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Reynolds v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

December 28, 2017

DAKOTA C. REYNOLDS, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER ON PLAINTIFF'S BRIEF IN SUPPORT OF REQUEST FOR JUDICIAL REVIEW

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff Dakota C. Reynolds appeals the Commissioner's denial of her application for Social Security benefits. She asserts that the ALJ erred at step 2 of the sequential analysis in failing to analyze her fibromyalgia. The Court agrees and therefore grants Reynolds' request for a remand under sentence four of 42 U.S.C. § 405(g) for further consideration.

         Reynolds also argues the ALJ erred in failing to follow the special technique in assessing her mental impairments and erred in determining her residual functional capacity. The ALJ did not apply the special technique when evaluating Reynolds' claim under the adult disability standards, so he should do so on remand. Once he considers Reynolds' fibromyalgia and reassesses her mental limitations, he will need to reconsider her residual functional capacity.

         II. Background

         Reynolds filed an application for supplemental security income on July 9, 2013, alleging disability beginning on January 1, 2010, due to several conditions including scoliosis, ADHD, anxiety disorder, bipolar disorder, and depression. [Filing No. 11-6 at ECF p. 15.] Reynolds was under the age of 18 when the application was filed and reached that age before the date of the decision on her application. Thus, the issues before the ALJ were whether she was disabled under the Social Security Act for the period before age 18 and whether she is disabled under the Act for the period beginning at age 18. For purposes of this appeal, however, Reynolds asserts error only with respect to the adult disability evaluation, and the Court does the same.

         At step one, the ALJ found that Reynolds has not engaged in substantial gainful activity since the application date. [Filing No. 11-2 at ECF p. 25.] At step two, he identified her severe impairments as degenerative disc disease of the lumbar spine, bipolar disorder, and anxiety. [Id. at ECF p. 26.] At step three, the ALJ decided that Reynolds does not have any impairment or combination of impairments that meets or equals a listing. [Id. at ECF p. 32.]

         Next, the ALJ assessed Reynolds' residual functional capacity, finding her capable of performing a restricted range of sedentary work. Among other restrictions, he limited her to lifting and carrying 10 pounds occasionally and 5 pounds frequently, standing and walking no more than 2 hours in and 8 hour workday, and sitting no more than 6 hours of an 8 hour workday, with a sit/stand option every 30 minutes. The ALJ also restricted Reynolds to “simple, routine, 1-2 step job tasks with little change in the work routine from day to day and only occasional superficial contact or interaction with coworkers and supervisors and avoidance of interaction with the general public.” [Filing No. 11-2 at ECF p. 33.] Reynolds had no past relevant work, so the ALJ proceeded to step five where he found, based on her age, education, work experience, and residual functional capacity, she was able to perform work that exists in significant numbers in the national economy. [Id. at ECF pp. 35-36.] He therefore decided that she was not disabled under the Social Security Act. [Id. at ECF p. 36.] The Appeals Council denied review, and this appeal followed.

         III. Standard of Review

         The Court must affirm the ALJ's decision if it is supported by substantial evidence and applies the correct legal standard. See Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). An ALJ may not ignore an entire line of evidence that is contrary to his findings. Rather, he must articulate at some minimal level his analysis of the evidence to permit an informed review. Zurawski v. Halter, 245 F.3d 881, 888 (7th Cir. 2001).

         IV. Discussion

         Reynolds contends that the ALJ erred in failing to properly analyze her fibromyalgia. She is correct: the ALJ wholly failed to address the evidence of Reynolds' fibromyalgia. The Commissioner argues that the evidence does not support a finding that Reynolds had “severe” fibromyalgia.[1] But in doing so, the Commissioner relies on evidence not relied on by the ALJ and fashions her own analysis of the evidence. This violates the Chenery doctrine. See, e.g., Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (emphasizing that the Commissioner violates the Chenery doctrine when she defends the ALJ's decision on grounds that the ALJ has not embraced) (citing SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943)). The ALJ wholly failed to acknowledge the evidence of Reynolds' fibromyalgia. Thus, the Commissioner's observations about the evidence will not be considered as a basis to affirm the ALJ's decision.[2]

         The evidence of Reynolds' fibromyalgia includes the following: During a December 2013 consultative exam with Mark Willage, M.D., Reynolds reported she has a “chronic ache all over” and at times the pain is “unbearable.” [Filing No. 11-9 at ECF p. 53]. On examining Reynolds' upper and lower extremities, Dr. Willage noted “[t]en of possible tender points.” [Id. at ECF p. 47]. His diagnoses included fibromyalgia and possible chronic fatigue syndrome and he noted that these conditions “cause [Reynolds] significant impairment.” [Id. at ECF p. 53]. He also noted that Reynolds reported she had been previously diagnosed with fibromyalgia and likely chronic fatigue syndrome within the last two months.

         Then in February 2014, Reynolds consulted with Konrad R. Kijewski, M.D., for pain management on referral from her treating physician. She reported pain in her head, neck, bilateral shoulders, upper back, mid back, and low back. [Filing No. 11-11 at ECF p. 64]. She stated that the pain was aching and constant, worsened with physical activity, and has increased since its inception. [Id.] On exam, Dr. Kijewski noted Reynolds had moderate tenderness in her neck, mild tenderness in her thoracic spine area, moderate to severe pain in her lumbar spine area, tenderness in her paraspinal muscles and sacroiliac joints, and multiple fibromyalgia points. [Filing No. 11-11 at ECF p. 66]. He assessed myalgia/myositis NOS, fibromyalgia, and anxiety, and prescribed Lyrica, which is used to treat fibromyalgia. [Id.] At treatment visits in subsequent months, Reynolds received a series of cervical and lumbar trigger point ...


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