ shall reevaluate Stenholtz's statements concerning the intensity, persistence, and limiting effects of her fibromyalgia in light of the relevant evidence in the record.
Stenholtz also argues that the ALJ improperly evaluated her statements concerning the intensity, persistence, and limiting effects of her bipolar disorder. (ECF No. 12 at 6-12, 14-16.)
Stenholtz "reported various mental health symptoms including a depressed mood, feelings of helplessness or hopelessness, feelings of anxiety, anger outbursts, decreased energy, irritability, panic attacks, passive suicidal ideation, a history of manic episodes, `trauma flashes,' and low self-esteem." (Tr. 23.) She testified at the March 2018 hearing before the ALJ:
(Tr. 62-65.)
The ALJ found Stenholtz's statements concerning the intensity, persistence, and limiting effects of her bipolar disorder to be inconsistent with other evidence in the record, explaining:
(Tr. 23-25.) (Internal citations omitted.)
Stenholtz contends that the ALJ failed to account for the variable functioning caused by her bipolar disorder by crediting her "subjective statements to her providers that she [was] doing well but [rejecting] her subjective reports to her providers that she [was] doing poorly." (ECF No. 12 at 10-11, 14-15.) However, contrary to Stenholtz's contention, the ALJ found that, despite her alleged good days and bad days, Stenholtz consistently demonstrated normal functioning on mental status examinations. (Tr. 23-25; see, e.g., Tr. 512-13, 522-23, 533-34, 544-45, 555-56, 566-67, 575-76, 581-82, 612-14, 624-25.) In addition, as the Commissioner points out, "[w]hile [Stenholtz] lists records that she argues show waxing symptoms [(ECF No. 12 at 8-9)], a number of those records indicated [Stenholtz] reporting symptoms, but then demonstrating normal functioning on mental status examinations." (ECF No. 17 at 9; see, e.g., Tr. 505-13, 526-34, 537-45.) As such, the ALJ did not err in failing to account for Stenholtz's "variable functioning."
Stenholtz also contends that the ALJ's reliance on her mental status examinations is misplaced because "Stenholtz'[s] functioning when with a trained mental health professional with whom she has a long-term, therapeutic relationship is hardly evidence as to what her functioning would be like in a full time, competitive work environment[.]" (ECF No. 12 at 15-16.) However, the ALJ gave "great weight" to the opinions of stateagency psychological consultants Drs. Esther Leferve and Stephen Kleinman, both of whom are highly qualified experts in Social Security disability evaluation, 20 C.F.R. § 416.913a(b)(1), and who opined that, despite Stenholtz's impairments, she is capable of performing full-time, competitive employment. (Tr. 26-27, 138-41, 154-58.) As such, the ALJ's reliance on Stenholtz's mental status examinations was not misplaced.
Stenholtz further contends, and the court agrees, that the ALJ's reliance on her "lack of hospitalizations during the period at issue" is an error. (ECF No. 12 at 16.) "Courts have repeatedly stressed that an ALJ `must not draw any inferences about a claimant's condition from this failure [to pursue treatment] unless the ALJ has explored the claimant's explanations as to the lack of medical care.'" Eula M. v. Berryhill, No. 17 C 6669, 2019 WL 2173790, at *10 (N.D. Ill. May 20, 2019) (quoting Craft v. Astrue, 539 F.3d 668, 679 (7th Cir. 2008)); see SSR 16-3p, 2017 WL 5180304 at *9 ("We will not find an individual's symptoms inconsistent with the evidence in the record on this basis without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints."). On remand, the ALJ shall consider why Stenholtz has not sought treatment in a manner consistent with her complaints.
Stenholtz argues that the ALJ erred in giving "little weight" to her treating physician, Dr. Lauren Bremberger. (ECF No. 12 at 18-21.) In February 2018 Dr. Bremberger opined that Stenholtz would be off-task up to twenty-five percent of a typical workday; would be able to perform full time work on a sustained basis less than fifty percent of a typical workday; could continuously sit for thirty minutes and continuously stand for thirty minutes at one time; could sit and stand/walk for less than two hours in an eight-hour workday; could occasionally lift and carry ten pounds, rarely lift and carry twenty pounds, and never lift and carry fifty pounds; would, on average, be absent from work (or miss at least a couple hours of work) more than four days per month; and would need to elevate her legs at or above heart level for at least two hours during a typical eight-hour period. (Tr. 597-600.)
