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McHenry v. Berryhill

United States Court of Appeals, Seventh Circuit

December 26, 2018

Shannon E. McHenry, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.

          Argued November 15, 2018

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:16-cv-03425-MPB-WTL - Matthew P. Brookman, Magistrate Judge.

          Before Bauer, Kanne, and St. Eve, Circuit Judges.

          PER CURIAM.

         Shannon E. McHenry, a 49-year-old former hair stylist who suffers from a host of medical problems (both physical and mental), challenged the denial of her application for Social Security disability benefits. An Administrative Law Judge (ALJ) denied her application for disability insurance benefits after finding that, although she suffers from degenerative disc disease and fibromyalgia, she lacked sufficient medical evidence that the conditions were disabling, and that she was not credible about her limitations. The district court upheld the ALJ's decision. McHenry now appeals, contending that the ALJ erred by failing to have a medical expert review a consequential MRI report, by not accounting for McHenry's mental or social limitations in her Residual Functional Capacity (RFC), and by discounting McHenry's credibility. Because we agree with McHenry that the ALJ should have acquired a medical expert to review a consequential MRI report, we vacate the judgment and remand for further proceedings.

         I. BACKGROUND

         McHenry, then 45 years old, applied for Title II disability insurance benefits in 2013, alleging impairments that included degenerative disc disease, fibromyalgia, and depression. Her back pain started in 1990 after a car accident, and in 2005, an MRI of her lumbar spine showed "[m]ild disc space narrowing at Ll-2 and mild spondylitic spurring at L3-4." McHenry began regular treatment for back pain and sciatica. Despite her pain, she worked as a hair stylist until at least 2009.

         When she initially applied for disability benefits on December 8, 2013, McHenry alleged an onset date of January 1, 2009. After this application was denied, McHenry's oral request for an amended onset date of January 1, 2011-the date she alleged in her Title II disability application on December 11, 2013-was accepted by the ALJ at an administrative hearing on March 17, 2015. She was last insured to qualify for benefits on December 31, 2013. Because McHenry was required to establish that she became disabled before the date last insured to qualify for benefits, see Shideler v. Astrue, 688 F.3d 308, 311 (7th Cir. 2012), the relevant time period is from January 2011 to December 2013.

         In June 2011, McHenry began seeing a nurse practitioner, Jennifer Huisman. McHenry complained of back pain, stress, lack of sleep, and depression, and reported a history of fibromyalgia and chronic pain. She also told Huisman that she was working full-time and caring for her elderly mother. At this examination, Huisman observed that McHenry was diffusely tender at 16 of 18 trigger points, but that she did not appear to be in acute distress. She had a steady gait, no limitations in movement, full muscle strength, and normal reflexes.

         Over the next two years, McHenry was examined eighteen times by Huisman and another nurse practitioner. During these exams, McHenry exhibited a steady gait, normal reflexes, normal muscle strength, and negative straight-leg raising tests. In August 2013, close to McHenry's date last insured, she was "[t]alkative" and "[i]n good spirits." She walked steadily and had equal and symmetrical deep tendon reflexes. At a few exams, however, McHenry had numerous positive trigger points. And after McHenry traveled to Alaska for a month-long trip in November 2013, she experienced debilitating back pain that required her to lie in bed for a week. At her next medical exam, she reported that she felt she could no longer "keep a job." Her nurse practitioner at the exam noted that McHenry had difficulty getting down from the examination table.

         During the relevant period, McHenry's medical providers regularly treated her with a half-dozen medications at once. In July 2011, McHenry complained about the concentration-related side effects of these medications, which included feeling "loopy." Her medical provider noted in July 2011 that her methadone needed to be titrated to reduce sedation side effects (i.e., drowsiness). But physical examinations during the relevant period do not indicate that McHenry otherwise displayed significant side effects beyond not being able to drive or operate machinery. In June 2011, while on these medications, she told Huisman that she worked "full-time." One month later, she reported to Huisman that Prozac managed her depression symptoms. Huisman recorded in September 2011 that McHenry had "no problems w[ith] her meds." At this appointment, McHenry specifically denied "nausea, vomiting, or diarrhea." In November 2013, a month before the end of the relevant period, McHenry told nurse practitioner Vicky Owens that she "has always worked." Owens recorded that McHenry was "[t]aking her medications without any adverse effects."

         Dr. Bruce Ippel, a physician, began treating McHenry two months after the relevant period. From April 2014 to mid-June 2014, he observed that McHenry suffered from a limited range of motion and muscle weakness. She also tested positive (for pain related to disc disease) in a bilateral straight-leg raising test. An April 2014 MRI showed that McHenry had multiple impinged nerve roots in addition to spinal cord compression. On a form signed on December 5, 2014, Dr. Ippel wrote that McHenry's degenerative disc disease of the lumbar spine met the severity required in 20 CFR § 404.1520(d), Pt. 404, Subpt. P, App. 1, Listing 1.04A ["Listing 1.04A"]. He observed that McHenry had sensory loss (numbness and tingling). In February 2015, two years after the relevant time period, Dr. Ippel reported that her medications' side effects gave McHenry communication difficulties; cognitive problems; impaired judgment, decision-making, and memory; as well as confusion and drowsiness. Dr. Ippel opined that McHenry's debilitating condition dated back to June 2011.

         After the Social Security Administration twice denied benefits, McHenry requested an administrative hearing. There, before an ALJ, McHenry testified that she could no longer work because of her back pain, cubital tunnel syndrome, sciatica, pinched nerve, spinal stenosis, and fibromyalgia. She described numbness in her fingers due to the pinched nerve in her shoulder blade, difficulties raising her left arm above her head, and numbness and tingling in her right leg. She said that she had moved in with her mother, who had to do "pretty much everything" for her, including her laundry. She could feed her cat, dust, and take a shower on her own, but she needed help washing her hair. She also needed help entering and exiting the tub to bathe. She said that she did not drive "at all" and had not since 2010. She also said that her medication (at that time, methadone three times per day, in addition to Norco, another opioid) made her "kind of loopy," as well as "sleepy" and "confused, dizzy."

         The ALJ asked a vocational expert to consider the work that would be available to a person of McHenry's age and experience who could do a full range of light work, with the following limits: occasional lifting and reaching overhead; frequent use of the upper extremities for handling, fingering, grasping, and feeling type of activities; occasional climbing of ramps and stairs, balancing, kneeling, and stooping; never crawling, crouching, or climbing ladders, ropes, or scaffolds; and alternating positions between sitting, standing, and walking once every forty-five minutes, while being able to maintain the alternate position for up to five minutes before resuming the ...


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