"For claims filed before March 2017, a treating physician's opinion on the nature and severity of a medical condition is entitled to controlling weight if it is well-supported by medical findings and consistent with substantial evidence in the record." Johnson v. Berryhill, 745 F. App'x 247, 250 (7th Cir. 2018) (citing 20 C.F.R. § 404.1527(c)(2); Brown v. Colvin, 845 F.3d 247, 252 (7th Cir. 2016)). "If an ALJ does not give a treating physician's opinion controlling weight, the regulations require the ALJ to consider the length, nature, and extent of the treatment relationship, frequency of examination, the physician's specialty, the types of tests performed, and the consistency and supportability of the physician's opinion" to determine how much weight to give the opinion. Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (citing 20 C.F.R. § 404.1527(c)(2)). While "[a]n ALJ must offer good reasons for discounting a treating physician's opinion" Campbell v. Astrue, 627 F.3d 299, 306 (7th Cir. 2010) (internal quotations and citation omitted), courts will uphold "all but the most patently erroneous reasons for discounting a treating physician's assessment." Stepp v. Colvin, 795 F.3d 711, 718 (7th Cir. 2015) (citing Luster v. Astrue, 358 F. App'x 738, 740 (7th Cir. 2010)).
The ALJ gave "little weight" to Dr. Bremberger's opinion, explaining in part:
(Tr. 28-29.) (Internal citations omitted.)
As discussed above, the ALJ misstated the evidence about the manner in which Stenholtz's fibromyalgia affected her ability to perform full-time work by relying on her "reasonably good function" on examination. On remand, the ALJ shall reevaluate Dr. Bremberger's opinions in light of the relevant evidence in the record. If the ALJ decides that Dr. Bremberger's opinions are not entitled to controlling weight, he shall give "good reasons" supported by the record for discounting them.
Stenholtz also argues that the ALJ erred in giving "little weight" to the opinions of her nurse practitioner, Carmen Kosicek, and her licensed professional counselor, Arriann Tauer. (ECF No. 12 at 21-23.)
In February 2018 Kosicek opined that Stenholtz would need to lie down three or more hours during a typical eight-hour period due to fatigue or related symptoms; would have difficulties interacting with or working in proximity to others in a workplace setting; would be unable to consistently and independently leave her residence more than four days per month due to intrusive negative thoughts and self-doubt; would need unscheduled breaks two to three times a day due to crying, intrusive thoughts, panic/anxiety, paranoia, hallucinations/delusions, fatigue, and need to isolate; would be off-task more than thirty percent of a typical workday; would be able to perform work on a sustained basis less than fifty percent of a typical workday; would need extra supervision one to two times a day; and would, on average, be absent from work (or be tardy, need to leave work early, or need to leave the work station during the workday for two hours or more) more than four days per month. (Tr. 589-91.) Kosicek also opined that Stenholtz would be markedly limited in her ability to understand, remember, and apply information; markedly limited in her ability to interact with others; markedly limited in her ability to concentrate, persist, or maintain pace; and markedly limited in her ability to adopt or manage herself. (Tr. 592-93.)
Also in February 2018 Tauer opined that Stenholtz would need to lie down three or more hours during a typical eight-hour period due to fatigue or related symptoms; would have difficulties interacting with or working in proximity to others in a workplace setting; would be unable to consistently and independently leave her residence more than four days per month due to panic/anxiety symptoms and depression; would need unscheduled breaks two to five times a day due to crying, intrusive thoughts, panic/anxiety, paranoia, hallucinations/delusions, fatigue, and need to isolate; would be off-task more than thirty percent of a typical workday; would be able to perform work on a sustained basis less than fifty percent of a typical workday; would need extra supervision several (3+) times a day; and would, on average, be absent from work (or be tardy, need to leave work early, or need to leave the work station during the workday for two hours or more) more than four days per month. (Tr. 714-16.) Like Kosicek, Trauer also opined that Stenholtz would be markedly limited in her ability to understand, remember, and apply information; markedly limited in her ability to interact with others; markedly limited in her ability to concentrate, persist, or maintain pace; and markedly limited in her ability to adopt or manage herself. (Tr. 717-18.)
Although Kosicek's and Tauer's opinions are not entitled to controlling weight, the ALJ is still required to consider the 20 C.F.R. § 404.1527(c) factors in determining how much weight to give their opinions. SSR 06-3p. The ALJ gave Kosicek's and Tauer's opinions "little weight," explaining:
(Tr. 30-31.) (Internal citations omitted.)
Stenholtz faults the ALJ for noting that Kosicek and Tauer were not acceptable medical sources, arguing that the ALJ was not allowed to ignore those opinions simply because they were not acceptable medical sources. (ECF No. 12 at 22-23.) However, as the Commissioner points out, "the ALJ did not ignore the opinions of Ms. Kosicek and Ms. Tauer. Rather, the ALJ provided almost [a] full page of analysis on each opinion." (ECF No. 17 at 20.) In noting that Kosicek and Tauer were not "medically-acceptable sources," the ALJ simply found that their opinions were not entitled to any deference. See 20 C.F.R. § 404.1527(a)(2) ("Treating source means your own acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you.") (emphasis added); 20 C.F.R. § 404.1527(c)(2) ("When we do not give the treating source's medical opinion controlling weight, we apply the factors . . . .") (emphasis added). Therefore, the ALJ did not err in noting that Kosicek and Tauer were not acceptable medical sources.
The court finds that the ALJ provided good reasons supported by the record for discounting Kosicek's and Tauer's opinions. As such, the ALJ did not err in giving them little weight.
